Friday, February 29, 2008

Bradley v. Henry (9th Cir. - Feb. 29, 2008)

Once every four years or so -- say, every February 29th -- you see something unusual.

Here's what Judge Clifton adds today to his separate opinion back in December: "You may have five votes, Judge Noonan. Which is more than my four. But five isn't half of eleven. So my four votes is the law, and your five isn't. Gotcha!"

Oh, wait. Those were my words. Here are Judge Clifton's: "The plurality opinion has been joined by only five of the eleven judges on this limited en banc panel. Because that constitutes less than a majority of the panel, that opinion does not announce the law of this circuit. The precedential effect of this decision does not extend beyond the conclusions expressed in this separate opinion, which concurs in the judgment on more narrow grounds. See Marks v. United States, 430 U.S. 188, 193 (1977)."

He says it so much nicer than I did. Still, it's the same message. And he's right.

Thursday, February 28, 2008

Adaimy v. Ruhl (Cal. Ct. App. - Feb. 28, 2008)

Want to bet that Ernest Franceschi -- who may be a slightly better blackjack player than he is a lawyer -- and Robert Helfing and Kirk Jenkins (both of whom are with Sedgwick Detert) get sued by Edmond Adaimy for blowing the deadline to file a notice of appeal?

Count on it. Seriously, take that bet to the bank.

California Faculty Ass'n v. PERB (Cal. Ct. App. - Feb.28, 2008)

Anyone who's ever been a member of a university faculty knows how pesky its members can be about parking. Where you park, how far from your office the parking spaces are, how much the parking permits cost, etc. You'd think that professors would have more important things on their mind. Especially since most of them -- including myself -- could use a little more walking (and other exercise) anyway. But you'd be wrong. Trust me when I say that parking is at the upper eschelon of what many faculty members care about.

That said, I've never seen a lawsuit about faculty parking at the University. Until today, that is.

Let's hear it for the victorious faculty at Cal State Northridge and Cal State Sacramento. Who sued when they weren't allowed to park in student spaces. Keep fighting the good fight.

Wednesday, February 27, 2008

Williams v. Boeing (9th Cir. - Feb. 27, 2008)

Sometimes you can make a boatload of money as a class action attorney. Other times you can spent over a decade in hotly contested litigation and make squat.

This is an example of the latter.

Life ain't all a bed of roses, my friends.

Tuesday, February 26, 2008

Taheri Law Group v. Evans (Cal. Ct. App. - Feb. 26, 2008)

A Los Angeles Attorney (Payman Taheri) sues another Los Angeles attorney (Neil Evans) for allegedly wrongfully soliciting one of the former's clients. At which point the latter attorney (Evans) files an anti-SLAPP motion against the former attorney (Taheri), prevails, and gets an attorney fee award. But, on appeal, another Los Angeles attorney -- Yevgeniya Lisitsa -- who represents the plaintiff Los Angeles attorney doesn't successfully reverse the dismissal of the lawsuit, but does convince the Court of Appeal to reverse the award of attorney fees to the defendant Los Angeles attorney because he represented himself.

Full employment for Los Angeles attorneys. The only thing that was missing was another one to represent Evans both below and on appeal -- and hence obtain attorney's fees. That'd have made the thing perfect.

Monday, February 25, 2008

In Re Carl N. (Cal. Ct. App. - Feb. 25, 2008)

I was principally interested in this case because it concerned a 19-year old in San Diego. Someone who, from the outset of the opinion, I gathered I wouldn't particularly like to meet alone on a dark evening. The first sentence of the opinion reads: "Carl N., a ward of the juvenile court, who was born in 1988 and has a long history of juvenile delinquency (including vandalism, gang activity, drug abuse, a felony assault, and multiple violations of probation) and repeated failure to benefit from less restrictive commitments, appeals an order committing him to the California Youth Authority (CYA) after he admitted he had again violated probation."

But then I read the rest of the opinion. I'm not quibbling with the outcome of the case, as I am confident that Justice Nares is right that Carl was properly committed to the CYA. But I was surprised that my reaction to Carl was not your typical: "Oh my, a sociopath. Glad he's off the streets." Rather, Carl's offenses -- which are indeed numerous -- largely consist of tagging and vandalism and hanging out with the wrong crowd. It's a story of someone not who I sense is an utterly unredeemable person, but rather someone who, for whatever reason, just can't get it together. Who has been incapable, over many many years and notwithstanding the efforts of many many people, of doing anything more with his life other than being a total loser. Or even understanding that there's something called a meaningful life, and that this is within the realm of possibility for him.

My reaction to the usual 19-year old portrayed in the pages of the California Appellate Reports is not a positive one given the types of individually typically discussed therein. But, here, I had a slightly different reaction. A reaction that, crazily enough, is in some ways more depressing than one in which you're reading about a murderer or child molester or whatever. Because for those people you can more easily write them off as monsters or people who, however they became that way, unambiguously need to be locked up. Not so here. Yes, everything that we've tried with Carl N. has failed. Yes, we've got to admit that we're not likely to succeed at this point, so he's got to be locked up at the CYA. But (1) that's hardly going to succeed in the long term; we know that's likely only going to make things worse in the end, and (2) I have a stronger feeling than usual that I wish we could find a better way.

That's my idiosyncratic reaction, anyway, to this otherwise routine case.

Friday, February 22, 2008

Steinhart v. County of Los Angeles (Cal. Ct. App. - Sept. 28, 2007)

Sometimes I write full blog entries but don't post them immediately, often because I feel like adding more later if I have the time. Which, sadly, I rather do. So they just sit there in "draft" form until I either eventually get to them or simply delete them.

So I was going through my drafts today -- there aren't that many, actually -- and came across this one. Which I thought I'd just post as is. Here's what I wrote (the day the opinion came out back in September):

Here's a darn good -- and easy -- way to avoid a reassessment of your property (and hence a massive increase in property taxes) upon your death. Which is very useful if you're not otherwise eligible for the parent/child or other exceptions to the reassessment rule.

Just create a trust and give a life estate to someone -- most likely, a family member (e.g., your sister) -- upon your death. Ta-da. Property taxes for the property remain at the same artificially low level. Even after you die.

At least for now. This opinion by Justice Klein, in a case from Los Angeles, creates a split in the Court of Appeal. So, wholly apart from the merits, I'd be very surprised to see the California Supreme Court not take this one up.

Assuming, of course, that the California Legislature doesn't act first and legislatively overrule this opinion by enacting Property Tax Rule 462.060(a) -- which the Court of Appeal invalidates -- as a statute. Which also is a distinct possibility. Especially since you're talking about a lot of scratch in property tax revenue here.

Stay tuned. This one definitely ain't over.

POSTSCRIPT [2/22/08] - Of course, I immediately looked the status of the case up, and, yes, on December 12th, the California Supreme Court granted the petition for review. What a shock.

Thursday, February 21, 2008

People v. Stone (Cal. Ct. App. - Feb. 21, 2008)

What's the proper sentence for slipping some donuts in your pocket in an attempt to shoplift them?

Four years, eight months in prison.

From reading the facts, I'm not even 100% certain that they apprehended the right person. Regardless, Steven Stone will indeed spend a fair piece of time in the slammer.

Remember that the next time you want some morning refreshment in Lake County. Don't steal donuts. Or look like a guy who does.

Fair warning.

Del Campo v. American Corrective Counseling (9th Cir. - Feb. 6, 2008)

Exactly right, Judge Berzon.

Wednesday, February 20, 2008

Goldman v. Simpson (Cal. Ct. App. - Feb. 20, 2008)

Yes, that Goldman. And that Simpson.

But don't think that this is some sexy, media-friendly opinion. It's not. It's about personal jurisdiction over the renewal of money judgments. Which is admittedly exciting for civil procedure types like myself. But for most (regular) people, not so much.

Justice Willhite writes a nice, short, well-written, and entirely correct opinion. I couldn't have authored a better -- or even equal -- one myself. It's exceptionally good. I also liked that he made no reference at all to the high-profile nature of either the case or the participants. As far as you could tell from the opinion, this is a run-of-the-mill case that just so happens to involve one of the many anonymous people in this world called Orenthal James Simpson.

Anyway, on the merits, Justice Willhite is clearly and unambiguously right that California has personal jurisdiction to renew a money judgment as an extension of the original jurisdiction over the tort. And all the other things that Justice Willhite says are entirely correct as well. So Simpson loses. And accordingly doesn't get to hawk autographs and the like -- or at least benefit financially therefrom -- for another 10 years.

Which is totally fine in my book.

Cook v. Schriro (9th Cir. - Feb. 20, 2008)

Sometimes you can tell just by reading the facts that the defendant has been sentenced to death. And you can totally see why.

Such is the case here.

Given both the facts and the panel -- which included Judges Callahan and O'Scannlain -- no one's going to be surprised at the result in the Ninth Circuit. And it doesn't even take long. Ten weeks after the oral argument, there's a 43-page opinion that affirms the denial of the habeas petition. Which is pretty darn speedy, especially for the Ninth.

One more thing. Don't represent yourself at trial in a death penalty case when you totally did it. You'll be terrible. And will die. Which Daniel Wayne Cook will likely shortly discover.

Tuesday, February 19, 2008

Pilkington v. Cardinal Health, Inc. (9th Cir. - Feb. 19, 2008)

Sometimes timing is everything.

Defendants in the class action here file a motion for summary judgment in November. The parties have an unsuccessful mediation on December 12th, but continue to talk. The motion for summary judgment is heard and taken under submission on December 16th.

On January 10th, the settlement talks reach fruition, and the parties (1) sign a binding term sheet, and (2) deliver a letter to the district court advising it of the settlement. Meanwhile, Judge Klausner and his clerks have been working on the summary judgment motion, so that very same day, Judge Klausner signs an order granting the summary judgment motion, which is entered the following day.

The Class wants the settlement agreement approved, and files the appropriate motions, but the district court says: "Nope. I granted summary judgment. You're done." The Class appeals. And the Ninth Circuit reverses.

Even if you've done all the work on the underlying motion, when the parties settle, it's your job to approve (or disapprove) the settlement. You can't just go ahead and decide the motion, the Ninth Circuit holds. P.S. - For good measure, the Ninth Circuit holds that there was a genuine issue of material fact anyway.

Days -- sometimes even hours -- matter. Remember that. And get that settlement done.

Monday, February 18, 2008

U.S. v. Hir (9th Cir. - Feb. 15, 2008)

It's allegedly a holiday today. I say "allegedly" because even the University of San Diego (and the law school) are open, which means that it must not be a very well-observed holiday. Because, trust me, if there's one thing that law schools -- and law students -- understand and appreciate it's three-day weekends.

The government, of course, is even more keen on three-day weekends. Which means no opinions will be published today. But, in honor of President's Day, I thought I'd make a brief comment about one opinion that came out on Friday. That concerns an issue that a variety of commanders-in-chief throughout history have had to face: the balance between security and freedom. An issue that was as relevant to President Lincoln, for example, when he suspended habeas during the Civil War as it is to President Bush today.

There are genuine risks that the fear of external attack will result in an unacceptable dimunition of critical constitutional rights. Nonetheless, there are also some restrictions on constitutional liberties that are entirely appropriate in light of the contemporary dangers that confront the nation.

This, in my mind, is an example of the latter.

Friday, February 15, 2008

Anderson v. Terhune (9th Cir. - Feb. 15, 2008)

Judge McKeown writes an excellent opinion -- especially Part I -- in this one. It's very well-written. It's extremely reasonable. It sounds good.

Not that the contrary opinions are totally absurd. It's a 10-2-1-2 en banc split, which is not something you see every day. The other three opinions are worth reading as well; indeed, they make some darn good points.

But, wholly apart from the merits, I though that Judge McKeown's opinion was the best. And I say that even though, as I began reading it, I initially thought the first paragraph seemed a bit forced. Reading further changed my mind.

Good job.

Thursday, February 14, 2008

Perez v. Mukasey (9th Cir. - Feb. 14, 2008)

One Ninth Circuit judge says it's okay to be two hours late to your deportation hearing -- that as long as the immigration judge is still on the bench once you show up, you can't be removed in absentia. Another Ninth Circuit judge, writing in dissent, says that's not okay at all, and that you can be deported as a result.

One of these judges is Judge Reinhardt. The other is Judge Rymer. You probably don't need to read the opinion to figure out which is which. But if you do, here it is.

The majority rules. You can be two hours late.

Wednesday, February 13, 2008

Park v. Mukasey (9th Cir. - Feb. 13, 2008)

Two days. Two opinions in which the Ninth Circuit affirms by adopting the decision of the district court.

What? No one does their own work anymore? :-)

Tuesday, February 12, 2008

People v. Bonnetta (Cal. Ct. App. - Nov. 15, 2007)

A lazy day for the Ninth Circuit and the California Court of Appeal today. Nothing at all from the latter -- it's Lincoln's Birthday, after all. And, from the Ninth Circuit, only this single sentence, in which the panel affirms for the reasons already expressed in the district court's published opinion.

So I figured I'd go back and briefly mention a very good opinion which I didn't have the opportunity to discuss late last year. Which is a classic example of a judge being bound by precedent and not being very happy about it.

When that happens, you can't do any better than Justice Richmann does here. It's a wonderful, wonderful opinion. Exactly what you want to say in this setting. "Yes, I'm doing what I need to do. But, really. This is a silly rule. And the California Supreme Court and/or Legislature should definitely change it."

Definitely take a look at this one the next time you're obliged, as a court, to do something that doesn't make any sense. This is the perfect way to do it and yet redeem yourself. As well as to serve the public interest.

It's extremely well done.

Monday, February 11, 2008

In Re Charles R. Martin (Oct. 24, 1941 - Feb. 11, 2008)

Pardon the personal aside. Just wanted to give a brief mention to my father, who died this morning and who's in my thoughts.

Dad was a full-time pharmacist (a '63 Drake graduate) who decided that he wanted more of a challenge in his work, and so he enrolled in the evening division of Georgetown Law a month after the birth of his first child -- me -- in 1966. He somehow managed to work full-time as a pharmacist, to commute to and from our tiny little apartment in Alexandria Virginia to D.C. for law school, to study whenever he could, and in the midst of all of this to raise a family, starting with me and then my brother Brian, who was born right after the end of his IL year. My brother Chris arrived shortly before Dad graduated from Georgetown in 1970, and my sister Kelly arrived a year later. In the meantime Dad had left the pharmacy and hung out his own shingle, and my youngest brother Jonathan then arrived in 1984.

Dad practiced in his own law firm for the next 37 years, and I truly and sincerely believe that he could not have been happier in any other profession. He was a small-town lawyer with an office in the faraway suburbs of Virginia, and he loved working for and helping his clients. For 37 years his practice consistently entailed an eclectic mix of estate planning, tax, business, contract, real estate, and whatever other work happened to walk in the door. He never made much money in his practice, but he provided for his family -- and deeply, profoundly, and sincerely enjoyed his work. He was a lawyer's lawyer; someone who found immense pleasure in solving the multidue of challenges brought on behalf of those who had retained him to assist them.

Dad had a massive heart attack at a Washington Redskins game in 1987, and after a full year of (incredibly stressful) waiting, had a successful heart transplant the next year. Although Dad's health declined somewhat in his later years, his (new) heart remained strong, and he gained a profound appreciation for life and for the extra decades that had been bestowed upon him as a result of his near-death experiences after the heart attack. He viewed his additional years after the transplant as "bonus time" -- and never forgot to make the most of the time that he had left.

My parents came to visit me, as well as my youngest son, Charles -- named after my father-- in October 2007. Dad's health declined during this trip, and he had to stay in San Diego, mostly in the hospital, for a month. Upon returning to Virginia, after several weeks, he had a series of strokes and other maladies that gradually began to incapacitate him. After another month in the hospital in Virginia, and after a slow and irreversible decline in his mental faculties, he decided several weeks ago to forego dialysis, which he has needed since his last kidney ceased to function last year. He went home, and into hospice care, two weeks ago, and the family, including me, gathered by his side.

Dad died peacefully this morning at 8:00. He will be missed.

Planned Parenthood v. American Coalition (9th Cir. - Feb. 11, 2008)

Here's an entirely just and equitable opinion by Judge Fisher. As well as one that should command the attention of any civil appellate litigator in the Ninth Circuit.

The issue surrounds post-judgment interest after appellate damage remands. Something that, as here, can add up to a fairly substantial chunk of change.

It doesn't do justice to the entire opinion, which is definitely worth reading in its entirety, but I'll summarize the opinion merely by reproducing its money quote:

"Henceforth, we expect that litigants in this circuit will clearly understand that if we modify or reverse a judgment with a direction that a money judgment be entered in the district court, our mandate must contain instructions about the allowance of post-judgment interest. Fed. R. App. 37(b). If our mandate omits such instructions, a party that believes it is entitled to interest from a date other than the date of entry of judgment on remand must expeditiously seek reform of the mandate."

Message received.

Certain Underwriters at Lloyds v. Inlet Fisheries, Inc. (9th Cir. - Feb. 11, 2008)

"Please, oh please," I hear you say. "I desperately need to read a scholarly, erudite opinion about the obscure legal doctrine of uberrimae fidei as applied to meritime insurance policies."

In the extremely unlikely event I heard you right, you're in luck. Judge McKeown obliges.

Friday, February 08, 2008

People v. Curry (Cal. Ct. App. - Jan. 7, 2008)

Let me see if I got this one right. Your girlfriend's pregnant. You want her to have an abortion, but she does not want one. She advises you to just pay child support if you don't want the child. You, by the way, are far from a rich person -- and basically seem like a street thug -- so presumably don't have that much money to pay in child support anyway. Can't get blood from a stone, after all.

That part I understand. I assume that happens. Maybe not (or maybe) every day. But it happens.

Here's the part I don't understand. So, in order to avoid paying minimal child support, you trick your (now former) girlfriend into going out with you, take her to a park, and have your goon friends beat her senseless with punches, kicks, baseball bats, and the like with the sole goal of killing the seven-month old fetus?! All just so you can get out of paying child support?! Then, just for fun, steal $20 out of her bra, as well as, once you're in the midst of this whole process, kidnap her in order to get an extra $700 that you realize she has at her grandmother's house?!

Amazing. And, honestly, chilling. Much more so, for some reason, than a lot of other -- more bloody -- despicable crimes. At least to me.

Read the whole thing. If you dare. It's a story of total depravity. And involves a group of individuals for whom, to be honest, I shall shed no tears as they spend the rest of their lives in prison.

Thursday, February 07, 2008

People v. Superior Court (Cal. Ct. App. - Feb. 4, 2008)

I disagree with this one.

It's a total shortie -- seven double-spaced pages. And very easy to understand.

Defendant causes a fire and the State sues (as it can) to recover the costs of fighting the fire. Defendant admits that it caused the fire but says -- quite plausibly, I might add -- that the fire would have been out in the first two days but for the State's incompetence in fighting the fire; in particular, that the State had basically put the thing out after it had burned out 1200 acres, but due to the State's failure to douse the flames completely, the fire restarted and burned for 10 more days and destroyed 64,000 acres. I'm liable for the first two days, defendant says, but not the subsequent 10. Those are on you.

The State respondes, however, with the time-honored phrase: "Sovereign immunity." "You can't sue me for failure to fight a fire properly," the State (rightly) says. "I'm not," responds the defendant. "I'm just saying that the last 10 days are your fault. It's merely a defense. Failure to mitigate or comparative negligence or whatever." "Tough," says the State. "You can't sue us, either directly or through a backdoor. Even if we were negligent, you've got to pay for all 12 days."

There's a lot at stake here; we're talking about the Piru Fire (back in 2003), so there's almost $4 million in firefighting costs at issue. The trial court, Judge Riley (up in Ventura), agreed with the defendant, and thus denied the State's motion for judgment on the pleadings on defendant's affirmative defenses. But the Court of Appeal, in an opinion by Justice Yegan, grants a writ and reverses.

I understand and appreciate both sides of the dispute. But I think that the trial court got this one right. Sovereign immunity shouldn't, I think, apply to defenses like this.

You're not suing or impleading the State. Rather, you're just paying for only what you caused. There's a reason for not draining the public fisc. But when that fisc has been depleted not from what you did, but rather from the State itself did, that's on them, not you. You can't get money from the State. But neither should you have to pay. If you're responsible for 40% and the State is responsible for 60%, the State shouldn't recover 100%. It's a matter of equity. It's a matter of justice.

Wednesday, February 06, 2008

Krinsky v. Doe 6 (Cal. Ct. App. - Feb. 6, 2008)

I'm sure this opinion will get a fair amount of discussion in the blogosphere -- as well as a little in the mainstream legal press -- since it concerns the ability to subpoena the identity of anonymous posters. Which is something about which commentators in the present medium tend to care.

So let me make only two brief points. (1) The result. The Court of Appeal reverses the trial court and holds that plaintiff wasn't able to obtain the identity of the anonymous poster. (2) The opinion. It's incredibly well-written. I really like it.

Justice Elia does an oustanding job. There was obviously a lot of work put into this one. And it shows.

Gonzalez v. Knowles (9th Cir. - Feb. 6, 2008)

A tale of two lawyers.

With ineffective assistance claims, you sometimes see lawyers slammed -- occasionally by name. But rarely do you see one attorney slammed and another attorney praised.

But that's the case here.

The lawyer slammed -- at least by Judge Hawkins -- is Armando Garcia. Who's a public defender in the Bay Area and a graduate of Columbia Law School, no less. The lawyer who receives the contrary treatment is Richard Such. Who's a panel attorney for the First District and a graduate of Stanford Law.

I usually don't quote at such expansive length, but I thought that the first four paragraphs of the dissent by Judge Hawkins were sufficiently interesting -- as well as well-writtten -- to justify an exception from my usual regime. Here's what he says:

"I respectfully dissent. At bottom, this habeas matter is about the process by which indigent defendants are provided counsel. To begin with, it is not easy work. Clients, given a lawyer selected by the same government accusing them, are often suspicious that their case will be given short shrift. Added to the mix here were charges of the most serious sort (molestation of his own brother’s children in their home where he was a guest) levied against an individual with a prior criminal history. Convicted at trial and having his sentence doubled based on a prior conviction, Gonzalez had the good fortune of receiving the court-appointed assistance of Richard Such (“Such”).

Such was able to convince the state appellate court that Gonzalez’s sentence had been improperly doubled and the matter was remanded to district court for re-sentencing. At this point, Gonzalez asked the state trial court to appoint Such to represent him at re-sentencing. Through written documents and verified statements, Gonzalez established that Such had earned his confidence, knew the case well, and was willing to work at the hourly rate the county typically paid appointed counsel. Additionally, Such had already done some work on sentencing matters. The state court refused, essentially reasoning that appointment of Such was “not the way we do things around here,”[Footnote] and instead appointed Armando Garcia (“Garcia”), a local attorney utterly unfamiliar with Gonzalez’s case.

Rather than simply walking away from Gonzalez’s case, Such proceeded to write Garcia a lengthy letter, conveying information highly relevant to re-sentencing, including, importantly, that Gonzalez’s family members were sympathetic to Gonzalez and trusted him around their children, and that the victim’s mother might be willing to testify that a prison sentence was unnecessary. Such also explained that a mental health evaluation might demonstrate that Gonzalez would be unlikely to re-offend.

What did Garcia do with this information? Absolutely nothing. Garcia made no attempt to contact the family, to inquire into Gonzalez’s mental history, or to have his client evaluated by mental health experts. At the re-sentencing, Garcia called no witnesses, only arguing that Gonzalez had a history of alcohol abuse and may have been intoxicated at the time of the acts. Even though the court had previously given Gonzalez 18 years and 5 months based on a sentencing enhancement no longer available, Gonzalez was given 16 years.

[Footnote:] The majority claims that local routine was not the only reason for refusing to appoint Such. In fact, the only other reason given was that this was a “straightforward” case. If by “straightforward” the trial court meant a sentencing proceeding in which an appointed defense attorney simply goes through the motions, it hardly justifies refusing to appoint an experienced, previously successful lawyer who not only had Gonzalez’s confidence, but had also begun a serious effort to provide fully effective sentencing representation."

A good day for Richard Such. Less so for Armanda Garcia.

Tuesday, February 05, 2008

In Re Angel L. (Cal. Ct. App. - Feb. 5, 2008)

Here's an uplifting half-dozen pages for your Tuesday. Regarding the welfare of children who definitely were given the best possible chance to succeed.


John v. El Monte (9th Cir. - Feb. 5, 2008)

It's pretty hard to confuse the Ninth Circuit and the Fourth Circuit. The former's on the West Coast; the latter's on the East Coast. The former's fairly leftie; the latter's very rightie. They're about as different in size, geography, and composition as one can get.

But Judge Friedman -- sitting by designation from the Federal Circuit -- writes an opinion for the Ninth Circuit that begins "Likewise, in Torchinsky v. Siwinski, 942 F.2d 257 (9th Cir. 1991), we found that . . ." Which is fine. Except that case is from the Fourth Circuit, not the Ninth. By Judge Wilkinson, no less. So that "we" ain't exactly the right "we".

Whoopsies. Take that part out.

P.S. - Don't get me wrong. Apart from that error, it's a very good opinion.

Monday, February 04, 2008

People v. Howard (Cal. Supreme Ct. - Feb. 4, 2008)

I think that you can figure out how this case comes out based solely upon two facts:

(1) the fact that it's in front of the California Supreme Court; and

(2) the fact that the first sentence of the opinion begins: "Defendant Alphonso Howard was sentenced to death after a jury convicted him of first degree murder, rape, and a forcible lewd act upon a child under the age of 14."

Yes. Affirmed.

P.S. - There's an interesting debate between the majority and Justice Kennard (joined by Justice Moreno) about how you address Batson/Wheeler claims (impermissible peremptory challenges)when the defendant hasn't made a prima facie showing but the prosecution nonetheless offers a purported justification for the challenges. Justice Kennard's opinion on this point is pretty short (five double-spaced pages) and worth a quick read.

U.S. v. Jennings (9th Cir. - Feb. 4, 2008)

Assume you're a convicted felon, and hence precluded from owning a firearm. Which of the following would be a bad idea:

(1) Taking a picture of yourself with a firearm.
(2) Leave the picture in an impounded vehicle for the police to find.
(3) When the police pick you up, initiate a conversation, sua sponte, in which you say "If this is about the missing serial number, I didn't know it was missing."

Right. All of 'em. Just ask Devin Jennings.

Friday, February 01, 2008

Sumpter v. Matteson (Cal. Ct. App. - Jan. 10, 2008)

On the merits, I think that this opinion is exactly right. But it's about a simple car accident, and there's not much about the application of the law that merits extensive discussion.

I nonetheless mention it because I couldn't help but smile at one of the lines in the opinion. Justice Klein is talking about what the defendant did right before he got high on meth and into his car (which, as you might imagine, subsequently crashed into someone). The factual recitation starts out pretty routinely, and says: "On February 25, 2002, the day of the accident, Matteson spent the afternoon at home, where he was using methamphetamines. Matteson ingested drugs right before he left his house. By his own admission, Matteson knew he was under the influence when he got into his car."

Just your regular basic facts. But then there's this great sentence, which made me laugh out loud: "He was planning on taking a mini-vacation and packed a suitcase of drugs, including marijuana, a vial of ketamine, eight bottles of GHB as well as cocaine."

I don't know why, but I found the use of the term "mini-vacation" hilarous. Especially when followed by the detailed list of all the drugs that were to entail this vacation.

Anyway, I chuckled. And imagined the wry smile on Justice Klein's face as she penned this line.

People v. Campos (Cal. Ct. App. - Dec. 7, 2007)

"Did I just accidentally call the Supreme Court the Court of Appeal?! Oops! Gonna correct that one pretty darn fast!"

Or, as the Court of Appeal says here, "On page 20, line 1, the first full sentence, the words 'the Court of Appeal' are changed to 'the Supreme Court.'"