Tuesday, October 31, 2006

Tunstall v. Wells (Cal. Ct. App. - Oct. 31, 2006)

Family. The bedrock of civilization. The repository of love, affection, and caring.

Unless, apparently, you're the children of Robert Wells. Who died in February 2005, with five children. To three of the children -- all daughters -- he left $50,000 each. To his other two children -- his only son and his (apparently favorite) other daughter -- he left the remainder of his (substantial) estate. Nice.

One more thing. Wells left his three daughters $50,000 each conditioned on a no contest clause, so if they fight the will, they get nothing. But wait. There's more. He's sufficiently fancy (and/or spiteful) that he also includes a clause of first impression here in California. That says that if any of the three daughters contests the will, then all of them get nothing. Sweet!

One of the daughters wants to contest the will. But doesn't want to thereby disinherit her other two "ugly duckling" sisters. So she brings an action to declare that the clause that would do so is against public policy. An action with the "favorite" daughter, Elizabeth, opposes. "It's mine. Mine mine mine. All mine!"

Ultimately, Justice Rothschild concludes that the trial court was wrong, and that this provision does not violate public policy. And I agree with her, albeit somewhat reluctantly. Dead people are entitled to be bungholes. The judiciary need not agree with a deceased's decision in order to uphold it.

That said, not to speak ill of the dead, but I must say that I don't have a very favorable opinion of the dear departed Mr. Wells. Granted, I don't know his family. Maybe his three daughters were total jerks, and Elizabeth and the son were the only grateful ones.

But I doubt it. And, if they were indeed jerks, they may well have taken after their father.

Not a family dynamic of which I'd like to be a part.

People v. Tackett (Cal. Ct. App. - Oct. 31, 2006)

Want to hear something scary? Guess what happens when you drive drunk, blow through a stop sign, strike another car, and kill the husband and wife in the car you hit (and seriously injure their son)? Answer: You get to spend the next 16 years and 8 months of your life in prison. And, thereafter, be unable to take back the fact that you've killed two totally innocent people and critically maimed another. Boo.

That's what happens here. Justice Scotland eventually takes two years off the sentence. But affirms the conviction, so Steven Tackett still gets to spend the next 15 years in the pokey.

More than enough reason to lay off the sauce -- or take a taxi -- during the revelry of the evening before All Saint's Day. As well as thereafter.

Food for thought.

P.S. - Justice Scotland, you accidentally forgot to close the parentheses in the large paragraph on page 8. Have a great Halloween!

Monday, October 30, 2006

Pinard v. Clatskanie School Dist. 6J (9th Cir. - Oct. 30, 2006)

When I started to practice law, I was surprised -- not shocked, but nonetheless surprised -- at how often the participants (especially parties and interested witnesses) would commit perjury. They'd do so even when it was, in my mind, fairly clear to everyone that they were lying.

Sure, you couldn't prove that they were lying. There'd be no videotape that demonstrably indicated that the witness was telling a fib. And even if there was, the witness would just claim that they were mistaken, and you couldn't prove that they were knowingly committing perjury. And, to further the point, many (though by no means all) of these untrue statements entailed saying "I don't recall" to things the witness assuredly did recall. These statements are something that, again, you can't prove are untrue. Who knows, after all, what's actually in the memory of the witness?

Nonetheless, everyone in the room would know -- at least if they weren't a blind and partisan advocate -- that the witness was lying. Which somewhat surprised me. I'd have originally thought that people would be a tiny bit more reluctant to commit perjury than they actually are. At least in civil cases. Or, at a bare minimum, when the amount at stake either wasn't a large amount of money or wasn't the money of the witness.

But, very often, that ain't how it is. At least in my experience (and judgment). Instead, when it's convenient and helpful to do so -- and when you can't definitively get caught -- parties and interested witnesses often lie. Sad, but true.

I've thought about this distressing reality a fair amount over the years, and have some plausible reasons why this might be the case. Some are obviously attitudinal -- perhaps integrity doesn't count very much anymore (if it ever did), at least in the context of litigation. Others may be structural; for example, the importance of summary judgment (and the doctrinal standards thereto) increases the impact -- and value -- of strategic lies, as does the fact that litigation is (increasingly) expensive and that most cases don't go to trial, since strategic perjury may thus rationally result in a higher settlement awards as well as obviate the need to testify at trial (a trial that would increase the visibility of the lies). Other influences are the fact that perjury prosecutions are exceptionally rare and that there are no substantially effective sanctions for telling a lie in civil proceedings.

That's a whole other story, however. Why am I saying all this? As usual, no point, really. The topic just came to mind when I read this case. Which raises interesting constitutional issues of its own, and involves whether a school may permissibly discipline members of a basketball team for exercising their First Amendment right to petition to get rid of their allegedly abusive coach and, thereafter, refusing to play for him. Judge Fisher, in a well-reasoned and fairly comprehensive opinion, holds that the act of petitioning is protected (even though it doesn't involve a matter of public concern -- seems right to me), but that refusing to play for the coach in an important game was "conduct" and that could permissibly justify kicking these individuals off the team. As a result, Judge Fisher remands the retaliation claim to see whether the protected conduct (petitioning) was a substantial factor in the discipline.

So the underlying dispute was interesting. But equally interesting, in my mind, was the testimony of several of the parties. It's very rare when one can get a sense, even on a totally cold record, that the parties are total liars. But that's true here. I won't recount the precise factual details here, and one really needs to read the entire opinion to get an accurate sense of things. But nonetheless it's my firm conviction that there were classic (and pervasive) examples of perjury here. As but one example, look at the testimony discussed in footnote 8, in which two the plaintiffs seem fairly clearly (at least to me) to change their testimony based both on what's required to win the lawsuit as well as once they were told what the other plaintiff had said during his deposition. Or, for just one example involving the defendants, the testimony discussed at page 17998, in which two of the defendants testify that they "can't recall" what was said at a crucial meeting that I'm quite positive they distinctly remember. (Not to paint the lawyers with similar sleaze, since I don't think it honestly applies, but take a look also at footnote 9, which mentions that counsel for plaintiffs on appeal also included in the record and cited to several declarations that had been struck by the district court below, without noting or mentioning that this testimony had been stricken.)

The "creative" testimony here is, in my mind, typical of the conduct of witnesses in many civil actions. And it's distressing. Particularly since I don't anticipate a solution to this problem anytime in the near -- or even long-term -- future.

Friday, October 27, 2006

Park City Services, Inc. v. Ford Motor Co. (Cal. Ct. App. - Oct. 27, 2006)

I know I shouldn't, but I just couldn't keep from laughing as I read about the limousine in this case, which involved a Song-Beverly Act ("Lemon Law") claim against Ford:

"[D]espite the best repair efforts of a highly regarded Dallas Ford dealership, the rear suspension [of the limousine] kept collapsing, the engine kept overheating, and the air conditioner kept blowing hot air. The cooling fan would either stay on when it was not needed or fail to turn on when it was. . . . On September 10, 2002, a young man hired the limousine to serve as the setting for his proposal of marriage to his girlfriend. Mr. Ferraro picked the couple up at a park. The limousine 'had champagne [and] roses and [was] decorated with rose petals.' Once inside the limousine, the young man proposed, and the young lady accepted his proposal. Just as 'they were hugging, flames started coming out of the hood.'" Cool!

Cutting to the chase, plaintiff said the car was a lemon and obtained a judgment against Ford at trial for $490,000 (in addition to $200,000 in costs and fees). But Justice Richli reverses, essentially because the vehicle was used by plaintiff for business in Texas, rather than California -- though plaintiff might perhaps still be able to recover some (much lesser) amount of money for breach of warranty.

What's memorable about this case, however, is not the holding. It is instead the image of your limousine bursting into flames immediately after your financee accepts your proposal. Classic.

Fernandez-Ruiz v. Gonzales (9th Cir. - Oct. 26, 2006)

Close en banc decisions -- especially in high-profile or politically charged matters -- are often the result of a sharp ideological split. But not always. This opinion is an example of the latter.

The Ninth Circuit decides 6-5 (really, 6 3/4 to 4 1/4, with Judge Kozinski being the 1/4) that a conviction for domestic violence under Arizona law isn't necessarily a "crime of violence" because Arizona law authorizes a conviction under this statute for reckless (but unintentional) conduct, and hence under the Supreme Court's categorical approach doesn't automatically trigger deportation. The dissent's contrary analysis is captured in its memorable opening line, which states: "Men do not beat their wives by accident."

Given the holding, you might think that the liberals would be in the majority and the conservatives in dissent. But this is only slightly the case.

Sure, Judges Reinhardt, Schroeder, and Hawkins (appointed, respectively, by Carter, Carter, and Clinton) are in the majority. But so are Judges Bea and Clifton -- two Bush II appointees -- as well as Judge Noonan, who was appointed by Reagan (and who's on the en banc court only because he was also on the panel). Moreover, Judge Kozinski -- another Reagan appointee --essentially (albeit "reluctantly") agrees with the majority as well, though he concurs since he'd remand rather than reverse. The majority of these seven votes are thus from Republican (rather than Democratic) appointees.

The dissent is similarly somewhat of an ensemble cast, and includes three votes you'd very much expect (Judges O'Scannlain, Bybee, and Callahan, the first a Reagan appointee and the others from Bush II) but also includes Judge Wardlaw, a Clinton appointment. The legal analysis also is somewhat ideologically shifted, and one need only look at footnote 11 of the majority opinion to get a hint of what I mean, in which one finds the liberal Judge Reinhardt citing and relying upon Justice Scalia's position that legislative history is irrelevant to the interpretation of the statute in response to the conservative dissenters' (apparently newfound) view that legislative history is highly relevant to the interpretation of this statutory text. Not the usual type of analysis from these particular judges!

There's surely some results-oriented analysis here, but there are also surely reasoned differences as well. It's a good example of the truism that you can't always count the votes based entirely on political or ideological stripes. (Though, to be sure, notice the emphasis on the word "always". An important caveat.)

Thursday, October 26, 2006

Gueyffier v. Ann Summers, Ltd. (Cal. Ct. App. - Oct. 26, 2006)

Here's another rarity. It's very rare that the judiciary refuses to confirm an arbitration award due to the arbitrator's findings on the merits. But, arguably, that's precisely what happens here.

The parties enter into a contract with an arbitration clause. The substantive provisions of the contract also contain a notice and cure clause; e.g., that require a party to tell the other party about an alleged breach and allow them to cure it before the injured party can sue for breach. Fairly standard. One party thinks the other side breaches and files an arbitration claim. Respondent defends on, among other bases, the ground that it was never given notice and an opportunity to cure. The arbitrator finds for the petitioner, holding that there was indeed a breach and that there was no need to provide notice since it couldn't have been cured anyway.
Again, pretty standard. And -- as usual -- the prevailing party moves to confirm the abitration award, the losing party opposes the request, and the trial court confirms, holding that court can't refuse to enforce an arbitration award merely because we disagree with the resolution of the merits.

But Justice Turner reverses. Holding that the arbitrator "exceeded his power" when he "excused" performance of the notice and cure clause.

Justice Turner's opinion is 35 pages (with an additional two-page concurrence by Justice Mosk), and is both well-written and fairly expansive. I nonetheless tend to come out the other way on this one, and wouldn't at all be surprised to see this one reviewed (or at least depublished). It seems to me that what the arbitrator did with respect to the notice and cure clause involved an adjudication of the merits, and that allegedly "ignoring" a contractual provision doesn't automatically equate to acting in excess of one's jurisdiction. I think that the defense here goes to the merits, not jurisdiction. So -- and I am admittedly am spouting off the cuff here (per se usual) -- I probably agree with the trial court that the award should have been confirmed, and disagree with Justice Turner.

Not that Justice Turner doesn't have a point, and not that the law couldn't reasonably be contrued that way. I just don't think that's how doctrine -- properly interpreted -- is in fact contrued. We confirm large numbers of erroneous arbitration awards. I don't see that the alleged error here is qualitatively any different. Given the scope of contemporary doctrine, and with all due respect to Justice Turner (and the rest of the panel), I'd have affirmed.

Hightower v. Roman Catholic Bishop (Cal. Ct. App. - Oct. 26, 2006)

It's sufficiently rare for the Court of Appeal to issue a published nunc pro tunc order -- and since this one brought a smile to my face -- I thought I'd quote it in full:

"The modification order filed on September 29, 2006, inadvertently listed the filing date of the opinion as October 31, 2006. It is ordered nunc pro tunc that the modification order reflect the correct filing date of August 31, 2006."

I guess the original order was published in hopes of an early Halloween. :-)

Wednesday, October 25, 2006

Collins v. Hertz Corp. (Cal. Ct. App. - Oct. 25, 2006)

This is probably not the way you want to start out your early legal career.

It's a dog of an employment case. One that you probably should -- and will -- lose, but which your firm has nonetheless undertaken. Defendants move for summary judgment. You oppose the motion. You're not lazy and you're not stupid. You oppose the motion at length, and file voluminous opposition papers. Twice; once initially, and once when the court bounces them back to y0u and asks you to correct and refile them.

So this is not a case of a lazy and/or incompetent plaintiff's counsel. Rather, it's a counsel who's working hard, and trying to be a good advocate. Sometimes, however, you try too hard. Which is what happens here. The attorney for the plaintiff, Lee Franck -- a USC Law School graduate admitted to the bar in 2003 -- continued to submit three separate opposition papers (a total of 60 pages) even though the court told him only to file one. And filed a response to the defendants' separate statement of undisputed facts that was evasive, rambled on at length, and included 172 purported statements of its own, with hundreds of pages of supporting declarations and exhibits.

Which the trial court -- and Justice Boland -- hold repeatedly violated CCP 437c and CRC 342, were (in large part) stricken on that basis, and as a result of which summary judgment was granted to defendants. Plus, to make matters worse, Justce Boland (belatedly) decides to publish the opinion, which summarizes the conduct of plaintiffs' counsel as follows:

"In opposition to the motion, the plaintiffs submitted voluminous papers which failed to comply with the requirements of Code of Civil Procedure section 437c (section 437c), or California Rules of Court, rule 342 (rule 342). The trial court afforded plaintiffs an opportunity to cure the defects and resubmit opposition papers which complied with applicable rules. The plaintiffs filed new papers, which also failed to meet the procedural requirements governing motions for summary judgment. The trial court struck the offending portions of the plaintiffs’ separate statement, as well as portions of their responsive declarations. As a result, the majority of the defendants’ facts were effectively left undisputed and, on that basis, summary judgment was granted. The plaintiffs appeal. We affirm."

Justice Boland then goes on to describe the conduct of Mr. Franck at length and in detail. As I said, not something for which you really want to be remembered forever in the annals of the California Reporter.

For the rest of us, however, the case is useful, if only to highlight the importance of responding properly -- and in a straightforward fashion -- to the separate statement of undisputed facts. Which didn't happen here. Much to the chagrin of Mr. Franck. Not to mention his clients.

Lesson learned. Sadly, the hard way.

Tuesday, October 24, 2006

Smith v. Baldwin (9th Cir. - Oct. 24, 2006)

This is a longie but a goodie.

The appeal involves a not-too-surprising fight between Judge Reinhardt (who write the majority opinion) and Judge Bybee (who dissents) in a criminal habeas case. It's pretty obvious, even without reading a single word of the opinions, which side each of them is going to support.

Still, the depth of their disagreement is unusual, even for two such strong-willed individuals. I know it's going to be hard to convince anyone to read a case that tops out 87 single-spaced pages. But I'll try to entice you to do so by quoting merely a small portion of a single paragraph of Judge Bybee's dissent, in which he writes: "I disagree with nearly every word the majority has written, including 'and' and 'the.' My profound disagreement is not limited to the facts, but runs throughout the majority opinion." Nice!

There's a lot more in here, including a very interesting (and extremely well done) discussion of the felony murder rule as applied to burglary; e.g., whether every -- or even most -- burglaries "likely" result in death sufficient to justify a murder conviction under the felony murder rule.

Good stuff. And a great debate between Judges Reinhardt and Bybee.

Worth the length.

Robertson v. Kulongoski (9th Cir. - Oct. 24, 2006)

You don't see many cases filed these days that claim that a state statute is unconstitutional under the Contract Clause. For good reason, since the Contract Clause doesn't do much anymore.

This case is an exception to the first principle, but not the second. Oregon public employees claimed that the legislatively imposed changes in their retirement plan impaired their contractual rights. But they lost below on summary judgment, and not surprisingly, the Ninth Circuit affirms.

When the best claim you have going for you is a Contract Clause claim, you're in sorry shape.

Monday, October 23, 2006

Carehouse Convalescent Hosp. v. Superior Court (Cal. Ct. App. - Oct. 23, 2006)

Friends. Countrymen. Lend me your ears. Thou shalt not be allowed to depose the other side's lawyer. It ain't gonna happen. Even when you (rarely) convince the trial court, the Court of Appeal may well step in and grant a writ. A peremptory writ, even. As Justice Sills does here.

It's a punchy and short opinion, albeit a bit long on generalities. It's certainly a great opinion to cite the next time someone threatens to take your depo. And it assuredly reveals the extreme judicial reluctance to allow depositions of counsel. For those reasons alone, it's worth the five minutes it takes to read the thing.

The end result of all this is that attorney Kippy L. Wroten -- a Western State Law School graduate (who got her undergraduate degree at Cal State Long Beach, the alma mater of my good friend Dan Rodriguez) -- doesn't get her deposition taken. And Robert John Chavez -- a double graduate of USC -- doesn't get to take it.

Go forth and prosper, my friends.

U.S. v. Santiago (9th Cir. - Oct. 23, 2006)

When you're defending someone who may well be sentenced to 25+ years in prison, it may help to actually pay attention. Imagine, for example, that your client -- let's call him, hypothetically, Jesus Santiago -- has been convicted of distributing methamphetamine, and under the guidelines the appropriate sentence depends a lot on how much meth he distributed. He only actually sold, say, three kilos to the cops, but the PSR nonetheless suggests that he be sentenced for selling 17 to 104 kilos, since he's almost certainly been doing this for a while.

Wouldn't you go ahead and make an objection to the PSR on that ground? After all, we're talking years and years of additional time in a not-so-fun prison, after all. And wouldn't you definitely, totally, for sure make a written objection to the PSR if the district court judge -- let's say, again hypothetically, Judge Terry Hatter -- doesn't seem to like like the way in which the amount of drugs were calculated, and even says on the record that he "ha[s] some concern about how the total amount of drugs was arrived at"?

Sure, Judge Hatter's sentence ends with a proposition. But that's no reason not to object to the PSR.

Sadly -- at least for the hypothetical Jesus Santiago in this not-so-hypothetical case -- counsel for the defendant doesn't seem to be paying attention, and makes no such objection. And hence, absent such an objection, the Ninth Circuit reviews only for plain error, and affirms Santiago's 25-year sentence.

Sorry, Santiago. Hopefully next time -- when you're 60 or so -- your lawyer will have gotten more sleep the night before.

There's always an ineffectiveness claim on habeas. Good luck with that.

Friday, October 20, 2006

People v. Ramirez (Cal. Ct. App. - Oct. 20, 2006)

This is a little bit disturbing (and graphic), especially for a Friday, so read on -- or not -- at your discretion. If you do, however, see if you can accurately guess what the sentence will be for Mr. Ramirez, who was convicted of raping an intoxicated person in the following setting:

"In January 2004, 16-year-old Ana H. was living with her 24-year-old brother in Vista. Their parents lived in Mexico. On January 17, Ana and her friend Adrienne attended a birthday party for a 15-year-old girl. . . . Ana and Adrienne left the party at approximately 11:00 p.m. because some "cholos" (gang members or "tough guys") were bothering them and started to walk to Ana's brother's house.

The cholos followed Ana and Adrienne outside and continued to bother them. Ana and Adrienne came upon a house where they could hear a party taking place. In an attempt to escape further harassment from the cholos, they decided to enter the house. Ana had never been to the home before and did not know anyone at the party. Adrienne knew the disc jockey. After she said hello to him, the girls watched people dancing.

Adrienne met a young man named Omar and started dancing with him. Omar asked Ana how old she was, and she told him she was 16. . . . At around 12:20 a.m., Ana and Adrienne got into Omar's car along with Ramirez and Omar. Adrienne sat in the front seat with Omar, and Ana sat in the back seat with Ramirez.

Adrienne said she was hungry, so the group went to a restaurant in San Marcos. They were at the restaurant for about 30 minutes. Ana listened while Adrienne, Omar, and Ramirez talked. She heard Omar tell Ramirez that Ana was 16 years old.

As the group left the restaurant, Adrienne said she wanted to drink some alcohol. Omar responded that he had some alcohol at his home. The group drove to Omar's apartment. Omar went inside to get the alcohol while the other three remained in the car. Omar brought back a bottle of tequila. The group stopped at a convenience store to buy cups. All four individuals began drinking the tequila in the parking lot of the convenience store. Ana had consumed alcohol on two other occasions, but had never been intoxicated.

Omar did not want to drive because he had been drinking. Ramirez declined to drive because he had "already had problems with the police." Omar suggested that they rent a room at a nearby hotel. The group drove to a Ramada Inn that was less than five minutes away, and Omar rented a room.

The group went into the hotel room and continued drinking. Ramirez asked Ana to come over to where he was sitting, but she declined. After the group finished the bottle of tequila, Omar told Ramirez to go get another bottle. Adrienne told Ana to go with Ramirez so she could be alone with Omar. Ana and Ramirez left the hotel room at approximately 2:00 a.m., after Ana had consumed what amounted to a full glass of tequila.

Ana and Ramirez left in Omar's car and drove to Ramirez's apartment, where he retrieved a bottle of alcohol. Upon their return to the hotel, Ramirez told Ana that they should stay in the car so that Adrienne and Omar could be alone. While they were both in the front seat of the car, Ramirez tried to kiss Ana. She told him that she did not want him to kiss her. He continued to try to kiss her, and she pushed him away. Ramirez became angry when Ana refused his advances. He hit the windshield with his fist, cracking it. This frightened Ana.

Ramirez continued trying to kiss Ana, but she pushed him away. At some point, Ana felt dizzy and closed her eyes. When she opened them, she was in the back seat of Omar's car and Ramirez was moving on top of her with his penis in her vagina. Her bra and blouse had been pulled up, and her pants and underwear were at her ankles. She was dizzy and felt pain in her vagina. Ana reached down to touch her vaginal area. After she did so, she saw blood on her hand and started to cry. Ana tried to push Ramirez away, but he pushed her shoulders down toward the seat and kissed her neck and her breasts as he continued to penetrate her. Ana had not had sexual intercourse before.

Ramirez finally stopped and pulled up his pants. Ana sat up, pulled up her pants and fixed her blouse. She noticed that she was still bleeding and that there was blood on the back seat of the car.

Ana returned to the hotel room, crying. Adrienne asked her what had happened. Ana said that she did not know and went into the bathroom. Ana showered for approximately 10 minutes because she "felt dirty." She was still bleeding when she finished showering. There was blood both in the tub and on a towel she had used. Ana got dressed and exited the bathroom, still crying. She told Adrienne that she wanted to go home. Adrienne told her to calm down. Adrienne said that Omar was going to talk to Ana's brother and tell him that Ana and Adrienne were going to stay at a friend's house. Omar grabbed Ana by the shoulders and threw her on the bed. Ramirez stood in the doorway of the room so that Ana could not leave. Ana cried and begged Ramirez to take her home. Ana believed these events occurred between 4:30 a.m. and 5:00 a.m.

Ana eventually got into the car with Ramirez, who was supposed to take her home. As he was driving, Ramirez pulled to the side of the road and tried to kiss Ana again. When she refused to let him kiss her, he told her to get out of the car. Ana walked for a few minutes, but was in a great deal of pain. She sat down and cried. Ramirez returned to where she was sitting and told her to get back in the car. He said that he was "not going to do anything anymore."

Ana got back into the car and fell asleep. The next thing she remembered was waking up in a strange apartment. She was lying in a bed, confused, and did not know how she had gotten there. A little boy and two girls were in front of her telling her to wake up. . . .

At some point, Ana got up and tried to place a telephone call to a friend, but was unable to reach the person. Ana indicated to Guzman that she thought she was in a friend's apartment. Ana commented that the bathroom was "very different" and that the bed was in a different place. Ana was walking very slowly, and was holding her groin area. . . .

Ana began walking, trying to find her way back to the hotel. She was in pain and crying. She walked "very slowly," stopping to rest after every 10 to 15 steps. She arrived at the Ramada Inn approximately two hours after she left Guzman's apartment, some time between 8:30 and 9:00 a.m. Adrienne was not at the hotel. Omar had left the key with the clerk at about 8:00 a.m. Ana asked the clerk if she could use the bathroom. While she was in the bathroom, Ana discovered that she was hemorrhaging. The clerk noticed that Ana was crying and that she looked frightened. She was walking very slowly. The clerk called a number of Ana's friends, trying to reach one who could come to pick her up. When he asked Ana if she was okay, Ana responded, "I'm not okay because I've been raped." She told the clerk that "Guillermo" had raped her. Ana did not want the clerk to call an ambulance for her. . . .

Police transported Ana to the Sexual Assault Response Team (SART) office at Palomar Hospital for an examination. Detective Tom Janenko noticed that Ana was walking very slowly and that she appeared to be experiencing considerable pain in her groin area. Amanda Jaeger-Jacobs performed a SART examination of Ana at 1:45 a.m. on January 19. Jaeger-Jacobs noted swelling, bruising and "quite a bit" of dried blood on the peritoneum. Ana had a large hematoma that covered the entire side of the labia, and a laceration just beyond the labium. Jaeger-Jacobs noted that the hematoma was a "very significant injury" ─ one she had seen in her work delivering babies, but not on a sexual assault victim. . . . Dr. London was unable to perform a full examination because the hematoma was blocking the entrance to the vagina. . . . Ana testified that she was unable to walk normally for 10 to 15 days. She stayed at Sylvia's home for about a month, and then returned to her brother's home."

Defendant gets convicted of rape of an intoxicated person, but the jury deadlocks on the charge of forcible rape (and acquits on the statutory rape charge). What's the appropriate sentence?

Defendant argues, by the way, that the trial court should have sentenced him only to probation. That's a pretty bold claim, at least in my view. And Justice Aaron rightly rejects it.

The answer, by the way, is six years in prison. Too long? Too short?

There are some pretty egregious facts here. I had a fairly strong emotional response to this one. And it wasn't positive.

That's my thought process for the day. Have a great weekend, all.

Thursday, October 19, 2006

May v. Nine Plus Properties (Cal. Ct. App. - Oct. 19, 2006)

Want to know if you can be sued if you leave the keys to your car in the ignition and someone steals your car and runs over someone? Then read this opinion. It's a very good, and comprehensive, discussion of the issue by Justice Hill. I'm glad he decided to publish it. (Justice Hill, by the way, is a relative newbie to the Court of Appeal, having been appointed earlier this year. Welcome!)

The answer, by the way, is -- at a very superficial level -- "No, unless your car is a bulldozer, and maybe the California Supreme Court should revisit this rule." Read the opinion for more details.

People v. Mentch (Cal. Ct. App. - Oct. 18, 2006)

Sorry about not posting yesterday, but I was up in Los Angeles doing good things, and (sadly) had no internet access in the City of Angels.

But, on the upside, I returned to San Diego and read this case. Which is hilarious. Albeit in a largely unintentional way.

The most amazing thing about the opinion is that it basically consists of a thirty-page primer on how to sell and grow pot indoors. I mean, it's incredible. There's everything you need to know about how to grow your own weed in here, including treatises on growth and harvesting, how (and why) to use lights and ionizer, how to create hybrids (and clones), how to create and maintain mother plants to ensure consistent supply, pricing of both equipment (hood lights, irrigation, energy, etc.) and well as the pot itself ($40-60 for an eighth, $150-200 for a half ounce, $300-400 for an ounce, and $4000 for a pound), how to extract hash oil from your weed, and a plethora of other fascinating details critical to the guy who would like to enter the exciting world of marijuana cultivation for fun and profit.

It just struck me as very, very funny that Justice Elia wrote an opinion that almost reads like it's designed to help people grow their own. I mean, I can understand reading something like that in the Anarchist's Cookbook. But in the California Reporter? Not something I'd expect to find in there.

Oh, yeah, there's some other helpful hints in there as well. For example, how not to be an utter moron and get caught. Don't, for example, do what Roger Mentch did, and come into the same bank week after week and deposit large sums of cash in small bills. Especially if you live in a place like Santa Cruz. Because, well, dude, we can sort of figure out where that cash came from, thank you very much, and one of the tellers will probably file a supicious activity report with the Sheriff's office. Who'll then get a search warrant and bust you.

Oh, one more thing. When you do deposit all your small bills week after week, could you please, please make sure that the money don't totally reek of marijuana. Which is precisely the case here; indeed, the pot smell on the cash was so strong -- it literally stunk up the entire bank -- that the bank had to remove the money from circulation! Hilarious.

Ultimately (and this was worth a chuckle as well), notwithstanding all of this, the Court of Appeal reverses the convictions here, and probably rightly so, since the trial court didn't really give the proper instructions about the Compassionate Use Act as applied to a defendant who claims that he was getting "reimbursed" for his costs rather than "selling" the dope. So it's sort of funny that all of the above is actually irrelevant. Still, there seems to me only a slight possibility that Mentch will be acquitted on remand, as my strong view of the evidence was that he was pretty clearly selling the stuff. (I especially liked the defense expert witness who testified that the fact that Mentch had scales to weigh the pot wasn't really relevant to whether he sold it or not. Yeah, right. I know that I always care deeply about precisely how much the stuff weighs when I'm simply giving it all away.)

Still, it's Santa Cruz. Who knows what a jury will do up there with a pot charge. The guy might well get off. So maybe the message really is: "Go ahead and grow your own. No biggie. And here's an opinion to help get you started." Nice.

P.S. - Did I mention that in addition to the grow operation, Mentch also had some 'shrooms in his safe? Well, he did. And he was convicted on that count as well, and the Court of Appeal doesn't reverse that one. This is probably another lesson as well. Don't possess illegal mushrooms -- especially if your "innocent" explanation for your possession of them is utterly, utterly lame, as it is here -- in the middle of a huge pot grow. It doesn't help your story at trial.

P.P.S. - All that said, even at trial, with all these convictions -- including a conviction for possessing rifles in connection with the grow operation -- Mentch was still only sentenced to probation. No jail time. So I guess my final lesson of the day is that if you're going to do all this stuff, do it up in Santa Cruz. Which, by the way, is hardly a shock to anyone, I'm sure.

Tuesday, October 17, 2006

In Re Wen Lee (Cal. Ct. App. - Oct. 17, 2006)

You've got to read this opinion, at least if you care about how murderers are paroled -- or, more accurately, not paroled -- in California.

It's an issue upon which people (on both sides) have strong feelings. And it's an issue on which California, led by its latest governors, indisputably favors one side over the other. People convicted of murder in California are almost never, ever granted parole, even after 20 or more years. As an almost uniform rule, and virtually without exception, the Board of Parole Hearings -- staffed by appointees of the Governor -- denies requests for parole to anyone convicted of (even second-degree) murder. And in those exceptionally rare cases in which the Board recommends the grant of parole, the Governor almost invariably reverses.

Which is precisely what happens here. You should read Justice Rubin's opinion -- which is very good -- if only for the facts of the underlying murder and an assessment of the character of the defendant. A summary does not nearly do it justice. Basically, Wen Lee was a 65 years old man with no criminal record when he shot at a person who bought his restaurant and owed him money and accidentally killed the man's wife. Lee pled guilty to second degree murder, has served 17 years in prison, and is now a hobbled, nearly blind 82 year old man who wants parole. The Board recommended it. Governor Schwarzenegger reversed, and kept him in prison.

The underlying story is telling in its own right, as is the fact that Governor Schwarzenegger -- like many before him -- reverses the recommendation of parole even for the most sympathetic of defendants, for fear of being branded as "soft on crime" were a murderer ever to be released and reoffend. (Can you say: Willie Horton?) This is not a partisan issue, by the way: the most shameless of our most recent governors in this regard was Gray Davis. Contemporary practice has simply made a farce of the ostensible legal requirement that parole be typically granted as a matter of course. For murderers, the operative de facto rule is the exact opposite of the controlling de jure legal principle. Something that -- as in other areas (on both sides of the aisle) -- speaks volumes about our ostensible commitment to the rule of law.

Equally interesting is the procedural story regarding what happens to Lee's habeas petition. Justice Rubin writes an outstanding, and incredibly persuasive, opinion that reverses Governor Schwarzenegger's decision and holds that Lee is entitled to be released on parole. I particularly liked the following line on pages eight through nine, a sentence that itself captures a large part of both Lee's present condition as well as a principal basis for Judge Rubin's conclusion: "Weakened by the march of time trod by all mortals, Lee is now 82 years old and in poor health, leaving him to hobble from room to room." That ain't the picture of a guy who's about to replicate the one crime he's ever committed in his life. Plus, any sentence that contains the phrase "trod by all mortals" is, in my opinion, totally cool.

But while you're reading Justice Rubin's (unanimous) opinion, which is incredibly powerful, don't forget one thing. Sure, Lee gets habeas relief now, after six parole hearings. Sure, Justice Rubin's opinion makes it seem like Lee should clearly be entitled to such an award. But remember that the trial court flatly rejected such an argument, and dismissed his petition. More importantly, don't forget that, earlier this year, the California Court of Appeal -- the same one that currently waxes eloquently on why Lee is entitled to habeas relief --summarily denied (without comment) this exact same petition. That only the intervention of the California Supreme Court, which ordered an order to show cause, resulted in the Court of Appeal taking up the case and releasing this hobbled 82 year old man from prison.

The opinion and the issues it raises are definitely worth contemplating. And reading the opinion is a good start.

Monday, October 16, 2006

People v. Rutter (Cal. Ct. App. - Oct. 16, 2006)

Coincidentally, I (randomly) found out about this lawsuit last week, and was sufficiently intrigued that I spent five minutes looking up the details. Then, today, in an otherwise boring day in the California Court of Appeal -- which was nonetheless massively more interesting than the Ninth Circuit, which published utterly nothing (yet again) today -- I stumbled across this opinion by Justice Johnson. And, no, I did not stumble across the lawsuit last week based upon a google search for "Naked pictures of Cameron Diaz". That said, that is precisely what the underlying action is about. (By the way, if you clicked on the above link, which is the first result of the above-mentioned google search: Shame on you. Double shame on you if you lingered.)

Actually, there's a civil suit by Ms. Diaz as well, but this opinion is about the criminal theft, forgery, and perjury conviction of the photographer, John Rutter. Rutter shot some topless photos of Diaz when she was a 19-year old model, and then contacted her shortly before the release of Charlie's Angels in an attempt to "sell" her the photos for $3.5 million (read: extort money out of her in return for not releasing the photos). But she doesn't bite, and instead contacts the police. Eventually, Rutter gets criminally charged, not for extortion -- a more difficult offense to prove -- but rather for forging Cameron's signature on an alleged release (and then for lying about the purported authenticity of the signature under penalty of perjury during the civil suit).

Anyway, Rutter gets convicted, appeals, and then loses again. So it's the pokey for Rutter. Which invariably happens, I think, once you view Cameron's boobs. Sort of an Arc of Covenant thing.

This isn't the greatest opinion ever by Justice Johnson. Which is somewhat surprising given its high profile nature; you'd think he'd have gone all out on this one. His discussion of the alleged harmlessness of the error in the jury instructions is particularly weak, even if his ultimate conclusion may perhaps be correct (though I'm not even entirely sure about that).

Regardless, it's a salacious tale of a celebrity's body, all condensed into a mere ten double spaced pages. Not an erotic thriller, to be sure, but if you've got nothing else to do on a rainy Monday afternoon, it's definitely worth the price of admission.

P.S. - For a look at what's in store for Rutter, take a look at one of his more famous photographs.

Thursday, October 12, 2006

Few v. Little (Cal. Cts. - Oct. 12, 2006)

No opinions by the Ninth Circuit today, and only two opinions by the California Court of Appeal.

Zzzzzzzzz. . . .

Novartis v. Stop Huntington Animal Cruelty (Cal. Ct. App. - Oct. 12, 2006)

Ever wonder what it'd be like to be a "target" -- someone who other people really were out to get? Then read the first seven pages of this opinion by Justice Haerle. Justice Haerle does an outstanding job of articulating what a nightmare it would be to be targeted by the animal rights activists here. (Mind you, you're still better off than the animals, but that's a whole different story.) As well as providing ample support for the relatively straightforward (in my view, at least) proposition that engaging in illegal conduct that borders on terrorism isn't a constitutionally protected act that gives rise to a valid anti-SLAPP motion.

Definitely worth five minutes of your time.

Wednesday, October 11, 2006

In Re Jaime Jasso (Cal. Ct. App. - Oct. 11, 2006)

Rarely do I comment upon amendments to published opinions that merely correct typos. For good reason, obviously.

But this one nonetheless gave me a chuckle. Justice Rushing amends his opinion as follows: "On page 6, line 23, the word “sox” is changed to “socks” so the sentence reads: The foot shackles hurt his ankles and caused them to bleed on the white socks that he had to wear."

Wouldn't it have been great if the original opinion had been the deliberate product of a fan of the team from the AL Central, sneaking the reference into a published opinion? Awesome.

I guess once the 90-72 Sox didn't make the playoffs, they earned themselves a deletion from the opinion. Sorry about that, guys. At least you're still the reigning World Series Champions. For another couple of weeks, anyway.

People v. Superior Court (Walker) - Oct. 11, 2006

I can list the lessons I learned from reading this case fairly briefly. You'd think that they would be obvious, but for Santa Clara University student Christopher Walker, apparently they were not. So I guess they bear repeating:

(1) Don't smoke a blunt in daylight in front of your dormitory in full view of everyone on campus;

(2) When caught by a campus police officer for (1), don't spontaneously invite the officer up to your dorm room to view the other marijuana contained therein;

(3) When, as a result of (2), you're in your dorm room with the campus police, and have handed over some marijuana from the drawers in your closet, don't continue to suspiciously stand by the closet drawers while saying that'll all the marijuana you have. Especially if, in fact, you have several baggies more in your closet drawer, as well as a digital scale, $1800 in cash, and many other baggies of pot hidden throughout the room. Because -- and I know this will come as a shock to you, my undergraduate friend -- once they find this stuff, they're going to conclude that the pot isn't for your personal (allegedly medical) use, but that you sell the stuff around campus as well.

There's some interesting doctrinal stuff as well in this opinion by Justice Duffy, including a discussion about inevitable discovery (which allegedly existed here) as well as whether the third party consent of the campus police -- who were allowed to enter the dorm room both by the resident as well as the housing contract that the student signed -- validly authorizes the actual police to search the room (it doesn't). I also especially liked the line that Justice Duffy uses in the middle of her opinion, which perhaps was played straight but which may well have been deliberately funny: "There are surprisingly few cases addressing the constitutional validity of searches of college dormitory rooms." Surprising, indeed!

Anyway, if you want to know a lot about when the police can search your dorm room (and who wouldn't?!), read this opinion by Justice Duffy. As well as the short concurrence by Justice McAdams, who disagrees with Justice Duffy about this issue, and takes a somewhat different view of the relevant issue. Both are definitely worth reading. Especially -- but not only -- if you live in a dorm.

Doctrine aside, don't lose sight of the more practical lessons to be garnered from the opinion. Don't smoke dope in front of your dorm. Don't invite the campus police up to your room. Don't -- some might well say -- smoke or deal drugs. Otherwise what happens to Mr. Walker might well happen to you, my undergraduate, dorm-dwelling friend.

Tuesday, October 10, 2006

In Re Charles Allen Martin (Cal. Hosp. - Oct. 10, 2006)

Since it was Columbus Day, there weren't any opinions issued yesterday. And -- honestly -- even though I read them all (I really did!), there weren't any published cases from the Ninth Circuit or California Supreme Court or Court of Appeal that I felt like commenting upon today. Really. There weren't. Honest.

But even if there were, I wouldn't have. Since my day was occupied by Charles Allen Martin, who arrived today at 6:19 p.m., weighing in at a healthy 8 pounds 13 ounces and stretching 22 inches in length.

Happy birthday, son.

Monday, October 09, 2006

Hollywood v. Superior Court (Cal. Ct. App. - Oct. 5, 2006)

I like the caption of this case: Hollywood v. Superior Court. Needless to say, Hollywood wins. I also like the name of the defendant: "Jesse James Hollywood". Nice. Though that probably not the name you want read to the jury when, as here, you're a defendant in a death penalty case charged with premediated murder. Sort of makes you sound guilty, huh?

The "Hollywood" name is also especially appropriate since this is another case involving a prosectuor with the Santa Barbara District Attorney's Office who's recused because he's personally involved in creating a media account of -- here, a movie about -- the pending case. This time the prosecutor is Ronald Zonen, and he helps Nick Cassavetes to make the movie Alpha Dog, the "true life" story of the defendant (who's one of the youngest people ever to be on the FBI's most wanted list) and the murder he (allegedly) committed. Remember: The prosecutor is helping to make a movie about a death penalty case that has yet to be tried.

Perhaps there's something in the water up in Santa Barbara that makes prosecutors there go loco. This the second case in which recusal of a prosecutor was ordered by the Second District due to their involvement in the Hollywood/media scene (I posted about the first one here). The prosecutor here, according to the movie people, was "star-struck", and really made massive efforts to get this story out. His efforts to assist with the movie also included some pretty disturbing conduct, including giving rap sheets to the movieamkers -- which is flatly illegal -- and also telling the moviemakers that he'd give them anything they wanted, but that if caught, they should say that the information came from the mother of the victim. Not good.

The Court of Appeal harshes less on Zonen than they did on Dudley (in the prior case). But there's still plenty here not to like. This (fairly short) opinion also contains an interesting interchange between Justice Yegan, who writes the majority opinion and who focuses on the fact that it's a death penalty case in ordering recusal, and Justice Gilbert, who concurs and contends-- punchily -- that the conduct here would have been improper in any case.

By the way, Emile Hirsch plays Jesse James Hollywood (who's called "Johnny Truelove") in the movie, and the cast includes Justin Timberlake, Sharon Stone, Bruce Willis, and Olivia Wilde. I haven't seen the movie, and since my third child ("Charlie") is allegedly due to be born within the next 24 hours, I almost assuredly won't see it anytime soon. So someone else will have to give me their review.

Thursday, October 05, 2006

Haraguchi v. Superior Court (Cal. Ct. App. - Oct. 5, 2006)

Another home playoff game by the Padres, another trip to PETCO Park by yours truly, another disappointing loss, and hence another late post.

There was, however, an opinion that came out today that's definitely worth reading. This opinion by Justice Yegan (1) involves an interesting issue, and one that I haven't seen ever before, and (2) is, at least in places, fairly harsh; indeed, a lot harsher than I'd have been.

Justice Yegan grants a writ and holds that Deputy District Attorney Joyce Dudley (of the Santa Barbara County District Attorney's Office) needs to be recused from the prosecution of Massey Haraguchi because Dudley has written a self-published book (through the online shop Infinity Publishing "for a one-time setup fee of only $499") that's pretty much a "fictional" story about her pending prosecution of the defendant. Basically, Haraguchi is being prosecuted for the rape of an intoxicated woman on the beach at the same time that Dudley has written a "fictional" book about a fascinating, vivacious prosecutor -- herself -- prosecuting a defendant for the rape of an intoxicated woman on the beach. (I could discuss more plot line similarities and the like, but I'd hate to give away the ending. Read the entire opinion for more interesting details.)

Justice Yegan says, nope, sorry, you can't do that. His reasoning is, in places, fairly persuasive; for example, he rightly argues that the book (which Dudley is actively publicizing and that's for sale in various places in Santa Barbara) creates a conflict of interest. For example, I agree with Justice Yegan when he says: "Dudley will garner no laurels, and this case will not generate favorable media publicity for her book, if she enters into a negotiated settlement with petitioner. If, on the other hand, she tries the case before a jury and obtains a conviction, her victory may be acclaimed in the media. Dudley could expect such acclamation to generate favorable publicity for her book, especially since the defendant in the book is charged with the same crime as petitioner. Thus, Dudley's desire to promote her book could motivate her to try the case even though the matter might be fairly resolved through a negotiated plea to a lesser charge." That, in my mind, is a fairly serious conflict, and one that might well justify recusal.

That said, in some places, I think that Justice Yegan may go a bit overboard; and, in places, be perhaps overly harsh. For example, Justice Yegan says that, in writing the book, "Dudley is using her official position to obtain personal financial gain. . . . No current public employee should be permitted to exploit his or her official position as a lever to earn extra private income." I'm not sure that's entirely true. Recusing Dudley is one thing, but this seems like an attack on her ethics, and I'm not sure that it's justified.

Justice Yegan is also not favorably impressed by the book itself, and argues that "Dudley presents a biased, black-and-white view of the participants in the criminal justice system. She portrays prosecutors as fearless champions of truth and justice. On the other hand, she characterizes the defendant in the novel as "despicable," "felony ugly," a "pig," a "heartless bastard," and a "dirt bag." Defense counsel is portrayed as "disingenuous and manipulative" and as deserving to have his "ass" kicked. These stereotypical generalizations have no place in a current public prosecutor's thinking processes even if they are uttered in a fictional account." Justice Yegan's predicate factual assessments may well be correct -- and this book indeed does not sound like the greatest novel ever written -- but I'm not sure that a prosecutor can't validly even think these things about a defendant, at least sometimes.

Justice Yegan isn't unrelentingly harsh, and says -- albeit in a footnote -- that "Our opinion should not be construed as an attack on the character of this prosecutor. We view Dudley’s conduct as a single lapse of judgment." But that isolated footnote, which comes at the very end of the opinion, is overshadowed by the tone and content of most of the preceding opinion.

At the end of the day, Joyce Dudley is out. Judge Yegan decides not to recuse the remainder of the Santa Barbara District Attorney's Office, but does grant the writ and kick Dudley off the case.

The lesson for the day: Don't publish a book about a case you're currently prosecuting. At a bare minimum, wait until the case is over, my friend.

P.S. - Dudley's book is called "Intoxicating Agent" and is available here for $13.95. It's currently No. 1,588,785 on the amazon.com bestseller list. Let's see if it doesn't move up in the charts a bit after the free publicity garnered by Justice Yegan's opinion.

Wednesday, October 04, 2006

Padilla v. Lever (9th Cir. - Sept. 19, 2006)

What a boring day in the California appellate courts. Only one (snoozer) published opinion by the California Court of Appeal, and only a minor amendment of a prior opinion coming out of the Ninth Circuit. Zzzzzzzz.

On the upside, since I have nothing current to talk about for today, this gives me a chance to go back and write about an opinion from a couple of weeks ago that I didn't have time to mention back then.

Back in November 2005, Judge Pregerson wrote a panel opinion holding that under the federal Voting Rights Act of 1965, proponents who circulate recall petitions in California are required to provide copies in various other languages (e.g., Spanish) as well as English. Back then, Judge Canby wrote a compelling dissent, but Judge Pregerson's contrary view was persuasive to the senior district court judge (Judge Reed) on the panel. But let me give you a hint: When you can't even get Judge Canby on board in a Voting Rights Act case, your opinion ain't gonna garner that much support. So it was hardly surprising when the case was taken en banc. And even less surprising when the en banc court reversed Judge Pregerson's opinion. In a 14-1 opinion. With -- you guessed it -- only Judge Pregerson himself dissenting.

Not only does Judge Canby join the majority en banc opinion, but even Judge Reinhardt concurs. Again, when you can't get even solid lefties like Judges Canby and Reinhardt, you're pretty much doomed. Sure, the en banc panel was filled with a fair number of conservatives -- indeed, a surprising number. But it wasn't going to matter. That panel opinion was going down either way.

Sometimes, the tea leaves are pretty darn clear. This case was one of them.

Tuesday, October 03, 2006

U.S. v. U.S. Dist. Ct. (9th Cir. - Oct. 3, 2006)

This case is entitled United States vs. United States District Court for the Eastern District of California. Not surprisingly, here's how it plays out:

United States: 1

United States District Court for the Eastern District of California: 0

More specifically, the panel holds (in a per curiam opinion) that Judge Shubb can't hold a bench trial in a criminal case, even when the defendant requests one, when the government refuses to stipulate to waive a jury. Here, Judge Shubb (and the defendant) want a bench trial because it's a molestation case in which the jury will almost assuredly be so inflammed and prejudiced by the molestation evidence that they won't be able to focus on the defendant's only defense (which is an alleged lack of intent to engage in interstate travel). The jury will think that the defendants are scum and convict. Which is why the defendants want a bench trial. And is precisely why the government refuses to waive a jury.

Judge Shubb did an honorable thing, and really was trying both to be modest (and honest) about his inability to remove the inherent prejudice as well as to ensure that the defendants received a fair trial. But the Ninth Circuit also properly noted that Supreme Court precedent, albeit largely in dicta, generally doesn't allow waivers absent consent of the United States. Ergo its holding.

The panel could, and should, have done a lot more in footnote six, and its failure to even try to distinguish adverse authority is pretty lame. But, in the end, those were district court cases, so the Ninth Circuit wasn't compelled to even mention them. Still, having mentioned them, at least the court could have been honest about their import. The "distinction" the panel draws is a weak one. Far better to have simply been honest and say: "Yep, there are those district court cases, but we disagree with them."

P.S. - The whole topic reminds me of the time I summered with the Public Defender's Office in Virginia. Back then (the late 80s), the government used to refuse to stipulate to bench trials in any drug cases. Defendants always wanted (jaded/understanding) judges to be ones finding guilt and sentencing the defendant, whereas the government wanted (naive/harsh) juries to perform those tasks.

Drugs in the 80s, molestations in the 00s. The evils change, but the tactics often remain the same.

Aron v. U-Haul Co. (Cal. Ct. App. - Oct. 3, 2006)

I had (!) to go to PETCO Park to watch the Padres (sadly) lose their first playoff game, so with that and having to teach class, I was a bit behind on my appellate reading today.

Nonetheless, I was eventually able to read this case, which is a UCL class action against U-Haul for renting vehicles with unfilled gas tanks and then charging customers a $20 refueling fee if the amount of gas in the tank isn't the same or higher than when they picked it up. Oh, yeah, and then not giving them any credit if they return the tank more full than when they picked it up.

This certainly sounds like a sleazy practice, but is it unlawful or unfair?

The trial court (Judge Mortimer) granted U-Haul's demurrer, but Justice Zelon (largely) reverses. I agree with Justice Zelon. Sure, the charges were disclosed. But that doesn't necessarily immunize them from being unfair or unlawful. Plaintiff says (pretty persuasively) that because a fuel gauge is pretty unreliable (as well as imprecise), customers are forced to overfill the tank with gas in order to make sure they're not "under" the amount of gas in the truck when they rented it. Sounds plausible to me, and certainly enough to survive a demurrer. Moreover, Business and Professions Code Section 12020 provides that it's unlawful to use any measure that's insufficiently precise, and fuel gauges almost certainly qualify -- hence, the class action properly alleges an unlawful practice as well.

So the class action goes forward. Which seems right to me.

Stay tuned to see what happens on remand!

Monday, October 02, 2006

Correll v. Ryan (9th Cir. - Oct. 2, 2006)

A study in contrasts.

First, you have a dueling set of opinions -- Judge Thomas for the majority and Judge O'Scannlain in dissent -- that's fairly representative of civility and rationality. Judge O'Scannlain even begins and ends his dissent with the same three words: "I respectfully dissent." (And, unlike some dissents by various judges, he's not being sarcastic -- his dissent really is fairly moderate in both tone and substance.) Just what you'd like to see in the world.

By contrast, there are the facts of the underlying case, as well as the life history of the defendant -- both of which are anything but civilized and rational. Here's snippet of the former, which involved the premeditated (and utterly senseless) killing of three people and an attempt to kill a fourth:

"Nabors took his truck and followed Correll, who was still driving Cady’s car with the three victims, to a desert
area north of Phoenix. There, they forced the three victims out of the car and made them lie face down on the ground. Correll shot Snelling in the back of the head. Nabors then shot and killed D’Brito, and then tried to shoot Cady. The gun misfired a couple of times and Correll said “hurry up, hurry up, . . . okay, it’s cool, no cars coming, get a shell chambered.” After reloading the gun, Nabors was finally successful in shooting and killing Cady. After Correll and Nabors left, Snelling, who miraculously did not die, reported the crime. Rosen, whom Nabors and Correll had left in the house when they drove the other three victims into the desert, was later found in the house, killed by strangulation."

Similarly, here's a description of the life of the defendant -- Correll -- that led up to the killings:

"Correll had endured an abusive childhood. His mother was a Jehovah’s Witness, whose commitment to her church came before her commitment to her family. She spent most of her time with the church, often neglecting her six children’s basic needs. The children were required to attend adult bible study class with her three nights a week, for three hours per night. If they misbehaved or indicated that they were confused or did not understand the religious doctrine, they were punished. Correll’s father was largely absent but sometimes aided his wife in physically punishing their children. There was evidence of incest in the family.

When Correl was seven, a brick wall collapsed on his head. Although he was unconscious for some time after the accident, his parents did not seek medical treatment until several days later when he was still not back to normal. Several experts testified that this type of accident and the symptoms Correll exhibited then and now indicate a high likelihood of brain impairment.

Against this backdrop, Correll began experimenting with alcohol and drugs around age ten. He was using marijuana, LSD, and amphetamines regularly by age twelve. . . . It is notable that each of the six Correll children report that they had or have had substance abuse problems beginning in childhood or adolescence. Further, at least five of the six children spent time in juvenile correctional facilities, and all four of the boys in the family have spent time in adult correctional facilities.

In response to Correll’s obvious substance abuse problems, his parents intervened with beatings and threats of kicking him out of the house. . . . After Correll was shot in the arm at age 14, the hospital asked his parents to let him come home. They allowed him to recuperate at home for three or four days before asking the state to sever their parental rights. At that time, they cut off all communication with their son and considered him dead as required by their church’s teachings.

Correll became a ward of the state at age 14 and spent his teenage years in various state institutions described as “gladiator schools,” which were characterized as cruel and inhumane, even by those who worked there. He was placed in programs for low-performing students, which were referenced as “dummy shacks.” Within months of becoming a ward of the state, 14 year-old Correll became addicted to heroin.

Correll was committed to psychiatric institutions at least twice during his teen years and was described at age 16 as “severely psychologically impaired.” He was treated with a tranquilizer/anti-psychotic drug while institutionalized, and attempted suicide on two occasions. . . .

Methamphetamine eventually became Correll’s drug of choice, which he used whenever he could. . . . At the time of the murders, Correll was injecting a quarter gram to a gram of methamphetamine in one shot, and injecting three to four shots a day. According to expert testimony at the evidentiary hearing, Correll was in the top 1% of methamphetamine users in terms of quantity. During the period of time in which the crimes were committed, Correll’s typical pattern was to go seven to ten days without sleep, followed by one to two days of continuous sleep."

The (depressing) theme of the day: Wasted lives.

P.S. - This is another death penalty case where no one can be happy with the outcome. Correll was convicted and sentenced to death in 1984. Twenty two years ago. And we're just now resolving his first habeas petition and ordering a retrial of the penalty phase. So he's been on death row for 22 years now -- and in litigation the whole time -- and for what? More waste.