Let's see what you think.
Iris Black got someone else's bank account information and used it to make six purchases that total $377.99. She admitted the offense when questioned by police and pled guilty. She didn't really have any significant criminal history, so back in 2005, she's sentenced to 90 days in jail and three years of probation.
A year after she gets out, she violates her probation by not showing up for required drug testing and not keeping her address updated. She again admits everything, was sentenced to (and served) some more jail time, and probation was continued on some harsher conditions.
Another year passes, and again she gets violated when she admits that she's relapsed into drugs. Her probation is revoked and she's sentenced to drug rehab. In January 2008 her probation gets reinstated but extended until 2010.
Then, in early 2008, she gets violated again, this time for having meth in her apartment and having credit cards -- in her own name, apparently, but that's in violation. What do you do at that point?
California Rule of Court 4.435(b)(1) provides: "On revocation and termination of probation . . . when the sentencing judge determines that the defendant will be committed to prison: . . . The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term." There's no way she'd have been sentenced to years in prison back in 2005 for pimping $377.99; moreover, she's already spent additional jail time and incurred other penalties for her violation. On the other hand, clearly probation isn't working out, so she's going in.
Assume that back in 2005, if you decided not to sentence her to probation, you'd have sentenced her to a year in prison. (This seems a quite reasonable assumption given the facts of this particular case, by the way.) What do you do now? Give her the year? Feel constrained to do so by Rule 4.435, which says that you can only take into account events existing at the time probation was granted? Give her the middle term of two years in light of her violations, which is what the probation office currently recommends? Or go to the extreme and give her the aggravated term of three years?
The trial court chooses the last of these options. And the Court of Appeal unanimously affirms.
Whatchathink?
Friday, July 31, 2009
Thursday, July 30, 2009
People v. Burney (Cal. Supreme Ct. - July 30, 2009)
You might want to read this opinion to see the scintillating discussion therein regarding whether "Asians" -- as opposed to "Chinese" or "Filipino" -- are a cognizable ethnic group for purposes of juror composition. Except that I'm being facetious, since the case merely raises the issue without deciding it.
The only reason I even mention the opinion, which is another in a long line of cases in which the California Supreme Court has unanimously affirmed a death sentence, is idiosyncratic. As far as I can tell, this is the first time ever that someone with the first name "Shaun" has been sentenced to death. Back in the early 70s, there was a "Sean". But heretofore, no "Shaun".
So I don't like the silent precedent here, as I'd rather not be put to death. Thankfully, I'm not in the habit of kidnapping people and putting one in their ear.
The only reason I even mention the opinion, which is another in a long line of cases in which the California Supreme Court has unanimously affirmed a death sentence, is idiosyncratic. As far as I can tell, this is the first time ever that someone with the first name "Shaun" has been sentenced to death. Back in the early 70s, there was a "Sean". But heretofore, no "Shaun".
So I don't like the silent precedent here, as I'd rather not be put to death. Thankfully, I'm not in the habit of kidnapping people and putting one in their ear.
People v. Wagner (Cal. Ct. App. - July 21, 2009)
What the heck's going on in Riverside County?!
We all know about the desperate backlog there. That's a given. I've also seen a plethora of dismissal cases come up to the Court of Appeal as a result. Same old same old. You've got a time limit. Bring 'em to trial or dismiss. You can always refile (at least once).
Here's yet another one. But with a twist. Here, the Riverside District Attorney's Office files an appeal. And loses, of course. Since, indeed, there were no courtrooms available.
But guess what? Since the DA's Office filed the appeal, rather than merely refiling, they're now barred from refiling the charges against the defendant. So he goes off scot-free.
Did the Riverside DA really not know about this? Is there any reason for not filing a writ instead, which the Court of Appeal expressly notes (in footnote 15) would have been equally effective to challenge the dismissal without resulting in precluding refiled charges? Moreover, of the hundreds of criminal cases in which the charges were dismissed due to the lack of a courtroom, did the Riverside DA really have to choose to file an appeal -- with the resulting preclusion -- in a serious case like this one (here, a shooting with a semiautomatic firearm with great bodily injury) rather than the plethora of lower-level cases involving nearly identical facts?
This seems not-especially-thought-out to me. Maybe I'm missing something. I certainly hope so. Because I really don't see the reason why this defendant needed to be let of scot-free as a result of the DA's decision here.
We all know about the desperate backlog there. That's a given. I've also seen a plethora of dismissal cases come up to the Court of Appeal as a result. Same old same old. You've got a time limit. Bring 'em to trial or dismiss. You can always refile (at least once).
Here's yet another one. But with a twist. Here, the Riverside District Attorney's Office files an appeal. And loses, of course. Since, indeed, there were no courtrooms available.
But guess what? Since the DA's Office filed the appeal, rather than merely refiling, they're now barred from refiling the charges against the defendant. So he goes off scot-free.
Did the Riverside DA really not know about this? Is there any reason for not filing a writ instead, which the Court of Appeal expressly notes (in footnote 15) would have been equally effective to challenge the dismissal without resulting in precluding refiled charges? Moreover, of the hundreds of criminal cases in which the charges were dismissed due to the lack of a courtroom, did the Riverside DA really have to choose to file an appeal -- with the resulting preclusion -- in a serious case like this one (here, a shooting with a semiautomatic firearm with great bodily injury) rather than the plethora of lower-level cases involving nearly identical facts?
This seems not-especially-thought-out to me. Maybe I'm missing something. I certainly hope so. Because I really don't see the reason why this defendant needed to be let of scot-free as a result of the DA's decision here.
Wednesday, July 29, 2009
Dupree v. Holman Prof. Counseling Centers (9th Cir. - July 29, 2009)
Here's a difference between me and Judge Pregerson. Surely not the difference. But a difference.
Am I sympathetic to the plaintiff? Of course I am. His teenage daughter has specific medical needs (she's a diabetic), and has psychological and substance abuse problems, and as a parent, he wants the best available treatment for her. So he puts her in a residential treatment program in Malibu, even though his insurer says it's not covered and will only pay for two alternative (allegedly inferior) facilities that aren't able to deal with diabetics in nearly the specialized manner as the place in Malibu.
Of course that's what a parent would do. He then sues, alleging that the treatment's covered. Again, I totally understand that. And he's able to find an alleged ambiguity in the ERISA Plan documents that you could argue makes the Plan ambiguous -- and hence, resolving ambiguities in favor of the insured, creating coverage.
Judge Hall says that the Plan's nonetheless clear and doesn't provide coverage. I agree. It's just pretty darn clear to me that the Malibu place isn't covered, and that that's what any objective reader of the language would conclude. Judge Pregerson dissents, albeit with sincere (in my view) respect. With language like: "I respectfully disagree. . . . [T]he majority opinion’s interpretation of the plan is reasonable. I believe, however, that there is another reasonable interpretation."
I think this is an area where (understandable) sympathy -- "empathy," if you prefer -- plays a different role for Judge Pregerson than it does for me. I too would feel sort of bad about affirming. But I would. Even though I could come up with an argument in favor of finding coverage -- one that's not at all laughable -- in the end, the law requires otherwise. So that's what I'd do.
Am I sympathetic to the plaintiff? Of course I am. His teenage daughter has specific medical needs (she's a diabetic), and has psychological and substance abuse problems, and as a parent, he wants the best available treatment for her. So he puts her in a residential treatment program in Malibu, even though his insurer says it's not covered and will only pay for two alternative (allegedly inferior) facilities that aren't able to deal with diabetics in nearly the specialized manner as the place in Malibu.
Of course that's what a parent would do. He then sues, alleging that the treatment's covered. Again, I totally understand that. And he's able to find an alleged ambiguity in the ERISA Plan documents that you could argue makes the Plan ambiguous -- and hence, resolving ambiguities in favor of the insured, creating coverage.
Judge Hall says that the Plan's nonetheless clear and doesn't provide coverage. I agree. It's just pretty darn clear to me that the Malibu place isn't covered, and that that's what any objective reader of the language would conclude. Judge Pregerson dissents, albeit with sincere (in my view) respect. With language like: "I respectfully disagree. . . . [T]he majority opinion’s interpretation of the plan is reasonable. I believe, however, that there is another reasonable interpretation."
I think this is an area where (understandable) sympathy -- "empathy," if you prefer -- plays a different role for Judge Pregerson than it does for me. I too would feel sort of bad about affirming. But I would. Even though I could come up with an argument in favor of finding coverage -- one that's not at all laughable -- in the end, the law requires otherwise. So that's what I'd do.
Desai v. Deutsche Bank Securities (9th Cir. - July 29, 2009)
Today brings us a per curiam opinion with two concurrences, one by Judge O'Scannlain and one by Judge Graber. I'm not sure that anyone needs an additional (divergent) perspective, but I'll nonetheless offer one. Or perhaps even two.
This is a fascinating case in which the defendants allegedly pumped up a stock through manipulation and in which Deutsche Bank allegedly made money through share-loaning. (I know a little bit about this practice in connection with a law review article that Frank Partnoy and I published about it and its effect on shareholder voting.) The question is whether a class should be certified. The district court says no, and the Ninth Circuit affirms, holding that individual questions of reliance would predominate over the common claims.
The best argument that plaintiffs have in response is that they don't have to prove individualized reliance due to the fraud on the market theory, which presumes reliance. The big fight is whether that theory applies when, as here, the deception arises not from material statements or omissions, but rather from direct manipulation of the market -- thereby destroying the presumed "integrity of the market".
On this issue, the per curiam opinion says that the Ninth Circuit is "chary" to adopt such a doctrine, and on that basis affirms the district court's decision not to certify. But Judge O'Scannlain concurs to say: "Look, we can't just be 'chary'. We gotta decide whether or not that's an accurate statement of the law. Because if that is an accurate statement of the law, then the district court erred on a legal matter, and we've got to reverse. Plus we can't hold that individual reliance claims predominate, since they don't if the fraud-on-the-market theory is applicable. Now, as you might predict, I'm more than happy to reject this doctrine on the merits, and I do, so I've got no problem affirming. But you've got to decide; you can't just punk out." To which Judge Graber says (in her own concurrence): "No we don't. We can just say that the district court didn't abuse its discretion in refusing to recognize the new theory, and affirm on that basis. Which is what we do."
For the most part, I think Judge O'Scannlain's correct. If the law, rightly applied, is X, then a district court has to apply X. It doesn't have "discretion" not to. That's true even for novel legal theories. Federal courts can't say: "No one has ever before argued or held that income taxes violate the Privileges and Immunities Clause, so I'm not forced to so hold." That's not how precedent works. So I gotta agree with Judge O'Scannlain on this one.
Mind you, on the underlying merits, I'm not at all sure that I agree with him that the fraud-on-the-market theory is inapplicable. To be honest, I'll have to talk more with Frank about this, whose knowledge in this area is both infinite and infinitely greater than mine. (For proof, watch him on the Daily Show a couple of months ago, and notice that he manages to get a laugh even before Jon Stewart does). But my initial thought is that investors do indeed rely on the integrity of the market -- indeed, centrally so -- and that the fraud-on-the-market theory may properly be even more accurately applied to outright market manipulation than to public misstatements. As a result, I may only be half in Judge O'Scannlain's camp.
That said, let me support Judge Graber's view in a slightly more nuanced manner. I don't think that district courts have discretion to refuse to adopt new theory theories if accurate. But there is nonetheless a limited strain of jurisprudence at the circuit court level that suggests that "immature" torts should not be certified for class resolution; Castano (a Fifth Circuit tobacco case from the mid-90s) is a classic example. Whether those cases are right or not is an open question; they demonstrate extreme hostility to class resolutions, and so I'm not at all sure their assessment of the merits is correct. But this is at least an operative theory on which Judge Graber could rely in saying that the Ninth Circuit need not reach the relevant legal issue. The problem is that these cases are "superiority" cases, not "predominance" cases, so it's hard to affirm the district court's decision on that basis given the particular decision here. But it's at least something, and I think such an approach may make more doctrinal sense than the "discretion" point that Judge Graber asserts.
All in all, an interesting case. And one in which I may have a slightly different perspective than any of the members of the panel.
This is a fascinating case in which the defendants allegedly pumped up a stock through manipulation and in which Deutsche Bank allegedly made money through share-loaning. (I know a little bit about this practice in connection with a law review article that Frank Partnoy and I published about it and its effect on shareholder voting.) The question is whether a class should be certified. The district court says no, and the Ninth Circuit affirms, holding that individual questions of reliance would predominate over the common claims.
The best argument that plaintiffs have in response is that they don't have to prove individualized reliance due to the fraud on the market theory, which presumes reliance. The big fight is whether that theory applies when, as here, the deception arises not from material statements or omissions, but rather from direct manipulation of the market -- thereby destroying the presumed "integrity of the market".
On this issue, the per curiam opinion says that the Ninth Circuit is "chary" to adopt such a doctrine, and on that basis affirms the district court's decision not to certify. But Judge O'Scannlain concurs to say: "Look, we can't just be 'chary'. We gotta decide whether or not that's an accurate statement of the law. Because if that is an accurate statement of the law, then the district court erred on a legal matter, and we've got to reverse. Plus we can't hold that individual reliance claims predominate, since they don't if the fraud-on-the-market theory is applicable. Now, as you might predict, I'm more than happy to reject this doctrine on the merits, and I do, so I've got no problem affirming. But you've got to decide; you can't just punk out." To which Judge Graber says (in her own concurrence): "No we don't. We can just say that the district court didn't abuse its discretion in refusing to recognize the new theory, and affirm on that basis. Which is what we do."
For the most part, I think Judge O'Scannlain's correct. If the law, rightly applied, is X, then a district court has to apply X. It doesn't have "discretion" not to. That's true even for novel legal theories. Federal courts can't say: "No one has ever before argued or held that income taxes violate the Privileges and Immunities Clause, so I'm not forced to so hold." That's not how precedent works. So I gotta agree with Judge O'Scannlain on this one.
Mind you, on the underlying merits, I'm not at all sure that I agree with him that the fraud-on-the-market theory is inapplicable. To be honest, I'll have to talk more with Frank about this, whose knowledge in this area is both infinite and infinitely greater than mine. (For proof, watch him on the Daily Show a couple of months ago, and notice that he manages to get a laugh even before Jon Stewart does). But my initial thought is that investors do indeed rely on the integrity of the market -- indeed, centrally so -- and that the fraud-on-the-market theory may properly be even more accurately applied to outright market manipulation than to public misstatements. As a result, I may only be half in Judge O'Scannlain's camp.
That said, let me support Judge Graber's view in a slightly more nuanced manner. I don't think that district courts have discretion to refuse to adopt new theory theories if accurate. But there is nonetheless a limited strain of jurisprudence at the circuit court level that suggests that "immature" torts should not be certified for class resolution; Castano (a Fifth Circuit tobacco case from the mid-90s) is a classic example. Whether those cases are right or not is an open question; they demonstrate extreme hostility to class resolutions, and so I'm not at all sure their assessment of the merits is correct. But this is at least an operative theory on which Judge Graber could rely in saying that the Ninth Circuit need not reach the relevant legal issue. The problem is that these cases are "superiority" cases, not "predominance" cases, so it's hard to affirm the district court's decision on that basis given the particular decision here. But it's at least something, and I think such an approach may make more doctrinal sense than the "discretion" point that Judge Graber asserts.
All in all, an interesting case. And one in which I may have a slightly different perspective than any of the members of the panel.
Tuesday, July 28, 2009
People v. Hirata (Cal. Ct. App. - July 29, 2009)
How often do you see an opinion begin by quoting lyrics from an old jazz standard? Here you go.
It's actually pretty relevant, too. Okay, maybe not relevant, but at least somewhat on point. Here's how the opinion begins:
"September Song" laments, "Oh, it's a long, long while from May to December." June 14 to September 5 is a shorter while. But here it is too long a while. In an affidavit in support of a search warrant, June 14 is the date that criminal activity is alleged to have occurred. September 5 is the date the search warrant issued. Here we conclude the warrant fails the test of time, and the good faith exception to the exclusionary rule does not apply.
I do wonder which version of the song Justice Gilbert was thinking of. Maybe the most famous version is by Sinatra -- though old-timers might think of the version by Jimmy Durante (and really old-timers might even recall it from the 1938 Broadway musical Knickerbocker Holiday). If you're a hipster, though, you gotta love the version by Lou Reed. Which, I imagine, sounds especially (and perhaps only) good on smack. Ah, the 70s. (My favorite in this genre is honestly the Cowboy Junkies' cover of Lou Reed's Sweet Jane, which in my view out-Lou Reed's Lou Reed.)
This is not the only legal reference for that song, by the way. There was also an early 90s BBC sitcom about a widowed solicitor and a much older woman called -- you guessed it -- "May to December". I'm sure we'll see a U.S. adaptation on CBS sometime soon.
Given that the temporal gap in the search warrant here was actually from June to September (rather than May to December), Justice Gilbert might also have wanted to cite the 1991 article in Teaching Mathematics and Its Applications (talk about fascinating!) entitled: "It's a Long, Long Time from June to September." Proving once and for all that some people don't actually know lyrics very well. As if that principle actually required proof.
As someone who's in academia, by the way, and hence has the summers (technically) off, I'm going to have to add my own two cents. Which is that the period from June to September is not long at all; indeed, it's way too short. Which, as the clock starts to tick on the recommencement of law school, is a fact of which I'm highly cognizant at present.
Bummer.
It's actually pretty relevant, too. Okay, maybe not relevant, but at least somewhat on point. Here's how the opinion begins:
"September Song" laments, "Oh, it's a long, long while from May to December." June 14 to September 5 is a shorter while. But here it is too long a while. In an affidavit in support of a search warrant, June 14 is the date that criminal activity is alleged to have occurred. September 5 is the date the search warrant issued. Here we conclude the warrant fails the test of time, and the good faith exception to the exclusionary rule does not apply.
I do wonder which version of the song Justice Gilbert was thinking of. Maybe the most famous version is by Sinatra -- though old-timers might think of the version by Jimmy Durante (and really old-timers might even recall it from the 1938 Broadway musical Knickerbocker Holiday). If you're a hipster, though, you gotta love the version by Lou Reed. Which, I imagine, sounds especially (and perhaps only) good on smack. Ah, the 70s. (My favorite in this genre is honestly the Cowboy Junkies' cover of Lou Reed's Sweet Jane, which in my view out-Lou Reed's Lou Reed.)
This is not the only legal reference for that song, by the way. There was also an early 90s BBC sitcom about a widowed solicitor and a much older woman called -- you guessed it -- "May to December". I'm sure we'll see a U.S. adaptation on CBS sometime soon.
Given that the temporal gap in the search warrant here was actually from June to September (rather than May to December), Justice Gilbert might also have wanted to cite the 1991 article in Teaching Mathematics and Its Applications (talk about fascinating!) entitled: "It's a Long, Long Time from June to September." Proving once and for all that some people don't actually know lyrics very well. As if that principle actually required proof.
As someone who's in academia, by the way, and hence has the summers (technically) off, I'm going to have to add my own two cents. Which is that the period from June to September is not long at all; indeed, it's way too short. Which, as the clock starts to tick on the recommencement of law school, is a fact of which I'm highly cognizant at present.
Bummer.
Moore v. Czerniak (9th Cir. - July 28, 2009)
The principal reason to read these opinions is because they contain a neat dialogue between Judge Reinhardt, on the one hand (with Judge Berzon concurring), and Judge Bybee in dissent. It's an ineffective assistance of counsel case, so it's quite fact-bound. But you definitely see the respective political positions of the authors play out. Simply put, Judge Reinhardt sees the world differently than does Judge Bybee. Anyone who thinks that judges don't bring their worldviews to the table when they decide cases should read this one and rethink their position.
At the en banc vote stage, the split continues. Six judges dissent from the denial: Judges Kleinfeld, Tallman, Callahan, Bybee, Bea and Randy Smith. Who, again, essentially advocate that the Supreme Court take this one up and slap down the Ninth.
The downsides of reading these opinions are twofold. First, they're extremely long. You're looking at 135 single-spaced pages. Second, and potentially related to the first, for some reason, the Ninth Circuit's web site is incredibly slow today. It took me five full minutes to download the thing. Crickey.
But it's the week after the Ninth Circuit judicial conference. Not much has been coming out lately, either on the federal or state side. So take your time. Read a leisurely opinion or two. Relax. That's what everyone else seems to be doing, so join the fun.
At the en banc vote stage, the split continues. Six judges dissent from the denial: Judges Kleinfeld, Tallman, Callahan, Bybee, Bea and Randy Smith. Who, again, essentially advocate that the Supreme Court take this one up and slap down the Ninth.
The downsides of reading these opinions are twofold. First, they're extremely long. You're looking at 135 single-spaced pages. Second, and potentially related to the first, for some reason, the Ninth Circuit's web site is incredibly slow today. It took me five full minutes to download the thing. Crickey.
But it's the week after the Ninth Circuit judicial conference. Not much has been coming out lately, either on the federal or state side. So take your time. Read a leisurely opinion or two. Relax. That's what everyone else seems to be doing, so join the fun.
Monday, July 27, 2009
Drake v. Superior Court (Cal. Ct. App. - July 27, 2009)
I like this one.
Justice Duffy writes it in a fairly informal style. It's about timeliness and certificates of probable cause and the like in the context of a very ambiguous set of rules. Justice Duffy basically says: "I see how this is confusing to everyone. Let's simplify this and speed it up. Looks like the request was timely to me, so we'll go ahead and grant a peremptory writ of mandate, and on remand, go ahead and address the merits." Which seems right.
Speedy justice that cuts through the paperwork is often a good thing. Especially on a Monday.
Justice Duffy writes it in a fairly informal style. It's about timeliness and certificates of probable cause and the like in the context of a very ambiguous set of rules. Justice Duffy basically says: "I see how this is confusing to everyone. Let's simplify this and speed it up. Looks like the request was timely to me, so we'll go ahead and grant a peremptory writ of mandate, and on remand, go ahead and address the merits." Which seems right.
Speedy justice that cuts through the paperwork is often a good thing. Especially on a Monday.
People v. Carrington (Cal. Supreme Court - July 27, 2009)
You don't see that many women sentenced to death in California. Much less do you see this in a case involving multiple murders and no involvement with men.
But here you go.
Not someone you want to have as your former janitor. Nor probably someone you really want to meet in prison, either.
But here you go.
Not someone you want to have as your former janitor. Nor probably someone you really want to meet in prison, either.
Friday, July 24, 2009
Diaz v. LA County MTA (Cal. Ct. App. - July 23, 2009)
I'm impressed.
On Monday afternoon, Justice Perluss published this opinion, which involved the application of res ipsa loquitor to a common carrier (in particular, an accident between a car and an MTA bus).
On Tuesday morning, I wrote this, in which I noted that while I thought the opinion might be correct as a precedential matter, there were still some doctrinal things about it that bugged me.
On Thursday, the Court of Appeal sua sponte amended its opinion, responding to at least one of the concerns I had (the harmless error/burden of proof point).
And it's a pretty darn good response. One that may well, again, correctly interpret California precedent.
I have some extended thoughts about the amendment as well, but they're a bit too involved for a blog post. Or at least an early Friday morning post. So I'll leave 'em for extended discussion at some later point.
For now, it's more than sufficient to say: Well done. Quite.
On Monday afternoon, Justice Perluss published this opinion, which involved the application of res ipsa loquitor to a common carrier (in particular, an accident between a car and an MTA bus).
On Tuesday morning, I wrote this, in which I noted that while I thought the opinion might be correct as a precedential matter, there were still some doctrinal things about it that bugged me.
On Thursday, the Court of Appeal sua sponte amended its opinion, responding to at least one of the concerns I had (the harmless error/burden of proof point).
And it's a pretty darn good response. One that may well, again, correctly interpret California precedent.
I have some extended thoughts about the amendment as well, but they're a bit too involved for a blog post. Or at least an early Friday morning post. So I'll leave 'em for extended discussion at some later point.
For now, it's more than sufficient to say: Well done. Quite.
Thursday, July 23, 2009
People v. Osborne (Cal. Ct. App. - July 14, 2009)
What's the probability that sometime stealing a stereo out of a car is armed? Five percent? Twenty percent? Fifty percent? Go ahead and try to quantify it in your mind.
Because it matters. Here, Osborne's working on his own car, but the police -- who don't initially know whose car it is -- wrongfully think he might be stealing the stereo. So, after they approach him, they pat him down.
Assume the initial detention (telling him to "Stop" and "Come here") was justified. With respect to the patdown, the law is that the police can pat you down if they have a "a reasonable suspicion that you are presently armed and dangerous." Does the fact that you might be stripping a car or stealing its stereo make it reasonably likely that you're armed?
Justice Sepulveda hints in this opinion that the answer is "Yes". Holding that even though "[a]utomobile burglary is not [] recognized as a classic violent felony . . . . an individual suspected of such a crime [may] reasonably be anticipated to be armed with a weapon (such as a knife or a firearm)." Justice Sepulveda also cites with approval secondary authorities in support of "so-called 'automatic' patsearches where an individual is suspected of burglary." The theory being that if you're stripping a car, you're likely to be armed.
Ultimately Justice Sepulveda adds a couple of other (incredibly minor) factors here that arguably assist in establishing the fact that the defendant might be armed -- including, ironically enough, the fact that Osborne was a large 240 pounds (though to me that proves that he was less likely to need and carry a weapon) -- to hold that the "totality" of the circumstances suggested that he was armed. But clearly the biggest factor was that he was allegedly stealing a stereo, and I have a keen sense that that alone would have been enough for the panel. Which is an interesting result. Think about whether you agree.
I have a separate thought about post-hoc conclusions in these search and seizure cases that I'll briefly share as well. Almost all of the cases that get to the Court of Appeal are -- not surprisingly -- cases in which the search does indeed result in evidence of a crime. For example, here, there indeed was a gun. Searches that result in evidence often reach the Court of Appeal in the context of suppression motions; by contrast, searches that do not result in evidence rarely go up (since there's often no arrest, conviction, or suppression motions), with the rare exception of Section 1983 cases.
Not only does this lead to some results-oriented jurisprudence -- e.g., you want to affirm because we know the guy's a bad dude, plus we naturally give deference to the officer's suspicion because it turns out s/he was right -- but I think this one-way rachet may also tend to give appellate judges a somewhat distorted view of the facts and circumstances on the street. When you've got lots of cases involving searches that turn up guns, you may have a keener sense that virtually everyone has a gun (or that most people searched have a gun) than actually exists.
I don't know how much this plays into things, but I'd be surprised if there wasn't some tendency along these lines. It's only natural.
Of course, someone could rightly respond that someone sitting on a bench -- or, like me, in an ivory tower -- may similarly not recognize how prevalent guns really are, since none of our friends are typically packing on the job. Fair enough. It'd be interesting to figure out how these competing factors actually play out, and which one predominates.
Because it matters. Here, Osborne's working on his own car, but the police -- who don't initially know whose car it is -- wrongfully think he might be stealing the stereo. So, after they approach him, they pat him down.
Assume the initial detention (telling him to "Stop" and "Come here") was justified. With respect to the patdown, the law is that the police can pat you down if they have a "a reasonable suspicion that you are presently armed and dangerous." Does the fact that you might be stripping a car or stealing its stereo make it reasonably likely that you're armed?
Justice Sepulveda hints in this opinion that the answer is "Yes". Holding that even though "[a]utomobile burglary is not [] recognized as a classic violent felony . . . . an individual suspected of such a crime [may] reasonably be anticipated to be armed with a weapon (such as a knife or a firearm)." Justice Sepulveda also cites with approval secondary authorities in support of "so-called 'automatic' patsearches where an individual is suspected of burglary." The theory being that if you're stripping a car, you're likely to be armed.
Ultimately Justice Sepulveda adds a couple of other (incredibly minor) factors here that arguably assist in establishing the fact that the defendant might be armed -- including, ironically enough, the fact that Osborne was a large 240 pounds (though to me that proves that he was less likely to need and carry a weapon) -- to hold that the "totality" of the circumstances suggested that he was armed. But clearly the biggest factor was that he was allegedly stealing a stereo, and I have a keen sense that that alone would have been enough for the panel. Which is an interesting result. Think about whether you agree.
I have a separate thought about post-hoc conclusions in these search and seizure cases that I'll briefly share as well. Almost all of the cases that get to the Court of Appeal are -- not surprisingly -- cases in which the search does indeed result in evidence of a crime. For example, here, there indeed was a gun. Searches that result in evidence often reach the Court of Appeal in the context of suppression motions; by contrast, searches that do not result in evidence rarely go up (since there's often no arrest, conviction, or suppression motions), with the rare exception of Section 1983 cases.
Not only does this lead to some results-oriented jurisprudence -- e.g., you want to affirm because we know the guy's a bad dude, plus we naturally give deference to the officer's suspicion because it turns out s/he was right -- but I think this one-way rachet may also tend to give appellate judges a somewhat distorted view of the facts and circumstances on the street. When you've got lots of cases involving searches that turn up guns, you may have a keener sense that virtually everyone has a gun (or that most people searched have a gun) than actually exists.
I don't know how much this plays into things, but I'd be surprised if there wasn't some tendency along these lines. It's only natural.
Of course, someone could rightly respond that someone sitting on a bench -- or, like me, in an ivory tower -- may similarly not recognize how prevalent guns really are, since none of our friends are typically packing on the job. Fair enough. It'd be interesting to figure out how these competing factors actually play out, and which one predominates.
Howard v. DeWitt (Cal. Ct. App. - July 15, 2009)
I will not claim that I read every unpublished decision of the Court of Appeal, even those from down here in San Diego. 'Cause I don't.
But I do occasionally peruse them. Sometimes you stumble upon a gem. Like this one.
There's nothing really important to say about the opinion itself, which involved an appeal by an insurance company that was attempting (quite belatedly) to set aside a large default judgment entered against someone it had decided not to defend. What's noteworthy about the opinion is the attorney-slap (and sanction) given to the insurer's counsel, Lance Orloff. Who's called out by name in the opinion.
I won't recount all the details of what Mr. Orloff allegedly did, which Justice McConnell describes at length. I will, however, present a taste of the Court of Appeal's reaction thereto:
"On March 26, 2009, this court, on its own motion, issued an order to show cause why we should not impose sanctions against Monterey and its counsel of record, Lance Orloff, for the misrepresentation of the appellate record in both the opening and reply briefs. On April 6, 2009, they filed a written opposition in which Orloff admitted he did not sufficiently review the facts and "relied on an unfortunate clerical error in the trial court's order". . . .
We conclude sanctions of $750 are in order for Orloff's misrepresentation of the appellate record. The misrepresentation is particularly egregious because Orloff is an appellate specialist with 22 years of experience, and he based Monterey's appeal principally on his erroneous rendition of the facts, thereby making the appeal largely frivolous and wasteful of this court's time and resources. Even if the misstatements of fact in the opening brief can be attributed to Orloff's failure to adequately review the record, in the reply brief he does not acknowledge his errors and instead persists in misleading the court."
I'm sure that a law firm partner can handle a $750 sanction. It doesn't even require reporting to the State Bar. But the verbal spanking? Ouch. That's gotta hurt. The only saving grace -- for which I'm certain Lance is (or at least should be) eternally grateful -- is that Justice McConnell left the opinion unpublished.
So he's got that going for him. Which is nice.
But I do occasionally peruse them. Sometimes you stumble upon a gem. Like this one.
There's nothing really important to say about the opinion itself, which involved an appeal by an insurance company that was attempting (quite belatedly) to set aside a large default judgment entered against someone it had decided not to defend. What's noteworthy about the opinion is the attorney-slap (and sanction) given to the insurer's counsel, Lance Orloff. Who's called out by name in the opinion.
I won't recount all the details of what Mr. Orloff allegedly did, which Justice McConnell describes at length. I will, however, present a taste of the Court of Appeal's reaction thereto:
"On March 26, 2009, this court, on its own motion, issued an order to show cause why we should not impose sanctions against Monterey and its counsel of record, Lance Orloff, for the misrepresentation of the appellate record in both the opening and reply briefs. On April 6, 2009, they filed a written opposition in which Orloff admitted he did not sufficiently review the facts and "relied on an unfortunate clerical error in the trial court's order". . . .
We conclude sanctions of $750 are in order for Orloff's misrepresentation of the appellate record. The misrepresentation is particularly egregious because Orloff is an appellate specialist with 22 years of experience, and he based Monterey's appeal principally on his erroneous rendition of the facts, thereby making the appeal largely frivolous and wasteful of this court's time and resources. Even if the misstatements of fact in the opening brief can be attributed to Orloff's failure to adequately review the record, in the reply brief he does not acknowledge his errors and instead persists in misleading the court."
I'm sure that a law firm partner can handle a $750 sanction. It doesn't even require reporting to the State Bar. But the verbal spanking? Ouch. That's gotta hurt. The only saving grace -- for which I'm certain Lance is (or at least should be) eternally grateful -- is that Justice McConnell left the opinion unpublished.
So he's got that going for him. Which is nice.
Wednesday, July 22, 2009
Baker Manock & Jensen v. Superior Court (Cal. Ct. App. - July 21, 2009)
It's a disqualification case involving a will contest. Nothing manifestly special.
But am I reading it wrong? Is there bad blood between the Fifth Appellate District and Judge Kazanjian? Because Justice Vartabedian seems to go out of his way to slam the trial court.
Not over the top. Not effusively. But repeatedly. Like death by a thousand cuts.
Judge Kazanjian was elected just after Justice Vartabedian was elevated, so they weren't on the same bench together. It just seems like there's something there.
Maybe I'm imagining things. Read the opinion and see what you think.
But am I reading it wrong? Is there bad blood between the Fifth Appellate District and Judge Kazanjian? Because Justice Vartabedian seems to go out of his way to slam the trial court.
Not over the top. Not effusively. But repeatedly. Like death by a thousand cuts.
Judge Kazanjian was elected just after Justice Vartabedian was elevated, so they weren't on the same bench together. It just seems like there's something there.
Maybe I'm imagining things. Read the opinion and see what you think.
People v. Field (Cal. Ct. App. - July 14, 2009)
Don't molest children. Because even after you finish your sentence, and even after you have your balls surgically removed, we still won't let you out.
Tuesday, July 21, 2009
U.S. v. Payton (9th Cir. - July 21, 2009)
I agree with Judge Canby.
Last year, I agreed with Judge Wallace. Back then, in U.S. v. Giberson, the police had a warrant to search a home for evidence of evasion of child support and saw some evidence in plain view that pretty clearly indicated that the defendant was making false identifications from his computer. So they got another warrant to search the computer for supporting evidence and stumbled upon some child pornography as well. That's okay.
But in today's opinion by Judge Canby, the police had a warrant to search a home for drugs, saw absolutely nothing incriminating, clicked on a file on the defendant's computer, and discovered some child pornography. That's not okay. The warrant here, unlike the one in Giberson, didn't authorize a search of the computer. Nor -- again unlike Giberson -- was there any reason at all to believe that any drug information was on the computer. Hence you aren't authorized to search.
The mere fact that drug information could have been on the computer (yeah, that's why you clicked on that jpeg file, I'm sure) isn't enough. If the warrant doesn't allow a search of the computer, and there's no reason to believe there's evidence relevant to the warrant therein, you can't rummage through the computer's files looking for whatever you might be able to find and charge the guy with.
Judge Wallace gets it right in 2008. Judge Canby gets it right in 2009.
Last year, I agreed with Judge Wallace. Back then, in U.S. v. Giberson, the police had a warrant to search a home for evidence of evasion of child support and saw some evidence in plain view that pretty clearly indicated that the defendant was making false identifications from his computer. So they got another warrant to search the computer for supporting evidence and stumbled upon some child pornography as well. That's okay.
But in today's opinion by Judge Canby, the police had a warrant to search a home for drugs, saw absolutely nothing incriminating, clicked on a file on the defendant's computer, and discovered some child pornography. That's not okay. The warrant here, unlike the one in Giberson, didn't authorize a search of the computer. Nor -- again unlike Giberson -- was there any reason at all to believe that any drug information was on the computer. Hence you aren't authorized to search.
The mere fact that drug information could have been on the computer (yeah, that's why you clicked on that jpeg file, I'm sure) isn't enough. If the warrant doesn't allow a search of the computer, and there's no reason to believe there's evidence relevant to the warrant therein, you can't rummage through the computer's files looking for whatever you might be able to find and charge the guy with.
Judge Wallace gets it right in 2008. Judge Canby gets it right in 2009.
Diaz v. LA County MTA (Cal. Ct. App. - July 20, 2009)
I'm of two minds about this case. Wait, no. Make that three.
It's a routine bus accident in L.A., the kind that I'm sure happens at least weekly. A bus is at the intersection of Van Nuys and Roscoe and rear-ends another car, throwing a passenger out of her seat and making her hit her head. The passenger sues, claiming the bus driver was negligent. The MTA, by contrast, contends that the car, not the bus driver, was at fault by changing lanes and then suddenly stopping. The jury finds for the MTA, and the principal question on appeal is whether the plainiff was entitled to a res ipsa loquitor instruction.
On the one hand, I'm sure that Justice Perluss is correct that such an instruction was required. The MTA is a common carrier, with the heightened duty that brings, and there's a bunch of longstanding precedent that says that accidents involving common carriers require a res ipsa instruction. Sure, those cases are way old -- from the 1940s and stuff -- but they've not been overruled, so the Court of Appeal can only do so much. (Plus, I learned from a footnote in the opinion that the first res ipsa loquitor case was allegedly not the famous English "barrel-rolling-out-of-the-warehouse" case, but was actually a common carrier case in which the axle of a stagecoach broke. Neat stuff.)
On the other hand, however, as a matter of first principles, a res ipsa instruction in this context seems silly. From what I vaguely recall from first-year torts, res ipsa applies only when an "accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible." (Okay, that's a quote from a 1975 California case, not memory, but the principle is the same.) Now, maybe in 1940 or whatever, bus accidents were almost always the fault of the bus driver, or you couldn't figure out why, but no way that's true now. Nowadays, these are just like any other accident; either driver might be at fault, and the jury's job is simply to figure it out in light of the evidence. It's not like a barrel out of a warehouse, which rarely happens and, when it does, it's likely to be the warehouse's fault. Bus accidents happen all the time, and they could well be anyone's fault. So it seems like res ipsa shouldn't apply.
It's true, of course, that common carriers have heightened duties of care to their passengers. But we properly give an instruction on that at trial, and adding res ipsa on top of that doesn't seem like what res ipsa's designed to do. It's one thing to say "bus drivers need to be really careful; remember that when you decide liability." It's entirely another to say "you should assume that any accident involving a bus driver is the driver's fault." Lots of situations that involve heightened duties (bailments, fiduciaries, etc.) don't get res ipsa instructions. That's because there's a difference between duty and res ipsa; the two are designed for different situations, and saying you're entitled to the latter due to the former seems wrong to me. At least, again, as a matter of first principles.
Which brings me to my third mind. Even if a res ipsa instruction should have been given, it is reversible error? Justice Perluss says that the liability issue at trial was close, and I assume he's correct. To me, that's perhaps necessary, but not sufficient, for reversal. Res ipsa loquitor is only a presumption -- a burden-shifting device. Here, there was active evidence on both sides as to which driver was at fault; witnesses, reconstructions, etc. The jury weighed the evidence and concluded that the driver of the car, not the bus driver, was responsible. Given that fact, it seems to me that a res ipsa loquitor instruction shouldn't matter. Yes, res ipsa requires that the defendant (which now has the burden of production) put forth evidence, but the MTA clearly did that here, and the jury found that evidence persuasive. Res ipsa may also shift the burden of proof, but that only legally matters if the evidence is in equipose; in other words, that the jury concludes that it's exactly equally probable that both sides were liable. What's the chance that the jury thought evidence was in exact equipose in a sitaution like this, even in a close case? That it was exactly 50/50 as to who was at fault, not 50.00001% to 49.99999%? Pretty much none. In which case the failure to give an instruction, at least in a situation like this, is indeed harmless error, and the jury's verdict should thus be upheld.
Do I understand that juries don't actually work like that? That instructions like res ipsa may well make 'em put a weight on the substantive scale in favor of the plaintiff? Sure I do. But the instruction isn't supposed to work that way, and I see little reason to reverse on the ground that the decision would be different because if the court had given the right instruction we're pretty sure the jury wouldn't have accurately followed the law.
In short, this is a case that takes me way back to the 20th century, sitting in Torts in Austin Hall and learning a little bit of Latin. A neat little trip on a bright, sunny and beautiful Tuesday. The type that Cambridge so rarely saw during my sojourn there. Given precedent, I understand the reason to come out the way Justice Perluss does. But as a policy and doctrinal matter, I wonder if that's the right result if we could write on a blank slate.
It's a routine bus accident in L.A., the kind that I'm sure happens at least weekly. A bus is at the intersection of Van Nuys and Roscoe and rear-ends another car, throwing a passenger out of her seat and making her hit her head. The passenger sues, claiming the bus driver was negligent. The MTA, by contrast, contends that the car, not the bus driver, was at fault by changing lanes and then suddenly stopping. The jury finds for the MTA, and the principal question on appeal is whether the plainiff was entitled to a res ipsa loquitor instruction.
On the one hand, I'm sure that Justice Perluss is correct that such an instruction was required. The MTA is a common carrier, with the heightened duty that brings, and there's a bunch of longstanding precedent that says that accidents involving common carriers require a res ipsa instruction. Sure, those cases are way old -- from the 1940s and stuff -- but they've not been overruled, so the Court of Appeal can only do so much. (Plus, I learned from a footnote in the opinion that the first res ipsa loquitor case was allegedly not the famous English "barrel-rolling-out-of-the-warehouse" case, but was actually a common carrier case in which the axle of a stagecoach broke. Neat stuff.)
On the other hand, however, as a matter of first principles, a res ipsa instruction in this context seems silly. From what I vaguely recall from first-year torts, res ipsa applies only when an "accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible." (Okay, that's a quote from a 1975 California case, not memory, but the principle is the same.) Now, maybe in 1940 or whatever, bus accidents were almost always the fault of the bus driver, or you couldn't figure out why, but no way that's true now. Nowadays, these are just like any other accident; either driver might be at fault, and the jury's job is simply to figure it out in light of the evidence. It's not like a barrel out of a warehouse, which rarely happens and, when it does, it's likely to be the warehouse's fault. Bus accidents happen all the time, and they could well be anyone's fault. So it seems like res ipsa shouldn't apply.
It's true, of course, that common carriers have heightened duties of care to their passengers. But we properly give an instruction on that at trial, and adding res ipsa on top of that doesn't seem like what res ipsa's designed to do. It's one thing to say "bus drivers need to be really careful; remember that when you decide liability." It's entirely another to say "you should assume that any accident involving a bus driver is the driver's fault." Lots of situations that involve heightened duties (bailments, fiduciaries, etc.) don't get res ipsa instructions. That's because there's a difference between duty and res ipsa; the two are designed for different situations, and saying you're entitled to the latter due to the former seems wrong to me. At least, again, as a matter of first principles.
Which brings me to my third mind. Even if a res ipsa instruction should have been given, it is reversible error? Justice Perluss says that the liability issue at trial was close, and I assume he's correct. To me, that's perhaps necessary, but not sufficient, for reversal. Res ipsa loquitor is only a presumption -- a burden-shifting device. Here, there was active evidence on both sides as to which driver was at fault; witnesses, reconstructions, etc. The jury weighed the evidence and concluded that the driver of the car, not the bus driver, was responsible. Given that fact, it seems to me that a res ipsa loquitor instruction shouldn't matter. Yes, res ipsa requires that the defendant (which now has the burden of production) put forth evidence, but the MTA clearly did that here, and the jury found that evidence persuasive. Res ipsa may also shift the burden of proof, but that only legally matters if the evidence is in equipose; in other words, that the jury concludes that it's exactly equally probable that both sides were liable. What's the chance that the jury thought evidence was in exact equipose in a sitaution like this, even in a close case? That it was exactly 50/50 as to who was at fault, not 50.00001% to 49.99999%? Pretty much none. In which case the failure to give an instruction, at least in a situation like this, is indeed harmless error, and the jury's verdict should thus be upheld.
Do I understand that juries don't actually work like that? That instructions like res ipsa may well make 'em put a weight on the substantive scale in favor of the plaintiff? Sure I do. But the instruction isn't supposed to work that way, and I see little reason to reverse on the ground that the decision would be different because if the court had given the right instruction we're pretty sure the jury wouldn't have accurately followed the law.
In short, this is a case that takes me way back to the 20th century, sitting in Torts in Austin Hall and learning a little bit of Latin. A neat little trip on a bright, sunny and beautiful Tuesday. The type that Cambridge so rarely saw during my sojourn there. Given precedent, I understand the reason to come out the way Justice Perluss does. But as a policy and doctrinal matter, I wonder if that's the right result if we could write on a blank slate.
Monday, July 20, 2009
Vasquez v. Kirkland (9th Cir. - July 20, 2009)
Even if a key witness is deaf, cannot speak, and has not learned sign language, she can still properly testify at a criminal trial.
Sure, a defendant's ability to cross-examine that witness is somewhat limited, since she's using somewhat ambiguous facial expressions, gestures, and lip movements to both understand and respond to questioning. So her answers -- and her ability to understand the questions posed to her -- may often be unclear. But you simply do the best you can; the Confrontation Clause does not preclude the jury's reliance upon her testimony.
That seems right to me.
I also found tangentially interesting an unpublished California Court of Appeal opinion that Judge Fletcher discussed in her opinion. That opinion, rendered in 1996, affirmed a conviction when a key witness -- who was left speechless and a quadrapalegic after being shot -- was permitted to testify by tapping once for "yes" and two times for "no".
Now, I'm not a super geek. At least compared to the thousands of people who are currenly flying into San Diego this week. But upon reading this, my mind instantly returned to a classic episode of Star Trek in which Captain Christopher Pike (the original commander of the Enterprise) testifies in almost precisely such a fashion, beeping (through a machine) once for yes and twice for no. (I'd be even more of a geek if I admitted that I also knew that there was a Futurama episode that mocks this episode, and in which Fry testifies in the same fashion, so I shall decline such an admission.)
Sometimes life imitates art.
Sure, a defendant's ability to cross-examine that witness is somewhat limited, since she's using somewhat ambiguous facial expressions, gestures, and lip movements to both understand and respond to questioning. So her answers -- and her ability to understand the questions posed to her -- may often be unclear. But you simply do the best you can; the Confrontation Clause does not preclude the jury's reliance upon her testimony.
That seems right to me.
I also found tangentially interesting an unpublished California Court of Appeal opinion that Judge Fletcher discussed in her opinion. That opinion, rendered in 1996, affirmed a conviction when a key witness -- who was left speechless and a quadrapalegic after being shot -- was permitted to testify by tapping once for "yes" and two times for "no".
Now, I'm not a super geek. At least compared to the thousands of people who are currenly flying into San Diego this week. But upon reading this, my mind instantly returned to a classic episode of Star Trek in which Captain Christopher Pike (the original commander of the Enterprise) testifies in almost precisely such a fashion, beeping (through a machine) once for yes and twice for no. (I'd be even more of a geek if I admitted that I also knew that there was a Futurama episode that mocks this episode, and in which Fry testifies in the same fashion, so I shall decline such an admission.)
Sometimes life imitates art.
People v. Friend (Cal. Supreme Ct. - July 20, 2009)
Sometimes it's totally easy to see why a defendant has been sentenced to death, and it's obvious how the murder there is different from other crimes in which the defendant is sentenced to life.
Then there's this one.
Maybe I'm jaded after reading all the death penalty cases over the past couple decades. But I don't entirely see how this one is different than your usual run-of-the-mill case of murder during a robbery.
Of course, one might take the position that everyone who commits such a crime should be sentenced to death. But, for better or worse, that's not our system.
None of this is relevant to the decision of the California Supreme Court, which unanimously affirms the conviction and sentence. Just thought I'd share my reaction.
P.S. - Some nice conduct by the prosecutor during closing argument here. My favorite: Noting that the defendant, who was homeless, slept beneath the sidewalk, "living like a mole or the rat that he is." My reaction to that was slightly different than the Court's, which blithely concluded that it was "founded on evidence in the record and fell within the permissible bounds of argument."
Then there's this one.
Maybe I'm jaded after reading all the death penalty cases over the past couple decades. But I don't entirely see how this one is different than your usual run-of-the-mill case of murder during a robbery.
Of course, one might take the position that everyone who commits such a crime should be sentenced to death. But, for better or worse, that's not our system.
None of this is relevant to the decision of the California Supreme Court, which unanimously affirms the conviction and sentence. Just thought I'd share my reaction.
P.S. - Some nice conduct by the prosecutor during closing argument here. My favorite: Noting that the defendant, who was homeless, slept beneath the sidewalk, "living like a mole or the rat that he is." My reaction to that was slightly different than the Court's, which blithely concluded that it was "founded on evidence in the record and fell within the permissible bounds of argument."
Friday, July 17, 2009
In Re Henry Russell Martin (S.D. - July 17, 2009)
A warm welcome to the newest reader of the California Appellate Report: Henry Russell Martin, who entered the world a bouncing 10 pounds 2 ounces at 10:59 a.m. this morning.
Subscribe to:
Posts (Atom)