Fashion Valley Mall v. County of San Diego (Cal. Ct. App. - Aug. 17, 2009)

This one might be interesting only to people who live in San Diego and who shop at the Fashion Valley Mall. But since that's an appreciable fraction of my friends and neighbors, I'll mention it.

Otherwise, it's a boring, fact-specific tax case about whether a particular transaction resulted in the transfer of 50% versus 100% of the mall (and hence changed its tax basis). On the upside -- at least for residents of San Diego -- the County of San Diego wins in the Court of Appeal, which means several more million dollars per year in taxes from the owners of the mall.

So I figure all we gotta do is win another thousand or so of these cases and, poof, San Diego's budget problems will be solved. (On the downside, the law firm that structured this transaction in an unsuccessful attempt to avoid taxes is probably pretty unhappy today.)

Ransom v. MBNA Bank (9th Cir. - Aug. 14, 2009)

When you file for bankruptcy under Chapter 13, you get to deduct from your projected disposable income the "ownership costs" of a vehicle; e.g., lease or loan payments. But do those costs also include the costs of owning a vehicle you own free and clear?

This is an issue that's beguiled courts for several years, and on which the various circuits are intractably split. The Ninth Circuit joins the fray today, holding that the answer is "no".

Judge Trott ends his opinion in an interesting way, which I thought had some validity and which I'll share. He says:

"The 'correct' answer to the question before us, which the courts have been struggling with for years—at the unnecessary cost of thousands of hours of valuable judicial time—depends ultimately not upon our interpretation of the statute, but upon what Congress wants the answer to be. We would hope, in this regard, that we the judiciary would be relieved of this Sisyphean adventure by legislation clearly answering a straightforward policy question: shall an above-median income debtor in chapter 13 be allowed to shelter from unsecured creditors a standardized vehicle ownership cost for a vehicle owned free and clear, or not? Because resolution of this issue rests with Congress, we have taken the unusual step of directing the Clerk of the Court to forward a copy of this opinion to the Senate and House Judiciary Committees."

I liked this out-of-the-box thinking, and there's definitely no downside to it. Though I also had the following two brief thoughts. First, as far as I can tell, the dispute on this point has only existed for years, not decades, so I'm not sure it's as desperate (or unusual) as Judge Trott's conclusion might make it appear.

Second, as I was reading the opinion, I actually had a slightly different reaction than Judge Trott. My reaction was: "Even though this is a piddling dispute, it seems common enough, and the circuits are surely split, so this looks like a case the Supreme Court should take up." Which seems both more likely than Congress taking it up and perhaps the usual course. What I traditionally expect in cases like this is that the matter percolates for a while, the circuits either reach a consensus or solidify the split, and then the Supreme Court steps in to resolve the matter -- at which point Congress can act to change the result if it doesn't like it.

There's no reason, of course, that Congress couldn't step in earlier. And I agree that doing so would be a good idea; assuming, of course, there's no tradeoff with something more important (e.g., getting out of a recession, dealing with multiple ongoing wars, etc.). So, again, I'm not at all against what Judge Trott's done here. But if it were me, I might also have added something like: "Barring prompt Congressional disposition, we would also suggest that this matter is worthy of prompt resolution by the Supreme Court; moreover, that the present case would be an appropriate vehicle in which to do so."

If Congress wants to pass a statute after the Court has granted certiorari, all the better. But at least this way we'd know that, one way or another, we'll get an answer.

Just a suggestion. Again: I like Judge Trott's creativity here.

People v. Neely (Cal. Ct. App. - Aug. 13, 2009)

Comparing cross-jurisdictional debates is sometimes enlightening. For example, for all of the high-profile commentary and precedent about the wisdom and validity of the federal sentencing guidelines, far too often overlooked is what happens in California. In which the sentencing regime is arguably equally (if not more) complicated, equally (if not more) determinate, and which has generated its own substantial debate.

For this reason, I was totally psyched for this opinion. Which Justice Perren begins (after a brief introduction) as follows:

"For over 30 years, opinions of the California Courts of Appeal have commented on the frustrating and needless complexity of the Determinate Sentencing Law (DSL). Reversals and remands for resentencing resulting from the misapplication of the DSL litter the pages of appellate decisions, both published and unpublished. [citations omitted] This is yet another such case to fall victim to the "labyrinthine procedures," [citation] of the "legislative monstrosity" [citation] whose "mind-numbingly complicated" [citation] statutes are "capable of ensnaring even its most erudite afficionados." [citation]"

Sweet!

I'm sure Justice Perren's right. That said, I also gotta say that he actually helps out a lot -- at least to the unenlightened masses such as myself -- by explaining this system. Indeed, he explains it so well that at the end, I was actually thinking to myself: "Wait. I can actually understand this. Cool!"

So I thought I'd share his description for the equally uninformed (with citations omitted):

"Section 1170.1 sets forth the sentencing protocol for felony offenses for which a determinate low, middle or upper term of incarceration is imposed. It also sets forth the rules for imposing a consecutive sentence through the designation of "principal" and "subordinate" terms. First, the trial court is required to select a base term--either the statutory low, middle or upper term--for each of the crimes. Second, if the court determines that a consecutive sentence is merited, it must designate the crime with the "greatest" selected base term as the principal term and the other crimes as subordinate terms. Third, the court sentences the defendant to the full base term it selected for the principal term crime and one-third of the middle term for any crimes for which the sentence is ordered to run consecutively. A subordinate term is one-third of the middle term even if the trial court had initially selected the lower or upper term as the base term.

Offenses for which an indeterminate sentence of life imprisonment or death can be imposed are not subject to section 1170.1. Consequently there are no principal and subordinate terms to be selected. The court simply imposes the statutory term of imprisonment for the indeterminate sentence crime which in this case is 25 years to life.

Once the court determines what sentence is to be imposed for the indeterminate term offenses and the determinate term offenses, it combines the two to reach an aggregate total sentence. Nothing in the sentencing for the determinate term crimes is affected by the sentence for the indeterminate term crime.

Such sentencing has been conceptualized as sentencing in separate boxes. Applying this "box" analogy to the instant case, the indeterminate term crime of first degree murder is placed in one box. The court imposes the required 25 years to life sentence and, in the same box, adds any enhancements to that sentence. The total sentence in the indeterminate term box is 25 years to life for the murder plus 10 years for the firearm enhancement.


A second box is created to include the three determinate sentence crimes. Applying section 1170.1, the court would select a base term for each of the crimes, set the crime with the greatest base term as the principal term, impose the full base term as the sentence for the principal term crime, and impose one-third of the middle term as a consecutive sentence for any subordinate term crimes. Should the court choose to run one or more of the determinate terms concurrently, it would impose the full selected base term and order it to be served concurrently with the principal term. In this case, the greatest base term was the four-year middle term selected for the drug crime. That crime would have been designated the principal term and received a full four-year sentence.

The consecutive sentence for the King attempted robbery would have been eight months (one-third of the two-year middle term).

After these calculations, the second box would be complete and contain the total sentence for all the determinate sentence crimes. The court would add the term of the second box to the term of the first box to arrive at the total aggregate sentence."

So there you have it. "California Sentencing In A Nutshell".

People v. Martinez (Cal. Supreme Court - Aug. 13, 2009)

Thinking about hiring a babysitter who lets her drug-addled boyfriend -- who carries a buck knife on his hip and who's previously drawn a picture for your ten-year old daughter of a cross dripping with blood -- visit her while she's babysitting your children?

Think again.

Flores v. Horne (9th Cir. - Aug. 13, 2009)

This is surely amongst the shortest published dispositions of the Ninth Circuit recently, which states in its entirety: "We remand this case to the District Court to comply with the Supreme Court’s decision in Horne v. Flores, 129 S. Ct. 2579, 2607 (2009)."

Sometimes you're just a functionary.

People v. Peyton (Cal. Ct. App. - Aug. 10, 2009)

Okay, so I clearly was not at the trial. But just based upon reading the Court of Appeal's opinion, are you really sure the defendant's in fact guilty? I mean, like, positive of it, as opposed to just willing to believe it? Positive enough to sentence him to 66 years in prison without any apparent criminal history whatsoever?

The following is admittedly irrational and wrong of me. But I'll share it anyway: I'm somewhat internally more reluctant to believe guilt in closely-disputed cases when the sentence is (essentially) life in prison as opposed to, say, a decade. When it's 10 years, I tend to say: "Well, I'm not positive from what I read that you're guilty, but you could easily be, so I guess I'm on board." Whereas when it's, say, death or life in prison, I'm inclined to really want to be totally sure the guy's guilty.

Which I'm not here. (But, again, I wasn't at the trial.)

Does anyone else share my irrationality? Is there any part of this guy's sentence, given the facts, that disturbs anyone?

People v. Flores (Cal. Ct. App. - Aug. 11, 2009)

Speaking of sentences, what do you think the appropriate sentence is for spitting on a prison guard?

How about five years?

Too long? Too short?

People v. Moore (Cal. Ct. App. - Aug. 11, 2009)

Why did it take almost four full years after the discovery of the fraud to file criminal charges? Moreover, why does someone who steals $44,000+ from the LA Dep't of Public Social Services get probation when someone who steals a slice of pizza may get 25 to life?

Doesn't make sense to me.

U.S. v. Monghur (9th Cir. - Aug. 11, 2009)

Judge Tallman finds -- in a quite well-written opinion -- that there's a qualitative difference between (1) forthrightly admitting to the police that you have cocaine in a closed container, which suffices to waive your Fourth Amendment privacy expectations, and (2) using secret code words in a jailhouse telephone call that you know is monitored in the hope that your confederate can dispose of some evidence, which does not.

But Judge Tallman then concludes the opinion by hinting to the district court that this might be a good case in which to apply Chief Justice Roberts' suggestion earlier this year (in Herring) that courts shouldn't apply the exclusionary rule when they don't feel like it. (I'm paraphrasing, of course, but that's pretty much how I view it.)

There are lots of ways to lose a criminal appeal. Even when you technically win. This one's another.

Gilman v. Dalby (Cal. Ct. App. - Aug. 10, 2009)

Here's a case that's important to any attorney with a personal injury practice. It's also one that I think does an outstanding job of analyzing and resolving the competing public policy considerations at issue.

The simple question is whether an attorney or medical lien has priority when both exist. For example, a guy gets hit by a car, goes to the hospital and incurs expenses for medical services (thereby resulting in a lien), and then goes to a lawyer and incurs costs and fees for legal expenses in suing the defendant (thereby resulting in another lien). If the result of the lawsuit is $X, and X is insufficient to fully pay both the medical provider as well as the hospital, which one of 'em gets stiffed?

The traditional rule is that the lien that's first in time has priority. Which would mean that the medical lien prevails. This result is consistent with the fact that the medical expenses also largely generated the recovery of $X from the defendant as compensation for out-of-pocket losses.

But Justice Scotland rightly holds, I think, that notwithstanding these considerations, the attorney lien has superior priority. Read the whole thing to see why; it's not especially long, and is extremely cogent.

I do wonder whether a group of doctors would write a similar opinion. My sense is that judges -- who know how litigation like this practically works -- have a heightened understanding than outsiders regarding why attorneys need to be paid first. A cynic might view the opinion as lawyers looking out for their own. I can understand such a perspective, though think it's off. I instead think this is an example of lawyers perhaps knowing more than others and, in light of this knowledge, recognizing that public policy is indeed advanced by a decision that favors the lawyers.

I did have a tangential thought regarding why it isn't worth at least considering whether public policy would be maximally advanced by having both liens have equal priority; e.g., each of 'em taking a haircut when there's not enough money to go around. Such a position seems at least plausible to me. Ponder if you think that'd be an even better (or worse) position than the one adopted by the Court of Appeal.

I'm not necessarily advocating it. I just think it's worth thinking about.

Regardless, today: Lawyers 1, Doctors 0.

Richter v. Hickman (9th Cir. - Aug. 10, 2009)

It's overstated to say that who's drawn for the en banc panel invariably matters. It's not too much, however, to say that it's often very important what the wheel brings. Here's a good example.

It's an ineffective assistance of counsel habeas case that gets dismissed by the district court and, back in April of 2008, is unanimously affirmed by the panel, which consists of Judges Beezer, Trott and Randy Smith.

The case then gets taken en banc. Recall that Democratic appointees are more numerous on the 9th Circuit than Republican appointees: the split is 16-11 (or 15-12 if you count Judge Tallman, a Republican appointed by Clinton as part of the Washington deal, where he's most accurately counted). But Judges Trott and Beezer are eligible to be part of the draw if they want since they were on the panel. As it turns out, none of the panel members get drawn, but the draw still results in Republican appointees outnumbering Democratic appointees on the en banc panel 6-5. You gotta like that if you're the government.

But here's the rub. Not everything's rock solid. Votes aren't ordained in stone, nor do they depend entirely on who appointed you or your political beliefs. Sure, there are pretty certain votes in en banc criminal cases, but there's a decent middle -- a fair number of reasonable people who can be swayed.

So, as it turns out, it's indeed a close case: the final vote is 7-4. But not necessarily the way you might expect. Judge Reinhardt writes the en banc opinion, and Judge Bybee authors the dissent. Which pretty much gives away the ending. Judge Reinhardt gets all the Democratic appointees on his side (Judges Silverman, Wardlaw, Fisher, and Paez), and Judge Bybee gets the hard-core conservatives on his (Judges O'Scannlain and Ikuta, plus Judge Kleinfeld).

But Chief Judge Kozinski and Judge Milan Smith join Judge Reinhardt. Which makes for a solid flip. There's your dispositive "middle" in this one. A pretty darn conservative middle, I might add: particularly in criminal non-civil liberties cases. But the dispositive middle it is.

I can promise you the result would have been different if, say, the draw had picked the other Judge Smith. Or if the Chief Judge wasn't invariably selected and instead Judge Rymer took that slot (or Judge Bea was Chief). So sometimes slight differences in draws -- or in procedures -- can make a difference. And, sometimes, you can't necessarily tell the result from the draw. Even if you think you can. Sometimes you've got to actually read the facts and see if this is an especially persuasive case in which some of the less locked-in judges on the Ninth Circuit might come out the way the case factually leans. This is a very good example.

P.S. - The breakdown also gives you a decent hint as to what'll happen to this one at the certiorari stage as well.

People v. Perez (Cal. Ct. App. - Aug. 4, 2009)

Here's a classic case of an appeal to which I'd have stipulated error.

Alejandro Perez forcibly took a $29 pair of pants from someone else (the victim wasn't wearing them; he had just bought them). He's convicted of second degree robbery. Fair enough.

Perez isn't a gang member but he has previously "tagged" places and is friends with a couple of gang members. So as a condition of probation, Perez is precluded from associating with gang members, be near gang activities, wear gang colors, associate with taggers, etc. Again: I'm fine with all that.

Here's the thing: Perez is also ordered not to "attend any court hearing or be within 500 feet of any Court in which [he] is neither a defendant nor under subpoena." What?! Where the heck does that come from?! He's never threatened a witness or trespassed on Court property or done anything to justify this condition. And we're talking about constitutionally protected rights here; the right to attend trials, to voluntarily testify, to file civil actions, etc. Not to mention the right to go to a county law library (which are often at or near the courthouse), attend a city council meeting (ditto), etc. This just seems a flatly and clearly impermissible condition of probation. And yet we spend time, effort and money -- on both the Attorney General's side as well as on the public defender's side and in the Court of Appeal -- to litigate and attempt to defend this clearly invalid provision.

Confessing error is a good thing -- indeed, often a very good thing -- on occasion. This was one of those times.

Even though the Court of Appeal does the right thing, I'm disappointed that it had to go this far.

In Re FairWageLaw (Cal. Ct. App. - Aug. 4, 2009)

Want to see an ugly law firm breakup, in which two California lawyers -- David J. Fuller and Henry Schrenker -- voted to dissolve the firm after the third (John Heurlin) was suspended from the practice of law for two years? Here you go.

Heurlin ends up prevailing on appeal; not on the merits, but he does obtain a remand. Though not before getting repeatedly slammed by the Court of Appeal for his conduct towards his former partners.

Just a reminder to enter a law practice only with those people you really, really like. Otherwise it can get really, really ugly.

Milner v. Dept. of Navy (9th Cir. - Aug. 5, 2009)

Did I wake up this morning and accidentally travel back in time?

I vaguely recall that the Ninth Circuit used to (and perhaps still does) issue "summaries" -- sort of like the syllabi issued by the Supreme Court -- as part of the paper slip opinions. But I don't recall seeing one of these for a least a decade or so, or at least not on the electronic (as opposed to paper) versions of the opinions.

And yet, today, lo and behold, there's a summary in this opinion. And there's another one in this opinion as well. Even though there's not a summary in any of the other opinions for the day.

Which I cogently put down to selective time travel. At least until someone explains otherwise to me. (Both opinions with summaries have dissents, but I can't imagine that's the unifying theme. Or is it?)

The mysteries of the universe continue.

People v. Haddad (Cal. Ct. App. - Aug. 4, 2009)

The failure to appear for a required drug test is a drug-related offense. Testing dirty in a required drug test is a drug-related offense. But showing up and trying to pass a drug test by using someone else's pee is not a drug-related offense. So sayeth the Court of Appeal (with Justice Mosk dissenting).

Parenthetically, I smiled when I noticed that Justice Turner -- unlike both the trial court and Justice Mosk -- refused to use the (fairly common) term "whizzinator" to describe the device used by Haddad to try to cheat the test, calling it instead the sterile (and generic) term "alternate urine device."

Bressi v. Ford (9th Cir. - Aug. 4, 2009)

I talked earlier today about the Ninth Circuit's new "hunter exception" that permits suspicionless seizures. Let me add one more as well, again from the same day.

Today we also learn of the "Find Out If You're An Indian" exception; again, at least in the Ninth Circuit Pursuant to which tribal officials may permissibly stop you -- even on state roads -- in order to ascertain whether you're an Indian. And if they in the meantime discover that you're, say, intoxicated, permissibly arrest and throw you in jail. (Or, in Judge Canby's words: "We conclude that a roadblock on a public right-of-way within tribal territory . . . is permissible [] to the extent that the suspicionless stop of non-Indians is limited to the amount of time, and the nature of inquiry, that can establish whether or not they are Indians. When obvious violations, such as alcohol impairment, are found, detention on tribal authority for delivery to state officials is authorized.")

Darn that liberal Ninth Circuit. Those judges are really coddling criminals in the name of civil liberties, eh?

U.S. v. Fraire (9th Cir. - Aug. 4, 2009)

First there's the border exception, which allows suspicionless stops of everyone who's anywhere within hundreds of miles of the border (or even beyond). Then there's the DUI exception, which allows everyone to be stopped at random checkpoints. Lest that be enough, now there's the hunter exception as well.

What's that, you may ask? That's Judge Silverman's holding that the U.S. may validly stop everyone entering Kings Canyon National Park to inquire of and "educate" drivers about hunting restrictions in the Park. Oh, and -- tangentially, of course -- arrest anyone who's committing a crime, as was the drunk driver here.

I don't have any problem at all stopping people to collect a fee or pass out a brochure if they want it. But I do have a problem with stopping and questioning everyone in the world under the plethora of pretenses the government can imagine. Do I believe there's a potential problem with hunting in the Park? That's plausible to me. But it seems to me the direct solution thereto is to put up big "No Hunting" signs, not to stop every driver and engage them in required questioning.

Judge Silverman believes that the stop here was not motivated by the government's "interest in general crime control" -- which would invalidate the stop pursuant to the Supreme Court's drug checkpoint holding in Edmond -- but instead had a goal "of prevention, not arrests." Call me a cynic. Call me unfairly suspicious. But I have a definite sense that there's a reason that the government decided to establish an expensive checkpoint manned by officers over easily-established signage as a means of "educating" the public. And that reason had everything to do with "arrest" and very little to do with education.

Hernandez v. Hillsides, Inc. (Cal. Supreme Ct. - Aug. 3, 2009)

After you read this one, ask yourself whether your employer could permissibly -- or should be allowed to -- secretly videotape you in your office. What about in a lunch or break room, or a hallway, or a conference room? If someone's been watching porn or stealing pens, would that be enough to justify secret surveillance of everyone in the office?

Sure, we know they can't tape you on the crapper. But in the modern era, virtually everywhere else seems up for grabs, at least under the right set of circumstances.

U.S. v. Berger (9th Cir. - July 31, 2009)

Feeling pressure to get married from your significant other? Don't say "It's not you; it's me." That never works.

Try something more creative. Something like: "Baby, I love you, and I'd totally want to marry you if we lived in any other state than California. But that darn Ninth Circuit. I'm just looking out for both of us, honey."

When s/he asks for more details, have 'em read this opinion. And the sage wisdom of Judge Milan Smith:

"Cornella also argues that it would be unjust to punish an innocent spouse for her husband’s misdeeds. We sympathize with Cornella’s situation, but for better or worse, it has long been true in community property jurisdictions that both spouses assume the risks—and benefits—of that legal system. The case books are replete with examples of seeming injustices to innocent spouses where community property laws are applied. Nevertheless, we are bound by California’s community property laws, and they control the outcome in this case. Even though Cornella was not a party to, nor guilty of any criminal wrongdoing in connection with, Richard’s fraud, her community property interest in the Proceeds is subject to Richard’s obligations under the restitution order entered by the district court."

People v. Thorn (Cal. Ct. App. - July 31, 2009)

I've always found the breadth of California's definition of "burglary" problematic. At common law, it used to be that burglary was the breaking and entering of a dwelling place at nighttime. Nowadays, however, it seems like going anywhere, at any time, counts as burglary as long as you're planning on performing mischief therein.

This decision continues that trend.

The question is whether someone who steals a stereo in the carport of an apartment complex is guilty of burglary. The carport at issue is one that's familiar to anyone who's lived in cheaper apartments in our Great State: the carports consist of a line of open-ended stalls on the first floor of the apartment complex easily accessible to the street. Justice Jenkins ("Go Seahawks!") concludes that even though pretty much anyone could drive into the carports, their proximity to the inhabited apartments above and their other characteristics satisfies the requirements for a burglary conviction.

This holding seems to me to stretch even California's expansive definition of burglary. That said, I'm certainly not going to say it's unreasonable given California precedent. If it were me, I'd hardly be inclined to find that entry into an open-ended carport really entails the type of dangers that the Legislature intended when it prohibited burglary. And to say that the dangers of an unauthorized entry into a carport are akin to the dangers of an unauthorized entry into, say, a bedroom seems flatly wrong; to me, there is a qualitative -- not merely quantitative -- difference between the two.

But I say all of that as reasoning by first principles. There's a fair piece about California's burglary precedent that seems misguided to me. That this opinion merely adds thereto is hardly a slam on Justice Jenkins.

P.S. - I can, however, say this. Justice Jenkins is from San Francisco, and as far as I can tell grew up there. Which leads me to wonder who from The Old Country (read: England) drafted the opinion, which in multiple places refers to various two- and four-"storey" buildings. That's not the way we roll in the New World, buddy. Best leave that at home before we all start seeing "colour" everywhere and breaking every afternoon for tea.