People v. Lessie (Cal. Supreme Ct. - Jan. 28, 2010)

Imagine that the first sentence of a contemporary opinion by the California Supreme Court opinion begins with the sentence: "We granted review to decide whether to overrule a 1971 pro-Miranda decision of this Court." Which is essentially what the first sentence of this opinion says.

In light of that sentence, do you have any doubt whatsoever what the answer's going to be?

I thought not.

2010 ain't 1971. Particularly where Miranda's concerned.

U.S. v. Treadwell (9th Cir. - Jan. 28, 2010)

It may well be that 2009 was the "Year of the Ponzi Scheme," and Judge Gould makes a reference to exactly that in the second footnote of his opinion. But if so, 2010 may well be the "Year of Huge Sentences." As, this morning, the Ninth Circuit affirms not only the convictions of Randall Treadway, Ricky Sluder and Larry Saturday for running a $40 million Ponzi scheme, but also Judge Whelan's 300-, 188-, and 63-month sentences (respectively) for the trio.

For us non-guidelines people, that's 25 years for Treadwell, 15+ for Sluder, an a cool 5 for Saturday.

Which reminds us that just as participating in a Ponzi scheme is all fun until it collapses, running one is similarly fun only until you get caught.

Robles v. Chalilpoyil (Cal. Ct. App. - Jan. 27, 2010)

It's a SLAPP appeal, and those are always slightly interesting. Especially when they involve California attorneys as defendants.

The appellant here is actually an expert witness who the plaintiff's lawyer allegedly had to boot off a case (and get a continuance of the trial date) because he had falsely testified at a deposition. Apellant wants the case dismissed on an anti-SLAPP motion, the trial court says no, and the Court of Appeal affirms.

But what was even more interesting to me than the underlying (alleged) false testimony was the allegation -- and, upon first glace, the claim seems plausible -- that the expert and the attorney tried to market a product to the defendants they were suing; a product that they came up with in the course of representing the client. The lawsuit was about a person -- John Robles -- who (allegedly) burned to death when his (presumably motorized) wheelchair ignited. So the family members then sued Golden State Medical Supply Co., Pride Mobility Products Corp., and others alleging a product defect. Plaintiffs hire Salinas attorney Thomas Wills to represent 'em, and the lawsuit progesses. My sense is that the theory of the underlying case is that the battery on the scooter/wheelchair must have ignited and killed Robles. In an ugly death.


So a regular old -- and pretty darn good -- lawsuit. Which only gets more interesting not only when Wills allegedly has to move to continue the trial because he just learned that his expert had falsely testified at his deposition, but also because Wills allegedly goes to his clients before trial and tells 'em that he and the expert want to market a product that they developed designed to avoid similar injuries in the future, and would they please sign a waiver of all rights to the thing. Shortly thereafter, the case (allegedly) settles for a million bucks, but plaintiffs don't want the settlement, Wills withdraws (and files a lien), defendants file (and win) a motion to enforce the settlement, and the lawsuit against Wills and the expert is thereafter filed.


My reaction to which included the thought: "Did Wills really ask the plaintiffs to waive any claims to a product he and the expert developed based on the litigation?" Because if he did, my initial reaction to such conduct would not be a positive. I admittedly don't know all the contours of intellectual property law in this regard. But an attorney who develops a product with an expert that both originates and derived from the underlying litigation seems like it might be partly the property of the client. And definitely creates a problemmatic conflict of interest, especially if the attorney might be (or might well want to) market the product to the exact same people -- the defendants -- with whom he's currently trying to negotiate a settlement.


Which in turn got me thinking: What kind of lawyer is this Thomas Wills guy?


So I looked it up. He's a California lawyer, with a J.D. from Monterey College of Law. But he's not just Thomas Wills anymore. He's Judge Wills. Appointed to the Superior Court 18 months ago.


Interesting stuff all around.

Save The Plastic Bag Coalition v. City of Manhattan Beach (Cal. Ct. App. - Jan. 27, 2010)

Sometimes your legal strategies can turn around and bite you in the arse.

For decades, environmental advocates have litigated for a strong and vigorous interpretation of statutes like the California Environmental Quality Act. Anti-environmental groups have decried the resulting doctrines, particularly the requirement that compels the creation of lengthy, time-consuming and often expensive environmental impact reports (EIRs) whenever a developer or municipality wants to do something that might arguably have an impact on the environment. But environmental groups have largely prevailed, at least here in California, and as a result, our EIR precedent is pretty darn strong.

But check out what happens here. The City of Manhattan Beach bans plastic bags at grocery stores and other retail establishments -- an unabashedly pro-environmental law designed to stop the proliferation of non-biodegradeable plastic bags in the ocean, on the roadside, and in the innards of various sea animals. But, not surprisingly, the plastic bag manufacturers ain't taking this lying down. They create an "unincorporated assocation" and call it the "Save the Plastic Bag Coalition" -- a much better name than "Self-Interested Plastic Mag Manufacturers" -- that then sues the City of Manhattan Beach.

Their claim? That the City didn't prepare a proper EIR. Since banning plastic bags, or making them more expensive, will likely increase the use of paper bags, thereby resulting in an increase in deforestation, paper mills, water pollution, etc.

And they win.

Justice Mosk, not surprisingly, dissents. With the following opening line: "Requiring the small city of Manhattan Beach (City), containing a little over 33,000 people, to expend public resources to prepare an environmental impact report (EIR) for enacting what the City believes is an environmentally friendly ordinance phasing out the retail distribution (not use) of plastic carryout bags within the City and promoting the use of reusable bags (not paper bags)stretches the California Environmental Quality Act (Pub. Resources Code, § 21000, et seq.) (CEQA) and the requirements for an EIR to an absurdity."

But he loses. In large part precisely because of the expansive interpretations of CEQA that have been established by precedent in cases the majority of which Justice Mosk would agree with.

I have no doubt that anti-environmentalists, including but not limited to developers frustrated with past environmental litigation, are laughing heartily at this afternoon's decision.

This is perhaps the legal doctrinal equivalent to the non-legal line: "Karma's a bi[a]tch."

Kawashima v. Holder (9th Cir. - Jan. 27, 2010)

Judge O'Scannlain writes this morning:

"We are called upon to decide whether petitioners’ convictions for subscribing to a false statement on a tax return and for aiding and assisting in the preparation of a false tax return qualify as 'aggravated felonies' that subject them to removal under the relevant immigration laws.

This is our third published opinion in this case. In our first opinion [2007 cite] we conducted a limited examination of the record of petitioners’ convictions to answer such question. One day after our panel opinion was filed, our en banc court decided Navarro-Lopez v. Gonzales [cite], which caused us to reconsider. We published a second opinion [2008 cite] in which we answered the question by applying Navarro-Lopez to Kawashima’s conviction in light of our circuit’s existing caselaw construing the statute defining 'aggravated felony.'

After we published our second opinion, the government filed a petition for rehearing en banc. While the government’s petition was pending before us, the Supreme Court granted certiorari in Nijhawan v. Attorney General [2008 cite]. Like the case before us, Nijhawan concerned whether a particular conviction for a financial offense constitutes an 'aggravated felony' under relevant immigration laws. After the Court issued its opinion, [2009 cite], we ordered the parties to file supplemental briefs on Nijhawan’s impact on the case before us. In light of this recent guidance

from the Court, we issue this hopefully final opinion in this litigation."

In short: "Third time's a charm?"

McDermott v. Ampersand Publishing (9th Cir. - Jan. 26, 2010)

I'll have more of substance to say about this case shortly. Which involves a facially narrow labor law issue but which nonetheless is a fairly interesting one (and one which I think will get some play).

But let me ignore the doctrine for a second and simiply give you the pracical bottom line for now:

Don't worry about reading this opinion, which came out this morning. Because it's going to get taken en banc. And reversed.

That's my prediction. If you'd like, read it and see if you agree.

Manuel C. v. Superior Court (Cal. Ct. App. - Jan. 26, 2010)

Justice Epstein seems right that in dependency proceedings, once a case involving one child is over, a party gets a new peremptory challenge to the judge when another case is brought shortly thereafter involving a different child (albeit in the same family). It's a different case, so a new challenge. So I have no problem with the holding here as a doctrinal matter.

But, were it me, I might have added a little note to the Legislature suggesting that they take a look at this. Especially since the way we allow parties to paper judges here in California is a bit troubling in any case, but particularly so when -- as here -- there are definite efficiency (as well as potential equity and uniformity) concerns.

When the trial court here denied the peremptory, it said: "It is the practice of the Los Angeles County to file petitions on any subsequent child born to the mother and/or the same parties that are involved in the case virtually at the same time. When the cases have been terminated and a new petition is filed on the same children, as it is in this case, it is assigned to the same judge as previously assigned. The purpose of this is to allow the children and the families to have stability. It is to allow one judge to become so familiar with the family as to be able to oversee the special needs of the children and to follow the progress of the family. It allows the court to hold parents accountable for their actions. It is in the best interest of these already abused and neglected children."

To me, there's some value in that statement. And at least something worth considering. So I'd have expressly suggested as such to anyone who might be willing to listen and potentially amend the rule to provide for special procedures in multiple-child family law cases.

Ho v. Hsieh (Cal. Ct. App. - Jan. 26, 2010)

It's a short little opinion from this morning. At least as Court of Appeal decisions go. Twelve double-spaced pages.

But it could have been even shorter. The actual analysis only takes up three and a half.

Plus, I can summarize it in a single sentence. Something that's not nearly possible with most cases. A sentence that's also largely self-evident. Which is this:

A court can't order stock shares transferred to a judgment creditor without any offset in the judgment.

For good reason. If the shares have absolutely no value, you can't transfer 'em to satisfy a judgment. If they have value, you've got to have an offset. It's got to be one or the other.

Call it $10,000. Call it $1. But you can't call it $0.

Lexin v. Superior Court (Cal. Supreme Ct. - Jan. 25, 2010)

For most people, Mondays aren't typically cause for massive celebration. But today's an exception for the former members of San Diego's Pension Board who were charged with a criminal conflict of interest as a result of their votes in favor of creating what turned out to be San Diego's monster pension crisis. This morning, Justice Werdegar writes a unanimous opinion that reverses the Court of Appeal and orders the charges against them dismissed.

But, as with many exceptions, there's an exception to the exception. Five of the six defendants get off. But a sixth -- Ronald Saathoff -- doesn't. The San Diego District Attorney's Office convinces the California Supreme Court that there's a unique set of facts that applies to him, so he's still up on criminal charges.

So the day could have definitely been better for Saathoff (and his attorney, Jerry Coughlan). But short of having charges against you dismissed, which was assuredly Saathoff's hope, it's still not a bad day to wake up to a pro-defendant interpretation of the criminal statute you're charged with violating and to see the charges against all of your high-profile co-defendants dismissed. It's now a much less high-profile case. Plus the prosecution has a bitter taste in its mouth from the loss in the California Surpemes. Which makes for a greater chance of a deal and/or dismissal.

This is not the end of the litigation -- civil or criminal -- regarding the San Diego penion mess. By any means. But it is a part of it that's winding down.

P.S. - Full Disclosure: Jerry Coughlan is the father of a current student of mine. Though such (minimal) links to the case extend in other directions too; one of the trial judges, for example, is the father of a former student. Not to mention other tangential links to some of the attorneys on the case. San Diego, while the ninth largest city in the nation, is not an especially large town when it comes to high-profile legal work.

U.S. v. Green (9th Cir. - Jan. 22, 2010)

I think that Judge Tashima's introductory paragraph in this one is pretty darn apt:

"Depending on whose version of this case you hear, defendant Judy Green is either a dedicated public schoolteacher who spent the years before her conviction working to help impoverished schools across the country, or the mastermind of a massive fraudulent scheme that bilked the federal government out of almost $60 million. The government takes the latter view, and charged Green with defrauding E-Rate, a Federal Communications Commission (“FCC”) program that funds technology projects at schools and libraries. Green insists the former is true, maintaining that she is guilty of nothing more than helping schools maximize their federal funding by exploiting loopholes in the E-Rate rules and regulations."

The jury thought she was a fraudster. The Ninth Circuit affirmed. And that seems right to me too.

It's actually a pretty good scam. The Feds reimburse schools up to 90% for various computer stuff, so Green would pitch low-income school districts and essentially make the following offer: "You buy equipment, the U.S. will pay 90%, and I'll get bids from contractors who (A) won't make you pay the remaining 10%, and (B) will throw in for free lots of extra 'goodies' that aren't eligible for reimbursement under the program." To which lots of the school districts said, not surprisingly, "Sure."

Of course, all this has a price. The contractors are willing to do this only if they inflate the bids. Which they do, charging up to three or four times what they normally charge. But the districts choose those bids since the Feds are paying, not them, and the districts get the goodies and don't have to pay a dime. Only the U.S. takes the hit.

So, again, a nice little trick. Green calls it "exploiting a loophole". But the jury saw it (as I do) as fraud. Getting bids that you know have got to be inflated, and then covering the thing up in the various ways Green did, is a pretty good sign that it's not merely a "loophole".

That said, if anyone else reading this has come up with a way to score $60 million with a system that's similarly arguably legal, please let me know. Maybe it's worth rolling the dice.

(To be clear: I'm kidding. But lots of other people wouldn't be.)

Truong v. Glasser (Cal. Ct. App. - Jan. 21, 2010)

Let's hear it for statutes of limitations running fairly quickly against lawyers.

San Diego attorney Bruce Glasser enjoys the fruits of this holding. And, given its publication today, so do we all.

People v. Kelly (Cal. Supreme Ct. - Jan. 21, 2010)

I'm somewhat of two minds about this morning's decision from the California Supreme Court. Notwithstanding the fact that it's utterly uncontroversial.

On the one hand, I'm glad that Chief Justice George's opinion helps make clear the somewhat messy interplay between the Compassionate Use Act ("CUA") -- the initiative that legalized medical marijuana -- and the Medical Marijuana Program ("MMP"), which was added by the Legislature and was an attempt to establish some practical guidelines in applying the CUA.

Particularly helpful for me was the Court's straightforward discussion of the fact that the CUA provides a defense to prosecution but not arrest, while the identification card provisions might well affect the latter. I've always understood this to be the case, but it's helpful to make this clear. You can still be arrested if you carry weed, since we need not simply trust you that your possession qualifies under the CUA. But we won't arrest you if you have a valid identification card and you're carrying under the numerical limits established by the MMP; namely, eight ounces of pot and/or six mature (or twelve immature) plants. It's helpful to spell that out, in addition to being an entirely correct interpretation of the interplay. So I like that part.

On the other hand, however -- and I recognize that this is perhaps me being overly grumpy -- given that both the Attorney General and the defendant essentially agreed to everything at issue in this appeal, was it really necessary for the Chief to write a 54 page opinion, an opinion that discusses at length the broad history of California's initiative process, the different and varying provisions of other states, blah blah blah? Yeah, at some level, that's interesting, to some people at least. But hardly necessary (or even close to necessary) to the result, a result that even the competing parties have already agreed upon.

Given both the unanimous nature of the opinion, the clearly correct result, the admissions of the parties, and the fact that I've rarely seen an appeal that was more easily decided, I think that I might have done this one in, say, 20 pages. Maybe even less. A little more than a one-sentence opinion that says "Everyone agrees, so here's the rule." But less than 56 tree-killing pages.

In Re Criscione (Cal. Ct. App. - Jan. 13, 2010)

Arthur Criscione was born in 1938, making him 71 or 72 years old. He's had 14 prior parole hearings. Would you let him out?

Here are the relevant facts:

"Criscione was convicted in 1979 of the second degree murder of his girlfriend, Dorothy Quinitar. He was sentenced to 15 years to life. . . . [O]n February 27, 1979, at approximately 1:20 a.m., defendant walked into the San Jose Police Department and reported a homicide . . . . [D]efendant's son Rick Criscione . . . indicated his father had come over to his apartment and told him, 'I just killed Dorothy and put her in the bathtub.' . . . [T]he victim was found fully clothed and lying in approximately eight and a half inches of water in the bathtub. . . . Further interview with the defendant's son revealed that when his father came to his apartment and told him of the homicide, he noted his father's hair was wet, and one pant leg was also wet. . . . Ricky stated his father told him he and the victim had gone out last night, and when they came home, she'd pulled a knife on him. Ricky stated that this was not unusual, in that she had done this type of thing in the past. The defendant related to his son that he had choked the victim and stated, 'I know she is dead.' . . . Ricky Criscione indicated he felt his father stated he hit the victim first, then choked her. . . . An attempt was made to interview the defendant, but he chose to remain silent. He did state words to the effect 'I don't want to say anything more right now. I did it. She's in my apartment. And I don't want to go back there.' The defendant provided the officer with his key ring and then began to tell him the victim was 'a crystal freak.' And that she had been on glue, drugs, and crystal for approximately five years. . . .

Criscione completed the tenth grade at San Jose High School, then went to work in his father's bakery. He had also worked as a produce clerk and part-time as a bouncer at a bar. Criscione had no juvenile record and no convictions as an adult other than the offense for which he was incarcerated. He had a history of mental problems, having been treated with electroshock therapy on several occasions up until the age of 38 or 39. He did not smoke or drink. He had been married to Doris Cabrera; they had three children together. The marriage had been marked by violence. Criscione had beaten and choked Cabrera, sometimes leaving bruises on her neck. Cabrera was known to have pretended to pass out to make the choking stop. The marriage ended in divorce in 1977.

Criscione had a nearly spotless prison record with no major disciplinary infractions and only two minor infractions, the most recent from 1983. Criscione also had numerous laudatory notations in his file. He had participated in a long list of self-help programs, most with the Golden Hills Adult School Literacy Program. Because the commissioners at the 2007 parole hearing suggested book reports, Criscione had completed several of those as well.

If released on parole, Criscione planned to live with his brother in Corona Del Mar, with his son in Turlock, or with his sister in San Clemente. He was eligible for Social Security and a pension from the Retail Clerks union.

The Board referred to a psychological report by Garry L. Hitchcock, Ph.D., dated March 17, 2008, noting that the report was “favorable.” The Board then read a portion of the report into the record, as follows: “The inmate currently exhibits no psychiatric symptoms, and he appears to be functioning well within the prison setting. Risk assessment estimates suggest that the inmate poses a low likelihood to become involved in a violent offense if released to the free community. This overall risk assessment estimate takes into account the inmate's cultural background, personal, social, and criminal history, institutional programming, community social support, release plans, and current clinical presentation. In addition, there is the caveat that such an assessment is at least partially based on the likelihood of abstinence from any substance abuse. . . . The inmate does not currently see himself as a criminal, but rather as someone who wants to be a productive, responsible citizen in the free community. When he is asked to identify his personal strengths, Mr. Criscione replied, 'I‟m a very organized person. I keep my word. As far as work, I'm a very reliable and dependent [sic] person. I'm loyal to my family.

When he was asked how he has changed over the years of incarceration, Mr. Criscione replied, 'My values have changed. A lot of things you take for granted in the free world, values I held before prison seem silly and ridiculous. And the things I took for granted, I found they are the most precious.'"

There's the basic scoop. Would you keep him in, or let him out?

The answer in the real world? Keep him in.

Crowe v. Wrisley (9th Cir. - Jan. 14, 2010)

It was one of the highest-profile murders in San Diego in recent memory: The Stephanie Crowe murder on January 20, 1998, when 12-year-old Stephanie Crowe was stabbed to death in her bedroom. It became even more shocking when, after extensive investigation and interrogations, Stephanie's brother and two of his friends were charged with the murder. And it became even more shocking when, a year later, DNA testing revealed Stephanie’s blood on the shirt of a transient, Richard Tuite, who had been seen in the Crowes’ neighborhood on the night of the murder and reported by several neighbors for strange and harassing behavior -- a test that eventually resulted in the dismissal of charges against the boys and a conviction of Tuite for Stephanie's murder.

Needless to say, the boys and their families sued. Raising a plethora of very much non-frivolous claims.

The district court nonetheless dismissed a large portion of the plaintiffs' claims. It took the Ninth Circuit over 18 months after the oral argument to write its opinion, notwithstanding the fact that it's unanimous. But it came out this morning. With Judge Thomas as the author.

This is a sufficiently high-profile opinion that I need not say much about it, and the whole thing's worth reading anyway. But let me give you one quote that suggests the tenor of the opinion, and a second quote that simply reveals the net result.

Quote One:

"One need only read the transcripts of the boys’ interrogations, or watch the videotapes, to understand how thoroughly the defendants’ conduct in this case 'shocks the conscience.' Michael and Aaron—14 and 15 years old, respectively—were isolated and subjected to hours and hours of

interrogation during which they were cajoled, threatened, lied to, and relentlessly pressured by teams of police officers. 'Psychological torture' is not an inapt description. In Cooper, we held that police violated an adult suspect’s substantive due process rights when they 'ignored Cooper’s repeated requests to speak with an attorney, deliberately infringed on his Constitutional right to remain silent, and relentlessly interrogated him in an attempt to extract a confession.' 963 F.2d at 1223. The interrogations of Michael and Aaron are no less shocking. Indeed, they are more so given that the boys’ interrogations were significantly longer than Coopers’s, the boys were minors, and Michael was in shock over his sister’s brutal murder. The interrogations violated Michael’s and Aaron’s Fourteenth Amendment rights to substantive due process."

Pretty darn clear how the panel feels, eh?

Quote Two. Here's the tally:

"We reverse the district court’s grant of summary judgment as to: (1) Michael and Aaron’s Fifth Amendment claims; (2) Michael and Aaron’s Fourteenth Amendment substantive due

process claims; (3) Michael’s Fourth Amendment claim that police lacked probable cause to arrest him; (4) Aaron’s Fourth Amendment claim that the warrant authorizing the search of his home was not supported by sufficient probable cause; (5) all otherwise surviving Fourth Amendment claims against McDonough; (6) all otherwise surviving claims against Blum; (7) the Crowes’ deprivation of familial companionship claim based on Michael’s arrest; and (8) all otherwise surviving claims against the Cities of Escondido and Oceanside. We affirm the district court’s grant of summary judgment as to: (1) Aaron’s Fourth Amendment claim that police lacked probable cause to arrest him; (2) Michael’s claim that police violated his Fourth Amendment rights by strip searching him; (3) the Houser’s deprivation of familial companionship claim; (4) Michael and Aaron’s defamation claims against Stephan; (5) and Aaron’s defamation claim against Blum. Additionally, we affirm the district court’s denial of summary judgment as to: (1) Cheryl, Stephen, and Shannon Crowes’ claims that police violated his Fourth Amendment rights by strip searching them; (2) Cheryl and Stephen’s Fourth Amendment claims that the warrant authorizing police to draw blood samples were not supported by probable cause; (3) Cheryl and Stephen’s Fourth Amendment claims of wrongful detention; and (4) the Crowe’s deprivation of familial companionship claims based on the placement of Michael and Shannon in protective custody. We remand to the district court for further proceedings consistent with this opinion."

Full Throttle Films, Inc. v. National Mobile Television (Cal. Ct. App. - Jan. 12, 2010)

The name of the plaintiff in this case is "Full Throttle Films," which led me to think: "Hmmm. This one might be interesting."

But it's an attachment case. Zzzzzzzz.

Don't judge a book by its cover.

P.S. - On a related note, "Full Throttle Films" does not produce what you might think. Unless you thought they produced NASCAR commercials. In which case you're right.

People v. Alford (Cal. Ct. App. - Jan. 13, 2009)

"In April 2008, defendant Anthony Mark Alford, Jr., entered a Wal-Mart, loaded a shopping cart with meat, put most of the meat in a 150-quart ice chest, placed some other items in the cart, and tried to leave the store without paying. The total value of the items in the cart was $515.20. Defendant told a peace officer he was going camping and did not have money to pay for the meat."

Not the most sophisticated crime in the universe, huh? "Excuse me, sir. I couldn't help but notice that the plastic ice chest you're buying weighs around 150 pounds. Need any help with that?"

By the way, for that crime, Alford gets six years in prison. Because we call it "burglary."

I guess having the state buy you meat -- or, more likely, meat-like items -- for six years is another way to go "camping" too.

U.S. v. Yip (9th Cir. - Jan. 13, 2010)

As your 1099s begin to arrive in this new Tax Year, let me be the first to remind you that there are serious downsides to running an "off the books" business that entirely fails to pay any taxes. Especially if, when you're audited, you start fabricating loans and the like in an effort to derail the civil audit.

How much of a downside? About four-plus years in prison.

P.S. - Having bank accounts in Hong Kong during this whole thing probably doesn't help either.

People v. Gonzalez (Cal. Ct. App. - Jan. 12, 2010)

Armando Gonzalez and Jose Ortiz are driving in Pomona with a couple of fellow gang-bangers. They see Hector sitting on the sidewalk watching fireworks and tell the driver to stop. They then get out of the car and, for totally inexplicable reasons, Ortiz walks up to Hector (with a gun at his side) and ask him "Where he's from." To which Hector replies, seemingly truthfully, "Nowhere. I don't gang bang." At which point Ortiz and Gonzalez say they're from Cherryville (their gang), turn around, and walk back to their car.

Mistaken identity, I guess.

But then, for some totally unknown reason, when they're nearly back to the car, Ortiz wheels around and fires the gun at Hector, hitting him twice (but not killing him). No one spoke either on the way back to the car or after the shooting. Why Ortiz chose to shoot Hector is totally unclear.

Ortiz gets convicted of premeditated attempted murder, and appeals, claiming that whatever he did, it wasn't premeditated. I understand the point, and I might well have agreed with him had I been on the jury -- depending, of course, on the state of the evidence.

But the Court of Appeal holds that even though, to me, Ortiz's decision to shoot seemed pretty spontaneous (indeed, totally inexplicable), it's still sufficient evidence to convict. Yeah, maybe he just decided to shoot on a whim. But maybe he held that intent when he approached Hector in the first place. A reasonable jury might have so concluded, so there you have it.

Gonzalez's argument on appeal seems even stronger. Gonzalez was convicted of aiding and abetting, and says: "Dude, I totally had no idea he was going to shoot the guy." Nor was the shooting during the commission of a felony as is usually the case. So Gonzalez says that he was simply in the wrong place with a wrong guy at the wrong time, and surely shouldn't be guilty of attempted murder as a result.

Even if one might view the evidence, at the extreme, as showing some degree of Ortiz's intent, I think it's a lot -- lot -- weaker as to Gonzalez's attempt. You basically have no evidence at all of any desire by Gonzalez to shoot or to help shoot. I'm sure Gonzalez was willing to help confront Hector and see if he was with a rival gang, and maybe -- maybe -- go along with an assault if he was. But was there any intent to help shoot the guy if he was (as he appears to be) a completely innocent bystander? I strongly, strongly doubt it. That seems all on Ortiz.

Nonetheless, the Court of Appeal affirms Gonzalez's conviction as well. This seems troubling to me. A very stiff sentence for potentially just being with a guy who does something very wrong.

(The Court of Appeal dropped a one-sentence footnote that says that maybe Gonzalez was the shooter, but this seems an implausible reading of the facts, and in any event centrally holds that he was properly convicted of aiding and abetting even without being the shooter, and this is the part I have the most problems with.)

I'm not saying this one's clear cut. But we're talking about a very long sentence, for aiding and abetting an attempted murder, with virtually no evidence whatsoever. At a minimum, it's a very extreme example of accomplice liability, and may well end up being legally over the line as well.

People v. Fierro (Cal. Ct. App. - Jan. 11, 2010)

I'll have to agree with the Court of Appeal on this one. All that Michael Ibarra wanted to do was to pump some gas. Here's a case of a simple civility dispute that slowly but inexorably escalated, on both sides:

"The Ibarras and appellant never knew each other until August 8, 2007, when they met at an ARCO gas station. Both arrived, in their respective cars, at about the same time. Ibarra believed that appellant was blocking access to the pumps. . . . Ibarra asked appellant to move his car. In a sarcastic tone of voice, appellant told Ibarra to make that request in Spanish. Even though Ibarra speaks Spanish, he repeated his request in English. Again appellant told him to ask, politely, in Spanish. Appellant then went into the store to pay for his gas.

Perturbed, Ibarra followed appellant into the store and asked him again to move his car. And once more appellant said – in Spanish – to make the request politely in Spanish. When it became clear appellant was not going to cooperate, Ibarra said, “Well, fuck you, then,” and returned to his car, where he waited by the driver's side for appellant to finish fueling.

Once he finished, appellant got back in his car, opened a beer bottle, and gestured as if offering some to Ibarra. Ibarra “gave him the bird as he did that,” and appellant smiled at Ibarra. Appellant drove forward, slowly, until he was even with Ibarra. Again he picked up the bottle and gestured as if offering Ibarra a drink. And again, Ibarra gave appellant “the middle finger.” Finally, appellant drove away.

Ibarra repositioned his car so he could fill his gas tank. As he started to use his debit card at the paypoint kiosk next to the pump, he noticed that appellant had not left after all. Instead, he had circled and was driving back toward Ibarra. Ibarra canceled his purchase and attempted to leave in order to avoid a second confrontation. Since another car was in front of his, Ibarra backed up, turned, and started forward. That is when appellant got out of his car and walked toward Ibarra.

Appellant called a nearby patron to interpret and, in an aggressive tone of voice, told this person several times to ask Ibarra, “Do you want to fuck with me now?” The interpreter said in Spanish to appellant, “I think he understands you,” and the interpreter left.

But appellant did not leave. He stood about seven feet from Ibarra on the passenger side of Ibarra's car, and he lifted his shirt to display what Ibarra and [Ibarra's son] believed was a weapon tucked into a waistband. Although father and son described it differently, they both said the weapon was in a holster and believed it was either a handgun or pistol. This got [Ibarra's son's] “heart pumping. I got a little scared. . . . Like he might pull the gun out of the holster and shoot us or something.” Ibarra wanted to drive away but still could not; other vehicles were blocking his car. He said that during the minute or so that appellant displayed his weapon, “. . . the game changed. I was in fear for my life. I was in fear for my son's life. . . . The only thing that kept me there was I was completely backed in. . . . I was afraid for my son and my life. I was afraid . . . . I was have [sic] afraid of losing my life that day.”

While Ibarra looked for an escape route, appellant harangued him. In Spanish, appellant uttered profanities, asked appellant if he was “a faggot,” said words to the effect that he should have more respect for people from Jalisco (a state in Mexico).

Then -- still in Spanish -- appellant said, “I should kill you. I will kill you.” Appellant also said, “I ought to kill you and” --pointing to [Ibarra's son] -- “the stupid mother fucker too.” Worse yet, appellant said he ought to kill them “ahorita,” which means “right now.” Finally, appellant said, “Now get the fuck out of here.” Ibarra obeyed him. . . .

Ibarra tried to get a grip on his emotions as he drove away. He had been “scared to death during the whole ordeal.” Within about 15 minutes -- once he was on the freeway and “out of harm‟s way” -- he called 9-1-1 and told the operator that he was “scared shitless.”

One can learn a plethora of lessons here. About the decline of civility in general. Or about how it's generally not a great idea to give someone you don't know the bird. Because even if you're bigger than them, a gun -- or the threat of a gun -- is a great equalizer.

Both sides should be happy this didn't turn out worse than it did. Though even how it turned out was bad enough.

U.S. v. Pineda-Moreno (9th Cir. - Jan. 11, 2010)

The Ninth Circuit holds today that it's okay for the DEA, and presumably any other law enforcement official, to come into your driveway, without probable cause, climb under your vehicle, and place a tracking device thereupon.

The theory is that you've got no "reasonable expectation of privacy" in: (1) your driveway, since a neighbor could go there on the way to your house, (2) the undercarriage of your car, since a child might potentially look for a lost ball there, or (3) where you come and go in your vehicle, since another driver could follow you.

It's hard to violently argue with any of these three predicates, though reasonable minds might well disagree either with some of them or with the impact of combining all three.

I'll just leave you with the following question. Presumably what's good for the United States is good for everyone else too. If you've got no "reasonable expectation of privacy" in all of these areas, then a private person should be totally able to do the same thing, right?

How would you feel if someone -- maybe your spouse, maybe your snoopy neighbor -- did precisely that? Would you feel like your "privacy" was invaded? Or would you simply be "unreasonable" in that "expectation"?

I particularly wonder if the members of the panel would feel the same way if someone did that to their cars. Admittedly, with federal judges, there are legitimate security concerns. But even if I was positive that the guy who was tracking me was totally nonviolent, and simply obsessed with knowing everything about me, I would still not be at all psyched. Sufficiently unpsyched that the words "legitimate expectation of privacy" might well come to my mind notwithstanding the fact that each of the three underlying predicates might be invaded by a neighbor, child, and driver, respectively.