Tuesday, April 30, 2013

People v. Goolsby (Cal. Ct. App. - April 30, 2013)

When they talk about getting off on a technicality, this is what they mean.

Though here, it's not the constable who's blundered.  It's the prosecutor.

People v. Xiong (Cal. Ct. App. - April 30, 2013)

DNA evidence is incredibly helpful.  Both to persuade a jury to convict and, occasionally, to exonerate.

Usually, DNA evidence is just a start.  Especially in "cold hit" cases.  You identify a suspect, either independently or through a DNA match, and then you build up a case from there.  Witnesses.  Some physical evidence.  Maybe a confession.  The combination of all of these results in a conviction.

I haven't seen a case in which basically the only evidence against the defendant was the result of a "cold hit" off the DNA.

Until now.

A taxicab driver, Jose Martinez, gets killed by a shot to the back of his head.  No one can identify the person who shot him, or who got in the cab.  No fingerprints.  No gun.  Nothing.  The only evidence that exists is some blood in the back seat of the taxicab.  Blood that presumably came from the person who shot Mr. Martinez, since the taxicab likely crashed shortly after the driver was shot, resulting in the back seat passenger (likely) being thrown against the front seats and bleeding.

Detectives enter the DNA from the blood into a database.  No hits.  But a year later, a cold hit comes up.  Xiong.  Who lives within a mile or so of the crime scene.  So they interrogate him.  Nothing.  No evidence.  Nothing from any search.  No confession.  No independent evidence at all.  Just the DNA evidence and a bump on Xiong's head.  Maybe from being hit in an alley, maybe from a long-ago accident in a taxicab, maybe from something else.  Essentially, it's all about the DNA.  Xiong's DNA matches the blood in the cab, and the probability that it would match any particular random person is low.

Proof of guilt beyond a reasonable doubt?

The jury decides it is, and convicts Xiong of first-degree murder, and he's sentenced to life without the possibility of parole.  The Court of Appeal affirms.  Holding that the DNA evidence alone, even from a cold hit, is sufficient to establish guilt beyond a reasonable doubt.

That's even true despite the fact that the prosecution never introduced evidence about the probability of a random match between the DNA in the taxicab and the DNA in a random Asian.  There's a very low probability of a match between the suspect DNA in the taxicab and that of a random Caucasian, African-American, or Hispanic.  There are readily available databases of Asian DNA -- the ethnic group to which the defendant belongs (Hmong) -- but the expert here didn't use any of them.  That's despite the fact that, presumably, if there's a DNA match between the blood and Xiong, there's likely a higher probability of a similar match to an Asian (with similar DNA) than to someone in a different ethnic group.

No matter.  The DNA evidence alone is good enough.  Cold hits are themselves sufficient to establish guilt.

My money's on Xiong being guilty.  But isn't it a scary prospect if he isn't?

It's a cold hit.  If your (or my) DNA matches the blood -- and everyone admits it's possible, just not very likely -- then we go to prison too.  Until we die.  There may be absolutely no evidence against us other than the random hit.  But that's enough.  We're convicted entirely on the basis of our DNA.

And, at some point, a random hit happens that identifies someone innocent.  It's a mathematical (as well as human) certainty.  They go to prison forever as well.

As I said, I've never seen a case that's based entirely on a cold hit.  I have now.  And it frightens me.  And would frighten me even more if I thought that there's someone out there who may well have 15 loci in their DNA that are the same as mine.

Which there may well be.

For all of us.

Monday, April 29, 2013

Battaglia Enterprises v. Superior Court (Cal. Ct. App. - April 29, 2013)

See?  I'm not always wrong.

Or at least, when I say something, other -- wiser -- people occasionally come to agree with me.

Of course, even a broken clock is right twice a day.

Jameson v. Desta (Cal. Ct. App. - April 29, 2013)

Yes.  It's true.  Plaintiff is claiming that he received too much medical treatment while in prison.

The Court of Appeal nonetheless gets this one right.  For the third time.  It previously twice reversed the trial court's dismissal of plaintiff's lawsuit.  Now it does so again.

Pretty impressive for a pro se litigant.

Which is not to say that Jameson will win at trial.  He's got an unusual claim.  He's incarcerated for murder.  He is, in short, not a litigant with whom a jury will likely find sympathy.

But he'll get to trial.  No small feat.  And who knows?

Friday, April 26, 2013

U.S. v. Trujillo (9th Cir. - April 16, 2013)

Two things are surprising about this case.  I'll mention them very briefly.  Without elaboration.

First, it's a cocaine sentencing modification case, and the AUSA who argued the case in the Ninth Circuit (Wendy Wu) is with the Cyber & Intellectual Property Crimes section of the U.S. Attorney's Office.  Huh?

Second, the Ninth Circuit somewhat slams the district court judge for being lazy and overly dismissive, and reverses and remands on that basis.  The district court judge is Judge Dean Pregerson.

I'll stop there.

People v. Harrison (Cal. Ct. App. - April 18, 2013)

Not the most sympathetic defendant in the universe.  Not surprising that his convictions are affirmed.

At all.

Thursday, April 25, 2013

Taxpayers for Accountable School Bond Spending v. San Diego USD (Cal. Ct. App. - April 25, 2013)

This is a staggering devotion of resources -- really quite shocking -- devoted to fighting about whether Hoover High School (here in San Diego) gets to put up some lights for its football field.

It's very plausible that Proposition S, which was approved by the voters in 2008 and authorized up to $2.1 billion dollars of school bonds, didn't expressly authorize this particular project at Hoover.  The trial court held otherwise, but the Court of Appeal says that the "field lighting" part of the referendum referred to something different than the particular projects approved for Hoover.  The Court of Appeal may well be right.  (That said, there's no way the vote would have been different had the project been expressly approved.  But we don't apply harmless error analyses to elections.  We only do that in civil and criminal adjudications.)

So the petitioner, which is a nonprofit organization ostensibly concerned about government spending, gets some relief.

But is the candle really worth the wick?

It's quite possible -- perhaps even likely -- that the amount of money spent by the taxpayers on this litigation far exceeds the amount that would have been spent on the two light stands.  The trial judge (and support staff) took a lot of time, the Court of Appeal took a lot of time, and the school district hired at least three outside lawyers -- plus whatever resources were devoted at the trial court level -- to defend the measure.  The Court of Appeal's opinion is 73 pages long.  That's a big hint that the amount of money spent on this thing was far from insubstantial.

That result is also far from surprising.  Given that it's a close case, it's not like the petitioners could reasonably have expected the school district to just concede.  Especially since they won in the trial court.  So a fight was fully expected.

The net result is a "win" for petitioners.  At least if you count as a "win" a result that will likely actually increase taxes in San Diego.  With no material benefit other than a 72-page opinion by the Court of Appeal that's completely fact-specific and of no assistance in any other case.

Win a battle, lose the war.

Maybe petitioners should change the name of their group to "Taxpayers for Less Spending on Schools But Higher Taxes So We Can Pay Lawyers."

Wednesday, April 24, 2013

Schwab v. CIR (9th Cir. - April 24, 2013)

I'll readily admit that I can only partially follow the legal analysis in this opinion.  Not that it's wrong.  Not that it's confusing.  Not that the opinion isn't written well.  None of that.  It's simply that the underlying issue involves tax laws, regulations, annuities, surrender values, and all sorts of other esoteric things with which I'm not entirely familiar.  So try as I might, I have only a vague impression of the merits of the case, or of the I.R.S.'s appeal.

But I do nonetheless know enough to slightly modify one thing that Judge Milan Smith says.

In rejecting the I.R.S.'s position, Judge Smith concludes his opinion by arguing the following:

"Finally, prudence counsels us against adopting the Commissioner’s proposed ban on considering surrender charges under section 402. Just as variable universal life insurance policies did not exist when the Court decided Guggenheim and its companion cases in 1941, ever-creative financial institutions are liable to devise new life insurance instruments that we cannot contemplate today. We therefore decline to tie the hands of the tax court now, or in the future, by adopting the Commissioner’s proposed blanket prohibition on considering surrender charges when valuing life insurance policies under section 402."

I understand that as a general principle.  When dealing with innovation, you often don't want to make bright-line rules.

But I'm not as confident as Judge Smith that this doctrine is applicable in this particular context.  Indeed, a contrary principle might well apply.

The basic reason is this:  This is a tax case.  There is, indeed, a lot of "financial innovation."  But particularly in the modern era, a lot of that "innovation" relates primarily -- if not exclusively -- to the (purportedly "legal") evasion of taxes.  And there's good reason -- real good reason -- to believe that that's not just true in general, but particularly here.

Notice what the "life insurance" policy does here.  It's got a monster "premium" of six-figures a year.  So that's how much the "policyholder" invests.  The "amount" of the "life insurance" depends highly upon the return of the "investment vehicle" the "policyholder" chooses.  Here, that's the S&P 500.  A policyholder gets to stop paying "premiums" once the S&P 500 goes up a certain amount.  And while the investment has to stay in the account for a limited period of time -- 8 to 12 years -- the "balance" of the life insurance policy is deliberately designed to be withdrawn not only upon death, but instead whenever the investor feels like realizing his investment returns.

What's the difference between (A) this "life insurance" policy, and (B) a straightforward mutual fund (or hedge fund) that similarly invests in the S&P 500 and requires investments to stay in the fund for years?  None.  None whatsoever.  Except that, according to the taxpayers -- as well as the company that set up the "policy" -- the increase in value the fund (e.g., capital gains) are taxable in (B) but not in (A).  By calling it a "life insurance" policy, you get all the benefits of an investment but avoid the consequent taxes that everyone else pays.

Could the IRS say that's okay?  Sure.  If Congress or the IRS wants to allow people to so easily avoid capital gains taxes, they're free to do so.  Indeed, I'm happy to sign up.  I'd probably vote against such a taxation regime (at least without knowing more), but if it were allowed, I'd gladly participate.  Only a few want to pay more taxes than are due.

But, at the same time, the IRS clearly doesn't want these tax shelters to operate.  Which is, indeed, how this particular case came about.  Because once the IRS got wind of what was going on in this area, and started to clamp down, the "life insurance" company here terminated the plan, which led to the "surrender value" dispute involving the present taxpayers.

I say all of this for a simple reason.  Flexibility may be good in some areas.  But in others -- and tax law comes to mind -- there may well be value even in admittedly overbroad and inflexible rules.  The ability of taxpayers to find "creative" ways to avoid taxes is exceptionally high.  Particularly when assisted by highly compensated accountants, lawyers and financial advisors who can readily obtain a healthy chunk of whatever money gets diverted from the public fisc.  The IRS might understandably, and properly, want to create bright-line rules precisely to preclude the type of "financial innovation" to which Judge Smith refers, and that is amply present in this case.

It's possible, of course, that mankind's several centuries of experience with life insurance and the financial preparations for death have nonetheless left undiscovered beneficial ways to make sure that dependents are cared for upon death.  But I'm pretty sure at least the basics here are covered.  By contrast, I'm quite confident that there are legions of creative ways not yet identified to try to get around paying taxes.  New ones crop up every year.  Always have.  Always will.  When deciding whether a bright-line rule like the one proposed by the IRS is beneficial, I'm not so sure a policy that favors innovation is necessarily a valuable one.  Sometimes the best rules are the ones that are the clearest.  Even when they're potentially overbroad.

Tuesday, April 23, 2013

Mendoza v. Hamzeh (Cal. Ct. App. - April 22, 2013)

You don't see a huge number of attorney fee awards imposed against a party that files an anti-SLAPP motion.  It's also unusual to see a strong negative reaction by a court to a party's failure to cite controlling authority.  Counsel generally know that if there's a case on point -- or even close to on point -- the best strategy is to cite it and then attempt to distinguish it.  Which is also the ethically required approach as well.

Here's an exception.

I don't know how defendant's counsel could have messed this one up.  Defendant filed an anti-SLAPP motion claiming that a pre-lawsuit demand letter was privileged.  But there's controlling authority -- from the California Supreme Court, no less -- that clearly holds that such letters that constitute "extortion" (e.g., that threaten criminal sanctions) aren't privileged.  Although one could potentially make an argument that the two letters are somewhat different, they're darn close.  Defendant was accordingly under a duty to at least cite the contrary case in his anti-SLAPP motion.  But he didn't.

It got even worse when, upon receiving the motion, plaintiff's counsel wrote defendant's attorney a letter citing the omitted authority, requested that defendant withdraw the motion, and gave him over a month to think about it.  Defendant refused to do so.

Which is, of course, his right.  But it led to an entirely expected -- and understandable -- award of attorney's fees alongside the denial of the motion.  As well as an additional award of costs and fees once the defendant made the similarly unwise decision to appeal.  An appeal that, needless to say, was not successful.

Cite clearly controlling authority.

Friday, April 19, 2013

U.S. v. McClendon (9th Cir. - April 19, 2013)

Judge Gould does his best Kozinski impression.  Which made me chuckle out loud:

"At around 2:20 a.m. on a spring night, two police officers responded to a 911 call placed by an elderly disabled homeowner who feared a possible invader. The homeowner reported that an unknown vehicle was parked in his driveway with its engine and lights off and that someone had knocked on his door. . . . [After finding numerous incriminating pieces of evidence on a companion, police officers spot Eddie McClendon walking down the street, and order him to stop and raise his hands.]  McClendon did not comply. He did not stop. He did not show his hands. He continued to walk away. When the officers got still closer to McClendon, McClendon took his hands and 'pushed them down towards his waistband and [again] turned away from [the officers],' making a flinging motion. The officers then closed the distance and forcibly arrested McClendon, tackling him and placing him in handcuffs. They found a loaded silver handgun, still warm to the touch, on the grass a few feet away. McClendon denied tossing the gun and said that the backpack was not his. At the time of McClendon’s arrest, he was wearing a black knit cap, which police found to be a rolled-up ski mask, one with eye holes and a mouth hole. But McClendon had no skis. And there was no snow."

It's a tiny little aside, and maybe not even all that clever.  But I still liked it.

This troubled week could definitely use a bit of humor.

Thursday, April 18, 2013

Hoogenberg v. Simmons (Cal. Ct. App. - April 18, 2013)

You think your divorce proceedings were bad?  Listen to this one, which involves San Diego residents Tracy Hoogenberg and Buford Keith Simmons:

"The parties were married in May 2008 and separated one year later in May 2009. They have one child (Child) born in March 2009. On June 3, 2009, Tracy filed a petition for dissolution of their marriage. She requested that the court determine the parties' property rights and award custody of Child to her with visitation to Keith, and that the parties pay their own attorney fees.

What followed was an astoundingly lengthy, circuitous, and expensive course of litigation, particularly given that both parties had substantial financial assets and were married for a very brief time. Tracy had significant investment assets acquired after the death of her first husband. Keith owned a wetsuit business in La Jolla with two partners, and he had an ownership interest in a building in La Jolla.

For purposes of the current appeal, the case was finally resolved in July 2011, by which time Tracy had incurred more than $800,000 in attorney fees and costs. In its final decision, the trial court found the protracted litigation was due in large part to Keith's 'questionable legal tactics' (including his request to declare the marriage a nullity and failure to respond to discovery) and his hiring and firing of numerous attorneys. To support its sanctions award, the court concluded that Keith had failed to comply with 'even the most basic' financial disclosures; filed misleading and delayed disclosures; failed to fully disclose his assets; misused Tracy's computer hard-drive to disseminate her emails to third parties; failed to respond to discovery requests; failed to appear at his own deposition and trial; and acted intentionally and in bad faith. Based on these findings, the court ordered $150,000 in sanctions against Keith under section 2107 for breach of his fiduciary duties of disclosure, and $250,000 in sanctions under section 271 for his uncooperative conduct. Applying the remedy in section 1101, subdivision (h) for the fraudulent failure to disclose, the court also awarded Tracy the $245,850.24 value of Keith's separate property savings account."



Wednesday, April 17, 2013

MHC Limited Financing v. City of San Rafael (9th Cir. - April 17, 2013)

The Federal Rules of Civil Procedure took a real beating from the Ninth Circuit today.  A couple of opinions were published that had professors who teach civil procedure shaking their heads.  Like me.

I'll mention only one of them for now.  This opinion by Judge Thomas.

(At some future point, I'll have even more to say about Chief Judge Kozinski's concurrence in a different opinion earlier today.  But I want to deal with the easy one first.)

I won't particularly dispute Judge Thomas' result.  It's one of the plethora of "mobile home rent control takings" cases that federal and state courts have had to deal with during the past several decades.  It's a holding worth at least brief mention:  San Rafael's ordinance is not a taking.  That matters if you either live in a mobile home or own a mobile home park.

But I mention the case not because of its holding, but rather due to its language.  In particular, how it describes various motions in federal court.

Several times in the opinion Judge Thomas refers to plaintiff having moved for a "directed verdict" under FRCP 50.  To be clear:  There's no such thing in federal court.  Not for the past 20+ years, anyway.  That's the old, common law term.  In federal court, we call it a motion for judgment as a matter of law.  After two-plus decades, we might want to start using the appropriate terms.

Plus, in truth, plaintiff didn't even make a "directed verdict" motion anyway, regardless of what it's called.  Plaintiff's motion was made after jury's adverse verdict.  That's not a directed verdict motion (or JML), but rather a rJML -- a renewed motion for judgment as a matter of law.  What we called in the old common law days a j.n.o.v. motion.  For some reason, Judge Thomas' opinion talks about the correct motion when he's quoting from prior Ninth Circuit cases regarding the standard of review, but in his section headings and text, repeatedly refers to an alleged motion for a directed verdict.

I know I'm being a stickler here.  But I imagine the parties -- which collectively spent over $5 million in legal fees on the case -- used the correct terms.  So we should as well.

People v. Pellecher (Cal. Ct. App. - April 17, 2013)

Courts and commentators occasionally say that resort to legislative history is a crock.  (You listening, Justice Scalia?)  For those doubters, I'd suggest reading this opinion.

It's a classic case where legislative history matters.  Could you reach the same result by relying exclusively upon the statutory language?  Sure.  You could.  And a portion of Justice Mallano's opinion does precisely that.

But relying entirely upon the text would leave a lot of doubt.  Resort to legislative history puts most, if not all, of that doubt to rest.  Even for someone -- like me -- who was a little dubious about the opinion's holding when he first started reading it.

A nice, tight opinion.

Tuesday, April 16, 2013

Cameron v. Craig (9th Cir. - April 16, 2013)

I agree with every single word Judge Milan Smith utters in this opinion.  Every.  Single.  Word.

It's the battle of the Michelles.  Arrestee Michelle Cameron wins some things in the Ninth Circuit.  Officer Michelle Craig wins others.

The Ninth Circuit's partial reversal of the district court's grant of qualified immunity may make my taxes go up a tiny bit.  Because the case is down here in San Diego, and it means that the case will either have to be settled or will go to trial.  And, in my view, the defendant's exposure here is nontrivial.  Particularly because I did my state and federal tax returns yesterday, I'm keenly aware of the resulting consequence.

But it's a small price to pay.  Judge Smith gets it right:  A reasonable jury could well find that the search here was deliberately excessive and part of a conspiracy between Officer Craig and another San Diego Sheriff's Deputy, who had broken up with Cameron and was allegedly manufacturing his baby mama's (rough) arrest in order to humiliate her and gain advantage in a custody dispute.  If true, it's despicable.

Judge Smith's right that there was probable cause.  He's also right that that's not the end of the matter, and that disputed issues of material fact remain for trial.

Defendant should settle.  Because the same ugly facts that colored (in part) the Ninth Circuit's reaction may well have the same effect at trial.

Monday, April 15, 2013

People v. McEvoy (Cal. Ct. App. - April 15, 2013)

One topic we discuss in my Law of Love class is incest.  We talk about the normative rules -- should (certain types of) incest be constitutionally protected -- as well as predictive ones.  Sexual mores and constitutional protections for intimate human relations have undeniably evolved during the past half-century, and will almost certainly continue to do so.  When, if ever, will we reach a point at which the judiciary will declare certain forms of consensual incest permissible?

There are -- as one might expect -- various views on this subject.  Some believe that incest laws are categorically good, and will (for that reason) persist.  Others believe that at least some incest laws -- generally, those involving consensual adult relationships -- are overbroad, and will eventually be held to infringe upon fundamental liberties.  Still others believe that incest laws are normatively overbroad but will nonetheless continue to be upheld, and a few believe that current incest laws are good but may eventually be struck down regardless.

Regardless of one's position on the predictive issue, I'm fairly confident that the existing incest rules will not be successfully challenged in a case like this one.

Daniel McEvoy may facially have a tolerable claim.  He's 38 years old.  His sister is 36.  They had not seen each other in many years.  They were exceedingly close, and his sister called him her "best friend."  You could see someone potentially making a nonfrivolous claim that this brother and sister couple should be able to be sexually intimate, or even marry, in the same way that people (currently)have a right to be intimate and/or marry a person of a different race.  That claim might be especially strong if the couple did not intend to have, or were incapable of having, children.  Which is why Dan McEvoy raises his constitutional challenge here, asserting that his conviction for incest violates his constitutional rights.

I'm nonetheless not surprised in the slightest that the Court of Appeal unanimously rejects this claim.  For one thing, neither precedent nor prevailing mores are likely to make recognition of this supposed constitutional right arise anytime soon.  For another, if and when they do sufficiently change, I have a strong feeling that the initial articulation of a "right to incest" won't be made in a case like this one.  One in which (1) the sister testified, quite forcefully (and seemingly credibly), that the incest was not consensual, and (2) in which the brother had previously raped a woman at knifepoint at her home.

Doctrinally, those facts may not ostensibly matter, since consent's irrelevant to the incest conviction here and the prior offense technically doesn't relate to the present charge.

But that they don't legally matter doesn't mean they don't matter.  They do.  There was a snowball's chance in hell that the Court of Appeal would agree with McEvoy's legal contention that incest is a constitutional right.  And even that went away when the Court of Appeal was told that the incest was not consensual and that the defendant previously raped someone at knifepoint.

Thursday, April 11, 2013

Battaglia Enterprises v. Superior Court (Cal. Ct. App. - April 11, 2013)

I understand why Justice Aaron elected to decide this appeal even though the parties settled the case before oral argument.  After all, she'd already drafted the opinion.  No reason to let it go to waste.

But I do wonder why it ends the way it does.  When you're deciding an appeal (in the "interests of justice") involving parties who have settled, I don't think you can end the opinion, as this one does, with the line "Real parties in interest are entitled to costs in this proceeding."  Indeed, it may even be beyond your power to do so, as the case is moot.

State courts, unlike federal courts, may be entitled to issue advisory opinions.  But I don't think they can award monetary costs therein.

Otherwise, the opinion is fine.  As well as worthy of mention.  The Court of Appeal holds that parties (or at least sophisticated parties) can validly agree to mandatory venue clauses so long as the venue selected was a permissible one under California's venue statutes.  Pursuant to a 1929 case, we don't enforce venue selection clauses when the selected venue was impermissible; for example, we won't force a Bakersfield-only defendant to litigate a lawsuit brought by a Bakersfield-only plaintiff in San Diego even if the parties agreed to do so.  But if a Bakersfield corporation entered in to a contract in San Diego with a San Diego corporation, we'll enforce a venue selection clause that limits litigation to San Diego (rather than Bakersfield), because this was one of the otherwise permissible venues.

Makes sense.

Wednesday, April 10, 2013

Stoltenberg v. Ampton Investments (Cal. Ct. App. - April 4, 2013)

I'm not a huge fan of the appellate disentitlement doctrine.  Either in how it's articulated or, in particular, how it's practically applied.

Justice Mosk's opinion here nonetheless seems right to me.  At some point, it's entirely proper to dismiss an appeal -- or to at least think srongly about it -- based upon the defendant's refusal to follow presumptively lawful efforts to enforce the underlying (unstayed) judgment.

This is one of those cases.

I think the doctrine should be rarely applied.  Primarily because it's profoundly unjust to let stand a judgment we know to be erroneous stand merely because the defendant refuses to comply with this erroneous judgment.  We should prefer adjudication on the merits whenever possible.

I might well allow the appeal to be reinstated were the defendants -- now chastened -- to fully and immediately comply with the underlying order of the New York court here.  But I think it's entirely permissible to say that, as things stand now, the appeal is dismissed.  And maybe even to leave them guessing as to what might happen next.

(Though, truly, rather than say -- as Justice Mosk does -- that maybe the Court of Appeal will reinstate the appeal, and maybe it won't, I'd more likely say something like "Maybe I'll reinstate the appeal if you comply, and maybe you won't, but I'll definitely reinstate it if you comply and pay the other side their $20,000 [or whatever] in legal fees I anticipate they've had to spend thus far in order to confront your intransigence with the order."  That'd give me a keen sense of how the defendants should be treated.)

Tuesday, April 09, 2013

Spriesterbach v. Holland (Cal. Ct. App. - April 9, 2013)

This case should be required reading for anyone who drives.  Which is to say, virtually everyone.

Admittedly, I'm biased.  I'll say that up front.  The case is about where you are allowed to ride a bicycle, and the duty of drivers of motor vehicles to look out for them; i.e., not to smash into them.  Even ordinary people should care about not driving over bicyclists.  But I'm particularly interested in the opinion since I routinely bike to and from my work here at USD.  So I have an especially strong desire that people who ride bicycles not be injured or killed by inattentive motorists.

Fortunately, thus far, I've not been hit.  But that's likely partially due to the fact that most of my route consists of separate bicycle lanes or paths.  As well as luck.  Which hopefully will persist.

But there's ample reason to believe it won't.  The facts here are incredibly common.  Driver's waiting to exit a parking lot.  Bicyclist is initially biking along the road in the same direction of traffic, but confronts construction on that side of the road that makes it dangerous to continue, so crosses over to the other side of the road and bikes on the sidewalk for a while (against traffic).  Driver's primarily looking at oncoming traffic on her left -- waiting for a break so she can pull out -- and not really looking much to her right.  So Driver pulls out of the parking lot and smashes into Bicyclist, who has entered the intersection (from the sidewalk) at the same time.  Bicyclist is injured and incurs $80,000 in medical expenses for required surgery.

Who responsible?

On the one hand, we expect drivers to be attentive.  Motorists normally have a duty to make sure it's safe when they pull out -- that's what Section 21804 of the Vehicle Code says -- so they're ordinarily responsible when there's an accident.  But, at the same, time, motorists don't normally expect vehicles from their right, since that's against traffic.  We all know, however, that sometimes bicycles go on the "wrong" side of the road.  Is that the biker's fault?  Or do motorists have a duty to watch for 'em?

More critically, what about sidewalks?  Bikers often ride on roads, but sometimes travel on sidewalks.  Is that okay?  When a car pulls into traffic, they surely have a duty to not hit a pedestrian who's walking on a sidewalk and enters the intersection at the same time.  Is the rule the same when it's a biker?  Or does the fact that a bike travels much faster than a pedestrian -- making them harder to spot -- and generally travel on the road (rather than the sidewalk) require a different rule?

So we've got to figure out what the legal rules are.  Or -- perhaps even more importantly -- how far we need to look up the sidewalk to our right each of the hundreds of times every day we pull into an intersection while driving our cars.

So what's the rule?

It's actually a pretty hard question.  You might want to say that bikes should be on roads, not on sidewalks, so it's the biker's fault.  To tell you the truth, I'm somewhat sympathetic to this rule.

But sometimes -- as (perhaps) in this case -- it may indeed be much safer for the bike to travel on the sidewalk rather than on the road.  I've done so myself on rare occasions.

More importantly, however, listen to what Justice Suzukawa says about this topic.  Because he's unquestionably correct:

"We note that local regulations concerning bicycle riding on sidewalks vary tremendously by jurisdiction. According to the "L.A. County Sidewalk Riding Guide" maintained by the Los Angeles Department of Transportation (LADOT) Bike Blog, sidewalk riding is permitted in 12 cities in Los Angeles County and is prohibited in 32 cities and the county itself. In 25 cities, sidewalk riding is not permitted in "business districts;" in another 19 cities, there is no clear language in the municipal code concerning sidewalk bicycle riding. (http://ladotbikeblog.wordpress.com/2010/09/22/la-county-sidewalk-riding-epilogue/ [as of Mar. 27, 2013].)

The LADOT Bike Blog observes as follows: "If you take a close look at the sidewalk riding map, you‟ll see quite a jumble of rules and regulations across LA County. Think about if that jumble were applied to another moving vehicle, like, say, a car. What would it be like were the „right turn on red‟ law to be applied city by city instead of state by state? Endless accidents by drivers unsure of what to do next; lawsuits; deaths; lots and lots of tickets for moving violations; it would be total chaos. Traffic rules demand a certain amount of uniformity, which is why most guidelines governing how cars move through space are dictated at the state level. [¶] . . . [¶] If bicycles are supposed to be considered vehicles with responsibilities and rights equal to automobiles, like [California Vehicle Code section] 21200 states, then bicyclists deserve to have rules for their operation that are at least as uniform as the rules for operating an automobile." (http://ladotbikeblog.wordpress.com/2010/09/22/la-county-sidewalk-riding-epilogue/ [as of Mar. 27, 2013].)

We echo the sentiments of the LADOT Bike Blog and urge the Legislature to adopt uniform legislation governing bicycle riding on sidewalks. In the absence of such uniform legislation, we fear that collisions like the one here will continue to occur." Word. In short, when you're driving, you currently have no idea whether a biker is allowed to be on the sidewalk.  So you'd better look. So what about this case.  Was the motorist negligent? The jury said "No."  And the Court of Appeal affirms.  She wasn't automatically liable under Section 21804 -- I agree with that result -- and it's a question for the jury.  Which decided in a special verdict that the motorist was not guilty of negligence.  Done deal. I think that's a plausible result.  Maybe not what I would have decided were I on the jury.  But then again, maybe it is.  Depends on how fast the bike was going, and how I felt about the parties.  It's a result within the range of reasonable.  Tough call. Interestingly, however, I think the following fact might well explain the jury's decision.  One that's totally -- totally -- legally irrelevant, and yet might practically make a big difference.  Maybe even to someone like me, who would want to do the right thing. Here's what Driver said at the trial about the accident:

"Holland testified that upon leaving the Ralphs parking lot at about 4:40 p.m., she came to a complete stop behind the line separating the parking lot from the sidewalk. . . . As she took her foot off the brake and began to move forward, Spriesterbach [the bicyclist] rode directly in front of her and she drove her car into him. She immediately braked and stopped about 18 inches into the sidewalk area. She saw Spriesterbach make contact with the hood of her car; he then fell forward and disappeared from her view. He had been coming from the right, opposite the flow of traffic on the roadway.

Holland immediately got out of her car and asked Spriesterbach if he was okay. He said, 'You fucking bitch. I'm going to sue you.' He picked up his bicycle and threw it, and then picked it up again and threw it against a tree. He pulled earplugs from his ears and called the police."

I know I'm not supposed to make value judgments about the participants when I'm deciding liability.  But I can't help it.  When you've got one person who's allegedly nice, and jumping out of their car to ask an injured party if he's okay, and the other party calling her a "bitch," immediately threatening to sue, and throwing a bicycle around, I'm going to have a hard time finding the "bitch" liable for your alleged shoulder injury.  A seriously hard time.

And I bet I'm not alone.  Which may, in part, help explain the jury's "no negligence" finding.

There's only one part of this opinion that I'm not so sure about.  And it's an important one, and may well mean that the court decided the case the wrong way.

The trial judge instructed the jury that riding a bicycle on the sidewalk against the flow of traffic was negligence per se because it's impermissible under the Vehicle Code.  The Court of Appeal holds that this instruction was erroneous.  That's important, and seems right to me.

But the Court of Appeal holds that the instruction was harmless because the jury didn't find that the bicyclist was contributorily negligent (a question further on down in the special verdict form that the jury never had to reach), and instead concluded that the driver wasn't negligent.  So no blood no foul since the erroneous instruction only related to the defense of contributory negligence.

This has some superficial appeal.  I can see why the Court of Appeal so decides.  But it bespeaks an assurance in the jury that I do not share.

I think the instruction is in part about the defense but also, in part, about the initial negligence case as well.  If the jury's told -- as it was here -- that it's impermissible for a bicyclist to be on the sidewalk, that fact may well influence it assessment about whether a driver has a duty to be on the lookout for a bicycle travelling thereupon.  Heck, even I might so conclude, and I'm a lawyer who understands full well the difference between negligence and contributory negligence.  I think lay jurors would come to this same conclusion even more readily. 

So I think the Court of Appeal might well have decided this individual case incorrectly.  In light of the erroneous instruction, I think there's a chance -- indeed, a very real chance -- that the jury may have reached its "no negligence" finding as a result of a legal error.  So I'd remand for a new trial.  Maybe they'd have reached this same conclusion even without the instruction that says that the bicyclist should ever have been on the sidewalk in the first place.  But I'm certainly not sure that's the case.  And think there's ample reason to think otherwise.  So I'd have reversed and remanded in order to allow a jury to decide the case pursuant to an accurate recitation of the relevant legal principles.

So an important case.  For everyone.  Bikers and drivers alike.

Monday, April 08, 2013

U.S. v. Hernandez (9th Cir. - April 8, 2013)

This seems all very academic to me.

That's not necessarily a slam.  I like opinions that go into detail, and that discuss at a low level of generality the relevant legal principles.  That's a sign of good work.

I just wonder if this is really the case for it.  Or if the doctrine matches the relevant underlying factual settings.

Judge Goodwin's opinion talks about sentencing entrapment.  Which is an important topic, to be sure.  The police know that a certain quantity of drugs creates enhanced liability, so sets up a sting in which it agrees to "sell" such a quantity even though no drugs (at all) exist.  We've got a variety of doctrinal principles designed to deal with this problem, and they work tolerably well.

This case is a variant.  What happens when the sting isn't about buying or selling drugs, but rather ripping them off?  Drugs that, again, do not actually exist.  Do the same principles apply?

I hadn't thought about that before.  And I like the way Judge Goodwin addresses it.  It's also a very important topic, both for the relevant individuals involved as well as society at large.  Defendant's culpability is largely the same whether he agrees to steal 5 kilos or 50 kilos of fictional drugs; however, the sentencing guidelines may nonetheless treat these offenses as deserving of radically different punishments, including (but not limited to) cases involving mandatory minimums.  The ability of the government to easily manipulate the quantity of (fictional) drugs purportedly to be stolen also creates, as Judge Goodwin notes, the potential for abuse.

But what works for fake drug sales doesn't really work for fake drug thefts.  With a fake drug sale, it is possible for a defendant to prove the he didn't really have the capacity to buy (or sell) the amount the government allegedly entrapped him into buying.  We can't, however, say the same thing for fake drug thefts.  As Judge Goodwin rightly explains, "once a thief gains access to the drugs, he or she is just as capable of carrying off one kilogram as ten."  (Put to one side that carrying fifty kilos might be in a somewhat different category, and that for less muscular criminals, even carrying ten kilos might be a stretch.  Remember:  Lift with your legs, not your back.)

So Judge Goodwin recognizes that there's a danger here.  And that, as a result, we need to take what he calls a "hard look" at these sorts of cases.  So the Ninth Circuit holds that, unlike in fake drug sales cases, in fake drug theft cases, the defendant need only show a lack of intent or capability to deal in the quantity of drugs charged.

Makes some sense.

But then Judge Goodwin applies that principle to Hernandez himself.  Holding that Hernandez didn't prove entrapment because he presumptively had both the intent to steal the relevant quantity of drugs (since he did, in fact, join the plot) as well as capability to deal 'em.

That makes facial sense as well.

Here's the problem:  What's true for Hernandez is almost certainly true for everyone else as well.  A result that makes the "hard look" the Ninth Circuit creates essentially meaningless.  Judge Goodwin says that Hernandez had the intent to steal the drugs because he joined the plan.  That's equally true for pretty much everyone who joins a plan, right?  If the undercover or C.I. says "We're going to steal 100 kilos," and if the defendant agrees, boom.  Intent.  True for Hernandez.  True for Everyone.

Ditto for capability.  Sure, the Ninth Circuit's doctrinal test says that you can prove entrapment in the event you can prove that you couldn't possibly have sold the quantity of drugs you intended to steal.  But here's what Judge Goodwin says when the Ninth Circuit applies that test to Hernandez himself:  "His argument fails even if the question is construed as whether he lacked predisposition to handle a large amount of cocaine.  He was involved as a member of a stick-up crew; there is no indication he would have been expected to deal or otherwise offload the cocaine by himself after the robbery."  True for Hernandez and, presumably, for virtually everyone else as well.

So, in the end, we've got a facially "hard look" test that, in reality, is going to be satisfied over 99% of the time.  That'd be my prediction, anyway.  Someone else can do the hard empirical work to prove or disprove it.

So neat little case.  That may seem to matter more than I think it will.

Thursday, April 04, 2013

Mashiri v. Department of Education (9th Cir. - March 14, 2013)

What do you do if you're a student at the Thomas Jefferson School of Law and the Department of Education fails to give you a federally subsidided Stafford Loan?

You sue.  And lose.

The upside, however, is that Mashiri at least (a) successfully graduated law school, and (b) passed the California bar examination.

For every cloud there is a silver lining.

Kanppe v. U.S. (9th Cir. - April 4, 2013)

Here's a timely reminder from the Ninth Circuit:

File your tax returns on time.  Don't rely on your accountant.

Enjoy the next eleven days.

Wednesday, April 03, 2013

U.S. v. Jennings (9th Cir. - April 3, 2013)

The next time someone calls you "sophisticated," read this case.  You'll discover that it's not quite the compliment that you might otherwise take it to be.

It means that you're smart enough to open a bank account.

Tuesday, April 02, 2013

People v. Spriggs (Cal. Sup. Ct. App. Div. - April 2, 2013)

We all know, or at least should know, that you're not allowed to text while driving.. We also know, or should know, that you're not allowed to make telephone calls while driving unless you're using a hands-free device.  Good rules, and definitely the law in California.  Indeed, we should ticket people for violating these rules more than we do, IMHO.

But what about using your smartphone to surf the internet?  Is that also impermissible?

Here's the answer.

The Appellate Division of the Superior Court of Fresno decides, in a published opinion, that the answer is yes.  You could potentially reach that result in one of two ways.  First, you could believe -- rightly, in my view -- that the dangers of distracted driving are at least as great when you're surfing the internet as when you're texting or talking on the phone.  So interpret a statute accordingly.  You could alternately hold that the plain meaning of the statute clearly covers surfing the internet on a phone.  The Appellate Division takes the latter approach.

That's certainly a plausible way to interpret the statute.  Here's what Section 23123(a) of the Vehicle Code has to say about the matter:  "A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving."  Since you're "using a wireless telephone" when you're using your phone to surf the internet and are not "us[ing it] in [a hands-free] manner" when you're doing so, the Appellate Division concludes that you should get a ticket.  QED.

Let me nonetheless point out two problems with this interpretation.  Neither of which the Appellate Division adequately addresses.  (To be clear, I'm not necessarily blaming the A.D, which did not likely have awesome briefing on this issue, since the ticketed person represented himself and the People didn't even appear.  But I do think the issue is important, and pervasive, enough to get right.)

First, I'm not convinced that the statutory language is as clear as the A.D. sees it.  In particular, there's part of the statute that the A.D. doesn't even talk about -- the portion that refers to "using a wireless telephone" -- that could easily be interpreted a different way.

Imagine that your wireless telephone is powered off, but while holding it in your hand you turn on your car radio with its corner.  Or you use it to "drum" the beat to your favorite song on your steering wheel.  Does the statute make those uses illegal?  I strongly doubt it.  It seems to me that even though you're "using" your telephone in those examples, you're not using it as a telephone.  Which is what the statute prohibits and what gives rise to the dangers of distracted driving.  Someone who's using a smartphone to surf the internet could make a similar argument; i.e., that the phone wasn't being used as a phone, and hence the statute doesn't apply.

That's a good "lawyerly" parsing of the statute, and might perhaps be right as a technical matter.  Though I forthrightly doubt that most judges would, standing alone, find it persuasive.

But see if the legislative history of the statute changes your mind.  The author of Section 23123 expressly stated that it applied only to "holding a cell phone up to [one's] ear."  Which you're not doing unless you are, as suggested above, using a telephone as a telephone.  Moreover, the official legislative history of a statute subsequently passed in order to address the limitation of Section 23123 -- Section 23123.5 -- could not have been clearer when it said that drivers legally "could use a hand-held device to surf the internet" under existing California law despite the fact that the new law made it illegal to text.

Those are darn good reasons to believe that the Legislature did not intend Section 23123 to apply to surfing the internet, eh?  After all, not only did they expressly say so, but phones generally weren't even capable of doing so back then.  They seemed to be addressing only the use of phones as phones.

Mind you, I think it should be illegal to surf the internet while driving.  It's distracting.  It can cause you to kill someone.  I'd be in favor of such a law.  Just as I think that texting while driving should be both illegal as well as seriously enforced in every state.

But in light of both the structure and legislative history of California's statutes, I'm just not sure that our laws in fact do so.  So when the Appellate Division says that concerns about the statute are properly directed to the Legislature, I think that argument may actually go the other way.  The Legislature should be persuaded to pass a statute that clearly outlaws surfing while driving.  Rather than having the courts interpret an unclear law that the Legislature thought did not cover the practice so that it does.

One final point.  The driver here was using his smartphone to look at a map that he had pulled up on the internet (e.g., MapQuest, Google maps, etc.).  Does anyone else find that ironic?  In the old days, the guy would have pulled out a huge paper map -- potentially blocking his view -- and been fine.  But while he can still look at a paper map, under the Appellate Division's view, if he looks at the same map on the screen of his smart phone, that's suddenly a violation.  Weird, eh?  Hardly makes sense.

Given the dangers of distracted driving, personally, I'd be more than happy for both of these map-viewing preferences to be made illegal.  Particularly since, in the modern era, lots of smartphones allow "hands-free" map functions; i.e., verbal turn-by-turn directions.  But it just seems bizarre to interpret a statute to prohibit only viewing computer-generated maps but not paper maps.  Particularly when, as here, there's ample reason to believe that that's not what the Legislature actually did.

But fair warning:  The Appellate Division thinks they did.  And that's presumably how police officers will be instructed as well.  So you can get a ticket when you use your cellphone to surf the internet or look at a map while driving.

Consider yourself warned.

P.S. - Coincidentally, my next act will be for me to get out my smartphone and boot up driving directions from San Diego to L.A. for this, and hope that traffic doesn't make me late.   But fear not.  It's hands-free.  (Though only because my wife will be reading the directions for me.)

Monday, April 01, 2013

U.S. v. Reyes-Ceja (9th Cir. - April 1, 2013)

You got me, Judge Kleinfeld.  Well done.

I occasionally publish fake blog posts on this day as an April Fool's joke.  But this year, Judge Kleinfeld beats me to the punch.

I'm especially proud that he was able to get Judges Paez and Milan Smith in on the joke.  Bravo.

When I read this opinion, it seemed entirely persuasive to me.  The analysis is erudite.  Judge Kleinfeld knows his stuff.  The opinion seemed spot on.

And then I went back and actually read the underlying statute.

At which point, I finally understood.  I'd been had.  Well played, Judge K.

The opinion starts out great.  It rightly makes me entirely unsympathetic to the defendant, and highlights a real (and continuing) problem we constantly face here in the Ninth Circuit, as well as elsewhere.  Gustavo Reyes-Ceja killed someone with a firearm.  So we put him in prison and, once he got out, we deported him.

Then he snuck back in.  And committed a lewd act on a child.  So we caught him, put him in prison, and (again) deported him.

Then he snuck back in again.  Stole some stuff.  Caught and deported again.

Snuck back in again.  Deported.

Snuck back in.  Stole some more stuff.  Put in prison again.

You can see where this is going, and where it's been thus far, right?

So now we decide we're going to prosecute him for being in the United States illegally after being deported.  Makes total sense.  Indeed, we perhaps should have done that long ago.  So the federal authorities file the relevant charges.  Which stem from being "found" in the United States.

Reyes-Ceja is undeniably guilty.  Indeed, he's the poster child for why we want these charges.  We can't just let people keep sneaking in, committing crimes, getting deported, and then coming back to commit more crimes.  Time for some deterrence and some incapacitation.

Makes sense to me.

So Judge Kleinfeld's opinion goes on at length about the nature of the underlying crime -- being found in the United States -- and why Reyes-Ceja is guilty, why we describe the crime as being "found in" rather than "entering" the United States (statute of limitations purposes), and why it's legitimate to punish people for being "found" in the United States even when we "find" them there only after they're in prison, at which point it's not like they have a choice.  You entered the country voluntarily, so you can't complain about being punished for that just because by the time we finally "found" you you'd already been locked up for something else.

Yep.  Entirely right.

I even liked how Judge Kleinfeld ended the opinion.  Here's the final paragraph:

"One reason why 8 U.S.C. § 1326 has given rise to so many cases is because it defines a crime in part by what the government does (find an alien who has reentered the United States without permission) instead of solely by what the criminal does. Criminal statutes ordinarily address the criminal’s conduct (“if a person does X, he shall be punished”), not the government’s conduct. In context, though, it is the alien’s act of reentering without permission, and not ICE’s act of discovering him, that constitutes the criminal conduct. ICE’s discovery of an alien merely completes his crime and starts the statute of limitations running. Section 1326’s phrasing allows the government to prosecute deported aliens who have surreptitiously reentered and evaded detection for more than five years, while at the same time preventing ICE from finding an alien and then waiting for more than five years to prosecute him. ICE ends the crime, but does not generate it. The alien generates the crime through his voluntary act of reentry after having been deported."
That's beautiful.  Exactly right.  Helps people understand things.  Left me with a happy feeling about the case.
It was only when I went back and reread the underlying statute that I realized that the panel must have intended the opinion as an elaborate April Fool's Day joke.
Perhaps I should have realized that when I first read the opinion.  It's not that Judge Kleinfeld didn't tell me all the facts I need to know up front.  He did.  That's what makes the trick so funny.
He told me at the outset that while the charged offense was about being found in the United States, the appeal was actually limited to a particular sentencing enhancement; namely, whether you get two points added to your guideline range for committing an offense while under a criminal sentence.  But Reyes-Ceja had lots of crimes, and lots of sentences, and clearly is guilty and needs to be punished.  So it makes sense that his sentenced gets enhanced, right?  I'm on board, especially after Judge Kleinfeld waxes poetic about the nature of the offense, about how being "found" in the United States is still voluntary even when you're involuntarily in prison, etc.  That makes sense to me.
Until I reread the relevant guideline.  Here's what it says (U.S.S.G. § 4A1.1(d)):

"Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status."

You see why 4A1.1(d) increases a sentence under those circumstances, right?  Because someone who commits a crime while (for example) on parole or in prison is obviously a harder core criminal, and is more in need of/deserving of punishment, than someone who commits a crime while free.

But here's the rub.  What Judge Kleinfeld (jokingly) holds is that this principle applies to someone who is "found" in the U.S. while in prison.  In other words, they "committed" their crime while they were in prison, so the Sentencing Guidelines views them as harder core offenders and increases their sentence.  That's the (alleged) intent of 4A1.1(d).

Now do you see why Judge Kleinfeld's April Fool's Day opinion brings a smile to my face?

Judge Kleinfeld surely knows that he's being facetious.  How do I know?  Because he ends his opinion -- the very last paragraph (indeed, the very last line) -- by saying (accurately) that "in context [] it is the alien’s act of reentering without permission, and not ICE’s act of discovering him, that constitutes the criminal conduct. . . . The alien generates the crime through his voluntary act of reentry after having been deported."  He's exactly right.  The alien's actual criminal offense is when he sneaks back into the United States.  That's what we're punishing him for.  Sneaking back in.

Did the alien do that -- what Judge Kleinfeld rightly calls "the [actual] criminal conduct" -- while he was in prison or on parole?  No.  Not at all.  If he had, we'd rightly enhance his sentence under 4A1.1.

But Reyes-Ceja didn't do that.  He wasn't on probation or parole when he snuck back in.  The only reason the U.S. wants a two-level enhancement is because he was found in prison after he committed what Judge Kleinfeld correctly identifies as the relevant offense; i.e., sneaking back in.

So Judge Kleinfeld entirely understands the nature of the offense.  But nonetheless slyly comes out the exact opposite way.  He's essentially saying:  "You committed an offense before you're in prison, so we're going to punish you as if you committed that offense while in prison."

A conclusion that should make the founders of this Special Day proud.

It'd be one thing if Judge Kleinfeld were to say:  "I'm sure this was not the intent of those who created the Sentencing Guidelines [totally true], but due to the crazy wording of the underlying statute, which was designed for an entirely different reason [statute of limitations], we've got no choice but to ignore this intent and apply the literal words of the guideline and enhance the sentence.  I know that's an absurd result, since it irrationally means that a guy who gets "found" (i.e., discovered) in the U.S. one day before he's sentenced to prison receives a shorter sentence than someone who's discovered one day after, even if they entered the U.S. (i.e., committed the actual crime) on the exact same day and in the exact same circumstances.  But it's April Fool's Day.  So absurdity is something we've got to live with, and I hereby embrace it."

That I could understand.

But Judge Kleinfeld does something different.  He plays it straight up.  He goes one way and then comes out with a holding that's exactly the opposite.  Without a hint of irony.

And publishes the opinion on April Fool's Day.

Bold.  Bravo.

People v. Rivas (Cal. Ct. App. - March 29, 2013)

It's refreshing to see an opinion like this.  Which affirms a conviction on harmless error grounds but does so cautiously and with evident concern.

You see the former every day.  Not so the latter.

P.S. - I also appreciated the long discussion about the differences between the habits of the Nortenos and the Surenos.  I already knew the usual; 3 vs. 4, red vs. blue, etc.  But there was some extra stuff in there as well.  Plus, I smiled when I read this:  "Sureño gangs associated with sports teams that use a blue motif, such as the Dallas Cowboys. In addition, Sureño gang members often wore black Oakland Raiders football jerseys, but the meaning of doing so was unclear because Norteño members were also known to wear that apparel."  Since I'm no expert, but even I can tell you the meaning:  All criminals love the Raiders.