I haven't been able to find the petition for rehearing that resulted in this amendment by the Court of Appeal, but it was apparently at least successful at getting a bench slam (largely) removed from the opinion.
"Appellant’s petition for rehearing is DENIED. The court remains concerned about, and does not excuse or condone, appellant’s counsel having attributed a quote to Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245 that does not exist in that opinion. However, we read appellant’s petition for rehearing to concede that it was unnecessary to reach the CEQA argument addressed in footnote three of the opinion. Accordingly, the opinion, filed on April 24, 2026, shall be MODIFIED as follows: On page 14 (in the unpublished portion of the opinion), footnote three is deleted."
Here's the relevant part of that deleted footnote:
"We summarily reject Citizens’ argument that the city effectively approved the project, for CEQA purposes, early in the planning process when the planning commission notified TRC, in compliance with a process set by the Housing Accountability Act, that the application was not inconsistent with the city’s objective standards. Citizens forfeits this startling assertion by failing to present a comprehensible and reasoned argument explaining how the authority it cites furthers its position. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
In one instance, in its opening brief, Citizens goes so far as to attribute a quotation to Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245 that does not exist in that opinion. We caution Citizens’ counsel that similar conduct in the future could be cause for sanctions."
Cite checking: Probably a good idea.
I'm always a little bit worried when a court decides to reject the positions of both parties in a case. There's a danger in such settings that the tribunal is doing something without adequate briefing or consideration.
But here, the California Supreme Court's disposition seems not only entirely reasonable, but equitable as well. (I also love that Justice Corrigan's introductory paragraphs almost entirely spell out both the issue as well as the ultimate resolution.)
The first three paragraphs of the opinion tell you all you need to know:
"We are once again called upon to consider “the intersection of [the] statutory scheme of plea bargaining and the retroactivity rule of [In re] Estrada [(1965) 63 Cal.2d 740.]” [Cite] Defendant Sunee Lynn Mitchell accepted a plea bargain, entered the standard waivers, and agreed to an upper term sentence on one felony count of a multicount information. While her case was pending on appeal the Legislature amended Penal Code1 section 1170, which governs California’s determinate sentencing law. The amendment now requires that the facts used to justify an upper term be stipulated to or proven beyond a reasonable doubt at a jury or court trial. [Cite] The parties agree this statutory amendment applies retroactively to nonfinal judgments under Estrada. Mitchell’s further assertion that the plea bargain, as constituted, did not satisfy the current statutory requirements is likewise not contested by the Attorney General.
The parties’ point of disagreement centers on the effect, if any, of section 1170(b)’s provisions on the negotiated disposition. Mitchell argues she should continue to have the benefits of her plea bargain, including the dismissal of counts and insulation from exposure to a substantially higher sentence. However, she urges the upper term sentence she agreed to should be reduced to the middle term. The Attorney General argues the agreement should be enforced in its entirety because the trial court did not impose a sentence under the provisions of section 1170(b), but rather upon the terms of the bargain.
We reject both positions. We hold that defendants like Mitchell, who agreed to an upper term sentence as part of a plea bargain, may seek the retroactive benefit of section 1170(b)’s amended provisions to their nonfinal judgments. We reverse the Court of Appeal’s contrary holding and direct that the matter be returned to the trial court in a manner similar to the approach adopted in People v. Stamps (2020) 9 Cal.5th 685 (Stamps). On remand, Mitchell may either waive or invoke section 1170(b)’s requirements. If she reaffirms her acceptance of the plea bargain and waives the rights now conferred under section 1170(b), the court shall reinstate the original sentence as negotiated by the parties. If she declines to enter that waiver, in lieu of further proceedings the parties may agree to modify the existing plea bargain and accept a midterm base sentence on count 4, then seek the court’s approval of that downward departure. Absent a modified agreement and approval, Mitchell’s remedy is to withdraw her assent to the bargain, in which case Mitchell’s plea will be set aside and the parties returned to a pre-plea posture. At that point they would remain free to renegotiate further if they choose or to proceed to trial."
I totally agree.
A deal's a deal. But if circumstances then materially change, the deal gets reconsidered. If both sides still want to go through with it, great. But if either side wants to back out, that's fine too.
Hurrah.
Imagine that you're a landlord in Santa Monica and you've rented a place to an elderly tenant for a long time for $666/month. After he dies, you want to increase the rent for the place to the market rate, which is $3500/month. But his caregiver apparently married him a little over a year before he died, and says that she's entitled to stay in the place at the original rate. So you have your attorney file an eviction action, and it proceeds apace.
Then imagine that you see who's representing the surviving tenant: Munger, Tolles & Olson.
Shucks for you.
P.S. - The landlord loses.
Woe is you.
Appellants briefed the case and were in the 2/5 (Second District, Division 5). They were likely fairly happy with that; as you probably know, it's a fairly well-respected group of justices.
Then, after the initial briefing was finished, on October 15, in an entirely different appellate case, there was a recusal in the 2/8. So that case got transferred to the 2/5.
In return, "to equalize workload," the Court of Appeal transferred this case to the 2/8. (None of this is in the opinion, by the way -- it instead comes from the appellate docket.)
That's a different panel, of course. With its own personalities. Including Justice Wiley.
As a direct result, you now see this two-page opinion. Authored by Justice Wiley. An opinion that you're more likely to see in the 2/8 than the 2/5.
That opinion reads, in its entirety:
"The trial court granted summary judgments against Jose Cardenas and his 21 fellow plaintiffs. This group appeals but has forfeited its objections to the summary judgments. The group’s opening brief asserts facts supported only by citation to its briefing in the trial court. That trial court briefing also cites no record evidence. We affirm on grounds of forfeiture.
Cardenas and the fellow plaintiffs were school safety officers, school police officers, police detectives, or other school security personnel. We refer to the group as Cardenas. The employer, the Los Angeles Unified School District, required vaccinations during the Covid-19 pandemic. Cardenas did not want to comply. Claiming religious objections, Cardenas sued the school district.
There were several bases for summary judgment against Cardenas. One was that accommodating religious objections would impose an undue hardship on the school district: unvaccinated employees would imperil students by exposing them to disease.
On appeal, Cardenas’s opening brief sets forth the supposed facts of the case by citing only to three pages of his trial court brief opposing the school district’s motion for summary judgment. These three trial court pages themselves contain no record citations. They are just three pages of something Cardenas’s same lawyer wrote in the past. On none of these pages is a citation to record evidence. Nothing is under penalty of perjury.
This appellate practice violates the cardinal rule that appellate briefs must fairly summarize the facts and must support factual assertions with record citations. [Cite] The purpose of this rule is to allow courts to decide the appeal by locating and examining the key record evidence. [Cite] Appellate records can, of course, be massive; simply asserting “it is somewhere in there” is no good. And the decisive issue can be the proper interpretation of a possibly ambiguous bit of testimony from a deposition or declaration. [Cite] Sometimes the proper interpretation of a single sentence or word decides everything.
Because appellate courts commonly must grapple with intricate details within a sizeable case record, we need record citations to get us started on this exacting work. Failing to give us the essential appellate material forfeits the argument. [Cite] We affirm the judgment and award costs to the respondent."
Could a similar opinion have been written by a different panel? Of course it could.
It's just somewhat more likely -- and predictable -- here.
P.S. - It's at least small solace that the only lawyer who's on the brief for the appellant no longer works for that firm, and instead moved to Morgan & Morgan. So he's not around to have to explain this one to his (now former) bosses.
There were no published opinions until late yesterday, but this one finally came out.
It's a great opinion for anyone who wants to file frivolous motions or complaints. As active litigators well know, under the Court Reservation System used in Los Angeles and several other counties, you have to reserve a hearing date and then file the underlying motion within three days of that reservation (or some other set number of days in other counties). Failure to do so vacates the hearing. As a result, you've got to have your motion ready (or nearly ready) to file when you reserve your date.
That's usually no problem.
But with sanctions motions under Section 128.5, as you likely know, you've got to give the other side a 21-day safe harbor notice period. You've got to (1) serve the motion on the other side, (2) wait 21 days, and (3) then file the motion.
This is typically no problem; what's usually done if that you prepare your sanctions motion, serve it on the other side with a blank hearing date (because you can't get one yet), and then after the 21 days has expired, you file and serve the motion (again) with the noticed hearing date.
The Court of Appeal, however, holds that this is improper, and reverses the $19,000+ sanction award here. The panel holds that if you leave the hearing date blank in your initial notice copy -- which you're required to do, since you can't get a hearing date -- that's insufficient under Section 128.5, so you can't get sanctions.
The Court of Appeal recognizes, albeit implicitly, that this means that parties can never get sanctions under Section 128.5 in Los Angeles or similar counties. Too bad, it holds. That's what the statute says.
So at least for now, go crazy. You can't be sanctioned. Congratulations.
Ultimately, if this opinion holds, I suspect that Los Angeles and other counties will, in due course, change their CRS system to allow sanctions motions (unlike regular motions) to reserve a hearing date without the requirement of filing the motion within 3 days. Which in turn will mean that you will be able to reserve sanction hearing dates with abandon, and drop them 21 (or 30, or 60) days thereafter. That may make a slight mess of the reservation system, but we'll deal. (It may also result in occasional late-opening hearing dates.)
Until then, though, it'll be a largely sanction-free world. We'll see how that goes.
"On January 7, 2025, the Department filed dependency petitions on behalf of then two-year-old O.M. and then one-year-old E.M. . . . [C]ount b-1 alleged that on December 30, 2024, O.M. “was taken to the emergency room (ER) due to a leg injury he received in [father and mother’s] care. . . . [O.M.] suffered a broken femur in his parents care . . . . The parents’ recollection of how the injury happened were initially different stories. [O.M.’s] injury is the result of a significant impact. Neither parent flew with [O.M.] from Humboldt to Oakland. The parents were not staying bedside with [O.M.] while he is being treated at UCSF. [Mother] left the hospital during [O.M.’s] surgery and was not able to be reached. [O.M.’s] broken leg, the parent[s’] lack of information as to how the injury occurred and the parents’ absence [at] the hospital places [O.M.] at risk of serious physical harm . . . .”
Count b-2 alleged that O.M. “is being treated for malnutrition in addition to his broken femur. He is less than 1% for his height and 1% for weight for his developmental age. The evidence of his malnutrition are his elevated levels of vitamin D-12, Microcytic anemia (iron deficiency), and his vitamin D and phosphorus is low. The mother was observed by hospital staff to be watering down [O.M.’s] soy formula. . . .
The report also noted that O.M. was diagnosed with speech and developmental delay. UCSF offered Mother services to address these diagnoses but she declined."
Ugh.
This may seem obvious, but if it's not, this opinion makes the underlying principle clear:
Just because someone's going to eventually die doesn't mean you can kill him. It's still murder.
Juan Cordova was an elderly, homeless guy with serious liver and heart conditions. The coroner says he'd likely have died within three or four years.
Mark Mijares had a serious drug problem. After taking methamphetamine and staying awake for a full week, in a drug-induced psychosis, he inexplicably focused on Mr. Cordova, shouting "I'm going to take you out." He then pummeled Mr. Cordova with a brick, punched him, kicked him, covered his head with a plastic bag, and stabbed him in the neck, killing him. Mr. Cordova didn't die instantly, but instead lingered in the hospital for a week before dying of his injuries.
Mr. Mijares argues on appeal that his offense might only be attempted murder because Mr. Cordova would have died anyway. Quite understandably, the Court of Appeal disagrees.
Yep.
I'll be honest that was difficult -- very difficult -- for me to pay detailed attention to every word of this 269-page (!!) opinion.
(That count, by the way, does not include the many pages of the the partial dissent by Justice Evans.)
It's not that the opinion isn't important. It's involves the life or death, at least theoretically, of a human being, Cary Stayner, who's been sentenced to death.
The underlying difficulty is also largely not even the sheer size of the opinion. Though massive, even for a death penalty case, I've slogged through longer ones. (Though not many!) That task is doable, and indeed, I eventually did it here.
What made this one especially difficult for me was the outset of the opinion, which is where Chief Justice Guerrero understandably describes the underlying crimes. Once you've read that section, you know how the opinion is almost certainly going to come out, and in all honesty, at least for me, you're somewhat, if not wholly, sympathetic to that outcome.
Here's the first paragraph of the opinion:
"This case is an automatic appeal from a judgment of death. (Pen. Code,1 § 1239, subd. (b).) Defendant Cary Anthony Stayner used a ruse to enter the motel room of Carole Sund, her 15-year-old daughter Juli Sund, and their 16-year-old family friend Silvina Pelosso. Once inside the room, defendant brandished a gun and used duct tape to bind Carole and the girls. He murdered Carole by strangling her and murdered Silvina by strangling and suffocating her. Then, over the course of several hours, he repeatedly sexually assaulted Juli, after which he kidnapped her, sexually assaulted her again, and then murdered her by slitting her throat. About five months later, defendant kidnapped, murdered, and decapitated Joie Armstrong. Defendant confessed to his crimes in a detailed recorded interview."
It is difficult -- again, very difficult -- for someone to care deeply about formal "justice" in such a setting. Your retributive instincts are simply too strong.
That's even without learning, later on in the opinion, the additional details of these horrific murders. Or that after the murders, before he was caught, the defendant sent the FBI a letter that included a map of the location of one of the bodies (with his thumbprint on the stamp) that "included the words 'We had fun with this one.'”
After reading 269 pages, you get to Justice Evans partial dissent, who makes some very good points about why the death sentence here was perhaps the result of two very problematic events at the penalty phase. To reiterate: very good points.
But the facts of the case make you care less than perhaps you normally would. Or perhaps should.
Make sure that the declarations that you submit from witnesses who do not speak English include the relevant translation certifications. Otherwise they're getting excluded.
This is the first California appellate case, to my knowledge, to so hold. But it's an important one.
You can probably guess how Judge Lee's opinion, joined by Judge Tung, describes the ICE protests in Portland and the police response to them You can probably also guess how the non-Trump appointee, Judge de Alba, describes those same events, including a detailed, five-page bullet point description of what the video of these protest shows these officers doing to the protesters.
Perhaps needless to say, the majority dissolves the district court's injunction that enjoined federal officials from using crowd control munitions against peaceful protesters, while Judge de Alba dissents.
How much does it cost to have two San Diego County Deputy Sheriffs fly out to Texas and pick up a guy to fly back to San Diego?
Those were pretty nice seats on the plane, I guess.
(Two first class round trip nonstop tickets to Houston, where the jail at issue here is located, are currently under $2000. Economy nonstop tickets are under $200 each.)
Justice Buchanan's opinion seems entirely persuasive. A trial court can't just categorically deny pretrial diversion because someone died, or because the family of the victim opposes it. You've got to analyze all of the relevant factors. So the Court of Appeal here reverses and remands to allow the trial court to assess things properly.
Yep. Sounds exactly right.
I nonetheless wanted to ask the question: Would you grant pretrial diversion here if you were the judge?
Here's a brief summary of the underlying facts, which are essentially undisputed:
"On the evening of November 11, 2024, Bobo was driving a Ford F-450 truck southbound on Kearny Villa Road approaching the signal-controlled intersection with an off-ramp from Route 163. A few seconds after Bobo’s light turned red, she went through the intersection. Bobo’s vehicle struck the driver’s side of a Toyota Highlander that was turning left on a green light from the off-ramp onto northbound Kearny Villa Road. The speed limit on Kearny Villa Road at the intersection was 50 miles per hour. Bobo and other witnesses later estimated she was going 55 to 60 miles per hour, but one witness estimated she was traveling up to 80 miles per hour. The impact from the collision killed Donato, the driver of the Toyota. Bobo’s truck struck a light pole and stopped.
Bobo appeared to be in shock at the scene. She told law enforcement she thought she had the green light but seemed unsure. Police saw no signs of intoxication. Bobo was 50 years old and had never been arrested or charged with a criminal offense.
Bobo was charged with misdemeanor vehicular manslaughter. (Pen. Code, § 192, subd. (c)(2).) She was arraigned in May 2025 and released on her own recognizance with an order not to drive.
Before trial, Bobo filed an “invitation” for the court to grant misdemeanor diversion under section 1001.95, with multiple supporting character references and attached family photos. She argued she was eligible for diversion because the charged crime was not one of the specifically excluded offenses. Her diversion request provided a lengthy background of her upbringing as an adopted child in San Diego, education, employment history, community ties, relationship with her adoptive parents, history as a single mother, relationship with her daughter and grandson, and service as a caretaker for 19 years after her mother was diagnosed with cancer.
The supporting character references described Bobo as a kind, caring, selfless, honest, generous, reliable, and compassionate person. One long-time friend reported that after the accident, Bobo called her “devastated and sobbing that she couldn’t live with herself.” According to the friend, the accident “weighed heavily” on Bobo, she sought counseling, and she “has never stopped grieving that moment.” Another friend similarly reported that the accident “ha[d] deeply affected [Bobo], as she is someone who would never intentionally hurt anyone.”
Bobo requested diversion for a period of 18 months on the following conditions: (1) she complete an in-person traffic course; (2) she complete 150 hours of volunteer service; (3) she write a letter to the victim’s family; (4) payment of restitution be reserved; (5) she remain law-abiding and “not pick up any new criminal cases”; and (6) any other terms the court deemed appropriate. . . .
The People submitted letters from two of Donato’s family members describing the devastating impact of her death, opposing Bobo’s request for diversion, and expressing the view that Bobo should not be able to get away with only community service. The letters described Donato as a 66-year-old grandmother and mother of two adult children, including a son with autism who experienced deep confusion and pain from her death. Donato immigrated from the Philippines and was the anchor of her family. She and her husband lived frugally, but she supported extended family members financially and emotionally, including putting some through college. She was active in her local church and community, compassionate, and generous to others. She was deeply loved and her family suffered tremendously from her death."
Diversion basically means that if the defendant does everything she's supposed to do within the relevant period (here, two years), the case essentially goes away.
Powerful equities on both sides.
So what would you do?
P.S. - The Court of Appeal's caption lists the second attorney for the San Diego City Attorney's Office as counsel on appeal as Paige E. Folkman, but from what I can tell, she went inactive shortly after the petition was filed.
Two people are convicted of kidnapping, raping and killing Linda Canady. Both are sentenced to death.
The California Supreme Court unanimously affirms the conviction and death sentence of Bertsch, but reverses the death sentence of Hronis. So even though they did the same thing -- no one's sure which one of them actually killed Ms. Canady (and it might well have been both of them), one allegedly ends up with a life sentence and the other is executed.
The California Supreme Court holds that Hronis gets relief because his alleged incompetency was not adequately addressed at the penalty phase. Hronis said that God told him that God would save him from an adverse verdict. When that didn't happen, and he was convicted, Hronis didn't want to put on a defense at the penalty phase, telling the judge that "he would prefer to send the jury home, save the state some money, be first in line to receive the death penalty, and “be with Jesus” rather than “rotting” in prison waiting for an appeal. He repeated: “If I can’t be free on the streets, I want to be free with Jesus. That’s exactly how I feel.”" The trial court "noted for the record that Hronis was “soft spoken, deliberate, and composed.”" By contrast, Bertsch didn't have the same issues, so his death sentence is affirmed.
As usual, it's not like either Bertsch or Hronis is actually going to be executed, regardless of today's decision. Which is why I said that only one of these two killers "allegedly" ends up getting executed. There's a death penalty moratorium in California, and that's not going to change anytime soon. Moreover, Ms. Canady was murdered in 1985 -- over four decades ago. Bertsch is now 68 years old, and Hronis is 67. Both of these senior citizens are dying in prison regardless.
Nonetheless, for all its practical worth (or lack thereof), here's a 200-plus page opinion on the subject.
Twice in one week.
First it was on Monday, and today, in an entirely different published opinion, we see it again.
The common reality in both cases, which you see again and again and again in these cases:
If someone texts you saying she's 13 and willing to have sex with you, it's a cop.
Defendant files a Racial Justice Act claim alleging that the Riverside District Attorney disproportionately seeks the death penalty against Black defendants than White defendants. The judge assigned to the case was former ADA with the Riverside DA's office. She didn't participate in the existing prosecution, and was not the responsible district attorney in any of the 28 cases that the defendant is comparing to his for RJA purposes. She was, however, at staff meetings in which the decision to seek the death penalty was discussed, so arguably has some personal knowledge of why that penalty might have been sought in any of those particular cases.
As a result, there's a challenge for cause seeking her recusal. The presiding judge denies the challenge, but the Court of Appeal reverses. "Here, Judge Shouka made recommendations as to filing charges in homicide cases during the relevant period of time involved in the RJA motion, and was present at staffing meetings where decisions were made in other cases as to the charges to be filed. While we do not find that Judge Shouka was actually biased in this case, a person aware of these facts might reasonably entertain a doubt as to whether Judge Shouka could be impartial in determining if the DAO had a pattern of institutional bias, explicit bias, or historical and systematic bias in filing homicide charges, when she was personally involved in these decisions while at the DAO."
You can see the argument, right?
Here's the interesting thing, though. Albeit a twist nowhere discussed in the Court of Appeal's opinion.
The party seeking recusal here isn't the defendant. It's the Riverside DA's office.
In other words, the Riverside DA's office is worried that the judge at issue might have personal knowledge of how death penalty decisions are, in fact, made in that office; in particular, whether they are based upon racial or other illegal grounds. That's information that the DA's office does not want considered.
It would be fairly routine for a defendant to not want a former DA who's now a judge deciding if that DA's office was racist in its charging decisions. That's what you might expect.
It's a bit different when the DA's office itself doesn't want a former DA in that office expressing judgment on that issue.
Interesting twist, eh?
Are some state court judges really granting summary judgment motions because the attorney's declaration (that attaches deposition transcripts, etc.) left out the "under penalty of perjury" part, thereby justifying its wholesale exclusion? And making that ruling even though the attorney's there and more than willing to correct the mistake right at the hearing?
Good job by the Court of Appeal publishing this opinion to make clear that's not okay.
An ICE agent trying to have sex with an undercover cop pretending to be a 13 year old prostitute.
Classic.
I was going to mention this opinion today simply as a reminder of a very common check scam. One to which, sadly, a nontrivial number of lawyers have fallen victim, including but not limited to the plaintiff here.
I will, in fact, make that reminder. Because it's important. Don't fall for this:
"On an unspecified date, Y.P. [a sole practitioner] received “what appeared to be a legitimate debt payment cashier’s check in the amount of $99,700.00” from a “purported client.” The check was “purportedly issued by Falls City National Bank” and “written on behalf of ‘Fastenal, Inc.’ ” The check “ostensibly represented what [Y.P.] believed to be partial payment of a debt obtained as part of a legal matter being handled by [Y.P.] on behalf of [the] purported client.”
On Friday, March 18, 2022, Y.P. deposited the check into the IOLTA account.1 On Monday, March 21, 2022, the client directed Y.P. to wire transfer $89,730 “as soon as the funds from the Check cleared” and to retain $9,970 as the legal fees for his services."
Needless to say, the "cashier's check" was fraudulent, the whole thing was a scam, the bank reversed the deposit after the wire went out, and the lawyer lost the entire amount of the $89,730 wire. (My children would now insert a sad face emoji here, but we're far too old for that.
To reiterate: Don't wire money out for an "excess" deposit. Do. Not. Do. It.
But as I read further in the opinion, I also wanted to mention the doctrinal merits. The trial court dismissed the lawyer's lawsuit against the bank on the pleadings, and after reading the first couple of paragraphs of the opinion, I assumed that the Court of Appeal would affirm. And, indeed, it largely does so.
But not entirely.
The lawyer-plaintiff here added one critical set of facts. Plaintiff alleges that he called the bank and was expressly told by a bank employee that the certified check "had cleared" (when, of course, it had not), and that he then went to the bank, told that same employee that he was super suspicious about the check, but that same employee again reiterated that the check had cleared and plaintiff was thus "good to go" to send the wire.
The Court of Appeal says, essentially: "Well, your other causes of action are meritless, but yeah, if the bank employee did indeed say those things, that would indeed count as a negligent misrepresentation." So that part of the lawsuit -- and only that part -- survives.
Now, between you and me, the lawyer here is presumably well trained in the law, and a well trained lawyer might perhaps realize that his lawsuit against the bank for getting scammed might not one that regularly goes so well, and hence that lawyer might perhaps be inclined to maybe just maybe add some allegations about some alleged oral statements that may or may not have actually transpired, but that would be good enough to get past a demurrer (and likely past summary judgment as well, since they involve a credibility call between the lawyer that says they happened and a bank employee who will perhaps say they didn't).
Of course, I'm not saying that happened here. Of course not. What do I know? I'm just saying that things like that could happen. In a parallel universe, perhaps.
So two lessons. One, don't fall for this scam. Two, if you do fall for that scam, it would be really helpful if you alleged (truthfully, of course) that you contacted the bank and they repeatedly assured you that the fake check that you deposited had already cleared.
All good?
Oh, one last thing. Not surprisingly, the plaintiff here does not want his real name in a published opinion that tells the entire world that he was scammed. So plaintiff sues under his initials: Y.P.
The text of the Court of Appeal's opinion similarly consistently refers to the plaintiff as Y.P., and never uses his real name.
And then, on the last page, when it lists the counsel for the parties:
"Peretz & Associates, Yosef Peretz and David Garibaldi, for Plaintiff."
Oops.
It's a death penalty case. I totally understand why counsel for the defendant, who's out of peremptory challenges, wants this juror excused for cause. What I don't understand is why the prosecution doesn't realize that letting this juror on creates serious, serious risks of reversal on appeal.
Which, of course, happens. Unanimously. So we now have to redo the entire -- very, very long -- trial yet again. Years later.
One of the two victims of the murder was the chief of police of the small town at issue. Here's the juror's contacts with that victim:
"Juror No. 5 was forthcoming and open as to his associations with Chief Speer, the fact that he had heard details from law enforcement on the day of the killings and thereafter, and that he followed the case in the press. He wrote in his questionnaire that he would have difficulty keeping an open mind and that the accusation of killing a police officer would prevent him from being fair and impartial. He explained that he had known Chief Speer for a number of years, had business dealings with him, knew his wife, would have coffee with him from time to time, and campaigned for him when he ran for sheriff. He added: “in that sense, a friendship existed.” He was on his way to attend Speer’s funeral but was called away as he was approaching the service. He knew 14 of the potential witnesses. When asked if his experience as a police employee would make it difficult for him to be fair and impartial, he replied: “I would like to think not, but of course being in law enforcement, entrenched in it for 15 years might be a little difficult.” Nevertheless, Juror No. 5 said he could be a fair and impartial juror in a case where someone was accused of murdering Chief Speer, could set aside what he had heard from law enforcement sources, could fairly evaluate the testimony of people he knew, and could “wait until the end of the case . . . until both sides had presented their case and argued the case” before making up his mind."
Come one. You're not letting that person on the jury, right? We have actual neutral prospective jurors sitting there and available. No reason to put someone like this on.
Even if they say -- just like we all would want to say (and believe) -- that they could be neutral, just select another juror.
Unless you're affirmatively desirous of an incredibly expensive appellate reversal and retrial.
I occasionally pursue old opinions for fun. This Supreme Court opinion -- Ex Parte Milligan -- was published exactly 160 years ago, to the day, on April 3, 1866.
The opinion was incredibly prescient. So on its anniversary, I thought I'd mention it briefly.
In 1864, the United States arrested Lambdin Milligan, an Indiana lawyer who was an outspoken opponent of the Civil War. Even though Milligan was a civilian, the U.S. tried him before a military commission for alleged offenses against the Union (basically, opposing the war, alongside an alleged connection to a cache of weapons) and sentenced him to hang.
Milligan brought a habeas petition claiming that it was illegal to try him before a military commission instead of before a civilian jury. The Supreme Court agreed. In freeing Milligan, the Court wrote these words, which seem incredibly timely on this day 160 years later. So I thought I'd share them with you:
"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances . . . . This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln . . . ."
Yep. Indeed.
I wrote this back on the same day the amendment to the opinion came out on March 23, and today the Court of Appeal issues this.
Today's modification doesn't mention it, but the docket also reflects that on March 24, 25 and 26, the prior amendment was stricken, the remittitur was issued, and then the next day the Court of Appeal ordered the remittitur recalled. Leading to a renewed remittitur and amended opinion today.
All of which is a lot of procedural work just to get things cleaned up the way they should be.
Which I'm sure everyone appreciates. So thanks, Justice Miller.
There was only one published opinion in the Ninth Circuit, California Supreme Court, and California Court of Appeal today. And even that one wasn't all that doctrinally interesting.
That said, one person definitely cared deeply about that sole opinion: Francis Casildo.
Mr. Casildo is what a normal person might call a "long-time drug dealer," though we in the legal world prefer "career criminal." He has a 2006 drug conviction in Nevada and a 2011 federal conviction for distribution of cocaine. So when the jury convicted him in of distributing methamphetamine, that was his third strike. Which means a big jump in the sentencing guidelines range.
The judge ultimately sentenced Mr. Casildo to a little over 19 and a half years in prison. But expressly did so because the three drug strikes made Mr. Casildo a career criminal under the guidelines. At sentencing, the judge said:
"The guideline range is properly calculated at 262 to 327 months, and as we discussed earlier, that was driven almost completely by the fact that Mr. Casildo is regarded as a career offender, having had two prior drug trafficking convictions. And I think that essentially says it all. Were it not for those two prior convictions or if there had only been one prior drug conviction, we would be talking about a very, very different case, a very, very different sentence, probably something on the order of what Mr. Requena received, maybe even less."
After an unsuccessful appeal, Mr. Casildo filed a motion to vacate his sentence. The district court denied the motion, but the Ninth Circuit reverses, holding that his attorney, who had been instructed by Mr. Casildo to oppose the career services finding, deficiently failed to do so: "We hold that there was cause for, and prejudice resulting from, Casildo’s procedural default, and that his failure to raise his claim on direct appeal may therefore be excused. On the merits, we hold that Casildo’s conviction under § 453.321(1)(a) is not a controlled substance offense under § 4B1.1(a). We reverse and remand for further proceedings."
It's not like Mr. Casildo is going to get out of prison any time soon. But he's nonetheless likely looking at trimming off a non-trivial portion of this just-under-two-decade sentence.
And it's March 31, not April 1, so it's not an April Fool's Day joke either.