People v. Holmes et al. (Cal. Supreme Ct. - Jan. 31, 2022)

My reaction to the first eight pages of this opinion can be accurately summarized by what I found myself spontaneously saying out loud as I reached the end of those few pages, which was:  "Jesus Christ.  This stuff should not be happening in our world." 

You can read the whole thing for yourself if you'd like, but here's the most depressing/disturbing part -- the part that made me speak to myself out loud.  I present it without commentary, though will mention that it follows a description of several other murders and/or attempted murders:

"Earlier that night, 14-year-old Reggie Crawford, 13-yearold Edgar Evans, and 13-year-old Stephen Coats attended a Halloween birthday party in Pasadena. Around 10:00 p.m., they left with Coats’s brother, Kenneth, and seven other boys.7 As they walked to the Coats home, a car carrying four or five Hispanic men sped by and turned from North Wilson Street (hereafter Wilson Street) onto Villa. Immediately afterward, four or five cars “packed full” of Black men drove down Villa toward Wilson Street. These men displayed P-9 gang signs and swerved near the curb as they passed by. One witness said three of these cars were dark-colored compacts, and another recalled that one was tan or grey. Holmes owned a grey Ford Tempo.

About three minutes later, three boys left the group of departing party goers. Crawford, Evans, and the Coats brothers continued walking down Wilson Street with Lawrence A., Lloyd S., A.A., and A.P. As they walked, Stephen and Kenneth’s mother, Deborah Bush, drove by and offered her sons a ride home, but they declined. Stephen joked that Bush drove so slowly he could get home sooner on foot. As they continued on, Stephen, Crawford, and A.A. sang a song called “Gangster Lean.” When the song ended, Kenneth heard a deep male voice say, “Now, Blood.”

Shots erupted. Several witnesses described what happened. Lloyd heard a single boom followed by approximately 20 gunshots and saw blue sparks pass by his feet. Initially he thought the noise and sparks came from “a pack of firecrackers.” He and A.A hid behind a brick barbeque. A.A. had been shot in the hand. Lawrence also hid when he heard the gunshots. When the firing stopped, he emerged and called out to his friends. No one responded, but a figure stood nearby. Gunfire resumed. Lawrence retreated to his hiding spot but was shot in the leg as he ran.

Kenneth also initially thought the gunshots were firecrackers. He and his friends kept walking until they noticed Evans holding his stomach. Evans cried, “Mama,” and began crawling away. Stephen then pushed Kenneth away and said, “I’m hit.” As he tried to hide, Kenneth saw the outline of two figures. One was taller and heavier and wore his hair in braids. The figures ran toward Orange Grove.

The three boys who had split from the group earlier ran back to their friends when the firing stopped. Crawford and Stephen lay unmoving. Kenneth screamed, “They shot my brother!” and “Let me to him.” Evans lay on some stairs, still calling for his mother. A.P. sat in a driveway, shot in the leg.

Lloyd knocked on a nearby door and asked to use the phone. He called his mother while the homeowner called police. Bush had heard the shots as she pulled into her driveway and ran back down the street toward her sons. When she arrived at the scene, she found two boys on the ground. Crawford had no pulse. Bush saw that her son Stephen “had a bullet in his head and . . . was already gone.” She never saw Evans. Kenneth ran up to her, crying “I want my brother. Please don’t let this be my brother.” Bush’s daughter arrived and covered Stephen’s body with a jacket. Paramedics and police arrived shortly thereafter.

Stephen sustained multiple gunshot wounds. Crawford was struck by three to five rounds and died from a shot to his chest. Evans died from a similar wound."

People v. Gerson (Cal. Ct. App. - Jan. 28, 2022)

One thing we teach students in Constitutional Law is that it's really, really hard to win an equal protection challenge to a statute if the underlying legal standard is rational basis review.  Essentially impossible; all the government has to do is to have its lawyers come up with a non-laughable post hoc argument for the way two different groups are treated that might potentially in some universe be true and, boom, the state wins.

So it's noteworthy that the Court of Appeal here -- in the midst of a lengthy opinion on numerous distinct issues -- holds that the statute at issue violates equal protection.

Not that the Court of Appeal is wrong; indeed, it's right (IMHO).  The statute says that when you're charged with a crime and can't make bail, one option is for the court (with your permission) to allow you to be placed in home detention -- with GPS monitoring, requirements that you not leave the residence, particularized exceptions, etc.  And when you're in that program (stuck in your house) before you've been convicted, if you ultimately get sentenced to prison, you get credit to your sentence for the days you were stuck in your house.

Makes sense.

But Mr. Gerson did make bail ($2 million worth!), and got the same conditions imposed on him as the statute requires for people who can't make bail and are released on home detention -- GPS, can't leave the home except for specified things, etc.  He says he should get custody credit too; it makes no sense to treat people who make bail but are then released and confined to their home any different than people who can't make bail but are then released and confined to their home.

And the Court of Appeal agrees with him.

Mind you, for Gerson himself, this only knocks a couple of years off his nearly 34-year sentence.

But still, it's an important decision overall.  Plus, even for Gerson, even two more years in prison is a bit deal.  Much better to be out.  (And, parenthetically, given the facts of the case -- which happened down here in San Diego -- Gerson is super lucky merely to be alive, rather than shot and killed by the police.)

The facts are also a fairly chilling lesson about what can happen when you find yourself way too deep in the whole hallucinogenic scene, my friends.

To repeat the mantra of a show from my youth (albeit in a somewhat different context):  "Lets get careful out there."

People v. Banner (Cal. Ct. App. - Jan. 21, 2022)

The facts of this case are incredibly straightforward; indeed, they're on video.  As Justice Snauffer says:

"The facts are simple. Banner entered a restaurant and waited in line several minutes behind multiple customers. Two employees helped each customer. When Banner reached the cash register at the front of the line, he produced a toy firearm and demanded money from the employee operating the register. That employee did not believe the firearm was real and refused to comply.

A second employee, standing near the register and across from Banner, ran away in fear. Banner subsequently left emptyhanded and was arrested nearby a short time later."

That's sort of a pathetic attempt at a crime, no?  Sufficiently pathetic that no one's really even harmed, even though I readily concede it's not fun, someone could theoretically have a heart attack, etc.

Mr. Banner has a criminal history, of course, so it's not like he's going to just be sentenced to probation.

Still, I was somewhat surprised that he got nine years in prison for this.  That's a fair piece of time for a not-so-impressive attempt at a robbery.  (Especially since it seems from the opinion like Mr. Banner has a fair amount of mental health issues; e.g., the court's statement that it "believed he did have mental health issues" and "the fact [Banner] was able to conduct the crime in the way he did does not mean that he does not suffer from a mental health issue. It may just mean that it was somewhat in abeyance at the time ….”

I suspect those underlying issues won't improve much during Mr. Banner's subsequent years in prison.

McDougall v. County of Ventura (9th Cir. - Jan. 20, 2022)

I'll simply reprint what someone e-mailed me about this opinion by Judge VanDyke:

"You see this? (I'm sure you have actually).  A concurrence to one's own opinion simply for the purpose of belittling your colleagues in a sarcastic and snarky way?"

Yes.  Unusual, indeed.

United Grand Corp. v. Stollof (Cal. Ct. App. - Jan. 19, 2022)

When you're an attorney and the Court of Appeal repeatedly mentions your name in its opinion, that's rarely a good sign.

The opinion's opening sentence gives you a sense of what the Court of Appeal's (understandable) attitude might be towards this case.  It reads: "In this sixth appeal arising from a simple unpaid rent case that began in 2014 . . . ."  Given that introduction, you know that the Court of Appeal is likely to be miffed at at least one of the parties; in particular, whomever it blames for the repeated litigation.

And the Court of Appeal seems to think that the culprit here is the appellant, United Grand Corporation.

Once you read the opinion, you can readily understand why.

In essence, Malibu Hillbillies and Marcie Stoloff allegedly fail to make some rental payments, and so get sued, and a default judgment is entered against them.  They eventually try to simply pay the judgment, but United Grand Corporation isn't having it, and instead wants them to pay the judgment plus "close to $2 million in attorney fees."  Which the trial courts are most decidedly not psyched about; indeed, "as a partial terminating sanction, the trial court issued an order striking United Grand’s prayer for attorney fees due to 'pervasive misconduct' by United Grand, its attorney or both."  Thereafter, "the trial court incorporated its March 17, 2017 ruling into the judgment and specifically found that United Grand’s attorney had committed misconduct."

Neither the trial court nor the Court of Appeal was shy about identifying that attorney: Cyrus Sanai. Whose name might perhaps be familiar to you from other litigation.  (For example, as today's opinion explains, "As detailed in our previous opinion, “Despite the essentially uncontested nature of the case, [UGC’s] attorney, Cyrus Sanai, continued to generate a large amount of attorney fees on the case.” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (United Grand).)"  

The Court of Appeal mentions Mr. Sanai's name around a half-dozen times and his role in this whole morass throughout.  As I said at the outset:  Never a good sign.

You can look up Mr. Sanai's disciplinary history here if you wish.  It's actually fairly depressing that the original charges against him were filed over eight years ago and are still simply pending.  The docket reflects a long, long history -- just like the present appeal.

In the end, though, today's opinion at least ends the civil matter.  Ms. Stoloff had to pay her $56,000 or so in unpaid rent etc., so she's out that money.  But today the Court of Appeal affirms the award to her of $165,000+ of her attorney's fees, plus awards her costs on appeal.

Which doesn't likely make her even, of course:  she still had to spend the money.

But it's nonetheless something; at a minimum, she might take it as a little bit more cosmic justice than she'd received previously.

Sanchez v. Westlake Svcs. (Cal. Ct. App. - Jan. 18, 2022)

This is sort of a harsh result, no?

At the end of a lawsuit, plaintiff/appellant filed a motion to recover her attorney's fees and it was denied, so she filed an appeal.  But she forgot to dismiss the lawsuit (as agreed), and eventually figured that out and dismissed it.

That's definitely a technical mistake, since the first notice of appeal was premature and after dismissal, she didn't file a second one.  But typically -- or at least often -- the Court of Appeal would exercise its quite considerable discretion under Rule 8.104 to hear the appeal.

Not here.  The Court of Appeal dismisses the appeal flat out.

You definitely see decisions like that from wig-wearing judges in the United Kingdom, where they're very particular about following the rules to letter.  Less so in America, and even less so in California.

But today's opinion is nonetheless a reminder that rules are rules, and sometimes judges care.  Deeply.

In re Terraza (Cal. Ct. App. - Jan. 11, 2022)

The concept of great literature -- books, even -- has gone a little bit out of fashion for the contemporary Tiktok/Instagram/Snapchat generation, but there are still people who've done some reading, if only old farts such as myself.  Plus, as a bonus, because we're apparently unable or unwilling to come up with new ideas, pretty much every book -- even comic books -- is now turned into a movie (or series of movies).

So it is, for example, with One Flew Over The Cuckoo's Nest.  (Though I admittedly date myself by reference to a book that came out in 1962 and movie from 1975.)

Anyway, if you've read the book, or seen the movie, or simply know about the history of electroshock therapy, you'll know that it's far from noncontroversial.  It is not depicted well in the book or movie.  At all.  There was a period of time in which it was most definitively viewed as barbaric to shoot electricity through someone's body and have them convulse in pain as a means of "curing" a mental illness.

If you thought that we didn't do electroshock therapy anymore, you were wrong.

If you thought that, at a minimum, we don't do electroshock therapy to people without their consent, you were also wrong.  As this opinion amply reveals.

The Court of Appeal holds that its okay to use electroshock therapy on prisoners without their consent, at least if certain procedures are followed.  It relies on a little-cited section of the Penal Code (Sections 2670 et seq.) passed in 1974.  We call it "organic therapy" nowadays to try to get rid of the stigma.  But it's the same thing ("The term organic therapy refers to . . . psychosurgery, including lobotomy . . . or other destruction of brain tissues, or implantation of electrodes into brain tissue [and] shock therapy, including but not limited to, any convulsive therapy. . . .").

I knew there were still people that did ECT.  I didn't knew we were still forcing it on people; in particular, people who were in institutions without their consent.

The more things change. . . . 

San Diego USD v. California (Cal. Ct. App. - Jan. 11, 2022)

It's a lawsuit by the San Diego Unified School District against the State of California, so there are big players involved.  It's also a suit that involves a fair piece of money; the litigation is about $1.5 billion in school funding that California provided to various school districts in 2017 and 2018.  California says that cash basically wiped out all of its (massive) financial obligations to the school districts, but the districts say that violates the California Constitution.  Hence the lawsuit.

San Diego Unified is a big-ticket client itself, but it's not just them suing; it's also San Jose Unified and a half-dozen other school districts as well.  In short, this is no small litigation.  California's represented by the Attorney General.  Who's representing the school districts?

According to the opinion, anyway, a sole practitioner.

That just seemed somewhat implausible to me.  How would a sole practitioner have the gravitas and/or pull to rake in such a big case involving such big clients?

The Court of Appeal lists the school district's attorney as "Christian M. Keiner for Plaintiffs and Appellants."  But when you look up Mr. Keiner, he's listed as with DWK in Sacramento, a mid-sized (50+) attorney firm.  Ditto when you look up the case information for the appeal; not only is Mr. Keiner listed as belonging to DWK, but so's his co-counsel, William Tunick (who's for some reason not on the caption).

A mid-size firm representing the districts makes much more sense than a sole practitioner.

Mr. Keiner and the school districts lose regardless.  But, as P.T. Barnum famously said, any publicity is good publicity, at least if they list you with the right firm."  (Quote edited for contemporary law firm practice.)

Lozano v. City of Los Angeles (Cal. Ct. App. - Jan. 7, 2022)

I'm glad these two police officers got fired.  I'm also glad the Court of Appeal affirms.

Did the officers do the most horrible things in the universe?  No.  They didn't kill someone, they didn't violate someone's civil rights, etc.  There are definitely worse officers out there.

But am I pleased that the officers seem to be far more interested in playing Pokemon Go while on the job rather than actual police work?  No, that does not make me particularly happy.  That's not what I want our police officers to be doing while they're working; particularly in a high-crime area.  I'd much rather our tax dollars pay for you to chase bad guys than to run around capturing fictional animated creatures on your mobile phone.

I'm also not pleased that these officers deliberately decided not to back up another cop when he requested assistance.  But perhaps most damning, to me, is the fact that they lied about all of the above -- and we're fairly confident of that, because there's video evidence from the camera in their police cruiser that shows the truth.  Lying is bad to begin with, but when we know you lie about even small things (like Pokemon Go), I suspect that you might well lie about much bigger things as well.

And police officers are far too much in a position of trust to have people there who we know lie about even tiny things.

So feel free to play Pokemon Go on your own time, or to not back up other people just because you don't like them (or feel lazy).

Just don't be a cop.

Mayes v. La Sierra Univ. (Cal. Ct. App. - Jan. 7, 2022)

You'd have bet on the plaintiff losing this appeal.  You'd have been wrong.

Plaintiff decides to watch her son pitch in a college baseball game, and sits on the grass on the third base side.  There's no admission charge or anything like that; it's a classic small-college field.  She gets hit by a foul ball and sues the school.

The trial court grants summary judgment based upon the primary assumption of the risk doctrine and the longstanding "baseball rule" -- a doctrine that essentially says that venues aren't liable for foul balls, since that's simply part of the sport, and aren't required to put up netting or things like that.

The Court of Appeal reverses.  It thinks that the University may well be liable.  And isn't shy about saying so; or criticizing precedent in this area as "out of step" with contemporary jurisprudence.

I wouldn't be surprised to see something like this from the California Supreme Court.  It's not bound by precedent.  But I was a bit surprised to see something so bold from the Court of Appeal.  Which is.

U.S. v. Jackson (9th Cir. - Jan. 4, 2022)

According to this opinion, here's where Ninth Circuit precedent currently -- and ostensibly correctly -- stands on the issue of "When the government lies to you to get you to plead guilty."

(1) When the government promises something in a verbal plea agreement, but then then allegedly breaks that promise -- and admits as much -- you're not bound to your part of the deal (e.g., your guilty plea).  The Supreme Court said so, pretty much unanimously.  (Some justices would make it a constitutional rule, some differ on the particular remedy, etc.)

(2) When the government promises something in a verbal plea agreement, but then allegedly breaks that promise -- and admits as much -- you're not bound to your part of the deal (e.g., your guilty plea), even if you said at the rote plea hearing (i.e., when you pled guilty) that there was no such promise. That's Ninth Circuit precedent.

(3) When the government promises something in a verbal plea agreement, but then allegedly breaks that promise -- but the government factually denies that it did so -- you are bound to your part of the deal (e.g., your guilty plea), if you said at the rote plea hearing (i.e., when you pled guilty) that there was no such promise.  That's yesterday's opinion by Judge Nguyen.

One of these things is unlike the other.  Logically, (3) is inconsistent with (1) and (2).  At least if, in fact, the government broke it's promise.

If, in fact, the government made and then broke its promise, you should be allowed to withdraw your plea (if you relied on the promise, anyway).  That's the lesson of (1) and (2).  And (2) shows that this is the rule even when, during the rote plea hearing, you said that there were "no promises" made to you.

By contrast, if, in fact, the government didn't make the alleged promise, you shouldn't be allowed to withdraw your plea.  That much is obvious.

Whether the government bothers to admit its breach shouldn't matter in the slightest.  What matters is what, in fact, it did.  If it made the promise and breached it, that's one thing.  If it either didn't make the promise or didn't breach it, that's another.  It's irrational for the rule to be "If the government breaks a promise and admits it, they're stuck to the promise, but if the government breaks a promise but tells a lie and denies it, they're not stuck to the promise.  A government of laws, not men, isn't supposed to work that way.

That's why we have factfinders.  To find the facts.  Defendant and his lawyers say the government made a promise.  The prosecution says it didn't.  Okay.  You have a hearing and find out who's telling the truth and then go from there.

You don't say:  "Oh, well, one side says one thing, another side says another, so whatchagonnado?"

At least not until cases like this one.

Pacheco v. United States (9th Cir. - Jan. 3, 2021)

To work, you gotta make sure to get your Depo-Provera shot every twelve weeks; otherwise, it's not effective, and you might get pregnant.

Yesenia Pacheco gets her first shot just fine; ditto for her second, third, and fourth shots.  No pregnancy.

When she goes in to get her fifth shot, however, the nurse gives her . . . a flu shot.  Totally unbeknownst to Ms. Pacheco.

Oops.

Big, big oops.

She gets pregnant.  But to make things even worse, she ultimately delivers a child who has a disability (PMG).

She then sues, and the tough doctrinal question is:  We know that you can sue for wrongful birth, but can you get extra damages because the child turns out to be disabled?

On the one hand, those are your actual damages, so you should get 'em.  On the other hand, those weren't the damages the defendant "expected" since the contraceptive had nothing to do with causing the disability.

The Ninth Circuit punts, and certifies the question to the Washington Supreme Court.