People v. Lujan (Cal. Ct. App. - Dec. 17, 2012)

After reading what James Lujan did to multiple children -- including abusing one of them to death -- I'm not inclined to stretch out to assist him as he seeks to avoid the consequences of his acts.  Neither is the Court of Appeal.  Which holds that a trial court has the inherent power to permit a child witness to testify by closed-circuit television even when the relevant statute doesn't expressly authorize such a procedure because the child witness isn't a victim of a particular offense (e.g., a sex crime).

So Lujan gets to be in prison for 64 years to life.  Plus 11 years.

P.S. - Justice Hoffstadt does need to change one portion of the opinion, which clearly lost something in the editing process.  It reads:  "The trial court allowed Vanessa, age seven at time of trial, to testify over a two-way, closed-circuit TV. Vanessa sat in a separate room from which Lujan, his attorney, the district attorney. The jury could see her on a video monitor."

U.S. v. Bustos-Ochoa (9th Cir. - Dec. 18, 2012)

It's a federal criminal case against Roberto Bustos-Ochoa brought in the Southern District of California.  Illegal reentry.

Bustos-Ochoa wants to collaterally challenge his removal, claiming that he could have obtained voluntary departure instead of being deported.  Nope.  The panel gets in right.  In a per curiam opinion that's both straightforward and easy.  While the government might not have "introduced" evidence that Bustos-Ochoa was guilty of a felony (and hence ineligible for voluntary removal) at the removal hearing, Bustos-Ochoa was, in fact, guilty of the offense.  So he was indeed ineligible, and so wouldn't have obtained voluntary departure.

So Bustos-Ochoa gets to spend two years in prison.

People v. Watkins (Cal. Supreme Ct. - Dec. 17, 2012)

This case is a snapshot of some of the things that are wrong with the death penalty in California:

(1)  The murder is in 1990.  It takes less than two years to sentence the defendant to death.  But it then takes over twenty years for the first appeal -- the automatic one to the California Supreme Court -- to be decided. 

Moreover, those two decades are spent briefing and deciding a totally straightforward case in which there's no substantial issue on appeal that that -- to the surprise of no one -- results in a unanimous verdict affirming the conviction and sentence.  Twenty years for that.

Defendant was 21 years old at the time of the murder.  He's now 43.  He's still got an appeal to the United States Supreme Court, state habeas petitions, (probably multiple) federal habeas petitions, and Ninth Circuit (and U.S. Supreme Court) appeals about those habeas petitions to go.

He'll almost certainly be in his 50s -- or older -- when and if he's ready to be executed.  An old(ish) man executed for a crime he committed when he was barely old enough to buy beer.

That's not justice for anyone.  Not for the victim.  Not for the defendant.  Not good for society.  And not an impressive job of running these things by the California Supreme Court.

(2)  Why -- among all the murderers -- do we sentence this particular guy to death?  On the one hand, as I was reading the facts of the case, I was thinking:  "This guy's a classic criminal.  Holdups and all sorts of common robberies.  A plague on society."  Which is undoubtedly true.  Though that describes a great many non-murderers as well.  Sadly.

So I was inclined to be sympathetic to a death sentence.  And then I get to the circumstances of the murder itself.  So random.  Why did he shoot the victim?  No idea.  It wasn't a robbery, it wasn't a resisting victim, it didn't appear to be anything.  Which, at first glace, made me even more likely to support a death sentence.  A guy that shoots a random 62-year old who's about to take a shuttle to LAX?  Really?  You can see why we'd want to kill the perpetrator.

But then I hear defendant's defense.  Which is far from absurd.  He says that the shooting seemed random precisely because it was -- because he didn't mean to shoot the gun, which randomly went off.  Which was why there was no confrontation, no demand for money, no words spoken; not even contact other than from across the parking lot.  No one was meant to get shot.

Do I necessarily believe the defendant?  No.  Not necessarily.  But his story at least seems plausible.  It's at least possible that this was an accident.

Which isn't to say that the defendant shouldn't have been convicted of murder.  The jury heard all of the evidence and decided that the defendant wasn't credible.  The jury decided that for some totally inexplicable reason -- one for which there was utterly no evidence at trial, but which was nonetheless possible -- the defendant decided to shoot the victim, and that it wasn't an accident.  That decision might be right.  Perhaps even beyond a reasonable doubt.  Sometimes people do indeed do that.

But this nonetheless seems to me a perfect case where "residual doubt" in sentencing may well come into play.  Defendant never killed anyone before.  Never even shot anyone before -- as far as anyone can tell, anyway -- much less seems like the kind of person to kill people at random.  Indeed, reading about his former crimes, it would seem to me that any of those other offenses that he committed on the day of the shooting were far more likely to have resulted in a murder (random or no) than the one in which the victim here was shot.  If defendant were a hothead inclined to shoot people, why didn't he shoot those earlier people he actually robbed and who -- almost to a person -- gave him "lip" or otherwise (to a perverse mind)"deserved" to be shot?  It just seems weird.

That's not a substantial argument on appeal.  But it does make me think:  Why are we killing this particular guy?  What makes him special?  Why him and not the wide variety of (in my mind) worse offenders we read about in numerous pages of the California Appellate Reporter -- defendants who were sentenced instead to LWOP?  Is the death penalty, the ultimate sentence, really that random?  (And, yes, I understand that the defendant has not been a model prisoner, but we're talking about distinguishing murderers here -- people for whom the forfeiture of their life is an appropriate or inappropriate sentence.)

Plus, going back to the offense itself, I can't help feeling that it's possible -- possible -- that we're going to kill a man who in fact has never deliberately killed anyone.  Is it likely?  No.  Not if you agree with the jury's verdict, anyway.

But it's still possible.  We may perhaps be taking a life from someone who's never deliberately done the same.

Which is not, I might add, a reason for keeping him alive for 30+ years and then killing him.  If you believe in the death penalty, you want it to happen timely.  If you don't, you want it to happen not at all.  Mixing the two and adopting an intermediate position is in many ways the worst of all worlds.

Albeit the one we have.

There is -- in short -- almost nothing about this case that I like.  The opinion is straightforward, mind you.  But the underlying facts are not.

Washington Shoe Co. v. A-Z Sporting Goods (9th Cir. - Dec. 17, 2012)

You undoubtedly read International Shoe v. Washington when you were a first-year law student.  Here's another personal jurisdiction case involving a seller of shoes and disputed litigation in Washington state.  This time it's Washington Shoe.

Judge Bybee writes an outstanding opinion.  As befits a former law professor.  Very clear, very persuasive.  It explains extremely well the "effects test" as applied to intentional torts and applies that test to claims of wilful copyright infringement.

It's sufficiently good that I think I will assign it to my first-year law students, who are always confused after they read Calder and attempt to understand the contours of the effects test.  My only hesitation is that I'm not sure that the Ninth Circuit's sharp distinction between "contracts" and "tort" cases (vis-a-vis personal jurisdiction) is actually an accurate reading of Supreme Court precedent.  But that's not Judge Bybee's fault; he's just repeating what the Ninth Circuit has already held, and makes an appropriate caveat in this regard in a footnote.

Very good opinon.  Helpful to practitioners, litigants and law students alike.

In Re Estate of Wilson (Cal. Ct. App. - Dec. 13, 2012)

Proof that transitions are a pain.

Same-sex couples couldn't legally commit.  Then they could enter domestic partnerships.  Then they could marry.  Then they couldn't.

What happens when you (1) enter into a domestic partnership, and (2) waive your rights to your partner's property, but then (3) marry during the brief period in which same-sex couples were (at present) allowed to marry in California, and then (4) your partner/spouse dies and leaves you out of the will?  Do you get your share?  Did the marriage "trump" the waiver of property rights under the domestic partnership?

The Court of Appeal -- in what I think is a fairly straightforward decision -- says "No."  You waived your rights.  Yes, it was a domestic partnership then and a marriage now, but for property purposes, that's the same.  No recovery.

People v. Moore (Cal. Ct. App. - Dec. 12, 2012)

Sometimes even small(er) crimes demonstrate a person's character.

Read this case.  Then tell me whether you have a similar sense to the one that I have:  That this will be merely one of the many times Jesse Moore will be sentenced to prison in his life.

Maybe I'm wrong.  I certainly hope so.

But I doubt it.

Richey v. AutoNation (Cal. Ct. App. - Dec. 12, 2012)

The Court of Appeal today changes this footnote:

"In arguing the arbitrator’s legal error in applying the honest belief defense is not subject to judicial review, AutoNation disingenuously asserts the Supreme Court in Pearson Dental 'refused to adopt the rule that "all legal errors are reviewable in this context."' It is difficult for us to accept this as simply an innocent misreading of the Court’s reservation of the question for another day."

to this:

"In arguing the arbitrator’s legal error in applying the honest belief defense is not subject to judicial review, AutoNation asserts the Supreme Court in Pearson Dental 'refused to adopt the rule that "all legal errors are reviewable in this context.’” AutoNation has clearly misread the Court's reservation of the question for another day."

In other words:  You've convinced us in your petition for rehearing that you're not necessarily sleazy, and perhaps are merely stupid.

P.S. - Given that I was slightly critical of the merits of the underlying opinion, I think being soft on the lawyers is the right -- as well as a nice -- move.

U.S. v. Simard (9th Cir. - Dec. 10, 2012)

The official summary of the opinion contains two paragraphs.  The actual opinion contains four.

If only everything was this easy to write.

Dahlia v. Rodriguez (9th Cir. - Dec. 11, 2012)

When I say it doesn't take a crystal ball to see that a case will be taken en banc -- as I did here -- you should believe me.  I don't have a crystal ball.  The case was just taken en banc.

I also said that, on the merits, the panel's decision would be reverved.

Stay tuned.

Verdugo v. Target (9th Cir. - Dec. 11, 2012)

I agree with the Ninth Circuit that certifying this question to the California Supreme Court is a decent idea.  No reason not to get a decision on this question straight from the horse's mouth.

But if I had to guess, I don't think that tribunal is going to agree with Judge Pregerson.  My prediction of state law would be that there's no common law duty for a business owner to have an AED (Automatic External Defibrilator) on the premises.

Veronese v. Lucasfilm (Cal. Ct. App. - Dec. 10, 2012)

Let's be glad that George Lucas is better at making movies than he is at the day-to-day running of his business.

It's not shocking at all that Lucasfilm gets spanked for pregnancy discrimation here.  Including an attorney's fees award of over a million dollars.  Yes, I know we're "mellow" and "hip" in Marin, and do things differently.  But the "concerns" expressed here -- as well as the questions that were asked -- are so clearly close to (and in some cases over) the line that there should have been a thousand red flags raised.  But it was instead the managers at Lucasfilm who were making all the errors.

The Court of Appeal ultimately reverses the jury's award for instructional error.  So Lucasfilm's incompetence gets saved -- at least temporarily -- by the trial judge's incompetence in numerous (fairly straightforward) instrutional errors.  So off we are to a retrial.

I'm all for being interacting with people as "people".  Particularly in occupational settings that are, as here, relational.

But some things go to far.  There's no way defendants would have had the same attitude displayed here if the issue involved race.  Taking an infinitely more "relaxed" view because it's pregnancy rather than racial discrimiation is neither justified nor an especially good idea.

People v. Conley (Cal. Ct. App. - Dec. 10, 2012)

What's the appropriate sentence for someone who's convicted of DUI -- one in which there's neither an accident nor an injury (rather, merely a straightforward DUI) -- and who's had several prior DUIs.

Twenty five years to life.

Fortunately for Patrick Conley, Proposition 36 passed.  So maybe he's going to get his three strike sentence reduced.

Can't get it reduced on appeal.  But maybe later.

Here was a dude with a lot at stake -- even more than Obama and Romney -- at the last election.

Hollingsworth v. Perry (U.S. Supreme Ct. - Dec. 7, 2012)

We get to see -- among other things -- if Judge Reinhardt's strategy in the Prop. 8 case (Perry) worked.

Basurto v. Imperial Irrigation Dist. (Cal. Ct. App. - Dec. 7, 2012)

There's DUI (Driving Under the Influence).  There's BUI (Boating Under the Influence).

Now there's ZUI.  Zangeroing Under the Influence.  For which Salvador Basurto gets fired.

People v. McCloud (Cal. Ct. App. - Dec. 6, 2012)

Quiz for the day: 

When you shoot ten bullets into a crowd of 62 people, and kill two people, you're guilty of two counts of attempted murder and _______ counts of attempted murder.

Sixty?  Eight?  Zero?

The correct answer:  It depends.

The trial court here thought the answer to this question would be sixty.  Relying in large part on the "kill zone" theory of criminal liability that ostensibly says that if you shoot into a crowd you can be convicted of attempting to kill everyone in the crowd.

The Court of Appeal reverses.

Justice Rothschild does a good job of explaining -- very coherently, in my view -- the appropriate scope of the "kill zone" theory.  Yes, there's such a theory.  But no, it doesn't mean that you're guilty of a thousand counts of attempted murder just because you shoot a single bullet into a crowd not caring who you hit.

The theory instead applies when you attempt to kill a specific person in a crowd by killing everyone in the crowd.  Throwing a bomb into a crowd, for example.  You intend to kill X, but by killing X and everyone around him.  Spraying automatic weapons fire into a crowd designed to kill X because it kills everyone else too.  That's the proper scope of the kill zone theory.  A theory that's inapplicable here.  Ten shots aren't designed to wipe out the entire crowd of sixty.  They may create dangers to sixty -- and for that, you might be liable (assault?) -- but that's not the attempted murder of sixty.

That seems right to me.

Mind you, I think it creates some very difficult line-drawing issues.  Even the person spraying the assault rifle, for example, might say that he didn't "intend" to kill the crowd -- that was merely a byproduct of his attempt to kill X, so there's insufficient intent.  Similarly, what do you do about the shooter who fires ten bullets into a tightly packed group of five?  How do we decide whether this is a situation in which the shooter "intends" to kill X by killing all five or, instead, the other four are only "byproducts" of the attempt to kill X and hence there's no liability for attempt.  I'm really unsure how we'd choose -- or at least choose rationally -- between these competing interpretations of the facts.

But the existence of an uncertain line doesn't necessarily mean there's not in fact a line.  We don't know precisely how many hairs make a beard.  But that doesn't mean there's no difference between someone who's bearded and someone who's clean-shaven.  There is.

U.S. v. Hernandez-Estrada (9th Cir. - Dec. 5, 2012)

Want to know why it matters to nominate federal appellate judges who are smart?  Read Chief Judge Kozinski's brief concurring opinion in this one.

Truly smart people know when a doctrine simply makes no sense.  Even when that doctrine might support results that you would otherwise prefer.

And smart judges with integrity -- a subset of smart judges -- are willing to call nonsense nonsense when that's what it is.

I actually think that quality may be more present in places like the Ninth Circuit as compared to, say, the Supreme Court.  Not that there aren't incredibly smart people on the Court.  There are.  But they are also sufficiently smart and results-oriented -- perhaps corrupted (in part) by power -- to be willing and able to submit purported justifications for objectively silly rules.  Like this one.

I disagree with Chief Judge Kozinski a nontrivial amount.  But thoughts like this one keep the guy close to my heart.

Now let's see if they actually try to take the thing en banc.

In Re Bellingham Ins. Agency (9th Cir. - Dec. 4, 2012)

Judge Paez is looking to become the next Judge Fernandez.

It's not that I mind words like "epochal" (an "epochal" decision rather than a "seminal" one, page 11), or "quantum" (page 12), or "abjured" (page 14), or even "ineluctably" (page 16) and "exegisis" (page 18).  Those are all fine, even if they seem in places to be a little forced.

But having the second word of the opionion be "quotidian" (especially when the case is not, in fact, actually quotidian), and using words like "hierophancy" (page 15) -- a word that's not even in the online Mirriam-Webster (though the noun is) and also seems somewhat inapt in context -- make farly clear what's going on.

Judge Paez is using big words because he can.  He likes 'em.  And he feels like sharing.

Which is his right.  Though my personal view is that it make the opinion slightly more interesting but slightly less readable.

Though at least I learned a new word today.  Quotidian.  Never heard it before.

Doubt I ever will again.  (Unless Judge Paez, like Judge Fernandez, decides to reuse the same ten-cent words in different opinions.)

In Re Richards (Cal. Supreme Ct. - Dec. 3, 2012)

Read the first five pages of this opinion.  See if you think the defendant is guilty of murder.

Then read the next six pages.  Discussing the evidence that came out during the next two decades.  Do you think there's an innocent man in prison, erroneously convicted of murdering his wife?

The case was far from open-and-shut even at the outset.  It took four trials (and two hung juries) before the defendant was finally convicted.  Whether a jury would convict again -- based upon the existing evidence -- is even less likely than a conviction was the first four times.

But, in a 4-3 opinion, the California Supreme Court concludes that the trial court erred by granting the defendant a new trial.  With Chief Justice Cantil-Sakauye (again) providing the dispositive fourth vote.  Justice Chin -- who's far from "liberal" on criminal matters -- joins the dissent.

Justice is either profoundly served, or profoundly disserved, here.  Which do you think prevailed?

People v. Schmitz (Cal. Supreme Ct. - Dec. 3, 2012)

From now on, whenever you drive a friend to work, carpool, pick up a hitchhiker, or drive to the movies with a date, you'd better ask your passenger whether s/he's on parole.  Because if s/he is, you should know that you no longer have any expectation of privacy in the contents of most of your vehicle.  The police can search it without any suspicion of wrondoing whatsoever.  Just because of the identity of the occupant of your car.

A fairly broad reading of parole search conditions by the California Supreme Court.  In which Chief Justice Cantil-Sakauye provides the dispositive fourth vote.

Sino Century Development Ltd. v. Farley (Cal. Ct. App. - Dec. 3, 2012)

If -- as the Court of Appeal hold today -- there's in fact no authority under Rule 2.30 to award attorney's fees as sanctions in situations like this one, there at least should be.

And it might be worth saying so.