Wednesday, June 12, 2024

Lee v. Thornell (9th Cir. - June 11, 2024)

There are plenty of judges who are not all that keen on actually putting someone to death, and are even potentially willing to jump through the (very high) hurdles to granting federal habeas relief under AEDPA. But even where the Ninth Circuit panel in this particular case -- Judges Callahan, Nguyen and Bress -- so inclined (and they're not), the stark facts of the underlying crimes would make it very surprising were this case to have come out any different than it did.

Which, by definition, it didn't.

It's a death penalty case from Arizona, and even though it's taken 32 years (!) to work itself through the system, I'm fairly confident it's going to end up as you would ultimately expect. Here's a quick synopsis of the relevant facts:

"On April 6, 1992, Lee, then 19 years old, and his accomplice, David Hunt, age 14, called Pizza Hut from a pay phone and ordered a pizza delivered to a vacant house. When Linda Reynolds arrived with the pizza, Lee and Hunt pointed a rifle at her and forced her to remove her shorts and shirt. The two put Reynolds in Lee’s car, and Lee drove her into the desert. Hunt drove Reynolds’s car to meet them.

Once in the desert, Lee and Hunt removed Reynolds’s car stereo, smashed the windows and other parts of her car with a bat, punctured the tires, cut various hoses and wires to disable the engine, and shot a bullet through the hood. Lee later testified that he destroyed Reynolds’s car to prevent her from escaping.

Lee and Hunt forced Reynolds to remove her shoes, socks, and pantyhose and to walk barefoot into the desert. Hunt then raped her, and Lee forced Reyolds [sic -- the panel should really correct this mistake] to perform oral sex on him. After finding Reynolds’s bank card in her wallet, Lee drove Reynolds and Hunt to an ATM. Lee gave Reynolds his flannel shirt to wear and then forced Reynolds to withdraw $20 of the $27 she had left in her account.

From there, Lee and Hunt drove Reynolds back into the desert. Reynolds tried to escape, but Hunt forced her back to the car. By the time she was returned to the car, her face and lips were bloody. According to Lee, Lee and Hunt argued in front of Reynolds over whether to kill her, and Reynolds “freaked” and tried to grab the gun.

Lee shot Reynolds once in the head. But Reynolds was still alive. Lee retrieved a knife from his car and twice stabbed Reynolds in the chest to “put her out of her misery.” Lee and Hunt then drove away. Medical evidence indicated that Reynolds “would have been alive for at least a couple minutes, and probably more,” following the stabbings. The next day, Lee pawned Reynolds’s car stereo, wedding ring, and gold ring for a total of $170."

Pretty bad, right?

But wait. There's more:

"Ten days later, on April 16, 1992 around midnight, Lee used another payphone to call a taxi. David Lacey was dispatched to pick up Lee. Meanwhile, Hunt drove Lee’s car to the location where Lee and Hunt planned to rob the driver. When Lacey arrived, Lee pulled out a revolver and demanded money. According to Lee, Lacey attempted to grab the gun. Lee then fired nine shots, four of which hit Lacey. Lee took “forty dollars from Lacey’s pockets and dumped his body by the side of the road.” Lee then drove Lacey’s cab to a dirt road, where he searched the cab’s contents and shot its windows and tires."

You can see why Lee gets sentenced to death.

But fear not. There's still more. Eleven days later:

"On April 27, 1992, Lee entered a convenience store around 1:00 a.m. to purchase cigarettes. When Harold Drury, the store clerk, opened the cash drawer, Lee shot Drury in the shoulder, causing Drury to fall backwards. Lee then “shot Drury in the top of the head, the forehead, the cheek, and the neck.” After Drury slumped to the floor, Lee “walked around the counter and shot Drury two more times in the right temple.” Lee retrieved the cigarettes and took the cash drawer before leaving the store. Hunt was waiting in Lee’s car, and they left together."

I don't think there are many judges at all out there who are going to bend over backwards to try to find a way to give this guy habeas relief. Even notwithstanding the fact that he was 19 years old at the time.

Simply too many senseless murders in way too short a time.

Needless to say: Denial of habeas relief affirmed.

Not going to change en banc or in the Supreme Court either, IMHO.

Tuesday, June 11, 2024

In re Andrew M. (Cal. Ct. App. - June 11, 2024)

Cases like these would be the hardest for me personally.

The Court of Appeal seems to be convinced that the toddler here -- Andrew M. -- would be better off with his foster (to-be-adoptive) parents rather than his biological parents. They accordingly conclude that the trial court's finding to the contrary was an abuse of discretion and end the opinion by saying that parental rights to the child should be terminated unless there's something new that's extremely material.

I'm not nearly as confident.

The parents here seem clearly to love their child. They visit the child all the time when they're allowed to do so. The child definitely likes hanging out with them (again, when he's allowed to do so). There's lots to be said in the parents' favor, and there's none of the wholesale abuse or abandonment that you (sadly) see in so many of these cases.

Are the parents perfect? Of course not. They seem dramatically disinterested in taking drug tests, and on some (not-radically-often) occasions miss or are late for visits. Moreover, the would-be adoptive parents seem clearly wonderful.

The Court of Appeal seems strongly influenced by the fact that the toddler doesn't scream or make a fit when the visits with his biological parents end -- Justice O'Leary emphasizes that fact in several places in the opinion. But it seems harsh to make that the overarching principal of who gets a child. Maybe the child is just incredibly good natured. Were I the biological parent, I would very much hate to have my child's generally pleasant disposition used as a factor -- much less a major one -- in whether I'm allowed any future parental contact with him.

In the end, this seems to me one of those cases that's exceedingly close. Either set of parents might well turn out fine (or, perhaps, not so fine). It's incredibly hard to judge -- at least for me. Particularly on a paper appellate record, without ever meeting the child or the biological parents. Which is why we have abuse of discretion as the relevant standard, of course. But the Court of Appeal here seems very certain that the biological parents wouldn't be sufficient. I'd have a much harder time making that same call.

Which is not to say that Justice O'Leary might not be right. She might well be. I just simply don't know.

Monday, June 10, 2024

Olson v. State of California (9th Cir. - June 10, 2024)

Last year, in a high-profile case (and opinion), a Ninth Circuit panel held that A.B. 5 -- passed essentially to try to classify Uber and Lyft drivers as employees rather than independent contractors (something that Proposition 22 later reversed) -- was likely unconstitutional under the Equal Protection Clause, despite the fact that the standard of review was rational basis. The opinion was written by Judge Rawlinson, with Judge Forrest and Senior District Judge England joining the opinion.

Today, the en banc court disagrees, and holds that A.B. 5 was constitutionally validwas constitutionally valid. The vote: 11-0.

Kind of a crush.

Friday, June 07, 2024

Health Freedom Defense Fund v. Carvalho (9th Cir. - June 7, 2024)

You might perhaps have guessed from the panel draw how this one was going to come out. The Los Angeles Unified School District has occasionally required (but does not currently require) its employees to be vaccinated against COVID-19, and a group of anti-vaccination plaintiffs sue. There's a big fight about both whether the lawsuit is moot (since the LAUSD no longer has this requirement) as well as on the merits -- whether mandatory vaccination survives rational basis review. The district court held for the LAUSD on the merits and dismissed the lawsuit.

The Ninth Circuit panel drawn to hear the appeal consisted of two Trump appointees (Judges Nelson and Collins) and one Clinton appointee (Judge Hawkins).

The panel reverses and remands, with Judge Hawkins dissenting.

I'll not wade into the fight about whether the case is moot -- the majority thinks it's not, whereas the dissent thinks it is -- but rather want to talk briefly about the merits.

Pretty much every prior federal opinion on the whole COVID-19 vaccine front has gone the same way as the district court did. In no small part because there's a controlling Supreme Court opinion (Jacobson) that says it's permissible for the government to require vaccinations during an epidemic (there, smallpox).

But the Ninth Circuit panel thinks that this case is different because, here, plaintiffs allege that the various COVID-19 vaccines are "not really vaccines" -- that they don't, in fact, deter the spread of COVID, but instead merely alleviate its symptoms. The panel says that, at the pleadings stage (as here), the court must accept these factual representations as true, and hence says that Jacobson is distinguishable, and reverses and remands on that basis.

But my reaction to this move was twofold -- one substantive, and one procedural.

First, the panel's clearly correct that, at the pleading stage, factual allegations are generally taken as true. But only if they're plausible. Conservative judges in particular are often quite keen on this caveat, and on that basis reject a plethora of factual allegations that they hold are not, in fact, accurate.

Is it plausible that the COVID-19 vaccine is not, in fact, a vaccine, and does not in fact stop the spread of COVID?

If that's true, I've got to admit, this is the first I've heard of it. And I conducted a quick Google search to try to find scientific evidence of this purported fact, and couldn't find any. That said, I'm not a scientist, and admit that I'm not completely well-versed in this field, so I'm not willing to reject the proposition out of hand.

So what support does the panel have for its conclusion that this factual assertion is plausible? Here's the entirety of the opinion on this point -- the only two the opinion even mentions plausibility:

"If the parties provide competing but plausible explanations, the plaintiffs’ complaint survives. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). . . . At this stage, we must accept Plaintiffs’ allegations that the vaccine does not prevent the spread of COVID-19 as true. Twombly, 550 U.S. at 556. . . .  Because we thus must accept them as true, Plaintiffs have plausibly alleged that the COVID-19 vaccine does not effectively “prevent the spread” of COVID-19. Thus, Jacobson does not apply, and so we vacate the district court’s order of dismissal and remand."

That's not really an analysis of plausibility now, is it? It merely says that the allegation is plausible, with no support whatsoever.

Now, if the conclusion comported with common understanding -- e.g., that the Earth is not flat -- it may well be permissible to just conclude offhand that a factual allegation is plausible. But I don't think that the factual claim that the COVID vaccine isn't actually a vaccine so qualifies as obviously true. In fact, I'm personally somewhat suspicious of the claim.

And, indeed, below, the LAUSD permissibly introduced evidence (government reports) that showed that the rate of COVID infection and deaths appreciably diminished once people started to receive the COVID vaccine. Something that's fairly common knowledge anyway, I might add. It seems to me a very natural reading of these statistics that vaccination does, in fact, assist in reducing the transmission of COVID. What's the evidence to the contrary? What's the "alternative explanation" of those statistics that makes plaintiffs' claim -- that vaccination is allegedly not effective at all in reducing transmission -- plausible? The panel never says. Which seems to me a pretty big gap.

Is it plausible to me that being vaccinated reduces the severity of COVID and thus reduces death rates? Totally. That appears to be plaintiff's claim -- that the vaccine merely helps the body fight COVID and hence not die. But if the body's effectively fighting the disease, it seems common sense that the rate of "shedding" -- how much virus would be expelled outside the body, in coughs, saliva, etc. -- would also be reduced. Which is not only what I previously understood to be true, but also a fact amply supported by the underlying scientific data.

So what, exactly, makes it plausible for plaintiffs to say that vaccination isn't effective at all in reducing to any degree the transmission of a deadly epidemic disease that has already killed millions of people? This omission seems fairly critical, since (as the panel admits) only plausible factual allegations are to be accepted as true.

To be clear: I might well find it plausible that the COVID vaccine mostly only reduces the severity of the illness. Or at least I don't find such an allegation obviously implausible; again, I'm not a scientist and haven't reviewed all the data. But Jacobson nowhere says that the government can only require a vaccine when it's100% effective (which, even back then, it wasn't): it only says that it's constitutional for the government to require injections in order to reduce transmission in the face of a public health epidemic. I haven't seen anything cited by plaintiffs or the panel that suggests to me that the was either not an epidemic (there was) or that COVID vaccines didn't reduce, in at least a non-trivial way (and likely in a massive way), the rate of transmission of that deadly virus. If so, Jacobson controls.

That's the substantive point.

The procedural point is this. The panel basically says: "Well, Jacobson's different because that involved a vaccine, and plaintiffs here plausibly claim that the vaccination here isn't a vaccine, so we reverse and remand." But the Court of Appeal reviews judgments, not reasoning. The LAUSD argued that its rules survive rational basis review -- a very low-level review, I might add -- because even if what plaintiff says is true, the LAUSD had a rational basis for requiring "vaccination" because it reduced the severity of the illness and hence resulted in (amongst other things) less absenteeism. That's a rational basis for sure. One that, as far as I can tell, plaintiffs never even denied.

What about that? If that's true, the policy survives rational basis review, and the judgment is affirmed, even if the district court's reasoning was erroneous?

Moreover, the fight here is not centrally about whether COVID vaccines are effective or not, a matter about which there's (arguably) some factual dispute. It's rather when the government can permissibly conclude that they might be and, on that basis, require vaccination in order to reduce the millions of deaths resulting from that epidemic. The Supreme Court has said that we generally let the government, not the courts, draw conclusions from even seriously disputed medical studies, particularly during national emergencies like epidemics. Doubly so when, as here, the standard of review is rational basis, "a paradigm of judicial restraint."

If, during an undisputed national epidemic in which millions are being killed, the government, from consultation with its most serious medical experts, concludes that a particular vaccine would in fact reduce transmission rates and save millions of lives, that seems constitutional even if there exist some medical experts (or plaintiffs) who allege otherwise. No? We instead let courts decide what the medical evidence suggests? Not under rational basis review, surely: that I know for certain.

I don't think anyone seriously disputes (outside of some really hardcore tin hat folks) that the LAUSD required vaccination because it thought, with at least some serious basis, that this would at least reduce the transmission of COVID in schools -- both to adults and to kids. Maybe it was wrong, maybe it was right. But that conclusion was at least plausible, and Jacobson seems on point. Particularly if, as here, a contrary conclusion -- that COVID vaccines allegedly don't reduce transmission at all -- doesn't appear consistent with either the undisputed facts (that rates plummeted after widespread vaccination) or the underlying medical evidence (that reduced severity and/or enhanced immune responses decrease virus shedding and hence transmisson).

That's my reaction to today's opinion. We'll see in due course whether the Ninth Circuit takes it en banc. (My guess is that it will.)

Thursday, June 06, 2024

People v. Gefrerer (Cal. Ct. App. - June 6, 2024)

Let's harken back to those halcyon days in which you took the bar exam. Here's a question of the type you might perhaps have found on it:

"While walking down the street, Victim has his pockets picked by Defendant, thereby losing a wallet that contains $1500 in cash. Defendant is guilty of:

A. Felony theft
B. Felony robbery
C. Both (A) and (B).
D. Neither (A) nor (B)."

The correct answer is (A), right? It's a felony because the theft is over $950. And it's a theft, not robbery, because robbery requires that the theft (which is a lesser included offense) be accomplished by means of force or fear, which didn't occur here.

Now let's slightly change the hypo. Same fact pattern, but Victim is aware that his pocket is being picked, despite Defendant's attempt to do so secretly. Victim is triple Defendant's size, so Victim could easily resist the theft were they to attempt to do so. But unbeknownst to Defendant, due to a childhood trauma, Victim is intensely fearful of anyone wearing a red fez hat, which Defendant happens to have on, so Victim does not resist the pickpocket.

What now? Simple theft, or is it now robbery?

I think the answer is fairly clearly that it's still only theft. Yes, the fear that Victim had was a but for cause of the successful theft. But Defendant didn't intend that fear, nor is such fear an objectively likely outcome of the circumstances of the offense. So no robbery.

Yet today's opinion from the Court of Appeal appears to say that, nope, this latter hypothetical would indeed constitute robbery.

I think that's wrong.

I don't disagree with the outcome of the actual case, in which the defendant enters two different banks, gives the victims a note each time that demands $5000 with a warning "Don't play," and the tellers in both banks give him the cash and testify that they did so because they feared he had a weapon or would otherwise hurt them if they resisted. I agree with Justice Huffman that the elements of robbery are met in such a setting, in my view because (1) the victim was in fact in fear (a subjective test), and (2) the circumstances surrounding the taking are such that a reasonable person might in fact harbor such fear as a result -- an objective test.

But today's opinion seems to entirely eliminate this second prong, and instead hold that all that matters is the victim's state of subjective fear. The opinion says:

"Gefrerer also argues “the contents of the note, ‘don’t play’ can reasonably be interpreted not as a threat but as an indication of a serious invocation of the ‘hand it over’ policy.” We disagree that this was a reasonable interpretation of the note and that this point would be relevant. There is no evidence that Gefrerer was aware of the bank’s policy, let alone that he sought to invoke it. And if such evidence did exist, it is the subjective fear of the victim, not the existence of intent to cause fear by the perpetrator, that is relevant. (People v. Anderson (2011) 51 Cal.4th 989, 995; Bordelon, supra, 162 Cal.App.4th at p. 1319.) Here, both victims testified as to their subjective fear caused by the threating note."

The second part of that paragraph seems wrong to me -- or, at a minimum, inartfully worded and thus misleading. Yes, the subjective existence of fear is relevant to the first prong. But the second prong of the robbery test is satisfied only if either (1) the perpetrator intended to cause fear (and thus had the requisite subjective mens rea), or (2) notwithstanding the lack of such intent, the circumstances of the offense would objectively engender such fear, notwithstanding the defendants' (unreasonable) failure to anticipate such a result. So "evidence [that fear] did exist" is necessary, but not sufficient, for robbery; in addition to this subjective state of affairs, fear needs to be either a subjective intent or objective result.

Otherwise, the fez hypothetical is robbery too. So too would walking up to a person and politely saying "Could you please donate $10 for UNICEF?" if the person you're talking to, unbeknownst to you, for some reason thinks that UNICEF is a terrorist organization and that your puffy jacket is actually filled with explosives that you intend to detonate if the requested donation is not made.

It seems to me critical to make clear the objective part of the test, and that subjective fear alone most definitely does not suffice to turn theft into robbery. Particularly where, as here, the objective test is satisfied, it seems to me wrong to say (or inartfully imply) that it is only "the subjective fear of the victim . . . that is relevant." You gotta meet the objective test as well.

Tuesday, June 04, 2024

CBRE v. Superior Court (Cal. Ct. App. - June 4, 2024)

I most definitely do not know the inner workings of how construction crews operate, but one of the nice things about reading appellate cases is that you get the tiniest of glimmers into how things work in places you would never otherwise know anything about.

So, in this opinion, I got to learn that when owners of commercial buildings modify the office to fit the needs of an incoming tenant, things are (at least sometimes) much more loosey-goosey than I would have thought they'd be.

What you'd think would happen (if you're me, anyway) is that the contractor would get building permits, make sure everything was up to code, carefully do the work, etc. These are big projects and fancy types of companies ordering and doing the work, after all.

Apparently not.

"On March 18, Crew sent CBRE a timeline for the project that still included the permitting process, noting the project would need to begin the following week to meet the tenant’s move-in date. On March 22, CBRE’s senior real estate manager asked for an updated timeline “without a permit,” indicating, “[w]e’ll probably get started on this one right away.” . . .

PRI’s asset manager “gave the ok to begin” on April 9, and work on the project commenced. In soliciting bids from subcontractors, Crew indicated the project “won’t be permitted.”

On April 26, Johnson was working as foreman on the electrical wiring in the suite. Johnson knew no permits had been pulled for the project. He also knew the 277-volt power circuit was turned on to power the building’s lights, as the mandatory temporary lighting had been removed the prior day. However, he believed the 277-volt system was “separate and apart” from the 120-volt system he was working on, as currently required by code. Further, he did not know there were no engineering plans, as-built drawings, as-built plans, building inspections, or plans to bring the building up to code. Prior to April 26, someone had removed the PCF superintendent’s lockout/tagout. While attempting to replace a cover on a junction box labeled as 120-volt and containing wires color-coded as 120-volt under the current code, Johnson touched a live 277-volt wire, fell off a ladder, and sustained serious injuries."

One defense the defendant has is that an electrician should make sure that a wire isn't live every single time by testing it before he touches it, and I'm certain that's true.

But the junction box was labeled as 120-volt, had wires color-coded as 120-volt, and was supposed to be separate (under the building code) from the 277-volt system, yet none of that was true. So you can somewhat see why the worker thought that everything was okay.

One lesson I've learned from all of this is that being an attorney is perhaps infinitely preferable to being an electrician. At least on these types of projects.

'Cause, sure, lawyers occasionally have to deal with difficult opposing counsel (and/or clients). But at least none of them are literal (as opposed to figurative) 277-volt live wires.

Monday, June 03, 2024

Mueller v. Mueller (Cal. Ct. App. - June 3, 2024)

How's this for a marital investment strategy:

"Ling and Paul Mueller married in 2009 and separated in 2017. During their marriage, they cultivated cannabis and buried the proceeds on their property."

How much did they bury, you might ask?

$600,000. In cash.

There are so, so many things that can go wrong in this scenario. The one that ends up transpiring here is that after separating, the wife digs up the majority of the cash and spends it. Leading -- as one might well expect -- to a fairly bitter divorce fight.

I know that there are tough banking restrictions on marijuana proceeds, especially back in the old days.

But still. The "buried treasure" strategy is probably not the most optimal of choices.

G.G. v. G.S. (Cal. Ct. App. - May 28, 2024)

This opinion involves the trial court's non-renewal of a domestic violence restraining order (DVRO). The Court of Appeal reverses and remands so the trial court can properly analyze the relevant factors, and I've got no substantial qualms with that result.

But one sentence in Justice Zukin's opinion struck me as interesting, so I thought I'd look into it further.

After separating, the husband pervasively stalked his ex-wife, so there was clearly a basis -- for this reason as well as many others -- for the initial two-year DVRO entered below. After the DVRO was issued, there's dispute about what exactly the husband did, but everyone admits that his stalking radically diminished, though there still might have been some obsessive components and potential stalking. (You can read the opinion for more details.)

In reversing and remanding, Justice Zukin points out -- clearly correctly -- that there doesn't need to be physical violence to issue, or renew, a DVRO. Stalking's enough. Among other things, the stalking itself may entirely reasonably put the victim in fear for her safety, thereby justifying a DVRO.

So Justice Zukin says:

"The law does not permit courts to make a distinction between physical and non-physical abuse when issuing DVROs. Nor is there any indication that courts should make such a distinction when deciding whether to renew them. And with good reason. Stalking is 'strongly associated with physical violence'; men who stalk their partners after a break-up are four times more likely to assault them."

I was struck by that last sentence. Is it really true that men who stalk their former partners are four times more likely to assault them? (The sentence is also gender-specific; is the same true for women, or, if it's not, is the number higher or lower?)

I'll say at the outset that this last sentence fully comports with my own intuition. If you asked me, I would think it common sense that someone who stalks someone is substantially more likely to physically assault them too. The underlying cause -- the obsession, the lack of self-control, the desire to control the victim, etc. -- are all part and parcel of both the stalking as well as the physical assault.

But I wanted to know the actual number, and what, if anything, the research bore out on this front.

Justice Zukin's opinion cites her source for the "four times as likely" number as "(Lo, A Domestic Violence Dystopia: Abuse via the Internet of Things and Remedies under Current Law (2021) 109 Cal. L.Rev. 277, 282.)." So I went back and looked at that. 

That 2021 article didn't itself conduct a study; it simply cited Molly Dragiewicz & Yvonne Lindgren, The Gendered Nature of Domestic Violence: Statistical Data for Lawyers Considering Equal Protection Analysis, 17 AM. U.J. GENDER SOC. POL’Y & L. 229, 256 (2009). So I read that one. That 2009 article in turn didn't conduct its own study either; rather, it cited PATRICIA TJADEN & NANCY THOENNES, U.S. DEP'T OF JUSTICE, STALKING IN AMERICA: FINDINGS FROM THE NATIONAL VIOLENCE AGAINST WOMEN SURVEY 8 (1998).

But that final reference was, indeed, a study. It involved a telephone survey of 8,000 and 8,000 men. And the findings there are very robust. It does indeed mention the "four times" figure. So there you have it.

Two things, though.

First, the survey was conducted from November 1995 to May 1996. As a result, its results are now over a quarter-century out of date. That doesn't necessarily mean that the numbers or results are different now, of course. I would (obviously) hope that the current number would be lower -- as would all of us -- but I have no idea. Regardless, I thought this was a good example of how a particular figure can be (entirely properly) established at some past historical point and then reiterated and taken as established contemporary fact notwithstanding the passage of a substantial period of time.

Second, and perhaps more substantively, when I read the Court of Appeal's opinion, I thought that this figure was employed as a "cause-and-effect" shorthand; i.e., that we need to take stalking seriously in part because stalking often leads to physical abuse as well. That's basically what I hear Justice Zukin saying, and, again, that comports with my own preexisting intuition.

But that's not what the study actually says. It's instead correlation, not causation. The study says that ex-husbands (or partners) who stalk are four times as likely as non-stalkers to abuse. But a different way of saying that same figure is to say that ex-husbands who abuse are four times as likely as non-abusers to stalk. The two are merely associated; one doesn't cause, or even differentially result in, the other.

Further, there's no temporal differentiation there. The study didn't ask which of the abuse or stalking predated the other. Yep, it's four times more likely that they're correlated. But that could be because people who abuse during the marriage are far more likely to then stalk after the marriage collapses than non-abusers -- a result that would (again) correspond to my preexisting intuition on this front as well. Abusers are nutjobs, and nutjobs stalk.

Could it also be that people who don't abuse during the marriage but who stalk thereafter are more likely to then physically assault their former spouse after separation? Of course. But the study doesn't establish -- or even try to establish -- that connection. It doesn't distinguish between abuser husbands who then stalk as opposed to stalkers who then abuse.

So if you're someone who's stalked after your marriage collapses, does the fact that you're stalked mean that you're four times more likely to be physically assaulted by your former spouse (and hence that your enhanced fear in this regard is utterly rational)? No idea. Not from the study, anyway. It didn't look at that. It just looked at the correlation -- either way -- between abuse and stalking.

For all we know from the study, if you're stalked, you might have two times -- or ten times -- the risk of being physically assaulted by your former spouse. Or maybe half; we don't know. Correlation doesn't mean causation, especially when when you combine temporally disparate events (e.g., abusers who then stalk with non-abusers who then stalk and abuse).

This is another example, I think, of people using purportedly "hard numbers" to back up a preexisting intuition in a way that doesn't actually hold up. Do people that go to the hospital have higher mortality rates even after leaving the hospital? Sure they do. But that doesn't at all mean that going to the hospital killed 'em or heightened their risk of dying. People go to the hospital tend to do so because they're sick or injured, and those people in turn have a higher risk of dying later. Ditto, I would think for physical abuse and stalking. Spouses who abuse (I suspect) have a higher risk of stalking, and stalkers (I again suspect) have a higher risk of abuse, but that doesn't necessarily mean that you have a higher risk of being assaulted if your formerly non-assaultive husband starts stalking you. Maybe you do, maybe you don't, but the number isn't 4x. Or at least the study doesn't say so.

So that's my thought on that. An old number that might or might not be right about what it actually says, but probably not right -- or at least a total guess -- for what that number is ostensibly being employed to establish; i.e., that you can statistically and rationally fear that being assaulted is four times more likely if you're ex-husband is stalking you than if he's not.

Thursday, May 30, 2024

People v. Superior Court (Cal. Ct. App. - May 30, 2024)

The majority and the concurring justice disagree somewhat on the reasons why. But both agree -- in my view, entirely correctly -- that while it might be second degree murder if you down a massive amount of oxycodone, speed recklessly, and crash into someone, it's not second degree murder if you chug the oxy, speed recklessly, crash yourself, and then half an hour later and a half-mile away, a truck driver doesn't see the resulting traffic jam and slams into someone, killing them.

This is a classic example, I think, of the difference between but-for causation and proximate causation. Did the driver's conduct result in death? Yes. If she hadn't done what she did, someone currently dead would still be alive. And did the defendant have the requisite mens rea for a murder conviction? Sure. At least at the time she took the oxy and decided to drive recklessly. (Maybe not, however, during the half hour she was totally out of it and wouldn't get out of the vehicle.)

But but-for causation isn't sufficient for murder. Otherwise every mother of a murderer would themselves be potentially guilty as well. There's got to be proximate cause -- something for which, unfortunately, there is no set bright line rule, but that's why we have incredibly bright and sophisticated judges, as well as the resulting common law.

And, here, a murder charge is simply a bridge too far.

Tuesday, May 28, 2024

Key v. Tyler (Cal. Ct. App. - May 28, 2024)

The sheer volume and duration of this probate litigation between sisters confirms that, sometimes, one of the worst decisions you can make is to leave a ton of money to your children upon your death.

This latest saga involves a no-contest clause, and the issue is whether one of the sisters stands to lose every penny to which she was entitled under her parents' trust because she filed an earlier contest against her sister. The Court of Appeal answers: Yes.

The litigation saga is not yet over. Not by a longshot. The trial court still has to answer whether the earlier contest was filed without probable cause. Then the loser will appeal, etc. (There are a ton of ancillary suits involving lawyers, litigation funders, etc. Ugh.)

At least the parents aren't around to see the resulting debacle.

Wednesday, May 22, 2024

Campbell v. LAUSD (Cal. Ct. App. - May 22, 2024)

What do you have to do to be fired as a teacher from the L.A. Unified School District, you might ask?

Honestly, I don't know. But apparently being "absent or tardy almost 38% of her workdays for the 2015–2016 school year and 45% of her workdays for the following school year" will do the trick.

John Sandy Campbell gets fired, and everyone affirms.

Tuesday, May 21, 2024

U.S. v. Cloud (9th Cir. - May 21, 2024)

Imagine that you're a U.S. Attorney and your office commits a huge Brady violation in a major murder case. You've got text messages from the boyfriend of your major eyewitness at trial to the lead FBI agent on the case that say that she's willing to alter her testimony and "testify to whatever you need her to" in return for certain benefits (namely, dropping charges against the boyfriend), and unless she gets them, she's going to "ple[ad] the 5th and say she don’t remember anything." This, by the way, the night before she's scheduled to testify at the trial.

But the AUSA's office doesn't disclose those text messages to the defense -- or earlier, similar messages either. Indeed, the next morning, as the trial's about the resume, defense counsel asks the prosecutors in open court "whether there was anything they wanted to bring up—they responded that there was not."

Defense counsel then tells the court about the text messages that the government didn't disclose. Texts that the defense serendipitously discovered from another source.

At which point the district court judge -- understandably -- goes ballistic. They call the witness to the stand and she admits "stand that she was willing to shape her testimony in exchange for receiving these benefits. When asked, “[Y]ou were willing to say whatever they wanted you to say . . . . That’s what you were willing to do, correct?,” she responded, “Yeah.” The court then followed up with a final question: “You were willing to change your testimony based upon whether or not you got this benefit; is that right?” Esmeralda offered an unequivocal “Yes” in response."

So the trial court excludes her testimony and makes a finding "that the Government’s 'egregious' conduct violated Brady." It also sanctions the government, making it pay "$4,844.68 (an amount that reflected the defense’s accounting) to the Federal Defenders of Eastern Washington & Idaho and $216.00 (the amount paid to jurors while they sat idle) to the district court clerk."

As a result, the government's down around five grand -- almost all of which it was going to pay to the public defender's office anyway, FWIW.

Faced with these circumstances, which course of conduct would personally you pursue?

A. Take your lumps. Pay the five grand, be happy that the defendant was convicted at trial despite your screw up -- and sentenced to multiple life terms, no less -- and go home. Or:

B. Appeal the $5,000 sanction order.

The U.S. Attorney's office elects to do (B). Resulting in more expense for lawyers on both sides of the appeal -- which the government itself pays for, and is surely many multiples of $5,000 -- plus losing the appeal anyway and resulting in a published opinion that recounts all the nasty details of what transpired at trial.

Seem like (A) might have been the preferable choice.

Monday, May 20, 2024

People v. Carter (Cal. Supreme Ct. - May 20, 2024)

It does seem at least a little bit wrong that someone committed to a hospital as a sexually violent predator should go 12 full years without a trial, no?

I understand that, sometimes, you're waiting to try to get better in the meantime, so that the result of the trial is more likely to be in your favor.

But having to wait over two full years to be "reevaluated" by your doctors seems quite a bit too long.

That's the backstory here, anyway.

(Though my guess would be that the petitioner, Ishmael Carter, will still be held at the hospital for a long period of time -- perhaps forever -- notwithstanding today's result.)

Thursday, May 16, 2024

Lorch v. Superior Court (Cal. Ct. App. - May 16, 2024)

In state court, if you're assigned an "all-purpose" judge, you generally have to "paper" them (CCP 170.6) within 10 days. But if you're in a "master calendar" court, once you get assigned the particular judge for trial, you have to challenge them basically immediately. That way, the master calendar judge can promptly get your trial scheduled before a new judge.

San Diego is an "all-purpose" court, but sometimes, when you're scheduled for trial, your particular judge is too busy, so you get bounced to a new judge for trial.

San Diego's local rules -- Rule 2.1.3 -- says that in such settings, your "all-purpose" judge magically turns into a "master calendar" judge, so you've got to make any peremptory challenges immediately.

The Court of Appeal holds that Rule 2.1.3 is too cute by half, and impermissibly conflicts with CCP 170.6.

So San Diego will have to try a different way to get its trials assigned to open courtrooms. One that's both consistent with CCP 170.6 and yet lets litigants timely challenge judges if they want.

POSTSCRIPT - A (very informed) reader tells me that San Diego has already dealt with this problem; indeed, did so last month, before Court of Appeal published Lorch. It created a master calendar judge (the supervising judge), and let all-purpose judges assign the case to the master calendar judge if the case is ready for trial but the all-purpose judge isn't ready. Voila! Problem solved. (Or seems to solve it as far as I can see; this solution seems cute but not 150% cute.)

Wednesday, May 15, 2024

People v. Ellis (Cal. Ct. App. - May 15, 2024)

This opinion by Justice Yegan contains less than 425 words. It is a page and a half long. It doesn't contain a single case citation. The briefs themselves were almost assuredly many multiples of this length -- and likely depth.

The opinion contains eight different alleged reasons for affirming the decision below. All but the last of these consists of but a single sentence. (The final reason is four sentences: That smuggling marijuana in prison is a serious crime.) The longest of these reasons entails 28 words; the shortest, a mere four words.

I would leave dispositions like this one unpublished.

(Understanding, of course, that justices get to decide for themselves whether their opinions allegedly meet the standards for publication established by Rule 8.1105(c), and that different justices sometimes have markedly different subjective tastes in this regard.)

Tuesday, May 14, 2024

D.K. v. Office of Admin. Hrgs. (Cal. Ct. App. - May 14, 2024)

Here are the first three paragraphs of the "Background" section of this opinion:

"D.K. was found incompetent to stand trial (IST) and committed to the Department of State Hospitals (DSH) by the Orange County Superior Court. D.K. is a patient at Napa State Hospital (NSH) and has been diagnosed with “[u]nspecified schizophrenia spectrum and other psychotic disorder.”

After D.K.’s transfer to NSH, DSH filed a petition with the Office of Administrative Hearings (OAH) for an interim order to compel involuntary medication of D.K. with antipsychotic medication. . . .

Pursuant to section 1370, subdivision (a)(2)(D)(i), an administrative law judge (ALJ) conducted an evidentiary hearing on January 20, 2023."

That's a fair number of acronyms to start out, eh?

The "IST" one seemed particularly unusual. The opinion only uses the acronym three times. Seems like you could just write it out.

But as long as everyone know what you mean, it probably doesn't really matter much.

Friday, May 10, 2024

Bassi v. Bassi (Cal. Ct. App. - May 9, 2024)

You see exceptionally vituperative divorce cases occasionally in the Court of Appeal, though I suspect that most of them get resolved in unpublished opinions. This one, though, gets published.

When I read them, I often think -- as I did here -- "Wow. Just imagine being married to someone for that long, having children and grandchildren with them, being in a highly remunerative and seemingly happy marriage with them for decades and then getting divorced and having your spouse just totally go off the rails with relentless absolutely crazy litigation and abuse." You've gotta be massively surprised when that happens, no?

You can read the whole opinion about how one spouse has to get the other declared a vexatious litigant, obtain a domestic violence restraining order against them, get tens (hundreds?) of thousands of dollars in sanctions, etc. Suffice it to say that one of the spouses did not take the divorce well. At all.

(Not that the other had a field day either, obviously.)

Divorces sometimes bring out the absolute worst in people, sadly.

Wednesday, May 08, 2024

Doe v. Bonta (9th Cir. - May 8, 2024)

There's a lot about this Ninth Circuit opinion that's not surprising at all.

It's a lawsuit brought by some gun owners in California who don't like that the Legislature recently passed a law that says that identifying information about who has a concealed carry permit or who buys various ammunition -- which is already collected by the state and disseminated to a plethora of law enforcement officials -- also gets to be used (though kept confidential) by specific academic centers at UC Davis and Stanford "created to do research on firearm violence, in order to inform policy and assist the legislature in enacting appropriate legislation." Plaintiffs say that violates the Second Amendment.

It's not surprising that someone decided to bring that lawsuit. Some people really like their guns, and some people really don't like any government involvement with them at all. So pretty much anyone would have predicted that once California passed the underlying statute, some gun owner somewhere would sue.

Similarly, it's not surprising that plaintiffs lost. Both in the district court -- on a motion to dismiss -- and in the Ninth Circuit. Without dissent (and even with Judge Bumatay on the panel). There's surely a right to informational privacy at some level, but the biographical information at issue isn't all that intimate, and it's protected from public dissemination anyway, and the text of the Second Amendment only covers the right to bear arms, not to keep the stuff secret from a Legislatively-chosen group of researchers who are helping the Legislature draft policy, particularly when numerous other public officials already have unchallenged access to this same information. You can read more in the Ninth Circuit opinion as to why plaintiffs lose, but, honestly, the result shouldn't surprise anyone. Plaintiffs would lose even in the current Supreme Court; fairly clearly, in my opinion.

The only thing that surprised me, though, was who was suing.

The plaintiffs themselves are John Does. That makes sense; the whole point of their lawsuit is that they don't want to be identified.

I strongly suspected that their counsel would be one of the especially-active public interest groups that commonly take on these types of cases. Either Second-Amendment-specific groups that like to file even the most aggressive litigation or the usual conservative public interest firms.

Nope. The attorneys on this case are from . . . Snell & Wilmer.

Sort of off brand for a regular near-AmLaw100 firm, right? Particularly if it's pro bono. You'd think they'd go for more traditional help-the-needy stuff. Certainly rather than a fairly-clearly-losing Second Amendment fight, I would have thought.

Anyway, that's the only unusual thing here. Otherwise, pretty much how everyone would expect this thing to go. 

Tuesday, May 07, 2024

Naranjo v. Spectrum Security Svcs. (Cal. Supreme Ct. - May 6, 2024)

It's notoriously difficult to explain the different types of mens rea requirements imposed by criminal laws to first-year law students. It's perhaps even more difficult to explain to this audience -- or anyone -- similar mens rea requirements that may be imposed in the civil context; in particular, by civil statutes that impose civil penalties or consequences for "knowing and wilful" misconduct. What exactly does that mean? Does it mean that you've got to know that your conduct is unlawful, notwithstanding the usual principle that ignorance of the law is no excuse? Or does it merely signify that you need to know the factual predicates of what you've done, regardless of your subjective belief that this conduct is lawful?

The short answer is: It depends. On context as well as a boatload of other things.

Which, in truth, is not a particularly helpful answer, I know. But it's the best one we have.

(Or at least the best one that doesn't take up 20,000+ words.)

The California Supreme Court has to wade into all this in deciding this opinion, which holds that, in this particular context, the required mental state of "knowing" is belied by a good faith belief in the legality of one's conduct. The Court makes clear: That's not always the case, by any means. But it unanimously holds that it's true here.

Justice Kruger's discussion three-quarters of the way through the opinion is probably as good as one can get on this issue. It's fuzzy. It depends on context. But, here, the Legislature probably didn't intend to penalize employers for good faith mistakes -- including but not limited to good faith mistakes regarding legality -- for errors made on a wage statement. You can still sue for injunctive relief and fees. But not statutory penalties. Sorry about that, but that's the best way we can harmonize the statute as a whole.

But as for the larger epistemological question of what it means to "know" something: well, for better or worse, we're going to have to leave that one for the philosophy crowd.

Good luck with that.

Thursday, May 02, 2024

Masimo Corp. v. The Vanderpool Law Firm (Cal. Ct. App. - May 2, 2024)

What surprised me most about this opinion was the very last line.

The opinion itself is savage. Savage. It affirms the imposition of $10,000 in discovery sanctions against a law firm -- The Vanderpool Law Firm (in Seal Beach) -- notwithstanding the firm's argument that it can't be sanctioned because it substituted out of the case before the motion to compel was filed.

The opinion is undeniably correct on the merits: Lawyers and law firms can be sanctioned for, as here, the underlying (sanctionable) discovery responses that led to the motion to compel even if they substitute out before the resulting motion is actually filed. 

But the interesting part of the opinion is just how relentless it is in insulting the underlying lawyer, Douglas Vanderpool.

I would literally have to retype the whole thing to impart an accurate impression of just how pervasively the Court of Appeal publicly shames the underlying attorney, who also represents his firm on appeal. But here are some sample quotes, just to give a sense:

"Vanderpool indisputably advised defendants to stonewall Masimo’s discovery efforts not once but twice, the second time after promising to provide substantive answers. As the discovery referee held, and the trial court confirmed, Vanderpool’s precipitate exit from its representation of at least Bauche did not insulate it from these sanctions for its prior discovery misuse."

"At oral argument, Vanderpool proffered another argument, one not mentioned or even alluded to in either of its appellate briefs. This was that the breakdown in the attorney-client relationship – which ultimately caused the firm to substitute out – was responsible for the boilerplate supplemental responses and therefore supplied “substantial justification” for stonewalling discovery. We find it odd that such an important explanation for Vanderpool’s discovery misuse – almost the exclusive explanation at oral argument – should have been reserved for that occasion."

"The [discovery] referee also had a few words to say about Vanderpool’s including a letter from some members of Congress regarding Masimo’s CEO as part of its opposition to the request for sanctions against it, in an effort “inappropriately to prejudice discovery referee and the Court with irrelevant allegations of misconduct[.]” The words were “shameful” and “cannot be tolerated.”"

"In fact, the responses to the document production requests were so boilerplate that the individual responses began “Responding Party objects to this interrogatory . . . .” Only intermittently did these responses refer to a “request for production.”" 

"This court has in the past had occasion to deplore the lack of civility that has flourished in the legal profession in recent decades. . . . Evidently Vanderpool’s principal attorney, Douglas Vanderpool, did not get the memo. We have quoted above from the condescending email he sent to Masimo’s counsel, Robert Ellison, expressing the firm’s refusal to meet and confer. After being served with the moving papers for the motion to compel, Douglas Vanderpool began an email to Ellison with the subject line “You are joking right?” The body of the email continued in the same vein: “In 30 years of practice this may be the stupidest thing I’ve ever seen. Robert is this really why you went to law school? Quit sending us paper. you know we are out of the case so just knock it off and get a life. Otherwise we’re going to be requesting sanctions against your firm for even bothering us with this nonsense.”

"Incivility is the adult equivalent of schoolyard bullying and we will not keep looking the other way when attorneys practice like this. They will be called out and immortalized in the California Appellate Reports."


Here's what really got me, though.

I'm going through the opinion, reading all these incredibly bench-slapping lines (of which there are plenty more), and I'm thinking to myself: "Who's writing this thing?" (Unlike in federal court, in the Court of Appeal, the author's always listed on the last line, and I never skip ahead. I like the suspense.)

I have my suspicions, of course. There are some justices who are occasionally/sometimes/often harsher than others, so I'm thinking it's probably one of them.

Then I get to the last line.

Justice Bedsworth.


He was most definitely not one of my initial suspects. Does he feel strongly about various things? Of course. But the type of harshness you see here is not his usual forte.

Four conduct has to really hack off the Court of Appeal to get an opinion like this one, and from a justice like this one, no less.

Hopefully people will learn the underlying lesson. Be civil. Don't write emails like the one described in the opinion.

Or really bad -- and/or embarrassing -- things may well happen to you. Like here.

People v. Flores (Cal. Supreme Ct. - May 2, 2024)

Justice Corrigan authors a powerful opinion that holds that it's not permissible for the police to conduct a Terry stop just because someone's in a high crime area and pretending to tie his shoe behind a car in order to avoid the police, and Justice Evan authors an equally powerful concurrence (joined by a majority of the Court) that highlights the racial implications of a rule that assumes that the "normal" response to a police encounter is to welcome and/or consent to it.

All of which are worthy of incredibly careful consideration.

My only thought upon reading both opinions is that, while the California Supreme Court is unanimous here, my very strong suspicion is that the United States Supreme Court would come out the other way. Likely 6-3.

Wednesday, May 01, 2024

Sacramento Utility Dist. v. Kwan (Cal. Ct. App. - April 30, 2024)

After reading the briefs, I too suspect -- as the trial court found -- that Mr. Kwan did in fact aid and abet the stealing of electricity for a marijuana grow house in Sacramento, notwithstanding the fact that he says that he knew nothing about it and that whomever signed up for utilities there must have stolen his identity.

But I couldn't help but notice that most of the evidence that Justice Robie cites for this proposition would apply to a fairly large swath of society, including but not limited to me.

Justice Robie says:

"Kwan asserted he did not open the account, was the victim of identity theft, and initially stated during pretrial discovery that he had no connection to Sacramento. 

The District produced evidence countering this defense: Kwan’s phone records showed he had called a Sacramento area 916 number numerous times starting in November 2011; Kwan purchased nearly $800 of equipment from a hydroponic store in March 2011 that could be used to grow cannabis; and Kwan received six cash payments totaling $2,500 from December 2011 to August 2012."

Okay, most of us probably haven't bought $800 worth of stuff from a hydroponic store lately. But I bet a fair number of us have called at least one number in the 916 area code sometime in the last year. I know I have. And six cash deposits that total $2500 over a nine-month period seems incredibly common as well, particularly for someone who (like Mr. Kwan) is unemployed and allegedly works odd jobs for people.

Mr. Kwan ultimately gets tagged for a utility bill that's over $27,000. Ouch. Trebled, so that's over $82,000 total. Triple ouch. Plus another $82,000 on top of that for the District's attorney's fees.

(Sextuble ouch?)

It brings to mind a phrase that people used to say when I was in college:

"Don't steal. Don't get caught stealing."

Tuesday, April 30, 2024

Pell v. Nunez (9th Cir. - April 30, 2024)

I readily concede that I know only a tiny bit about what it takes to become an attorney in California if you've graduated from an unaccredited law school. I know that you've got to pass the "baby bar" at some point after your first year -- and then, ultimately, the actual bar exam -- but that's about it.

Today, however, I learned that you apparently have to pass the baby bar within the first 18 months or so of completing your first year of law school. If you do, then you're good to go, and you get credit for all the classes you took in the interim before passing (e.g., your second and third year classes). But if you don't, you only get credit for your first year of classes.

I can somewhat see why that might be the rule. After all, if it took you twenty times to pass the baby bar, maybe we want you to take a few more classes before taking your shot at the actual bar exam.

That said, I'm not really sure that the underlying reasoning applies in situations like the one the Ninth Circuit addresses today.

Douglas Pell attends an unaccredited law school in California, and wants to be a lawyer. He takes the baby bar and passes on his first attempt -- great job. But he didn't take that exam until three years after his first year of law school. He says that his wife's liver transplant and other medical things got in the way.

Which is perhaps eminently plausible. Mr. Pell is 81 years old.

But the State Bar says, tough, you only get credit for your first year, so those 39 credits you earned after the first year don't count. Retake them.

Mr. Pell sues in federal court, loses, and the Ninth Circuit affirms. I've got no complaint with Judge Ikuta's opinion, which seems doctrinally correct. Technically, the State Bar doesn't admit -- or refuse to admit -- anyone to the Bar. Legally, it only makes "recommendations" to the California Supreme Court. Mr. Pell never filed a petition with the California Supreme Court seeking the relief he currently requests. That's fatal to his lawsuit.

Fair enough.

Though I still feel bad for Mr. Pell. He's in his 80s. It's not like he's got infinitely long to retake all those classes. Plus, he passed on his first attempt. No small feat. Seems like the guy's got it fairly together. Even though -- perhaps for understandable reasons -- he couldn't get it together to take his shot at the baby bar within the first 18 months.

Were he to file a petition with the California Supreme Court, and were I on it, I'd probably look fairly sympathetically the thing.

If an 81 year old can finish law school, pass the baby bar, and then pass the actual bar exam, I'm generally more than happy to have the guy as a lawyer. More power to ya.

Good luck, Mr. Pell.

Monday, April 29, 2024

People v. Fay (Cal. Ct. App. - April 29, 2024)

The California Supreme Court should grant review of this Court of Appeal opinion. Even if it's right. Whether you're convicted of murder, and thus spend most or all of the rest of your life in prison, should not depend on which particular appellate panel you happen to draw.

The question presented is the required mental state for a murder conviction when you commit an assault. Let's say, as here, you punch someone in the head in a regular old street fight, and they ultimately die as a result. The evidence suggests that you certainly didn't intend to kill them, but nonetheless that you wanted to punch them somewhere on their body where it would hurt a lot, and didn't particularly think (or care) about whether they might perhaps die as a result of your blows. They weren't blows that would normally cause death, but anything's possible, right?

Is that enough for a murder conviction?

The trial court below told the jury, consistent with what the prosecutor told them in their closing argument, that the standard is not that you didn't care whether the person was killed, but rather "the standard for this charge is[,] I don’t care if someone is hurt or killed, arguing that the defendant was guilty because he "didn't care that Anthony Davis [the victim] was hurt. He didn’t care.” That argument almost certainly made the difference in this case; the jury was repeatedly and completely deadlocked before that argument and instruction, and afterwards, it found the defendant guilty.

Is that an accurate statement of the law?

The trial court thought so, and there's a Court of Appeal opinion -- Olivas -- that said exactly that, albeit in dicta and in the context of an out-of-control driver whose conduct fairly clearly satisfied the typical "conscious disregard for human life" established by the California Supreme Court in Knoller. Moreover, the standard set forth in Olivas -- that the prosecution just has to prove that the defendant thought "I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed" -- has been applied by at least a half-dozen other Court of Appeal opinions, albeit again likely in dictum.

Whether that's an accurate statement of the law seems critical to decide uniformly and statewide. There are lots of people who would be guilty of murder if it's enough that they don't care that someone's "hurt" who definitely wouldn't be guilty of murder if the required showing is that they have to not care that someone may be killed by their actions sufficient to demonstrate a "conscious disregard for human life." And murder -- even second-degree murder -- is a sufficiently serious charge that we definitely want to get the standard right, and not convict someone of murder who wouldn't be guilty of that very serious offense in a different appellate division or in front of a different panel in the Court of Appeal.

So this is one of those cases where the California Supreme Court needs to take the case up and decide once and for all what the right rule should be. Because it's a serious charge with serious disagreement and serious consequences for everyone involved.

Friday, April 26, 2024

People v. Berlin (Cal. Ct. App. - April 26, 2024)

This seems like an easy decision with which to comply -- as long as you're aware of it beforehand.

Can a judge order someone to pretrial mental health diversion? Yes. Of course. Can a judge order restitution? Same answer: Yes. Clearly.

But if you want to order restitution, you've got to do so before the two-year (or whatever) mental health diversion is over and you're about to dismiss the charges.

Not after.

So holds the Court of Appeal, reversing the trial court.

Again: An easy decision to follow, as long as you know of it.

Which now everyone (hopefully) does.

Wednesday, April 24, 2024

Fejes v. FAA (9th Cir. - April 23, 2024)

Given that marijuana is legal in Alaska and that the feds generally don't prosecute the stuff, it seems incredibly harsh to entirely deprive someone of his livelihood -- here, taking away James Feje's private pilot license (he's a bush pilot in Alaska) -- just because he transport weed to rural Alaskan communities that have no roads and no other way to get the stuff.

That said, yeah, the statute does seem to say that your pilot's license can indeed be revoked for flying weed, so if the federal government elects -- in its sage (?) discretion -- to pull your license, there's really nothing the Ninth Circuit can do about it.

Given the underlying statutory predicate, as a lawyer, I might have suggested to Mr. Fejes that he be a little more low-key about his business. At a minimum, maybe expressly calling his company "Flying High Investments" was a mistake.

Monday, April 22, 2024

Ruelas v. County of Alameda (Cal. Supreme Ct. - April 22, 2024)

This opinion of the California Supreme Court -- in response to the Ninth Circuit's certified question -- is unanimous, and reading Justice Evans' opinion, you can potentially see why. She does a very good job of exploring the interplay between the various statutory provisions here, some of which were added by the Legislature and others of which were added by the electorate Proposition 139. Forthrightly, I'm not certain at all that the voters were, in fact, fully "aware" of the way the California treated various prisoners when it passed the underlying initiative (in fact, I'm extremely confident that they weren't), but I understand and appreciate that we pretend that they were when we seek to harmonize various statutory provisions.

I just have one question.

Imagine that you're a lawyer -- as, indeed, most of you are. You, presumably, care a fair piece about justice, in every sense of that word, right?

On your deathbed, are you really excited that your principal contribution to California jurisprudence is making sure that jail inmates who are not convicted of any offense -- e.g., pretrial detainees -- are paid absolutely nothing for the eight hours of work they do every day in the kitchen for a private employer (thereby, coincidentally, taking that job away from someone else) whereas inmates who have been found guilty of a crime are entitled to receive pay equal to that paid to the company's private employees?

That's just, honestly, not something that I think is just, or -- at a minimum -- something that I really want to devote the (increasingly) limited hours of my remaining lifetime to accomplishing.

I say that not to pick on -- at all -- the (winning) counsel for appellants here. The first representative matter he lists on his firm's web site, for example, is a pro bono case that he and others at the firm litigated to "successfully secur[e] compassionate release for a D.C. inmate and military veteran, reuniting him with his family." Well done. I can see why that's something that, on one's deathbed or otherwise, one might be legitimately proud of accomplishing. (I get it if others might disagree, on the theory that the inmate had presumably been convicted of a crime and released before he served his full sentence, but the point is that the end result is consistent with one's own personal values.)

But helping to make sure that innocent inmates (i.e., the presumptively "not guilty") get paid absolutely nothing for their work, whereas guilty inmates get paid? Nah. Everyone, of course, deserves to have an attorney to help them argue their position in court, especially if they happen to be right on the law. 

I'll just let someone else brief and argue that one, thanks.

Maybe there's someone in the world who would defend the proposition that guilty people should get paid for their work in prison but that innocent people shouldn't. Personally, though, I just don't see it.

Regardless, at least until (and if) the law gets changed, that's currently the rule in California.

Thursday, April 18, 2024

U.S. v. Ramirez (9th Cir. - April 18, 2024)

I'm fairly confident that this is all about pretext. But given that the Supreme Court is fine with allowing pretextual traffic stops, my sense is that the police officers here did an admirable job of keeping things calm and respectful. As, I might add, did the defendant.

Here's how the traffic stop went down:

"In July 2020, Officers Dorin Buchanan and Patrick Marshal pulled over Victor Ramirez after witnessing him speed in a residential neighborhood, fail to stop at a stop sign, and not use a turn signal. Before pulling Ramirez over, one of the officers recognized him as a gang member based on an earlier encounter.

After Ramirez stopped his car, Officer Buchanan approached and immediately asked: “What’s up my man? You on probation or parole?” Ramirez answered, “Parole.” Officer Buchanan then asked, “For what?” and Ramirez responded, “For a firearm.”

Officer Buchanan followed up with a few more questions, including when he last checked in with his parole officer, where he lived, whose car he was driving, and what he was doing in the area. During this exchange, Officer Buchanan could see that Ramirez had several gang-related tattoos. And based on those tattoos, Officer Buchanan claimed to know that Ramirez was in an area populated by rival gang members. Officer Buchanan testified that it would be “uncommon” for a rival gang member to be in the area “without a firearm.”

Officer Buchanan instructed Ramirez to turn off the car. He then asked, “You don’t got to reach for it, but do you have a driver’s license?” Ramirez stated he did but that it was not with him. Next, Officer Buchanan asked Ramirez to put his right hand on the back of his head and unbuckle his safety belt with his left hand.

While Ramirez’s right hand was on his head and his left hand was hanging out the car window, Officer Buchanan asked Ramirez if he had a “strap” on him. Ramirez answered, “To be honest with you, I do.” Officer Buchanan responded, “It is, what it is. A man like you is not going to drive through that neighborhood without a strap, you feel me?” Ramirez then informed Officer Buchanan that the gun was in the glove compartment of the car.

Once Ramirez was out of the car, the officers retrieved a loaded 9mm semiautomatic pistol from the glove compartment. Officers also checked the computer system in their patrol car and confirmed that Ramirez was on parole. A federal grand jury indicted Ramirez for possessing a firearm and ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1)."

I might add that, in reading the briefs, there were additional details of their interactions that were fully consistent with the underlying conversational tone; e.g., the officer saying "Do me a favor bro, put your right hand on the back of your head for me dude, [and] with your left hand, reach across and take off your seatbelt okay? Thank you, bro. Keep that right hand on the back of your head.”

Bro code, apparently. But well played.

Wednesday, April 17, 2024

Kuigoua v. Dept. of Veterans Affairs (Cal. Ct. App. - April 17, 2024)

I'm not exactly sure why Justice Wiley decided to publish this opinion, since it seems fairly clearly to make no new law and merely holds -- consistent with legions of precedent -- that in employment cases, in which you have to exhaust your administrative remedies first before you can sue, it's not okay to list one set of facts in your administrative petition and an entirely different set of facts in your subsequent lawsuit (e.g., claims for sex discrimination at one location in the administrative petition but claims of sexual harassment at a different location in the lawsuit). Can't do that. Summary judgment.

Granted, there are some new fancy words in the opinion that aren't usually used in your run-of-the-mill employment opinions (e.g., "oppression," "scotched," "conciliate" and the like), plus a new analogy that might perhaps help explain things to some people ("Kuigoua loses this appeal because he changed horses in the middle of the stream. His agency complaint was one animal. On the far bank, however, his lawsuit emerged from the stream a different creature.). But otherwise, it's just a typical application of a set group of established legal principles to the particular facts at issue here.

Not that I particularly care if an author decides to publish an opinion that seems fairly clearly to meet none of the nine alternative standards for publication set forth in Rule 8.1105(c). Maybe a couple of trees take a hit, but otherwise, no real harm done.

Just somewhat unusual.

Tuesday, April 16, 2024

City of Santa Cruz v. Superior Court (Cal. Ct. App. - April 16, 2024)

Two thoughts sprung to my mind when I read this opinion:

(1) What an incredible waste of taxpayer money when a county (here, Santa Cruz County) sues a city (here, the City of Santa Cruz) over whether the city or county is responsible for a public road (here, Capitola Road) that allegedly got undermined by drainage pipes and needed to be repaired. It's a nine-count complaint (!) for $1.2 million in which the County is suing the City for (1) dangerous condition of public property, (2) trespass, (3) nuisance, (4) waste, (5) indemnity and contribution, (6) removal of lateral and “subadjacent” (sic) support, (7) declaratory relief, (8) account stated, and (9) goods and services rendered."

Taxpayers funding lawyers on one side and taxpayers funding on the other side, to be decided by courts funded by taxpayers, including but not limited to the present appeal. The parties can't work this thing out cooperatively? Seriously? Particularly in a lawsuit over a $1.2 million, which is an incredibly small figure in the governmental scheme of things?

(2) What a stupid rule that when a county sues a city, the city's allowed to create its own rule that requires a claim to be initially presented by the country to the city before a lawsuit is filed. Municipal claims rules are likely stupid in their own right -- the claims pretty much always get denied, and it's just another way to make lawsuits against a municipality more difficult and potentially enable a jurisdictional defense even if there's actual liability -- but those rules are especially silly when they apply to claims made by another governmental entity. Who cares if the county just files in court first? It's not like there's a serious concern that there will be too many frivolous intergovernmental lawsuits. Counties should just be able to sue cities if they want. (But should think seriously before doing so -- see Point No. 1.)

Regardless, that's the law.

Monday, April 15, 2024

Perez v. City of Fresno (9th Cir. - April 15, 2024)

Judges Forrest and Thomas disagree on whether the law is "clearly established" that it's not okay for police officers to use continuous force (e.g., by kneeling on someone's back) to someone who's on the ground and handcuffed, particularly when (as here) he is telling the officer that he's unable to breathe.

But can we all at least agree that there are a disturbing number of cases, both in the Ninth Circuit and elsewhere, involving that pretty much identical fact pattern? (FWIW, Judge Thomas' dissent quotes a prior Ninth Circuit opinion that says "The officers—indeed, any reasonable person—should have known that squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable," and says "Between 2003 and 2017, six of our sister circuits reached a similar conclusion concerning use of prone compression on a subject who has been restrained." We all could likely add additional cases that didn't result in opinions in the Court of Appeals.)

At a minimum, we can all at least hope that the number of these cases diminishes in the future, right?

Surely there's got to be at least some common ground.

P.S. - Hat tip to 11-year old Carli, who left us this morning for Dog Heaven. Godspeed.

Friday, April 12, 2024

U.S. v. Medina-Lopez (9th Cir. - April 12, 2023)

That darn Westlaw. Always messing up circuit precedent by placing an unjustified red flag on cases that were not, in fact, overruled.

So sayeth Judge Graber. (Fixing the problem here.)