Green v. Healthcare Services (Cal. Ct. App. - Aug. 31, 2021)

"Barbara Green (Barbara) filed this wrongful death action after her son Jeffrey Green (Green) jumped from the roof of drug rehabilitation treatment facility Anaheim Lighthouse (Lighthouse), and ended his life. Lighthouse appeals from the judgment following a jury verdict in Barbara’s favor. Specifically, it asserts the trial court committed reversible error by refusing to instruct the jury Green’s suicide was a superseding cause of harm . . . ."

You can probably figure out if the Court of Appeal reverses or affirms based on that opening sentence alone.  There's already been a jury trial.  The jury found that the rehab facility was negligent.  It's going to be darn hard to argue that someone's suicide is a superseding factor as a matter of law, or that a rehab facility doesn't have a duty of care all.

Net result:  Affirmed.  ("The jury found Casapu not negligent. The jury found Bishara negligent but determined his negligence was not a substantial factor in causing harm. The jury found Lighthouse negligent. It allocated the fault 65 percent to Lighthouse and 35 percent to Green. The jury awarded $1.7 million for past damages and $2.2 million for future damages.")

Jacqueline B. v. Rawls Law Group (Cal. Ct. App. - Aug. 27, 2021)

This is a personal jurisdiction case, something that I know a little bit about, having taught the subject in Civil Procedure for a quarter century or so.

On the merits, Section I of the opinion correctly cites the "Principles of Personal Jurisdiction," though one might have wanted to cite McGee in there as well given its close similarity to the present case.  (Rather than include merely a "cf" cite way later in the opinion.)  Reasonable people could disagree about whether Section II.A. of the opinion is right; namely, whether the defendant law firm here purposefully reached out to California during its legal representation of a California resident.

But Section II.B is definitely wrong.  If there's purposeful availment here, the lawsuit definitely "arises out or relates to" -- or has a "substantial connection with" -- those contacts with California.  The fact that the (allegedly crappy) work was done in Virginia, or that there was no actual lawsuit filed here yet, wouldn't matter.  The fact that the firm (allegedly) reached out to Virginia and solicited a client here definitely has a relation to the malpractice claim -- both causally (but for that relationship, there'd be no malpractice) as well as proximately.  After Bristol-Myers, the "substantial connection" test exists, and clearly is satisfied here.

Sez me, anyway.

People v. McDaniel (Cal. Supreme Court - Aug. 26, 2021)

Justice Liu authors this opinion, in which -- in 77 pages -- the California Supreme Court unanimously affirms Mr. McDaniel's conviction and death sentence.

But then Justice Liu also writes a concurrence to his own opinion -- an additional 30 pages -- in which he explains that he thinks the California's death penalty might have serious Apprendi problems.

That argument wasn't made in the present case.  But Justice Liu's opinion, "the 20-year arc of the high court’s Sixth Amendment jurisprudence raises serious questions about the constitutionality of California’s death penalty scheme."  So "[g]iven the stakes for capital defendants, the prosecution, and the justice system, I urge this court, as well as other responsible officials sworn to uphold the Constitution, to revisit this issue at an appropriate time."

That's a call to "this court" (i.e., his colleagues) to go along with him in a future case.  It's also a call for defendants sentenced to death (and their counsel) to make the argument in future cases; after all, Justice Liu's basically written your brief for you.  And, as a backstop, it's a call to the Governor and Legislature to pick up the baton as well -- just in case the courts feel constrained by precedent and/or the United States Supreme Court.

LeBrun v. CBS Studios (Cal. Ct. App. - Aug. 25, 2021)

Television studios are sophisticated, carefully run entities.  Particularly for popular shows like NCIS New Orleans.  So nothing like this could ever happen:

"LeBrun and Roublow are actors who were living in New Orleans, Louisiana . . . . who were chosen in a casting call . . . . [The producer of the show, Derek Wells] told them . . .  they would be acting in a scene depicting an armed robbery. Wells gave them black costumes, ski masks, and realistic-looking prop weapons that looked like high-powered automatic assault rifles and other firearms. Wells, his crew, and the actors drove in an unmarked van to Virani’s store, which was located on a busy commercial block. At the direction of Wells, LeBrun and Roublow jumped out of the van in their costumes, brandishing the prop weapons, and stormed into Virani’s store shouting lines Wells had instructed them to say . . . . A concealed camera that was located inside the store filmed the scene.

Unbeknownst to plaintiffs, no one from CBS or the show had obtained filming permits to shoot the scene, nor had anyone informed the local authorities or the neighboring businesses that they would be filming an armed robbery scene for a television show. They also failed to station a staff member outside the store to reassure neighbors or passersby that there was no actual robbery taking place. . . .

A neighboring business owner saw the unmarked van pull up and men in ski masks brandishing guns jump out and run into the store. Believing that Virani’s store was being robbed, the neighbor called 911 to report that an armed robbery was taking place. The SWAT team from the Chalmette Police Department responded to the scene within minutes. Officers broke down the door to the store and entered with their weapons drawn. . . ."

It's a wonder no one was killed.  Thank goodness.

As for the lawsuit, plaintiffs should have sued earlier.  The lawsuit's barred by the statute of limitations at this point.

But at least they weren't shot.

P.S. - I'm not sure why plaintiffs decided to be represented by a firm that bills itself as the best "criminal defense" firm available, but for whatever reason, it didn't work out.

Steinle v. United States (9th Cir. - Aug. 24, 2021)

Federal BLM ranger John Woychowski works in El Centro and is on vacation with his family in San Francisco, and (stupidly) parks his car on the Embarcadero at night with his luggage in full view.  To the surprise of no one, someone breaks into his car and steals his stuff.  Including but not limited to his BLM-issued Sig Sauer P239, which was in a backpack in the vehicle.

Four days later, Juan Francisco Lopez-Sanchez was sitting on a bench nearby and found Woychowski’s pistol, wrapped in a shirt or rag, near where he was sitting. He bent over and picked up the wrapped pistol; he fired it; and a bullet ricocheted off the ground, striking and killing Kathryn Steinle.  (You may perhaps recall these events; it was a big deal at the time.)

Ms. Steinle's parents sue, but the Ninth Circuit concludes -- correctly -- that whatever mistakes Mr. Woychowski made (and there were many) weren't the proximate cause of Ms. Steinle's death.  As Judge Graber notes, "[i]t is not known who stole the pistol, how many people possessed it in the four days between June 27 and July 1, who took the pistol out of the holster and wrapped it in a shirt or rag (or why they did so), or how the pistol came to be left near the bench where Lopez-Sanchez found it."  There are simply too many intervening (and potentially unkowable) events between the theft of the gun and Ms. Steinle's death to establish Mr. Woychowski's alleged negligence as its proximate cause.  On the merits, I can find no fault with Judge Graber's opinion.

But I'll add one thing.  It's common to describe events like these as "tragic."  Because they totally are.  But those words are nowhere in the opinion, nor is there any demonstrable sympathy for Ms. Steinle's family in the opinion rejecting their claims.

Maybe it's trite to do so.  Maybe it's totally unnecessary.  But these events were truly tragic.  So I'd have used the word and expressed the sentiment.  Because, yeah, I agree their lawsuit should be dismissed, but I'm nonetheless radically sympathetic to their plight.  So I'd say so.

Trite or not.

People v. Wycoff (Cal. Supreme Court - August 23, 2021)

I honestly don't know what to feel about this one.

It's a death penalty case, and in reality, absolutely none of it matters.  California's not going to execute anyone -- much less this guy -- in the medium- to long-term anyway.  Moreover, I don't really care that Wycoff (and I'm deliberately not using the "Mr.") gets his conviction and death sentence unanimously reversed and remanded.  There's zero doubt -- zero -- that in a retrial, he'd again be convicted and, most likely, sentenced to death.  The guy repeatedly confessed, the evidence against him was overwhelming, and at trial (in which he represented himself) he admitted everything and said he was proud of what he'd done.

So the guy's going to be locked up forever pretty much regardless.  He seems okay with that; in his totally f*ed-up head, he thinks that killing his totally innocent sister and her husband was just fine.  Because they were "evil" because they were liberals.

Okay, so the guy spends the rest of his life in an institution.  And I don't particularly care either whether it's a prison or a mental health facility (though I strongly suspect it'll be the former).  Neither are especially great places, and he'll have plenty of time to reflect on what he's done.  Not that it'll matter; he's so messed up that, even with treatment, he'll probably still think he's done the world a great service by (allegedly) killing the moral equivalents of Adolph Hitler.  (Yes, that was his actual "defense" at trial.)  Okay, so that's how you'll spend the rest of your life.  So be it.

So it's deeply, deeply hard to care for what happens here.  Notwithstanding the fact that it's someone's life at stake.

That's not my usual reaction to these types of cases.  (Though I understand and appreciate that many people have the identical reaction to pretty much any case in which the defendant is sentenced to death; they think the guy got what he deserved, so who cares?)

On the merits, the case just shows what an infinitely fine line there is between crazy, nutty, psycho, incompetent, evil, and just plain weird.  It's a multidimensional spectrum between all of these (related) poles.  This guy's a perfect example.  He's so comprehensively messed up that it's incredibly hard to know what to think of him.  Notwithstanding the fact that he's more than willing to share every portion of his totally whack job thought processes.

Here's an overly long snippet to help you get a sense of the guy (and yet it barely skims the surface of just how absurd this guy is):

"Julie and Paul Rogers were murdered in their home in El Cerrito in the early morning hours of January 31, 2006. Two of their children — Eric (age 17) and Laurel (age 12) — were also home at the time. . . . The children awoke to the sound of a struggle. Eric looked into the hallway and saw a large-framed person, [Defendant is 6' 5" and 300 pounds] dressed in black, wearing a motorcycle helmet. The person was struggling with someone, whom Eric took to be one of his parents. Eric went into Laurel’s room and called the police. When the noise of the struggle subsided, Eric and Laurel found their father, Paul, face down on the floor in the master bedroom, with a knife in his back. Paul told Laurel, “It was your uncle.” When Laurel asked if he meant her Uncle Ted, Paul nodded in agreement. [Defendant is "Uncle Ted"]

About this time, police arrived. In the master bedroom, they found Paul, still alive, lying on his stomach. He had a bump on his forehead and stab wounds in his back. One of the officers asked Paul who had attacked him, and Paul answered: “My brother-in-law Ted.” Paul was not able to give any more details before he died. Another officer followed a trail of blood down the hallway, through the kitchen, and out the sliding glass door. He located Julie near the swimming pool. She was bleeding profusely but breathing. She had a large wound to her abdomen, exposing her intestines. She was transported to the hospital, but efforts to save her life were unsuccessful.

Defendant was arrested a few hours after the murders, at a hospital near his home in Citrus Heights. At the time of arrest, he had a cut on his left hand and a large cut on his right leg. He also had various scratches and abrasions on his chin and hands. Items that matched debris at the murder site were found in his van and home. The next day, February 1, 2006, officers interviewed defendant after advising him of his rights. (See Miranda v. Arizona (1966) 384 U.S. 436.) The interview was recorded and admitted into evidence. In the interview, defendant confessed that he had committed the murders and also that he had planned them in advance. He explained that Julie and Paul “were really bad, rotten people.” Paul was a “communist” and “way over to the left.” Julie and Paul were lax parents who drank in front of their children, maintained a filthy home, and neglected their dogs. . . .

[Defendant told police that he] decided against using a gun for the murders, because he did not want the murders to be “another statistic that liberals could use” to argue in favor of gun control. Therefore, he chose to commit the murders with a knife, although he also bought a wheelbarrow handle. . . . He said: “I set out to make the world a better place. And I set out . . . , you know, to [¶] . . . [¶] fight against evil.” About killing people, he said, “It’s murder. It’s wrong,” but he added: “What I did, I don’t . . . see it as murder, you know. I see it as something, you know, a bunch of moral steps that had to be taken. [¶] . . . [¶] I felt that [Julie’s] life was getting more and more screwed up, and she was screwing up her kids. And she was screwing up everyone else, everything around her. And they had just turned into some really evil people. [¶] . . . [¶] I do believe in self-defense. And I think it’s okay to, you know, do something like this in self-defense.” He further explained: “This is something you do to somebody when they deserve it . . . . [H]e said: “Well, you know, I’m kind of happy because, you know, I guess you could call it leveling. I may have leveled some karma, you know. I stopped an evil person in this world that had too much power. [¶] I mean some people like, you know, Adolf Hitler, you know . . . if you could just kill Adolf Hitler before he did what he did.” . . .

[At trial] Defendant also said about Julie and Paul’s deaths: “I’m proud of that. I accomplished something.” He expressed anger that Julie did not work, though his parents had paid for Julie to go to college, whereas he worked, and he had paid his own way through trucking school. . . . About the poems he had written describing the murders, he argued that “it’s good to write songs and dance about tyrants getting beaten,” and he offered the Star-Spangled Banner as an example. Later in his argument, he said: “I do not deserve punishment for this. I deserve award and reward and to live a beautiful, peaceful life for this. You know, people need to look up at me and appreciate me for this . . . .” He also characterized himself as a heroic vindicator of good over evil. He said: “A favorite saying of mine is, The only thing necessary for the triumph of evil is for good men to do nothing. Well, I am a good man, and I sure as hell did do something.” . . .

[At the sentencing phase] Defendant said: “I’ve got a little bit of that serial killer in me. When something breaks, I enjoy it. I have fun with it. I videotape it.” Defendant also stated more than once that it was his prerogative to decide between what was moral and what was immoral, and that if someone wronged him, he was entitled to get even by stealing from that person or resorting to other forms of self-help . . . . The prosecutor also offered into evidence a video of defendant displaying a dead cat and describing the fact that he shot the cat twice and then beat it to death with a stick. In the video, defendant related that the cat belonged to a neighbor, Curtis, and defendant said it was the second of Curtis’s cats that defendant had killed. Later in the same video, defendant described “cat war one” and “cat war two,” which together included 17 “confirmed cat kills” and many other possible “cat kills.”

In addition, the prosecutor offered a video in which defendant lamented graffiti and garbage behind a strip mall near his house. In the video, defendant explained that he used the private road that accessed the loading docks behind the strip mall, and he was angry that, due to the graffiti and the dumping of garbage, the owner had installed gates at either end of the private road. Defendant expressed an intent to vandalize the gates. In his view, installing the gates punished innocent people who used the private road as a shortcut, and the better solution was for the owner to shoot and kill the immoral people who were vandalizing the area and dumping the garbage. He also said that he hated a particular woman who was feeding cats behind the strip mall, and he said he would kill her.

Finally, the prosecutor elicited from defendant that he saw himself as an executioner, not a murderer. Defendant said: “Should the executioner be executed? No. The executioner is doing a job.” Defendant also explained that he was well qualified to decide who should be punished and who should not be, because his mind was “not cluttered” and “not polluted” by education. The prosecutor closed his cross-examination with this question: “But you might kill somebody if they left trash behind the warehouse or fed cats, correct?” Defendant answered: “Well, I might do that, yes."

Messed up.  Totally.  Right?

The California Supreme Court holds that the trial court should have investigated this guy's competence to stand trial, and given everything in the opinion -- plus a doctor's report that said, yeah, the guy is in fact totally incompetent to stand trial -- you can totally see why.  The guy's a whack job.

At the same time, the guy's got an acute mental clarity about his strategy.  Everything he says about his decision to go to trial and to act like he did, in a lot of ways, makes total sense.  Weirdly.

Here's his thought process:

"Defendant told Dr. Good [the doctor who opined that he was incompetent] that counsel wanted to pursue an insanity defense, but defendant saw that as a “small victory,” one not worth pursuing. . . . Significantly, defendant did not give as much importance as his lawyers did to the goal of avoiding a death sentence. Defendant doubted that a death sentence would ever result in his execution, and if it did, he did not think the execution would occur for a long time. Pointing out that both his parents had died from cancer and that he was overweight, defendant thought he would be much more likely to live out his normal lifespan in prison than to be executed. He also felt that the evidence against him was very strong, and therefore there was not much chance of winning a major victory. Given those circumstances, he thought the dignity of handling his own defense and telling the world his story was more valuable to him than the indignity of submitting to the legal maneuvering of his lawyers, with chances of success uncertain.

Although defendant conceded to Dr. Good that it was “possible” that a jury would accept an insanity defense, he thought it was “very unlikely.” He argued that he was “too competent, too sane” to persuade a jury that he had committed the offenses while insane. In this regard, he pointed out that he had worked in difficult jobs all his life, that a successful insanity defense was statistically rare, and that the jury in his case would be death qualified (see Wainwright v. Witt (1985) 469 U.S. 412, 424), which in his view meant that it would be less likely to accept an insanity defense. Given all that, he thought it was a better strategy “to try to pick a jury that believes in vigilante justice” and then explain to the jury why he had killed Julie and Paul. He also commented that if he took the insanity route, he would be admitting that what he did was wrong and asserting that he was too insane to appreciate its wrongfulness. Defendant felt very strongly that what he did was not wrong."

That is -- bizarrely -- a crazily rational way to look at things, no?

I've already spent too much time thinking about this guy.  He ends up locked up somewhere for the rest of his life notwithstanding whatever happens on remand.  Maybe I hope they eventually medicate him and he figures out that what he did was horribly wrong.  Though maybe he'd just prefer to be a satisfied pig instead of a dissatisfied Socrates.  Who knows?  These types of grand moral questions seem outside of my incredibly limited realm of competence.

People v. Roberts (Cal. Ct. App. - Aug. 20, 2021)

Wow:  This is a long opinion.

After reading 110+ pages, I'm still not totally convinced that Ryan Roberts actually killed 13-year old Jessica Funk-Haslam.  (Justice Murray's opinion doesn't use Jessica's last name, but it should -- as I've said previously in connection with a different very long murder opinion by Justice Murray.  But he apparently continues to believe that murder victims shouldn't be named; so be it.)

Do I believe that Mr. Roberts was in the dugout and smoked cigarettes with the victim that night?  Yes.  I do.  His DNA is on the butts.  He was in the park earlier.  It doesn't matter that he denies it; I agree that he and the victim were together.  (I find it depressing that the 13-year old girl here got into an argument with her mother and "left the apartment . . . . [with] a pack of Camel cigarettes," since kids that age obviously should not be chain-smoking like the victim here did, but in context, that's the least of the sorrows here.)

But there's only a tiny bit of evidence that he actually was the one who killed her; a little of (maybe) his DNA on her belt buckle, and proof that he owned knives (Jessica was killed with one), but that's about it.  Plus plenty of evidence that suggests that someone else might have killed Jessica; allegedly, Jessica was supposed to be initiated into a gang the weekend before her death -- a gang who hung out at the park at which she was killed -- but skipped out on it.  Given all the facts contained in the 113-page opinion, I can see why it took the jury around a week to deliberate; it's super hard to find him guilty beyond a reasonable doubt.

But find him guilty they did.  And, yeah, he might well have done it.

I'm just not sure.

(Nor, perhaps not surprisingly, is his family.)

Ford v. Peery (9th Cir. - Aug. 18, 2021)

Judge VanDyke is unhappy with some dicta contained in a particular panel's habeas opinion, so he writes this dissent from the refusal to hear the case en banc.

Okay, fine.  He's got a point to make, and he makes it.  For twenty-plus single-spaced pages.

Maybe he's right, maybe he's wrong.  But when not even a single judge on the Ninth Circuit is willing to join your dissent, a brief pause might be in order.  Maybe you're the one taking this too hard, no?

At least worth thinking about.

Mendoza v. Fonseca McElroy Grinding Co. (Cal. Supreme Court - Aug. 16, 2021)

 A dissent in the California Supreme Court?!  What's the world coming to?!

Admittedly, it's not the most vitriolic one you'll ever read.  Nor about the biggest-ticket item in the universe.  Everyone agrees that you've got to pay a prevailing wage on public works projects; for example, here, ripping up a public road and replacing it.  The question is simply:  What about transporting the heavy machinery for that job from offsite locations to that work site?  Does that count?

Justice Corrigan's opinion says:  Nope.  Justices Cuéllar and Liu would say:  Yes.

Justice Cuéllar's dissent is only five pages, and is hardly hyperbolic.  It ends with the typical:  "So with respect, I dissent."

That said, its tone is not entirely deferential to the majority opinion.  Take this line, for example:  "[T]he majority narrows this statutory language beyond recognition."  Or this one:  "The majority [] breaks with this established authority without justification. It glosses over section 1772’s language . . . . It papers over this language, and in the process disapproves of long-standing authority providing a workable framework for applying it, on the basis of an implausible reading of the section’s exceedingly spare legislative history."

Not the most vociferous dissent in history, to be sure, but not entirely passive either.

(It's the same lineup in the other "prevailing wage" opinion issued today, BTW.)

People v. Raybon (Cal. Supreme Ct. - Aug. 12, 2021)

I said back in 2019 that I was "near certain" that the California Supreme Court would grant review of the underlying opinion, and grant review they indeed did.  But I didn't expect that this would be the result.

Could one have predicted the basic result that the Court issues today:  that, notwithstanding the passage of Proposition 64 (which generally legalized the possession of marijuana), it remains illegal to smoke weed in prison?  Sure.  The text of the statute is probably broad enough to facially decriminalize the thing, but given that no one probably intended that inmates be allowed to dope up in prison -- and that there's a part of the statute that says (albeit somewhat ambiguously in light of the underlying marijuana statutes) that it does not affect “[l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation" -- it's not surprising that the California Supreme Court holds that marijuana is still illegal in prison.

But what probably is surprising -- or at least what I (for one) didn't anticipate -- is the partial dissent of Justices Kruger and Cuellar.  Here's what they say:

"I agree with the majority that Proposition 64, fairly read, did not legalize cannabis possession in California’s prisons and jails, even as it either overrode or lifted state and local prohibitions on possessing small quantities of cannabis in most other places.

It is, however, a separate question whether, after Proposition 64, prosecutors may continue to charge in-prison cannabis possession exactly as they have been — that is, by choosing at will between two overlapping felony statutes, one of which carries steeper penalties than the other, and whose coverage is expressly tied to the scope of state-law prohibitions applicable outside of prison. The majority concludes that prosecutors are still permitted to choose (though the majority encourages them to make their choices wisely). (Maj. opn., ante, at pp. 30–31, 43–45.) Because I do not think the particular reasons the majority gives for extending this permission can be squared with the statutory text, and because the majority’s conclusions on this subject are unnecessary to resolve this case in any event, I do not join this portion of the majority opinion."

Interesting!

The whole "majority encourages [prosecutors] to make their choices wisely" thing stems from this part of Justice Groban's opinion for the Court:

"We are sympathetic to the view that section 11362.45(d) creates extreme disparity between how our legal system treats the possession of cannabis generally versus the possession of such a substance inside a correctional facility. That is also true of many other substances, including alcohol. (See Pen. Code, § 4573.8 [unauthorized possession of alcohol in prison constitutes a felony].) Some may well view an eight-year prison sentence for the possession of less than one gram of cannabis (one gram is the approximate weight of a single paper clip or a quarter teaspoon of sugar) as unduly harsh. . . . 

Our interpretation notwithstanding, prosecutors of course retain discretion whether a person found in possession of a small quantity of cannabis on prison grounds warrants felony treatment. (See People v. Lucas (1995) 12 Cal.4th 415, 477 [“Prosecutors have broad discretion to decide whom to charge, and for what crime. . . . ‘[A] district attorney’s enforcement authority includes the discretion either to prosecute or to decline to prosecute an individual when there is probable cause to believe he has committed a crime’ ”].) As defendants note, “there are already [prison] regulations in place . . . to punish and deter this conduct.” Cannabis possession in prison remains classified as a serious rules violation that is subject to a custody credit forfeiture of between 121–150 days (see Cal. Code Regs., tit. 15, § 3323, subd. (d)(7)), which effectively translates into an additional four to five month jail sentence. Such conduct can also result in substantial loss of visitation rights, including up to three months of no visitation and three additional months of no contact visitation for a first offense, with increasing loss of visitation rights with each consecutive offense. (See Cal. Code Regs., tit. 15, § 3315, subd. (f).) Moreover, depending on the nature of the defendant’s sentence, a rules violation involving the possession of cannabis could also impact parole eligibility. (See Cal. Code Regs., tit. 15, § 2281, subd. (c)(6) [circumstances tending to show unsuitability for parole for life prisoners include “Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail”].)

In cases where prosecutors do elect to pursue criminal punishment, they may consider a charge under Penal Code section 4573.8, which carries a lower sentence than Penal Code section 4573.6.20 (See ante, at p. 7; see also Whalum, supra, 50 Cal.App.5th at p. 5, rev. granted [“As cannabis is a drug and a controlled substance regulated in division 10 of the Health and Safety Code [citations], both statutes have been used to convict prisoners who possesses cannabis” (italics omitted)].) Alternatively, depending on the defendant’s circumstances, a prosecutor might recommend a disposition that does not require a prison term. (See Pen. Code, § 1170, subd. (h)(4) [“Nothing in this subdivision shall be construed to prevent other dispositions authorized by law, including pretrial diversion, deferred entry of judgment, or an order granting probation pursuant to Section 1203.1”].) Similarly, in cases where a defendant is convicted under Penal Code section 4573.6 and has a prior strike (as most of the defendants here did), the prosecution may move to dismiss the strike allegation, or the trial court may elect to do so on its own motion. (See Pen. Code, § 1170.12, subd. (d)(2), 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529–530.) Finally, in cases where the defendant is already serving a sentence for a prior conviction under Penal Code section 4573.6, the prosecution or prison officials might recommend that the court recall the sentence previously ordered and resentence the defendant in the interests of justice pursuant to Penal Code section 1170, subdivision (d). (See Cal. Code Regs., tit. 15, §§ 3076–3076.2.)"

The majority is satisfied -- from a policy perspective -- that these safety valves are sufficient.  Not so much for Justices Kruger and Cuellar.

Regardless, that's the law now.  In any event, everyone agrees:  No free weed -- nor freedom to ingest it -- in prison.

I did have one additional doctrinal reaction to the majority's opinion that I thought worth sharing.  One of the big reasons that the majority advances for why its interpretation is superior to that of the dissent is framed as an analysis of voter intent.  It's contained on pages 35 to 38 of the majority opinion.  I'll set forth the exact analysis at the end of this post (it's long), but basically, the majority says that although the dissent has a facially plausible reading of the statutory language, there's no way that an uneducated voter would be able to intelligently parse the statute in the legalistic manner advanced by the dissent.

This strikes me as an erroneous way to go about statutory interpretation in initiative and referendum cases.

I totally agree with Justice Groban that lay voters would be hard pressed to be as fancy as Justices Kruger and Cuellar.  But that's equally true, I suspect, for state legislators.  When interpreting a statute, I don't think that it should matter how the statute was enacted; e.g., through initiative or through the Legislature.  The text says what the text says in both cases.  And while I'm of the view (contrary to many in the conservative camp) that intent and purpose matter, I think you should analyze intent and purpose the same way in both cases.  Yes, your average voter is perhaps not as legally sophisticated as your average state senator.  But that shouldn't mean that a statute means one thing if passed through an initiative but another if passed by the Legislature.  Similarly, you can't (or shouldn't) make arguments that because "lay voters" enacted a particular statute, we should dumb down our statutory analysis or find it more implausible that such individuals could intend complicated linguistic analysis.  It shouldn't matter who passed a statute.  It means what it mean.  Do we sometimes reject interpretations that we conclude couldn't possibly have been intended?  Sure.  But we shouldn't say that a particular linguistic analysis is particularly unlikely by focusing -- as the majority opinion does -- on what a "voter" would perceive in light of their relative lack of legal sophistication.  Just say, if necessary, that anyone who drafted, passed or voted for such legislation was unlikely to intend such a result.

(Here's the full text of what I'm talking about from Justice Groban, with footnotes and citations often omitted.  Some of the paragraphs are over a page long; that's Justice Groban's doing, not mine.):

"The dissent disagrees, concluding that the language is, in fact, quite complicated. The dissent concludes that the voters were asked to journey through a phalanx of complex statutory cross-references and legal conclusions and, at the end of the journey, would have concluded that Proposition 64 might actually “amend, repeal, affect, restrict, [and] preempt” some laws prohibiting the possession of cannabis in prisons, but not others. The journey goes something like this: The dissent first contends that when voters were told Proposition 64’s key legalization provision would have no effect on in-prison possession offenses, they would have understood that language to mean the initiative would have no effect on convictions under Penal Code section 4573.8, but might have an effect on convictions under Penal Code section 4573.6. In the dissent’s view, voters would have come to this conclusion because they would have understood that section 11362.45(d)’s “no effect” clause references Proposition 64’s legalization provision (§ 11362.1), but not the amendments made to section 11357. They then would have understood that Proposition 64 removed section 11357’s previous general prohibition on cannabis possession and replaced it with more narrow prohibitions. They then would have realized that section 11357 is part of division 10 of the Health and Safety Code. And they would have noted that Penal Code section 4573.6 cross-references the prohibitions in division 10. (See Pen. Code, § 4573.6, subd. (a) [making it a felony to possess a “controlled substance[], the possession of which is prohibited under Division 10”].) Voters would then realize that because division 10 no longer contains a general prohibition on cannabis possession (it instead conforms to Proposition 64’s legalization provision by prohibiting a more narrow class of cannabis-related crimes involving persons under the age of 21 and quantities in excess of 28.5 grams), and because section 11362.45(d) fails to state that the amendments to section 11357 were not intended to affect prison offenses (it only cross-references section 11362.1’s general legalization prohibitions), cannabis possession might no longer qualify as a violation of Penal Code section 4573.6.

But the work of the voter would still not be done. From that, the voters would then deduce that whether Proposition 64 affects convictions under Penal Code section 4573.6 will ultimately depend on how courts interpret the phrase “the possession of which is prohibited under Division 10” (which the dissent declines to do here). More specifically, they would understand that if the courts ultimately side with the Fenton’s line of analysis (see ante, at pp. 28–29), then criminal convictions under Penal Code section 4573.6 would be prohibited under most circumstances, but if courts side with Taylor’s line of analysis (see ante, at pp. 29–30) criminal convictions under Penal Code section 4573.6 would remain unaffected by Proposition 64.

While the dissent has come up with an intricate interpretation, we do not think it is the most reasonable interpretation of the initiative. (Cite) Simply put, we are dubious that when voters were told Proposition 64’s new legalization provision would have no effect on laws regulating possession of cannabis in prison, they would have understood that language to require the complex series of deductions and statutory cross-references that the dissent’s interpretation is built upon. (See Valencia, supra, 3 Cal.5th at pp. 370, 371 [while voters are presumed to “ ‘study and understand the content of complex initiative measures’ ” “it is unreasonable to presume that the voters had such a ‘degree of thoroughness’ that they . . . analyzed various provisions using the acumen of a legal professional”].) We do not read the language, “Section 11362.1 does not amend, repeal, affect, restrict, or preempt . . . [¶] . . . [¶] . . . [l]aws pertaining to smoking or ingesting cannabis . . .” (§ 11362.45(d)) as meaning, as the dissent seems to read it: “We hereby (might) do away with the more serious criminal sanctions for cannabis possession in a penal setting under Penal Code section 4573.6, but people in prison may continue to be prosecuted and receive shorter sentences pursuant to Penal Code section 4573.8.” If Proposition 64 were truly intended to have no effect on possessory offenses under Penal Code section 4573.8, but potentially preclude possessory offenses under Penal Code section 4573.6, we would expect the text to say so in a less convoluted manner."

U.S. v. Wilson (9th Cir. - Aug. 11, 2021)

They're definitely nicer in Kansas.

Judge Kathryn Vratil is sitting by designation in the Ninth Circuit alongside Judges Smith and Ikuta.  She dissents from the panel's opinion, but in doing so, sets a new record for kind words and deference to the other judges.  She says:

"I express these views with hesitation and great respect for the district court and its well-intentioned efforts to deal with an avalanche of sentencing modifications that followed in the wake of Amendment 782. And as a senior judge with decades of experience in the sentencing trenches, I think twice before faulting a colleague’s contribution to the onerous process of dispensing justice in the face of massive and unrelenting caseloads. In the unique context of Mr. Wilson’s case, however, I believe that he has yet to receive a legally sufficient explanation why his sentence on Count 13 should not run concurrently with the sentences on Counts 1 through 11 or why his extraordinary post-conviction record does not warrant discussion, let alone entitle him to some degree of relief. Accordingly, while I appreciate the lengthy and thorough analysis of the majority opinion and concurrence, I am unpersuaded."

Pure Kansas.  As you might perhaps suspect from someone who was born in Kansas, went to college in Kansas (Go Jayhawks!), went to law school in Kansas, clerked for a federal judge in Kansas, practiced law in Kansas, was a state court judge in Kansas, and has been a federal judge in Kansas for nearly 30 years.

Kansas Kansas.

Meridian Financial Svcs v. Phan (Cal. Ct. App. - Aug. 10, 2021)

The second sentence of today's opinion reads:

"Over the span of a year, Yazdani made a series of investments totaling $5,079,000 in an international gold-trading scheme run by a loan broker, Lananh Phan, who promised him 'guaranteed' returns of 5 or 6 percent per month."

Oh boy.  I don't know how many times we have to say it:  If it sounds too good to be true, it is.

That's true even if (as here) the person you're investing with is "a Stanford-educated economist and licensed real estate broker" -- those guys (as here) can be fraudsters too.  That's true even if (as here) they say they're buying gold wholesale in one country and selling it at a profit in another -- that can (as here) be a total lie.  That's true even if (as here) the guys, at your request, purportedly give you "security" for your investment through liens on their property and the property of others -- those things (as here) can simply be forgeries and/or invalid.  That's true even if (as here), at your request, you make sure to go through a title company -- that can (as here) give you no protection at al.

It's a Ponzi scheme, and you end up down over $5 million.

Because -- to reiterate -- the whole thing is too good to be true.

Too.  Good.  To.  Be.  True.

Daly v. San Bernardino Board of Supervisors (Cal. Supreme Ct. - Aug. 9, 2021)

What an absolutely wonderful opinion by Justice Kruger.

The issue involves the distinction between prohibitory and mandatory injunctions.  As Justice Kruger cogently and concisely) explains:

"In California, a long-established set of rules governs stays of injunctive orders — that is, orders to do something or to refrain from doing something. What rule applies depends on which kind of order it is. An injunction that requires no action and merely preserves the status quo (a so-called prohibitory injunction) ordinarily takes effect immediately, while an injunction requiring the defendant to take affirmative action (a so-called mandatory injunction) is automatically stayed during the pendency of the appeal. In this case we consider how these rules apply to an order requiring a local legislative body, the San Bernardino County Board of Supervisors, to remove and replace one of its members."

Justice Kruger's analysis persuasively explains (1) why prohibitory injunctions are traditionally treated differently than mandatory injunctions, and (2) the inherent difficulties in deciding whether any particular injunction is prohibitory versus mandatory.  It's an incredibly well-written discourse on precedent and why the various cases come out the way they do -- alongside a concession that, in many of these cases, there are pretty good arguments for the thing coming out the other way.

But what's most impressive, in my mind, about Part II of the opinion is its subtle foreshadowing.  As I was reading Part II of the opinion, I often said to myself:  "Okay, this all makes sense, but it's also sort of silly.  Why not just make whether there's a stay depend upon the respective equities, as opposed to some arcane and difficult-to-apply distinction between prohibitory versus mandatory injunctions?"  An idea that Part II of the opinion never actually floats, but that naturally arises in the reader anyway.

At which point, Part III of the opinion says precisely that.  The unanimous opinion says that while none of the parties have asked the Court to abolish the distinction, it might make sense to do so, and suggests that the Legislature might want to take up the issue.  Perhaps moving to what some other states (and the federal system) have done:  just make the whole thing discretionary.

I've always thought that the most powerful way of making an argument -- as well as the most difficult -- is to advance a position in a way that makes the recipient (whether a judge, jury, or whomever) believe that s/he's come up with the right answer on their own.  That way you get maximum buy-in.

But even though that's always been my theoretical take on things, I'm seriously dubious of my ability to actually pull it off.  Like, ever.

Yet I think Justice Kruger does it here.  The structure of the opinion is masterful.  It makes total sense, and subtly leads the reader to exactly where she wants 'em to be.

Nicely done.

McKenna v. Beesley (Cal. Ct. App. - Aug. 6, 2021)

Sometimes a good reason to read the opinions from the Court of Appeal is simply so that you yourself won't get sued.

We all (probably) know that if you have reason to know that someone's unfit to drive and you nonetheless let 'em use your vehicle, you might be liable for any resulting accident.  That's common sense.

Fortunately, those situations don't come up that often.  And, when they do, you're not likely to violate the common law; e.g., to let an obviously intoxicated person drive your car.

But let's say that your son or daughter's friend asks if she can drive your car to pick 'em up.  You have no reason at all to believe that this person is unfit to drive.  Can you nonetheless be sued?

Today's opinion says:  Yes.  If you don't affirmatively ask them if they have a license.

There's a new statute, Section 14604 of the Vehicle Code, that requires an owner of a motor vehicle “to make a reasonable effort or inquiry to determine whether [a] prospective driver possesses a valid driver’s license before allowing him or her to operate the owner’s vehicle.”  The Court of Appeal holds that this statute applies to everyone, and that if you don't ask, a jury can find you liable for negligent entrustment on that basis alone.

That's true even if, as here, there's absolutely zero reason to believe that the person's unlicensed.  Here, a licensed contractor drove his own vehicle to the residence, and then borrowed the owner's car for a trip.  The owner (understandably) assumed that the guy had a license given that he both was a contractor and drove his own vehicle.  Turns out he didn't -- indeed, also had numerous DUIs etc.  But the owner had no reason whatsoever to suspect that.

Too bad.  Not asking the question is a sufficient basis for liability.  You've got an affirmative duty.  So better ask.

It's not that a jury has to find that if you don't ask, you're liable.  It's simply that they can.  That basis alone is sufficient to get past summary judgment and to support a jury verdict in plaintiff's favor.

The resulting lesson is a simple -- and eminently practical -- one:

Before you let someone use your car, remember to ask them:  "Do you have a current valid driver's license?"  Otherwise, you could be found liable for any subsequent accident.

Take it to heart.  Five seconds could save you five million.

In re Parks (Cal. Ct. App. - Aug. 3, 2021)

This opinion begins:  "Over 25 years ago, Joann Parks was convicted of murdering her three young children by setting a house fire that killed them."  She files a state habeas petition essentially saying that she's innocent and that new fire investigation science casts huge doubt about her conviction.

The Court of Appeal denies her petition.  It's a 57-page opinion.  There's a ton of detail in there.

After reading the whole thing, I can't say that I've concluded that Ms. Parks is innocent.  But I also can't say that I'm totally convinced she's guilty.  It might well be that she's been in prison for a quarter century for a crime she didn't commit.

But, again, maybe she did.  Super hard to tell.  Super hard to tell even beyond a reasonable doubt.

If she's innocent -- and was convicted of murdering her three kids when they in fact were killed in an accidental fire -- what a nightmare.

Ocean Wholesale Grocery Co-Op v. Bumble Bee Foods LLC (9th Cir. - Aug. 3, 2021)

I guess we now know which Ninth Circuit families eat tuna fish:  Judges McKeown, Wardlaw, Berzon, Owens, Miller, Collins, Bress, and Forrest.

It's all kind of silly, actually.  Plaintiffs bring a class action lawsuit claiming that the three major domestic producers of packaged tuna (Bumble Bee, StarKist and Chicken of the Sea) illegally conspired to fix prices for canned tuna.  Which basically everyone admits at this point.  (Those bastards.)  After the civil lawsuit was filed, the DOJ criminally charged the three defendants (as well as several of their executives), and basically all three businesses have at this point pled guilty and/or admitted to price-fixing.

So all we need to get relief for consumers is to certify a class and settle the thing.  The district court does the former; the defendants appeal; a panel opinion back in April says whoa, hold on, I'm not so sure that the case should be certified, and now the Ninth Circuit takes the thing en banc.

All of which is fine.

The fun thing about the order taking the case en banc, however, is that seven different active Ninth Circuit judges recuse themselves from the en banc vote:  the aforementioned Judges McKeown, Wardlaw, Berzon, Owens, Miller, Collins, Bress, and Forrest.  Now, it's possible, of course, that some of these judges own stock in (or are otherwise affiliated) with these tuna producers.  But far more likely, I think, is that they're members of the putative class; in other words, they (or their families) have previously purchased canned tuna.

Presumably to eat.

(Though I guess it's possible that it's for their cats.)

As a result, were the class action to go forward and be successful, presumably these judges could at some future point fill out a claim form, mail it in, and get back something like $25 or whatever the ultimate settlement will be.

In truth, though, I suspect that not a single one of 'em would actually do it.  It's a pain to fill out those forms -- and that's assuming you even know about the settlement (or feel like participating) in the first place.  Plus, it's not like some fancy-pants judge will likely take the time to fill out paperwork like that to receive a relative pittance, and even if they felt like it, I suspect that most of 'em would be totally fine to agree not to do so (Oh no! No $25!!) in return for being able to participate in an en banc process that might assist the rest of the tuna-eating public in getting some compensation.

But, nope, that's not the way the recusal process works.  If you're a member of the putative class, and if there are enough judges not in the class to permit the thing to go forward, you typically step aside.

Even if we all, in our hearts, recognize that there's zero chance that a judge would actually have his or her deliberative process actually affected by the prospect of a possible whopping $25 (or even $100!) recovery in a consumer class action.

But fear not.  The panel will be pure.  Pure non-tuna eaters.

(Oh, by the way, lest you think that Democrats eat more tuna than Republicans, the recusals here are split 50/50 between Democratic and Republican appointees.  Though I did notice that every single one of the recusals was from a resident of the West Coast -- not as much canned tuna eating in places like Arizona or Idaho, apparently.)

POSTSCRIPT - An informed reader thinks that some/many of the recusals may instead be the result of the attorneys on the case; e.g., from Munger Tolles.  Maybe, though it's a pretty big number.  My bet is that we're still looking at a nontrivial number of tuna eaters.

Maie v. Garland (9th Cir. - Aug. 2, 2021)

You see people get deported all the time for doing some fairly bad stuff.  By contrast, it's somewhat surprising that we're trying to kick this guy out of the country.

Bryan Maie was born in the Marshall Islands but came to the United States with his family over 30 years ago, when he was a child.  For those of you who don't know, the Marshall Islands have had (and have) a special status with the United States.  The Marshall Islands became independent in 1979, but we continue to have a Compact of Free Association with them; they use the dollar as their currency, we provide their defense, they use the FCC and the U.S. Postal Service, etc.  Significant for present purposes, citizens of the Marshall Islands also get to live, work and study in the United States without a visa.  As a result, there are plenty of people like Mr. Maie who've essentially been here all their lives.  Totally legally.

So after around 30 years of living in Hawaii, Mr. Maie gets convicted twice of petty theft, which involves stealing something worth less than $250.  Which, of course, one shouldn't do.  But in the wide pantheon of crimes, that's not the biggest deal in the universe.

But the United States seeks to deport him.

Mr. Maie represents himself before the IJ and BIA, both of which say that he's properly kicked out because he's been twice convicted of a crime of moral turpitude.  By contrast, he gets some law students from Hastings to represent him in his Ninth Circuit appeal (good job, Hastings Appellate Project), and successfully argues that he's not deportable because Hawaii’s fourth degree theft statute isn't categorically a crime of moral turpitude (under our convoluted jurisprudence regarding what that means).

Not that the Marshall Islands is a bad place.  But when you've lived in Hawaii all your life, I can see why you'd want to stay there.