People v. Aparico (Cal. Ct. App. - Oct. 31, 2014)

I agree with the trial court and the Court of Appeal in this one.  Proposition 36 permitted three-strikes offenders to be resentenced.  But not if the petitioner presents an unreasonable risk of danger to public safety.

With respect to the petitioner, Luis Aparico:

In March 1985, a juvenile court found true the allegation that Luis Ramon Aparicio committed battery with serious bodily injury after he dislocated the victim's nose by pushing the victim's head onto concrete. Aparicio was 15 years old at the time. In August 1986, Aparicio attacked a victim with a knife. In October 1988, Aparicio suffered his first strike conviction for robbery when he and three cohorts robbed two victims of their stereos. During the struggle, one of the assailants stabbed one of the victims. Aparicio was sentenced to 365 days in jail and three years of formal probation, but probation was ultimately revoked and he was sentenced to three years in prison.

In June 1989, Aparicio suffered his second strike conviction after he pleaded guilty to attempted robbery after trying to rob three victims with an ice pick. While fleeing the scene, Aparicio's vehicle struck another vehicle and he was later found to be under the influence of a controlled substance. He received a two-year prison sentence. In 1992, Aparicio received a three-year prison term for possessing PCP and marijuana. In 1996, Aparicio was convicted of battery and resisting a police officer. He received probation, but probation was later revoked. In 1997, Aparicio was convicted of his commitment offense after burglarizing a car. During the reading of his guilty verdict, Aparicio attacked a marshal and attempted to remove his gun. He received a 27-years-to-life prison sentence under the Three Strikes Law.

Aparicio received nine write-ups while incarcerated. In February 1998, he received administrative punishment after pinching a female prison employee on the buttocks and grabbing her thigh. In June 1998, he headbutted another inmate. In October 1998, he flooded his cell. In February 1999, he flooded his cell and threw urine at an officer. In December 2000, he obstructed a peace officer by refusing to accept a new cellmate. In 2001, 2005 and 2007, he engaged in mutual combat with other inmates. In November 2012, he stole desserts from the dining hall."

I'm sorry, Mr. Aparico.  But Justice McIntyre is right.  You're the exception to the rule.  You may perhaps be granted parole, but the trial court properly found that you're not entitled to resentencing.

Vathana v. EverBank (9th Cir. - Oct. 31, 2014)

Plaintiff --- like a lot of other customers -- buys a certificate of deposit from EverBank.  It's not a regular CD, however.  It's essentially an Iceland CD.  Whereas a normal (American) CD is denominated in dollars, this one was denominated in Icelandic krona.

That interjects some risk. As well as some potential benefit.  If the krona goes up compared to the dollar, American investors make money.  But if it goes the other way, the depositor loses money.

Fair deal.

Unfortunately for plaintiff, she invested in mid-2008.  Right before Iceland got hit by the financial crisis.  In a way that devastated Iceland's economy.

So the krona plummets.  So does the value of plaintiff's CD.

So far, there's nothing awry about that.  Lots of people got hit during that era.  Plaintiff's one of them.

The troubles begin -- the legal troubles, anyway -- once the CD matures.

The agreement with EverBank says that absent instructions from the client, the CD automatically renews, at whatever interest rate then prevails.  Plaintiff is fine with that.  She thinks Iceland's going to come back.  At the very least, she thinks it can't get worse than it already is.  So she sends EverBank an e-mail telling it to make sure they renew the CD.

But these products aren't so fun for EverBank anymore.  It's not like customers are psyched about buying Icelandic CDs anymore.  It would just as soon be out of the business entirely.

But there's that pesky agreement.  Plus the customer's express instructions.

But let's be clear.  EverBank shouldn't care.  If it had done its business like a normal bank, it didn't stand to lose on the transaction.  Normally, what you'd think would happen on these deals is that the customer would give EverBank dollars for the CD (say, $40,000), EverBank would exchange those dollars into krona (say, 3,500 ISK), and then the 3500 ISK just sits there earning whatever interest banks in Iceland would pay on 3,500 ISK.  EverBank wouldn't lose.  Instead, it'd gain.  Not a ton; just the administrative fees it charges on the account.  But hey.  It's a bank.  That's how these things work.

The rub, however, is that EverBank didn't do it the normal way.  Instead, it took some risk.  It didn't actually buy the 3,500 krona.  Instead, it entered into forward contracts.  That way it was largely hedged in exposure to fluctuations in krona valuations.  Plus maybe it would make a bit more money on the deal itself.

Which works.  Unless the krona collapses.  Which -- as we now know -- it did.

Once the krona collapsed, EverBank couldn't find anyone willing to write new forward contracts for it.  A situation that wouldn't be a problem -- at all -- if it had actually exchanged the dollars for krona.  Since then EverBank would just sit on the krona it had.  But since it didn't, now EverBank is in trouble.  It has promised to allow its customers to renew their CDs.  That's also what one of its customers expressly wants.  But to do so now would create risk for EverBank, since it can't find a new hedge.

So EverBank reneges.  Closing the CD.  And paying plaintiff in dollars instead of in krona.  Dollars that were a third of what plaintiff put into the CD three months ago.

Plaintiff's not psyched.  So sues.  Including class action allegations as well.

EverBank's principal defense is paragraph 1.17 of the relevant agreement.  Drafted, of course, by EverBank.  Which says that "if we [EverBank] believe that it is necessary to close your account immediately in order to limit losses by you or us, we may close your account prior to providing notice to you.”

The Ninth Circuit concludes that this defense succeeds.

I'm not a monster fan of this conclusion.  Though I certainly see how Judge Murguia reaches it.  To me, the closing of the CD doesn't legitimately protect the customer because the customer's expressly on board for taking the risk.  She wants the CD to remain open.  Plus, as it turns out, she's absolutely right.  The krona does indeed substantially rebound.  When I buy Apple stock, you can't sell my stock in the guise of limiting my losses if I'm constantly telling you that I still like the thing.  To interpret the clause otherwise makes no sense.  I wouldn't have agreed to it.  You wouldn't have required it.  Sure, for silent customers, maybe the provision authorizes a sale.  But not in situations where the plaintiff's screaming "Hold, hold, hold!"

I'm not really sure the Ninth Circuit would disagree with what I just said.  Although it's not explicit about this point.  Instead, I think that Judge Murguia is hanging her hat on the fact that EverBank could permissibly close the account in order to limit its losses.

Paragraph 1.17 does indeed provide for that.  But remember that EverBank wouldn't have had any losses if it had done what we expect banks to normally do and actually put plaintiff's money into kronas.  Instead, the bank did something that it thought would make the bank more money -- it bought forward contracts.  A risk that turned out to be a problem once forward contracts became unavailable and/or extraordinarily expensive.

The Ninth Circuits says that closing the account limits EverBank's risk.  True enough.  But it was EverBank's decision that created that risk.  I'm exceptionally unsympathetic to an interpretation of 1.17 that would relieve it from the consequences of that unilateral decision.  To me, the Ninth Circuit reads 1.17 as if it said:  "When you open this account, if we decide to take a risk that might make us more money, and if that risk turns out to benefit us, we keep the extra money, but if it turns out to harm us, we get to close your account and harm you, even though this problem wouldn't have even exist had we done what you almost certainly think we're going to do when you use dollars to buy krona."  I doubt that a reasonable customer would agree to such a provision.  Nor do I think that's what 1.17 says.  If you create a risk, you've got to live with it.  And that's just what EverBank did.

But the Ninth Circuit lets it off the hook.

The only saving grace of the opinion, in my view, is how it ends.  Remember that plaintiff tells EverBank to renew the CD, and also says that, if it nonetheless terminates the thing, to pay her in krona, not dollars.  An e-mail that makes sense because, as you recall, plaintiff thinks the krona will bounce back.

EverBank doesn't do that either.  It pays in dollars.  Because, among other things, it doesn't have any krona, since it didn't actually buy any when plaintiff opened her CD.

The Ninth Circuit says that maybe that decision was impermissible. But with enough caveats so it's a big maybe.  Something that has to be sorted out on remand.

For me, if the plaintiff gets paid in krona, then I don't care that much.  She wanted exposure to the krona.  She paid for it.  Even if her CD gets (illegally) terminated, if she's paid in krona, she retains that exposure.  If she's right that it's going to bounce back, then she'll indeed bounce back.  And I think the Ninth Circuit is largely right in the way it parses through the terms of the EverBank agreement on this point.

My only concern is that it's not at all clear that's what's going to happen on remand.  The Ninth Circuit is not strong on this point.  A point that, in my view, is the opinion's only saving grace.  The too-generous view of 1.17 might not matter much if the plaintiff was entitled to get paid in krona.  But matters a ton -- indeed, in a dispositive fashion -- if EverBank can terminate her account and pay her in dollars.  Then she's screwed.

To reiterate:  When a bank takes a risk, it should be held to that risk.  Not the customer.  If I put dollars into an account and the bank's supposed to buy krona and hold it for me, that's what they need to do.  And if the bank doesn't don't do it and something goes awry, those consequences should be on the bank, not me.

Give me my damn krona.

Edwards v. Lake Elsinore USD (Cal. Ct. App. - Oct. 30, 2014)

The good news for Lori Edwards is that the Court of Appeal holds that the trial court erroneously held that her complaint against the Lake Elsinore Unified School District was barred by the relevant limitations period.

The bad news, however, is that the Court of Appeal rules against her on the merits.  She was not, in fact, a permanent teacher.  She was a substitute teacher.  Even though she taught for the entire year.

So she's not entitled to employment for life even under California's (extraordinarily generous) tenure rules.

NRDC v. US DOT (9th Cir. - Oct. 30, 2014)

Fear not.  Judge Wardlaw -- a resident of L.A. -- understands that trying to get out of the Port of Los Angeles and connect to the 405 is even scarier than four uncostumed teenagers showing up on your doorstep at 9:30 p.m. tomorrow night and yelling "trick or trick".  Joined by the rest of the panel, she holds that the Department of Transportation took the requisite "hard look" at the environmental impact of the proposed expressway and properly approved it.

Enjoy the additional trucks on the 405, my commuting L.A. friends.  It's progress.

In Re A.B. (Cal. Ct. App. - Oct. 29, 2014)

You read a ton of dependency cases in which drugs are involved.  Not surprisingly.  Drugs and kids simply do not mix very well.

It's usually methamphetamine or marijuana or cocaine.  But this case is slightly different:

"Just after midnight on December 31, 2012, San Anselmo police received a call that Z.B. had been observed running from his apartment toward a nearby park. When officers found him he was crying and fearful of his mother. When they brought Z.B home, officers saw a marijuana pipe, thousands of empty nitrous oxide containers all over the apartment, and very unclean and hazardous conditions, including rotting food in the sink, a toilet bowl full of feces, and prescription pain pills within reach of the minors. A.B. was asleep upstairs."

That's not something you see every day.

On the other hand, I sort of get it.  There's a reason that stuff's called "hippy crack".

Relentless.

Negro v. Superior Court (Cal. Ct. App. - Oct. 21, 2014)

Think it's easy to order production of relevant e-mails from a party's gmail account?

Think again.

It's not that it doesn't happen here.  It does.  Eventually.

But look how much time -- and money -- it took.  Ultimately requiring innumerable trips to Florida and California and a peremptory writ by the Court of Appeal.

It ain't easy.

Abbott v. Federal Bureau of Prisons (9th Cir. - Oct. 27, 2014)

We know it's "kidnap".  But is it "kidnaping" or "kidnapping"?

Today's opinion from Judge Gould uses the former term.  Half a dozen times, no less.  Which struck me when I was reading it.

I'm not a good speller.  At all.  But it looked weird to me.  Is that the right way to spell it?  Or is this one of those things where there are two acceptable versions?  Maybe one English, one American.

Fortunately, in the modern era, answers to questions like that are at the tips of our fingers.  So I looked it up.

Judge Gould is definitely in the minority when he uses the spelling "kidnaping".  Here's the relative frequency of both terms:


So while "kidnaping" made a definite run for it during the '30s and '40s, the game's pretty much over at this point.  "Kidnapping" wins.  (And, yes, I looked at British versus American usage as well.  Doesn't help solve the mystery.  Same basic discrepancy.)

So why does Judge Gould use the former rather than the later?  Just stuck in the old usage?

I think about just letting Eugene answer this question.  He loves this stuff.  But then I figure that maybe he has better things to do.  Bigger words to fry, perhaps.  So I embark upon the mission myself.

I thought I had a pretty good answer.  Still might.  The opinion is about whether a Montana conviction for unlawful restraint disqualifies the petitioner from getting into a favorable federal drug program because it's equivalent to "kidnap[p?]ing" under 28 C.F.R. § 550.55(b)(4).  So I went back to the underlying federal regulation.  How does it spell the relevant term?

Yep.  "Kidnaping".  That's how the Bureau of Prisons spelled the thing when it passed the regulation.  Way back in . . . 2009.

Mind you, even the BOP couldn't keep it entirely straight.  The proposed regulation used "kidnaping" five times, including in the relevant text.  But the BOP's summary of the proposed regulation used "kidnapping".  I can't come up with a coherent reason why.  But there you have it.

So my theory was that Judge Gould's opinion simply uses the same spelling that's employed by the regulation at issue.  Makes sense.  Even if that spelling's extraordinarily old fashioned and not at all what we're used to nowadays.

Except then I get to the penultimate paragraph of Judge Gould's opinion.  In which he uses "kidnapping".

Damn it!  Chucking my entire theory out the window.

Wait.  Maybe I can salvage the thing.

Judge Gould's last use of the term says:  "Further, unlawful restraint is a lesser included offense of kidnapping under Montana law. See State v. Brummer, 287 Mont. 168, 177 (1998)."  That crafty Judge Gould.  I get it now.

He's using "kidnaping" whenever he's referring to 28 C.F.R. § 550.55(b)(4).  Or any action (like this one) arising thereunder.  But when he's referring to Montana law -- as in his next-to-last paragraph -- he uses "kidnapping" since that's the way Montana uses it.  Judge Gould doesn't put quotation marks around the relevant words or anything like that, but he's just using whatever spelling the underlying source employs.

That's a perfectly consistent explanation.  Maybe not the best way to write an opinion, but I get it.

Except then I look up the case he's cites for Montana's "kidnapping" offense:  State v. Brummer, 287 Mont. 168, 177 (1998).  Which consistently uses . . . "kidnaping".

At this point, I give up.

Judge Gould uses two spellings.  Typically using a decidedly minority spelling but then ending with the dominant spelling.  Why?

Because he feels like it.  No other reason I can fathom.

In Re D.S. (Cal. Ct. App. - Oct. 27, 2014)

What a tangled web we weave:

"This appeal involves competing claims for presumed father status of four-year-old D.S. by the boy’s biological father, A.V., and his stepfather, B.E. . . .

Mother and A.V. met in 2009, when mother was 19 years old and A.V. was 45 years old. Mother had just been released from jail and needed a place to stay, so she moved in with A.V., who had an extensive criminal history. Mother began prostituting at A.V.’s request, as she had done in the past. On December 8, 2009, mother and A.V. were arrested for shoplifting. Following that arrest, A.V. remained incarcerated until November 8, 2010. Mother, however, was released on bail.

Mother learned that she was pregnant in February or March 2010 and believed A.V. to be the father. She informed A.V., who was incarcerated, about the pregnancy and sent him an ultrasound picture. Also in approximately March 2010 mother began living with a new boyfriend, B.E.

On July 2, 2010, after mother informed A.V. that California law precluded him from appearing on the baby’s birth certificate if he was not present at the birth, A.V. sought to obtain a declaration of paternity form. He never received the form. While A.V. was incarcerated, mother withdrew approximately $100 from his jail account.

D.S. was born in August 2010. B.E. was present at the birth. Mother and B.E. married two months later. . . .

Mother had a son, A.E., with B.E. in January 2012.

B.E. was incarcerated between February 5, 2012 and August 12, 2012, for theft. In March 2012, while B.E. was incarcerated, A.V. stayed with mother and D.S. for a few days.

On March 12, 2012, B.E.’s mother (step-grandmother) received a call from mother, who was high, indicating that she could not find her sons. Step-grandmother located the boys, who moved in with her."

I could go on.  But I think you get the point.

My hat's off to lawyers and judges who deal with these sorts of cases.  Yours is not an enviable task.

U.S. v. Castro-Ponce (9th Cir. - Oct. 24, 2014)

Sometimes wins on appeal are huge victories.  Sometimes they're like this.

Castro-Ponce is charged with distribution of methamphetamine.  The feds have him under surveillance, and on wiretaps, for a long time.  Castro-Ponce testifies in his own defense and provides, under oath, innocent explanations for all of his alleged misconduct.  The jury disbelieves him, and convicts him.

The trial judge then not only sentences Castro-Ponce to the usual consequences, but also tacks on a two-level upward adjustment for obstruction of justice, finding that Castro-Ponce "clearly lied" on the stand.  The guidelines say sentence him to life, but the district court judge sentences him to twenty years.

Casto-Ponce appeals, claiming that the trial judge found that his testimony was false, but also needed to expressly say that his testimony was on a material matter as well as willful in order to tack on the two-level enhancement, which she didn't do.

The Ninth Circuit agrees.  Remanding back to the trial court to see whether it will to make the specific findings on remand that it didn't realize it had to make the first time.

Do you have any doubt whether the district court will make those precise findings on remand?

Not me.  Not in the slightest.

Williams v. Swarthout (9th Cir. - Oct. 23, 2014)

Judges Noonan and Reinhardt are extraordinarily concerned about fairness.  Deeply, profoundly, and sincerely.  In every case, including but not limited to (and perhaps exceptionally in) criminal cases.

So when the trial judge mistakenly tells the jurors that the defendant has pled guilty, the prosecution and the court reporter notice this error but says nothing, and one juror concedes during the trial that this error made her -- and perhaps others -- essentially "space out" during the trial because it didn't look like the trial made a difference any more, well, Judges Noonan and Reinhardt care.  They vote to grant the defendant a new trial.

Judge Murguia, by contrast, dissents.  She wouldn't grant relief.  Especially in -- as here -- an AEDPA case.

You'll have your own view as to whether the majority or the dissent has the better of the argument.  I am of the belief that a majority of the justices on the Supreme Court -- perhaps even all of them -- are not as similarly concerned as Judges Noonan and Reinhardt about fairness.  Including but not limited to -- and perhaps especially in -- AEDPA cases.

So this one, I think, may well end up in yet another Supreme Court bench slap of the Ninth.

Time will tell.

U.S. v. Bell (9th Cir. - Oct. 22, 2014)

Defendant represents himself at a criminal trial.  The prosecution gives a closing argument.  The district judge never asks defendant if he wants to give one; instead, he simply moves on, and starts reading jury instructions.

There's a Sixth Amendment right to make a closing argument on your own behalf at a criminal trial.

Whatcha think?

For me, Judge Hawkins hits the nail on the head when he says:

"There is a certain value in saying what is necessary and no more. Here, although I have no quarrel with the bottom line result, I am concerned that the majority goes further than needed in announcing, for the first time anywhere, that a pro se criminal defendant has no right to be advised of the opportunity to present closing argument.

I agree, given the litigation history of this case, that the failure to ask Raymond Bell if he wished to make a closing statement to the jury was not error. Certainly the better practice would have been to ask, particularly in the circumstances of this case where the district court urged the jury to listen carefully to the arguments of the prosecution and Bell’s represented co-defendant who both proceeded to make arguments attempting to undermine Bell’s case.

I would affirm, but on the narrower grounds that Bell’s non-participation during the course of the trial and his failure to object or request argument effectively waived his right to make a closing argument. I would not say, as I think the majority does, that a defendant in a criminal case, pro se or otherwise, need not be advised of an opportunity to make closing remarks to the jury."

But Judge Gould, joined by Judge Graber, feels otherwise.

Lofton v. Wells Fargo (Cal. Ct. App. - Oct. 22, 2014)

The trial court said that it was "very, very troubled" by the events that transpired in this class action case, stating that he thought that "[i]t appears to me [that] there has been egregious misconduct and bad faith on the part of ILG [Initiative Law Group]."

After reading this opinion, I gotta say, I'm profoundly -- profoundly -- troubled as well.  And the Court of Appeal doesn't seem particularly happy either.  Affirming the trial court's decision below.

You've got to read all the facts for details.  They're fairly shocking allegations about how lawyers at the Initiative Law Group basically stole from their clients.  Again, these are just allegations, but oh, my the facts seem really bad here.

I was somewhat surprised that the Court of Appeal didn't name names here; e.g., expressly say in the opinion which individual lawyers at ILG did what.  Especially since there's apparently some reason to believe that the response of Initiative Law Group to this whole fiasco was to . . . change its name.

Troubling stuff, IMHO.  Profoundly troubling.

Blueberry Properties, Inc. v. Chow (Cal. Ct. App. - Oct 22, 2014)

Do you know what an elisor is?

I'll readily confess that I did not.

Until today.

In Re J.S. (Cal. Ct. App. - Sept. 11, 2014)

I can summarize this opinion in three words:

"And" means and.

Under ICWA, an "Indian child" is "either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe."  It's undisputed that the child here is not a member of an Indian tribe, so (a) doesn't apply.

But he's also "eligible for membership" in the Cherokee tribe because his great-great grandfather was an enrolled member.  So (b) might apply.

Except for the "and" part.

You've got to be eligible for membership and be the biological child of a member of the tribe.  It's undisputed that the child isn't the biological child of a member of the tribe.  His father isn't a member.  His mother isn't a member.

"And" means and.  You've got to both be eligible for membership and be the biological child of a member.

That's what the statute says.

End of story.  As the Court of Appeal holds.

US v. Fowlkes (9th Cir. - Aug. 25, 2014)

I'll merely recite the relevant facts of this case without (much) commentary.  With the caveat that they are a little gross, so the squeamish might want to skip to the next post:

The defendant (Mark Fowlkes) is a big guy, and the DEA suspects he has drugs.  The police conduct a pretextual stop for an expired registration, see some alleged drug residue, and arrest him.  Then it gets a little funky:

"At intake, the officers strip searched Fowlkes in the jail’s strip search room, a five by six enclosure with three concrete walls and an opening in the fourth wall. Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and 'assistance' in the form of additional officers because he thought Fowlkes might have drugs. The officers instructed Fowlkes to remove his clothing and face the far wall as they watched him. Fowlkes was instructed to bend over, spread his buttocks, and cough, but according to Sergeant Gibbs, Fowlkes instead moved his hand toward his right buttock. Instructed to repeat the procedure, Fowlkes made a quick movement to his buttocks area with his hand and appeared to Gibbs 'to be forcing or forcibly pushing an item inward.' Officer Harris testified he believed it was possible Fowlkes was attempting to push something into his anus. However, he did not actually see any object Fowlkes could have been pushing, and he acknowledged that there was no other way for Fowlkes to comply with the directive other than by reaching back and putting his fingers towards his anus. For his part, Sergeant Gibbs testified that he believed Fowlkes appeared 'to be forcing or moving an object or further
secreting an object' inside his rectum to destroy evidence.

To prevent that, Gibbs 'delivered a drive stun tase to the center portion of the defendant’s back.' Fowlkes’s arms went straight into the air, and the officers handcuffed him. Fowlkes began to 'squirm[]' and 'struggl[e],' and the officers 'lean[ed] him against the wall, . . . brace[d] his body
up against the wall' so that '[h]e end[ed] up being bent over.'  With Fowlkes in this position, the officers testified that they could see what appeared to be a plastic bag partially protruding from Fowlkes’s rectum.

Officers continued to 'brac[e] [Fowlkes] up against the wall' to prevent him from resisting. At this point, Fowlkes was handcuffed and incapacitated by five male officers, making escape or resistance impossible. Fowlkes had no ability to destroy or further secrete what was in the plastic bag. Neither Sergeant Gibbs nor the other officers could tell what, if anything, the plastic bag contained while it remained in Fowlkes’s rectum. Nor could they determine how large it was or how far it extended into Fowlkes’s body. Despite this, and despite the fact that none of the officers had any relevant medical training, the officers did not attempt to obtain a warrant, summon medical personnel, move Fowlkes to a sanitary location, or allow Fowlkes to pass the suspected contraband naturally. Instead, Sergeant Gibbs forcibly 'retrieved' the bag. He put on the protective gloves he had brought along to the 'search' and pulled the object from Fowlkes’s rectum without the assistance of anesthesia, lubricant, or medical dilation. Although Sergeant Gibbs testified that he was able to remove the object using his thumb and index finger without penetrating Fowlkes’s anal cavity, Officer Harris testified that the removal itself was a difficult, abrasive procedure:

I watched the entire process of him removing it in his fingers. [The object] went from a dime size to a penny size to a nickel size to a quarter size to somewhat near a golf ball size as it was taken out.

Officer Harris further testified that he could 'see blood and what looked to be feces' on the plastic bag after it had been removed. Photographs of the object that are included in the appellate record confirm that the object was covered in blood."

Ewww.

Judge Tashima writes the majority opinion (joined by Judge Alarcon) and holds that this process was an unreasonable search and seizure in violation of the Fourth Amendment.  Should have waited for a warrant, or let the stuff pass naturally, instead of simply yanking it out of his butt.  Judge Restani, sitting by designation from the Court of International Trade, dissents.

Just one minor point.  The officers clearly didn't know how big the thing was.  On the one hand, you don't expect a golf-ball sized thing up there.  And once you've started the process of pulling it out -- on the assumption it's just a tiny piece of rock or something -- it's sort of difficult to figure out when to stop as the thing goes from "dime" size to "penny" to "quarter" to essentially mondo huge.

None of which necessarily conflicts with Judge Tashima's likely position that the officers shouldn't have even started the whole process.  But I just wanted to mention it because my money's on the fact that the officers might well have done something different if they'd have actually thought that there was a golf ball-sized thing up there as opposed to the quick "snatch-and-grab" I bet they thought they were about to perform.

Johnson v. Appellate Division (Cal. Ct. App. - Oct. 17, 2014)

The Court of Appeal confirms today that when CCP says that you have to have "three judges" on the panels that hears appeals, it really means "three".  Not two.  Three.  Even if two judges are enough to issue a judgment.

You can't have panels of two.  Because you're supposed to have panels of . . . wait for it . . . three.

Three is better than two.  Two is not three.  It's one less.  To make three, you need not one, not two, but three.

Read Justice Elia's complete opinion for more detail if you're unsure about the concept.

Some of this advanced mathematics is moot at this point, since after the Court of Appeal issued its OSC, the Appellate Division of the Santa Cruz Superior Court got the message and stopped hearing appeals with two (instead of three) judges.  But just in case anyone else was thinking about cutting back, Justice Elia publishes the opinion.  Making clear that . . . well, I think you get it at this point.

Three.

Nixon Peabody v. Superior Court (Cal. Ct. App. - Oct. 17, 2014)

Here are two hypotheticals.  Tell me how you think each one should come out.

Hypothetical One.  Plaintiff files a state court lawsuit through counsel, plaintiff and his attorney decide to dismiss the lawsuit and refile it, and counsel does so, but in the dismissal, the attorney accidentally checks the "with prejudice" instead of "without prejudice".  Plaintiff subsequently moves to vacate the state court dismissal under CCP 473 -- a dismissal that would otherwise be res judicata to the refiled complaint -- claiming that the dismissal with prejudice was void because he only authorized a dismissal without prejudice, not with prejudice.  Do you vacate the dismissal?

Hypothetical Two.  Plaintiff files a state court lawsuit through counsel, plaintiff and his attorney decide to file two other duplicative actions in federal court as well "to be safe", and then plaintiff and his attorney decide to dismiss the state suit and one of the federal actions and go forward with the third, and attorney does so.  But neither person realizes that the dismissal of the state and federal actions will operate as a dismissal with prejudice under the federal two-dismissal rule, so plaintiff subsequently moves to vacate the state court dismissal under CCP 473 -- a dismissal that would otherwise be res judicata to the pending complaint -- claiming that a dismissal that was effectively with prejudice was void because he only authorized a dismissal without prejudice, not with prejudice.  Do you vacate the dismissal?

What's the rule?

The Court of Appeal holds today that a court is required to vacate the dismissal in Hypothetical One but is precluded as a matter of law from vacating the dismissal in Hypothetical Two.  Granting a writ of mandate in Hypothetical Two compelling the trial court to set aside its order vacating the dismissal.

Was that your answer as well?

People v. Blakely (Cal. Ct. App. - Oct. 16, 2014)

Ordinarily you'd be happy if someone told you that you were pretty clearly sane.

But the contrary is true when that person is a trial judge holding that the evidence of your sanity is so clear that she's taking this issue away from the jury.  Meaning that you get 35 years to life in prison.

People v. Garcia (Cal. Ct. App. - Oct. 16, 2014)

"Defendant’s criminal history began about 30 years before, with felony receiving stolen property in 1980, for which he was placed on probation. A year later, in 1981, he committed second degree burglary and was sentenced to prison for 16 months. In February 1982, the month he was released, he was arrested and a month later pled guilty to robbery (his first strike) and sentenced to four years in prison. In 1984, he was convicted of unlawful driving/taking a vehicle and sentenced to two years in prison. The same year, he was also convicted of escape. In 1985, he was convicted of grand theft and sentenced to three years in prison. In 1988, he was convicted of assault on a peace officer, battery on a peace officer, and thereafter, with another escape, all resulting in another four years and eight months in prison. Defendant violated parole and was returned to prison in 1991. When released on parole, he was arrested again in June 1991 and when released again, within months committed a first degree burglary (his second strike), a robbery (his third strike), and vehicle theft in 1992, which resulted in a total prison term of 18 years. He was released from prison in February 2003. Within nine months, in November 2003, defendant was arrested again. In August 2004, he brandished a weapon and was placed on probation for two years, including serving 180 days in jail. In January 2005 and January 2007, he violated that probation and was reincarcerated. Defendant was paroled in April 2007 and committed his current offense eight months later. Defendant’s criminal history was preceded by his delinquency in 1979, for which he was committed to the California Youth Authority."

That's pretty extensive criminal history.  Which is why he's not getting relief from his three strikes sentence.

C.B. v. City of Sonora (9th Cir. - Oct. 15, 2014)

This is one way to write an en banc opinion.

But it's a mess.

Judge Paez authors the "majority" opinion.  But there's not a majority for "Part II.C.1.".  For the Ninth Circuit's holding on that issue, you've got to look to Judge Milan Smith's opinion that concurs in part and dissents in part.  Because Judge Smith has a total of four votes (including his own) for his proposed disposition, and then he gets three others (Judges Kozinski, Graber, and Gould) -- a total of seven -- to join that particular portion of his disposition.

So you've got to skip around opinions to find the actual holdings.

For The Three, Judge Gould writes a concurring opinion (for himself and Judges Kozinski and Graber) explaining their theory.  Then Judge Berzon -- joined by Judge Thomas -- write another concurring opinion explaining that they join in Judge Paez's majority opinion, except for one of the claims therein, as to which they agree with his result but not his reasoning.

As a result, it's a classic 2-4-3-2 Ninth Circuit en banc split.

Sarcasm intended.