U.S. v. Arias-Espinosa (9th Cir. - Nov. 30, 2012)

If all published Ninth Circuit opinions were this obviously correct, I'd have a lot less to write about.

Surfrider Foundation v. California Regional Water Quality Bd. (Cal. Ct. App. - Nov. 30, 2012)

This is a big step forward for the proposed desalinization plant in Carlsbad.

The Court of Appeal's opinion also seems right.  No project is perfect.  But this one looks pretty darn good.

P.S. - There's no shortage of quality advocates on both sides.  Irell represents Surfrider.  The Attorney General and Latham represent the defendants.  Then Allen Matkins, Sheppard Mullin, and Best Best represent other project participants.  Lots of good arguments on both sides.

In Re Gilbert R. (Cal. Ct. App. - Nov. 29, 2012)

A child outsmarts the California Legislature.

You can't own a switchblade.  You can own a pocket knife.  The Legislature says that a knife is the former if it opens automatically when the owner presses a button or traps a spring or the like -- or flicks his wrist -- whereas it's the latter if the knife has an arrest mechanism.

Gilbert's a prodigy.  He's one of a small number of people who's learned how to flick his wrist to open a knife that has an arrest mechanism.

Well done.  He's not a delinquent.  Or -- more accurately -- the delinquency finding against him must be reversed.

If we could convince Gilbert to pay as much attention to his studies as he does to imitating a participant in West Side Story, we might have the next Einstein.

Alaska Survival v. Surface Trans. Bd. (9th Cir. - Nov. 28, 2012)

This one can be summarized fairly easily:

"We granted a stay because we thought the environmentalists might win.  But we heard oral argument and they're going to lose.  We'll write an opinion saying why once we get around to it, but in the meantime, we need jobs, and delaying the project will cost tax dollars.  So we hereby lift the stay."

P.S. - There's apparently an administrative tribunal called the Surface Transportation Board.  Who knew?

U.S. v. Munguia (9th Cir. - Nov. 27, 2012)

Smart panel.  Smart result.  Not an exceptionally bright defendant, but that's actually her only hope of staying out of prison.  Because even though any reasonable person would know that the goal of visiting 500 different pharmacies to buy nearly 1000 boxes of Sudafed -- which she unquestionably did -- was to make methamphetamine, the critical question is whether a reasonable person in HER position would share that knowledge.

She is probably still guilty, I think.  But has a shot.

U.S. v. Scott (9th Cir. - Nov. 26, 2012)

The Ninth Circuit notes that letting the government deliberately violate briefing deadlines and fail to file substantive written oppositions to motions in criminal cases would permit "strategic disrespect for the rules" and "disadvantage both defendants and the courts."

And lets it get away with it anyway.

Pouncil v. Tilton (9th Cir. - Nov. 21, 2012)

I know that this opinion technically only concerns the statute of limitations.  But it looks like there's a nontrivial chance that some California prisoners may be able to successfully argue that they're entitled to conjugal visits under the Religious Land Use and Institutionalized Persons Act (RLUIPA) because their religion -- Islam -- requires them to marry, consummate the marriage and father children.

If so, I've got a keen sense that if I'm ever sent to the Big House, I'm thinking that Islam may well start to look like the One True Religion to me.

For which I would be eternally thankful.  Even on a non-Thanksgiving.

U.S. v. Manning (9th Cir. - Nov. 21, 2012)

Let me get this straight:  The Sentencing Commission says that denying a crime -- for example, telling your  probation officer "No, I don't have any guns" -- doesn't count as obstruction of justice.  But according to today's opinion from the Ninth Circuit, saying "No, I don't have any guns; I gave them back to my brother" does indeed count as obstruction.

Yeah.  That makes sense.

I can see why this one's per curiam.  I wouldn't have wanted anyone to know that I authored the first full paragraph on page seven either.

People v. Gonzalez (Cal. Ct. App. - Nov. 19, 2012)

Possessing child pornography is worse than committing statutory rape.  At least according to the Court of Appeal.

Agree?

U.S. v. Wiggan (9th Cir. - Nov. 20, 2012)

Judge Ebel, sitting by designation from the Tenth Circuit, thinks it's okay to call grand jurors to testify to their deliberations in order to prove that a defendant committed perjury.

What's next?  Calling judges as witnesses?  Calling jurors in civil or criminal cases?

We don't do that.  That's not how our system works.  We don't call jurors back to figure out what they "would have" done had circumstances been different, or why they reached the conclusion they did.

We don't do it in malpractice cases.  We don't do it in new trial motions.  We don't do it to decide whether an error is harmless.  We just don't do it.  For tons of good reasons.

Fortunately, the Ninth Circuit takes a different view than Judge Ebel.  Judges Fernandez and Berzon outvote him, and Judge Fernandez writes an opinon reversing the conviction and remanding for a new trial.

Exactly right.

People v. Sanders (Cal. Supreme Ct. - Nov. 19, 2012)

There are some darn smart people on the California Supreme Court (and in their chambers).

Take today's opinion, for example.  Check out footnote three, the sua sponte limitation of the issues in the grant of review, pages nine and ten, and the brief concurring opinion.

Not the product of dummies, that's for sure.

City of Alhambra v. County of Los Angeles (Cal. Supreme Ct. - Nov. 19, 2012)

When cities and counties spend tax money on lawyers to fight over allocating a limited pie of taxpayer funds, everyone loses.  By definition.

But, if you're nonetheless keeping score, chalk another "victory" up for the cities.  The County of Los Angeles loses this one in the California Supreme Court.

Hodjat v. State Farm (Cal. Ct. App. - Nov. 15, 2012)

Allen and Helle Hodjat -- who own "Luxury Auto Sports" in Santa Fe Springs -- lose their appeal.  They should be glad.  Because if justice was actually imposed, they'd probably be in jail, rather than simply owing State Farm some costs.

Read the whole thing.  Suffice it to say that Mr. and Mrs. Hodjat made some misrepresentations in an attempt to get their insurance company to pay for an allegedly stolen car.  Lots of them.  ("[T]he Hodjats‘ own statements illustrate how fraudulent their claim was.")

The Hodjat's attorney doesn't exactly come out smelling like a rose either.  Here's a representative line from Justice Bigelow's opinion:

"The Hodjats also contend there is no advice of counsel defense where the advice is not reasonable. It is telling that this argument is two sentences long. Accordingly, we dismiss it in one."

Ouch.

People v. Luna (Cal. Ct. App. - Sept. 18, 2012)

It's no defense to a statute that imposes a sentence of 15-to-life for raping someone during a kidnapping that when you initially kidnapped them, you originally intended to murder them, and only thereafter decided to rape them instead.

Just proving that common sense -- and straightforward statutory interpretation -- sometimes prevails.

U.S. v. Maloney (9th Cir. - Nov. 14, 2012)

When I read the majority opinion by Judge Randy Smith, I thought it seemed right.  But then I read the dissent by Judge Gilman, sitting by designation from the Sixth Circuit.  Judge Gilman's right.

Whether the error is harmless is a close question.  Judge Gilman's right that the case -- a border marijuana bust -- involved a classic credibility call.  Defendant said he didn't know about the drugs, the U.S. Attorney tried to cast doubt on his story, and the question is whether the defendant is telling the truth.  Cases that turn almost entirely on credibility usually aren't ones in which we can say -- as Judge Smith does -- that the evidence is "so strong" that errors are harmless.  So I tend to think that Judge Gilman has the better of the harmless error argument.

That said, again, it's close.  Truth be told, were I on the jury, I'd probably have voted to convict.  The defendant seems guilty.  Beyond a reasonable doubt, even.  I'm pretty darn sure he knew the stuff was there.

But someone could easily take a different approach.  I wouldn't say they were nutty.  Which is why I think Judge Gilman has -- slightly -- the better of the argument.

But as to whether or not there was error, well, on that point, even though I was persuaded by Judge Smith at the outset, after hearing from Judge Gilman, I feel like that point's not close at all.  During his closing argument, the AUSA made a huge point of the fact that the defendant didn't have any luggage in the cab of the trailer, asserting that this proved that the defendant's story was false.  That argument was totally new.  It had never been made before.  And may not even have been based upon the record at trial.  Given those facts, I think it was indeed error not to grant the defendant the ability to respond to that argument in a brief surrebuttal -- as precedent in fact requires.  It's only fair that when the government makes a new argument, defendant is allowed to respond.  Especially when, as here, the AUSA admitted that he deliberately "sandbagged" the defendant by not making this claim until the closing argument, at which point defendant wouldn't have a chance to respond.

Judge Randy Smith argues that defendant "opened the door" to this argument because his closing argument alleged that his story was more credible than the government's theory of the case.  But that didn't "open the door" to anything:  it was instead the whole point of defendant's defense.  If repeating that theory "opens the door" to new arguments, then Judge Gilman's right that it "opens the door" to everything.  The AUSA could argue, for the first time ever, that defendant's a liar because he lied on his tax returns and committed adultery, with no opportunity for the defendant to respond (or to even point out that there's no evidence at all about either of these facts).  Since that allegedly "responds" to the defendant's claim that his story is more credible.  Seems wrong to me.  Too unlimited.

Usually I don't think closing arguments matter much.  It's an exceptionally rare case when I'd say that the failure to give a surrebuttal require a new trial.

But when, as here, the AUSA admits he sandbagged the defendant, and makes a new argument in closing that way well not be supported by the evidence and to which the defendant has not chance at all to respond; well, that may well be the exception that proves the rule.

P.S. - I still hate the font and format the Ninth Circuit now uses in the slip opinions.  I even hate it more when, as here, the Ninth Circuit leaves out the first line of the opinion that tells you who's writing the thing (or if it's per curiam) and so you have to go back and look at the caption.  Ugh.

Richey v. AutoNation (Cal. Ct. App. - Nov. 13, 2012)

The parties agree to arbitrate.  The arbitrator perceives the relevant law to be that expressed by the Seventh Circuit, and follows this law to reject plaintiff's claim and enter a judgment for defendant.  The trial court confirms the award, holding that even if the arbitrator was wrong on the law, that's not reviewable.  Arbitrators can get things wrong.  That doesn't justify a motion to vacate.  Otherwise the value of arbitration would be negligible.

The Court of Appeal reverses.

I'm sympathetic to the view that the arbitrator got it wrong.  But I think the Court of Appeal's decision goes right up to -- and perhaps crosses -- the legitimate line of deference that we have to give to arbitrators.  We admittedly don't want arbitrators to deliberately disregard the law, at least when (as here) statutory rights are at issue.  That's indeed the federal standard for the proper level of legal review.

But that's clearly not what transpired here.  The arbitrator took a certain view of the law.  A view supported by some very bright jurists, and one that's unambiguously the law applied to millions of people.  Maybe that view is right, maybe it's not.  But it's clearly not "manifestly disregarding" that statute.  To permit the Court of Appeal to review that decision comes exceedingly close to allowing appellate review of alleged legal errors in arbitration decisions.

I'm also not entirely sympathetic to the plaintiff here.  He took leave claiming that he was too sick to work and then worked at his own restaurant.  Not exactly what we're trying to protect by a statute that authorizes medical leave when you really need it.

Cottonwood Duplexes v. Barlow (Cal. Ct. App. - Nov. 13, 2012)

Oooh!  An opinion with plat maps!  Exciting.

We call this the "hold out" problem in academia.  "Rent seeking."  You don't need a particular property right (here, an easement), but someone else does.  So you seek to charge an arm and a leg.

Which, right or wrong, you're entitled to do.

Los Angeles Int'l Charter H.S. v. LAUSD (Cal. Ct. App. - Oct. 11, 2012)

I'm ambivalent about charter schools.  Don't think they're nirvana.  Don't think they're the devil.  I see their upsides as well as downsides.  Happy to take a shot at innovation.

But this opinion is assuredly right.  Charter schools (and charter students) surely shouldn't be favored over public school students.  So when LA Int'l Charter H.S. wants space, it's entitled to get it from the LA Unified School District, if there's space available.  But that doesn't entitle the charter school to get space in exactly the place it prefers if there's a nearby facility that has space available with massively less disruption to existing public school students.

Like here.

Exactly right result.  Both below and in the Court of Appeal.

West Washington Properties v. California DOT (Cal. Ct. App. - Nov. 5, 2012)

Call me crazy.  But before I spend ten million dollars or so to buy a building primarily because it has a huge wallscape facing I-10, I'd go ahead and make sure it had a permit.  I wouldn't just "assume" it had one since the thing had been up for a long time.

'Cause maybe it's not, in fact, permitted.  Maybe the Department of Transportation will eventually tell you to take it down.  Even though you rent it out for $50,000 a month.  You might assert defenses of estoppel and laches.  But you might well lose in the trial court.  As well as in the Court of Appeal.

The lesson -- as always -- is not to spend a lot of money on things that might well be illegal.

People v. Verduzco (Cal. Ct. App. - Nov. 8, 2012)

Information about how to manufacture methamphetamine is already available over the internet.  And thanks to Justice Johnson, step-by-step instructions are now also available in the California Appellate Reporter.

Heck.  Why not disseminate this vital information here as well:

"[T]he manufacture of methamphetamine requires five steps. The first four produce the substance; the fifth step converts it to a smokable (crystal) form. Step one involves ephedrine extraction from cold tablets containing pseudoephedrine. Ephedrine is difficult to get, so methamphetamine labs purchase cold medications such as Sudafed. The pseudoephedrine in cold tablets is not water soluble. Denatured alcohol, acetone, and other solvents are used to break down the pseudoephedrine into ephedrine. The pill dissolves in the solvent, and the filler in the pill forms a solid at the bottom of the container. The liquid is strained off and after the solvent evaporates, pseudoephedrine remains.

Step two converts the pseudoephedrine into methamphetamine by knocking off an oxygen molecule to create D-methamphetamine. This step requires an acid solution of 57 percent or higher; the preferred acid is hydriodic acid, which is heavily regulated and controlled. As a result, meth labs mix red phosphorus with iodine to produce an acid solution of 57 percent or greater. This solution requires heating and simmering for 12 to 72 hours.

The third step separates the waste product from the liquid solution and reduces the acid level. Soyhydroxide, ice, and caustic soda is used. The ice is necessary because this step generates its own heat. An organic solvent (Freon, acetone, or denatured alcohol) is used to extract the methamphetamine molecules, which are suspended in the solvent.

In step four, the methamphetamine is ―salted out,‖ converted from a liquid to a solid. This uses hydrogen chloride gas; such gas can be manufactured from battery acid, sulphuric acid, and rock salt. The gas is infused in the solvent mixture and the methamphetamine forms a solid. This solid is dried off.

The last step converts the methamphetamine to a crystal form by dissolving it in a solvent, such as acetone, and heating it until the solvent evaporates."

Now you too can become Walter White.  Good luck.

People v. U.S. Fire Ins. (Cal. Ct. App. - Nov. 8, 2012)

The Ninth Circuit has been silent for the last couple of days.  Perhaps still processing the election. and figuring our their likely future colleagues.

Not so the California Court of Appeal.  Today we see, for example, this opinion.  Which shows that it's possible to dispense with a totally easy appeal in six double-spaced pages.  Including the page-and-a-half caption.

Why the Fresno County Counsel thought that recoverable "costs" in a bail forfeiture proceeding include attorney's fees is beyond me.  Yes, the statute allows "costs" to be recoverable, and yes, counties don't incur many "costs" in these proceedings because they're a municipality.  But that doesn't mean that costs include fees.  Costs include costs, even if you don't have any.

Justice Levy decides the case the right way.  Though he make the parties bear their own costs, whereas I might have applied the usual cost-shifting rule.  Which seems only appropriate given the topic of the underlying appeal.

Kyablue v. Watkins (Cal. Ct. App. - Nov. 6, 2012)

Gambling contracts are legal in California.  At least when the underlying gambling is legal.  And you can invest in another gambler and enforce the resulting contract.

Just showing how the twentieth-first century on this issue is substantially different than the twentieth.  In the old days we didn't like gambling.  In the new days we're much, much more lenient.

People v. Franzen (Cal. Ct. App. - Nov. 6, 2012)

Since you're reading something on the Internet, I thought it appropriate to highlight Justice Rushing's contemporary thoughts about this media:

"The Internet contains, or more accurately is connected to and thus capable of conveying, a large and growing part of all of the recordable information in existence. Some of this information is as reliable as any traditional source of information. But some of it would be almost universally considered not only unreliable but extravagantly untrue. If this technology provides the means to store and convey every truth any human has ever articulated, it also has the capability of 'publishing' every misconception, error, delusion, or outright lie anyone has ever set down. The world of print has known its share of infamous frauds, libels, and fantasies packaged as fact, but at least the cost and difficulty of publication has had some tendency to inhibit the circulation of erroneous information. That inhibition has now all but disappeared."

 

This sentiment underlies the holding in the case.  Which concludes that "published compendium" exception (Evidence Code sect. 1340) to the hearsay rule only applies to "old media" (like printed telephone books and the like) rather than compendia on the world wide web.

 

At first glance one might tend to write this view off as the rambling of an old fogie who resists and fails to comprehend the significance and wonder of the Internet.  But Justice Rushing does a pretty good job of articulating the various reasons why Section 1340 might indeed best be limited to the types of "hard print" investments prevalent in old (but not new) media.

 

Check it out and see what you think.

 

In the meantime, maybe I'll use Justice Rushing's words about the Internet as the informal motto of this blog.  A means of disseminating "[e]very misconception, error, delusion, or outright lie anyone has ever set down."

 

 

 

People v. Anzavoleh (Cal. Ct. App. - Nov. 6, 2012)

Ever knowingly drive though a red light?

That's assault with a deadly weapon.  Seven years in prison.  At least if you're speeding and accidentally hit someone.

U.S. v. Zamarano-Ponce (9th Cir. - Nov. 6, 2012)

Ugh.  Ugly format.  Bring back the old style, not these crazy slip opinions with summaries.  Please.

Johnson v. Uribe (9th Cir. - Nov. 5, 2012)

Once again I find myself on the same side as Judges Kozinski, O'Scannlain, Tallman, Bybee, Callahan, Bea and Ikuta.

I said when the original opinion came out in June that I wasn't persuaded that the defendant was entitled to habeas relief.  Today the above-mentioedn judges agree, and file dissents from the refusal to take the case en banc.

That the en banc vote failed wasn't surprising.  Judges Kleinfeld and Milan Smith signed onto the original panel opinion.  When you don't even have those votes, it's unlikely that the conservatives on the Ninth Circuit will prevail in an en banc call.

But that the vote failed doesn't mean the panel's opinion was right.  I continue to think that it has some serious problems.

P.S. - I'm fairly loose with my language -- as befits a blog by an academic -- but Judge Kozinski is often even worse.  His dissent from the denial includes a variety of lines like this one:  "Prisoners will be dancing in their cells once word of this gets out."  Hyperbole far beyond even anything I've ever written.  Which is saying a lot.

People v. Anguiano (Cal. Ct. App. - Oct. 22, 2012)

You see a nontrivial number of people who are "Junior" -- e.g., "Hank Williams, Jr." -- convicted.  It is more unusual to see people who are "Seniors" convicted.

Happens here, though.  Big time.

I bet that Raymond Anguiano, Sr. wishes that he had stayed on the porch instead of running from the police.  But he'll have around sixty of his "golden years" to think about that decision.  Three Strikes plus.

P.S. - I wonder if there's a research study here.  Hypothesis:  Children given family names -- e.g., "Juniors" -- are less likely to end up in prison than others.  Even stronger for children given longer standing family names; e.g., "III" or "IV" (for example, Hurston Howell III).  Intuition:  Children with historical family names may be different on socioeconomic bases (e.g., more wealthy) and may also differentially be first-borns, and those factors may lead them to become incarcerated at a lower rate than others.  It may also be that being given the same name as your father suggests that the child has an actively involved father in his life, similarly leading to reduced incarceration rates.  Think I'm right?

People v. Brandao (Cal. Ct. App. - Oct. 25, 2012)

It's not that common for an opinion by the Court of Appeal to persuade me that my initial considered views on a subject are erroneous.

This one did.

The question is whether it's a legitimate probation condition for the court to tell Antonio Brandao, who has been convicted of felony possession of methamphetamine, that he's not permitted to have any contact with gang members.

Admittedly, Brandao wasn't a member of a gang, and none of his prior offenses were gang offense.  But my strong sense upon beginning the opinion was the same as the trial court's.  Sure, maybe he's not a member of a gang now, and maybe won't be in the future.  But the dude's got a long rap sheet.  I'm sure that letting him hang out with gangs in the future definitely won't help him rehabilitate.  And may well hurt.  Indeed, my sense in that regard is even stronger.  If the guy hangs out with gang members, he's definitely going to reoffend.  So a probation condition that stops him from doing what's assuredly harmful to him seems both reasonable and hence permissible.

But the Court of Appeal reversed.

As I was reading Justice Marquez's opinion, I consistently disagreed.  That Brandao wasn't currently a gang member and that his current troubles didn't stem from that area wasn't dispositive for me.  It seemed to me that what the trial court did was not only a "reasonable" thing, but was affirmatively good.  Good for potential victims.  Good for society.  Good for Brandao.

Simply put, a guy with a long rap sheet and a problem with methamphetamines shouldn't be hanging out with members of a gang.  How is it "unreasonable" to so conclude?  As I, for one, assuredly do.

But then I got to this paragraph of the opinion.  The third one from the end.  And it changed my mind about the proper outcome of the case.  Because it seems right to me:


"The People argue that a probation condition must be upheld if it has any possible beneficent effect, even when the condition lacks a reasonable connection to a criminal defendant's background or crimes, or the defendant's prospects as related to the defendant's background or crimes.  We disagree.  If the courts could forbid probationers from having contact with any person or entity that could conceivably tempt an individual to stray from the path of the straight and narrow, they could forbid probationers to watch violent television programs and movies; to play violent video games, which our Legislature has determined to have malign influences on minors (Civ. Code, §§ 1746-1746.5, held unconstitutional in Brown v. Entertainment Merchants Assn. (2011) 564 U.S. __, __ [131 S.Ct. 2729, 2732, 2742, 180 L.Ed.2d 708]); to read works ranging from comic books to classical literature that contain violent or antisocial themes (see id. at p. __ [131 S.Ct. at pp. 2736-2737]); or to eat foods to which some have ascribed crime-inducing effects (Covey, Temporary Insanity:  The Strange Life and Times of the Perfect Defense (2011) 91 Boston U. L.Rev. 1597, 1601, fn. 18 [referring to the “junk-food overdose defense”]).  Our guides must be People v. Lent, supra, 15 Cal.3d 481, and subdivision (j) of Penal Code section 1203.1, and we read them as stopping short of authorizing conditions to shield probationers from exposure to people and circumstances that are less than ideal but are nonetheless unrelated to defendant‟s current or prior offenses or any factor suggesting a risk of future criminal conduct."

Yep.  I guess that's right.  I was wrong.  It might well be good for Bandao to eat vegetables, watch PBS, and to step away from the XBox.  But we're not allowed to make those judgments.  Even if they're right.  Including the judgment imposed by the trial court here.

There's a right to associate.  There's a right to watch what you want to watch.  For better or worse -- and I remained convinced that, for Bandao, it's worse -- individuals get to make bad decisions sometimes.  As we sufficiently fear governmental overreaching, and value individual freedom, that we create rules that sometimes prevent us from ordering even those things which we're relatively certain would be good for other people.

Justice Marquez persuades me.  Well done.

Alamo v. Practice Mgm't Info. Corp. (Cal. Ct. App. - Oct. 18, 2012)

I'm glad that Justice Zelon decided to publish this opinion.  If only to remind employers that even if you're not totally happy with a particular employee, it's incredibly unwise to pull her into the office and fire her three hours after she returns from a three-month maternity leave.

The jury decides it's pregnancy discrimination.  The Court of Appeal affirms.

Defendant should be happy to only get spanked for $10,000 in damages and $50,000 in attorney's fees.  Could have been much, much worse.