U.S. v. Maloney (9th Cir. - May 30, 2013)

My sense is that I wasn't the only one who thought (as I said here) that the dissent had the better of the argument in this one.

The Ninth Circuit just took the case en banc.

It's largely a fact-specific case.  But it's still wrong.  Sufficiently so that taking it en banc seems right.

We'll see what the en banc panel looks like.  But I'd predict a reversal regardless.

In Re Boyette (Cal. Supreme Ct. - May 30, 2013)

It's a death penalty case, and they're assembling an impartial jury.  They ask the jurors various questions on a written questionnaire.  Here's one of the questions:

“25.  HAVE YOU, A CLOSE FRIEND, OR RELATIVE EVER BEEN ACCUSED OF A CRIME, EVEN IF THE CASE DID NOT COME TO COURT?”

Seems pretty straightforward.  Not much ambiguity there.

The eventual foreperson, Pervies Ary, answers this straightforward question in a straightforward way:  "No."

The truth, however, couldn't be more different.  Here are the actual facts, taken from the California Supreme Court's majority opinion.

Let's take Ary's own criminal history first.  In fact, Ary:

"(1) was charged in 1964 with two counts of robbery and grand theft, and was convicted that same year of felony grand theft [and served six months in jail]; (2) was charged in 1971 with seven counts of robbery, but the charges were dismissed for insufficient evidence; (3) pleaded guilty to driving under the influence of alcohol (DUI), a misdemeanor, in 1982 and was placed on probation; and (4) had his probation revoked in 1982 and was reinstated to probation that same year. Ary himself declares he 'was arrested in . . . 1963 and spent some time in jail.'"

Ary's explanation for his straightforward "No" answer notwithstanding this lengthy criminal history?  "I misunderstood the question."  Yeah.  Right.

Remember also that the question didn't just ask about Ary himself, but also his friends and relatives.  Again, Ary's answer was a straightforward "No."  Here, by contrast, is the truth:

"Ary failed to disclose that his two sons, Pervies Lee Ary, Jr. (Pervies Jr.), and Pervies Lee Ary II (Pervies II), as well as two other relatives, had significant criminal histories. . . . Pervies Jr. (1) was charged in 1986 with four counts of transportation of narcotics, possession, and possession for sale, and pleaded guilty to all four counts in return for being sentenced to three years probation on conditions including 210 days in jail; (2) pleaded guilty the same day in a different case to possession for sale of cocaine and was sentenced to probation on conditions including a consecutive term of 150 days in jail; (3) pleaded guilty in 1987 to sale of marijuana, was sentenced to three years in custody, had the sentence suspended, and was committed to the California Rehabilitation Center in Norco due to his narcotics addiction; and (4) pleaded guilty in 1990 to driving with a suspended license, a misdemeanor.  Documents also indicate Ary's second son, Pervies II, had been charged in 1993 with misdemeanor battery and that this criminal charge had been filed the same day Ary was questioned on voir dire in petitioner's case. . . . Ary also [admits] that '[o]ne of my first cousins got a life sentence during the 1950s for killing a man.' . . . Ary testified at the hearing that he had both a nephew and a cousin who were serving sentences of life without parole for murder, and admitted he had revealed neither relative on his jury questionnaire."

Why the "No" answer?  Same excuse.

I find the foreperson's justification for these answers laughable.  It seems inconceivable to me -- totally inconceivable (and, yes, I know what that word means) -- that Ary simply "mistakenly" answered "No" notwithstanding the lengthy, eminently memorable history described above.  I'm instead of the definite conviction something else explains his answers.

Nonetheless, I understand why the majority here refuses to grant relief.  The referee at the evidentiary hearing bought Ary's excuse.  I cannot fathom making a similar finding myself.  It seems stunning.

I nonetheless understand respective roles.  I didn't see Ary testify.  I wasn't there.  The factfinder made a finding, and it's entitled to a ton of deference.  So be it.  I have deep, deep, super deep reservations about this finding.  But it is what it is.  So I see where the majority's coming from.

By contrast, the second part of the opinion, I simply don't get.

Here's the issue, and some of the underlying facts.  Taken straight from the majority opinion:

"Petitioner alleged in his habeas corpus petition that Ary had urged the other jurors to rent and watch the movie American Me (Olmos Productions, Universal Pictures 1992). The movie allegedly depicts the violence associated with life in a contemporary American prison and focuses especially on Hispanic prison gangs. Petitioner alleged Ary had argued to his fellow jurors that death was the appropriate penalty because petitioner, who was immature and tended to follow strong leaders, would simply join a Black prison gang (such as the Black Guerrilla Family) and continue his murderous ways if given a life sentence, a position that echoed the prosecutor's closing argument. Petitioner further alleged two jurors who were holding out for a life sentence watched the film and eventually changed their vote to impose the death penalty.

Ary's declaration supported petitioner's allegations. He declared: 'I told the holdout jurors that if they wanted to understand what it was like in prison, they should watch the movie American Me. That is based on a true story. Two of the jurors rented the movie and watched it over the weekend. They finally understood that Mr. Boyette could kill again in prison if he was not sentenced to death. After they watched the movie, they changed their votes to death.' . . . .

The evidence adduced at the evidentiary hearing confirmed many of the allegations in the habeas corpus petition and the supporting declarations. Although some jurors had no recollection of any discussion about watching a movie, Ary himself testified that two female jurors 'were so naive about street life' they took the position that life in prison was an adequate punishment because petitioner 'will never hurt anyone as long as he is in the penitentiary for life. [¶] I said you just don't know anything about prison life. I said you two go to
Blockbuster and get the movie 'American Me.' Sit down and look at it. It will explain penitentiary life to you, and you will see what a person can do while he is in the penitentiary.' Jurors Britton, Mann, Orgain and Perez corroborated this evidence, confirming that Ary and other jurors had urged jurors to watch the movie. Although Ary testified that his advice was directed at two 'naive' female jurors, Juror McClaren recalled that the advice to watch the movie was directed at three or four jurors who were still undecided. Juror Perez had already seen the movie American Me before being chosen as a juror and recalled that other jurors had too.

Juror McClaren admitted she watched the movie American Me during a break in jury deliberations, and Juror Rennie testified she had watched part of the movie. The referee concluded that 'Ary, along with one or more other jurors, did urge two holdout jurors to watch the movie American Me in order to learn more about the nature of a prisoner's life in prison.' Moreover, '[t]wo jurors— . . . McLaren [sic] and . . . Rennie—did watch the movie during the penalty phase deliberations.”

Pardon my French, but:  Jesus Christ!  We're desperate -- desperate -- to avoid outside influences in jury deliberations.  How can we possibly allow a death sentence to stand when it's based not on actual evidence adduced at trial, but on a Hollywood movie?!  That can't possibly be okay, right?

The majority nonetheless denies relief.

Inconceivable.

For anyone who's uncertain about whether watching the movie made a difference, I can't say anything more (or better) than what's in Justice Corrigan's dissent:

"The movie American Me stars Edward James Olmos as a young man who is incarcerated and joins a prison gang, which he leads in a violent struggle over drug turf. It is a raw, violent depiction of the American prison system, with multiple scenes of stabbing and sexual assault.

It is this movie that two undecided jurors watched during a break in deliberations, at the urging of the jury foreman and other jurors voting for the death penalty. There is no dispute that these two jurors committed misconduct by actively seeking out information not presented at trial. There is no dispute that the jury did not reach a verdict after a full day of deliberations. The next day, after these two jurors watched the film, the jury deliberated for only 30 minutes before returning a death verdict. . . .

The misconduct must be considered in context. The prosecutor argued against life without the possibility of parole because defendant could join a prison gang and kill again while incarcerated. In urging undecided Jurors McClaren and Rennie to watch American Me, Foreman Ary took up the prosecutor's theme. He
explained at the evidentiary hearing: 'The two jurors, which [were] the two young ladies, they were so naive about street life until they were so determined that he couldn't harm no one while he was in prison for the rest of his life, and we discussed this, we deliberated and discussed it . . . . We have to do something about this because it's been deliberated too long, so I asked these two young ladies, . . . but these two said he will never hurt anyone as long as he is in the penitentiary for life. [¶] I said you just don't know anything about prison life. I said you two go to Blockbuster and get the movie 'American Me.' Sit down and look at it. It will explain penitentiary life to you, and you will see what a person can do while he is in the penitentiary.” Ary told them the movie was based on a true story. . . .

The timeline of deliberations provides strong evidence of the movie's influence on these two jurors. The jury began penalty phase deliberations on Tuesday, March 23, 19932 at 2:51 p.m. and adjourned nine minutes later at 3:00 p.m. The jury deliberated all day on Wednesday. They resumed deliberations on Thursday at 9:40 a.m. and returned with a death verdict at 10:10 a.m., 30 minutes later.

After a full day of deliberations, McClaren and Rennie remained undecided. That evening, both jurors independently obtained the movie and watched at least part of it. The next day, with little or no discussion of the film, the jury rendered a death verdict within 30 minutes. Given the brevity of deliberations on Thursday, the most reasonable inference is that the movie influenced McClaren and Rennie to vote for death. Indeed, McClaren testified that she was not a 'holdout' juror but 'simply needed more information' before rendering a verdict. The only 'information' she obtained between deliberations on Wednesday and Thursday was the movie. . . .

McClaren testified that she voted for death after seeing the movie. Britton and Perez confirmed that the vote had been 10 to two in favor of the death penalty before McClaren and Rennie saw the film and the vote was unanimous for death thereafter."

Simply put, the movie made a difference.  This admittedly improper influence -- a story produced by Hollywood -- changed the minds of the jurors.  If that's not prejudice, I seriously don't know what is.

Even after reading the majority opinion for a second time, I just don't understand how it comes out the other way.  I couldn't disagree more.  Particularly given the tests that we (properly) apply when reviewing whether extraneous information has invaded the province of juror deliberations.

One final thing.  Both the majority and the dissent treat the two issues -- Ary's misstatements in voir dire and the influence of the movie -- as discrete events.  But, in my view, they're linked.  Remember that it was Ary who told the jurors to watch the movie.  Something that's clearly improper, and that violated the oaths that the jurors took.  Foreperson Ary was actively pushing for death.

I think that Ary's subsequent (undisputed conduct) may give some insight into why he answered the way he did in voir dire.  Insight that contrasts quite starkly with his subsequent explanation for why his answers were so starkly divergent with the truth.

We can't let people lie to get on juries.  We can't let movies make the difference between someone's life and death.

The result here disturbs me.  As does the fact that only two of the seven justices on the California Supreme Court view this case the same way I do.

Because there are a lot of cases that are close.  But, in my view, this one isn't.

Adir Int'l v. Superior Court (May 29, 2013)

Here's a case that I would have decided the other way.

Debtor loses a $90,000 judgment at trial, so creditor is entitled to execute on the judgment.  It does so, and the sheriff levies some of debtor's property.  But disbursement to the creditor isn't scheduled until later, and debtor still has plenty of time to file a notice of appeal, post a bond and thus quash the judgment lien.  Which it does.  Notifying the sheriff to boot.

At which point the sheriff isn't supposed to transfer the debtor's levied property to the creditor.  But the sheriff mistakenly does so.   Oops.

The debtor accordingly files a motion in the trial court to require the debtor to give back the ill-gotten booty (i.e., the levied funds).  The trial court denies the debtor's motion, saying that there's no statute that seems to affirmatively allow such a request, although there's no statute that precludes such relief either.  The Court of Appeal affirms, for essentially the same reason.

For me, there's such a thing as equity.  There's a principal that for every wrong there's a remedy.  That would be enough for me.  There was a wrong here; the debtor lost some property to which it's entitled and the creditor has been unjustly enriched.  We should change that.  There's no reason at all -- none -- why the creditor should be allowed to hold onto property it should never have received in the first place, particularly since its interest is fully protected by the existing appeal bond.

It matters not to me that the debtor could have potentially filed a different motion that might have gotten its property back in a different way.  It did what it was supposed to do.  It was entitled to get its property back.  That it could have done two things to have gotten the property doesn't negate the fact that the first thing that it did should have worked.

It'd be one thing if there was a statute that affirmatively barred the relief the debtor seeks.  There's not.  I think a writ ordering the creditor to do what it should -- quite frankly -- voluntarily do anyway is entirely appropriate.

Notwithstanding the contrary (though, I concede, understandable) holding of the Court of Appeal.

Stanley v. Ryan (9th Cir. - May 28, 2013)

You see?  Defendants sentenced to death in the Ninth Circuit really do die.

Mind you, the defendant here -- Milo Stanley -- was sentenced to death nearly a quarter century ago, in 1987.  But the appellate process of putting Stanley to death continued apace during this entire period.  And finally, earlier this month, the process reached its end.

Oh, Stanley wasn't put to death.  He committed suicide in his cell.

Which leaves only one final thing to do.  (Besides get rid of the body.)  Vacate any judgments that were the subject of pending appeals.  Which is what the Ninth Circuit does.

NFL v. Fireman's Fund Ins. Co. (Cal. Ct. App. - May 28, 2013)

I think the Court of Appeal is a little bit slippery in this one.  It really skimps over the central argument that the National Football League makes:  that an unincorporated association (e.g., the NFL) is deemed to be a "resident" of the state of its members not only for jurisdictional purposes, but also for purposes of other doctrines like forum non conveniens.

There's some doctrinal logic to this argument.  But the Court of Appeal essentially neither accepts nor rejects it, simply saying that the two doctrines are somewhat different (true) and hence that while a "real" California resident is entitled to a strong presumption against a forum non conveniens stay/dismissal no such "strong" presumption attaches to a "partial" resident like the NFL.

As an outcome, that seems right.  But the Court of Appeal essentially just articulates this rule ex cathedra rather than explaining why it's just.  Which is too bad.  Because I think there could be a pretty nuanced, and persuasive argument, on its behalf.

Then, when applying this rule to the case at hand, the Court of Appeal is slippery again, and only talks about the "strong presumption" (which it has previously rejected) -- as opposed to applying any presumption in favor of California on behalf of a "partial" resident like the NFL.  This seems unfounded.  I think it'd be more forthright to say that, yes, we'll go ahead and give the NFL some deference in favor of California, but here, even with such deference, New York is the right place for this litigation.  Because, in my mind, that's totally true.  But instead the Court of Appeal just articulates a mish-mash of thoughts that are only loosely (if at all) tied to the underlying (and evolving) standard.   Whcih is too bad.

The net result is, again, one I think is correct.  The NFL's insurance coverage action should take place in New York, not California.  That's where the "NFL" does most of its "work".  So when we decide whether or not the NFL's insurance policies cover the ever-increasing number of lawsuits from former players about concussions, it makes sense that the first-filed jurisdiction over New York resolve that issue.  Notwithstanding the NFL's (understandable) contrary desire for a California forum.

Dealing with fictional entities is always a little difficult.  Even when those fictional entities have a clear legal status; e.g., corporations.  (See, e.g., Citizens United). 

Dealing with entities that are not only fictional, but that may not actually even "exist" -- e.g., unincorporated associations -- is even harder.

Heyen & Bluford v. Safeway (Cal. Ct. App. - May 23 & 24, 2013)

It's not been a good couple of days if you're Safeway.

Yesterday, Safeway lost Heyen, an individual wage-and-hour case that Safeway lost at trial to the tune of around $24,000 and in which the Court of Appeal took little time in squarely rejecting Safeway's appeal (filed by their counsel at Littler Mendelson).  So that's bad precedent for Safeway, lost money on their own attorney's, and a cost award -- likely including the other side's attorney fees -- against them.   Not a good day.  Would have been better not to appeal.

Then, this morning, Safeway wakes up to discover that the Court of Appeal has published Bluford.  This one is another wage-and-hour case, but this one's a putative class action involving Safeway drivers.  This time, however, Safeway won below, getting the class decertified, and so is the respondent in the Court of Appeal.

No matter.  Same result.  Safeway loses.  The Court of Appeal reverses, and orders the trial court to certify the class.

So if you're an officer, director, shareholder, or attorney for Safeway, the last couple of days did not come out as you'd have hoped.

But let's look on it from the bright side.  If you're an employee with Safeway -- especially a manager or a driver -- it's probably been a good 24-hour period.  Some victories stayed victories, and some defeats became victories as well.

I'll look at it that way.  Staying positive as the week ends.

Rybicki v. Carlson (Cal. Ct. App. - May 22, 2013)

My interest in cases like this one has definitely increased during the past month or so.

The Court of Appeal gets it right.  Moreover, it does so concisely, in an opinion that takes less than eight double-spaced pages.

Here's my summary of the opinion:  Motor Vehicle 1, Bicylist 0.

I sympathize with you, Mr. Rybicki.  God knows, I sympathize with you.  You were hit by a wrong-way driver while riding your bicycle.  The driver was potentially drunk, and was under 21.  You were seriously injured.  To say that I feel for you is an understatement.

But while you can sue the driver, you can't sue the passengers.  Even if they too were under 21, even if they too were drinking, and even if they helped provide the driver with alcohol.

I know it's a harsh rule.  But under the common law -- which was quickly codified by the Legislature in Section 1714 of the Civil Code once the California Supreme Court started to backtrack on it -- in a case like this one, you can't sue someone for illegally giving someone else alcohol.  The consumption of the alcohol by the driver and subsequent driving constitutes a superceding intervening cause, so no liability.

Sorry about that.

P.S. - Today was the first day I've been able to shower in over week and a half.  Trust me, Mr. Rybicki:  You're be hard-pressed to find someone a more sympathetic to your cause than I am.  But sometimes the law is clear.  Right or wrong.  This is one of those times.

People v. Timothy N. (Cal. Ct. App. - May 22, 2013)

When you are a repeat player in the justice system, you've got to do better than this.

If you are the California Attorney General, there are so many better vehicles for getting your point across rather than taking this particular case up in appeal.  Instead, here, the A.G. decides to fight every single battle, and in doing so, loses the war.

Sometimes the best strategic decisions involve cases and/or appeals that you elect not to bring.  This should have Ben one of theses cases.

People v. Pizarro (Cal. Ct. App. - May 21, 2013)

I am exhausted.

Not over the stuff you might think.  Though that might assuredly play a part.

Rather, I am spent -- spent, I tell you -- after reading this opinion by Justice Kane.

There is some interesting stuff in the opinion about juror misconduct.  Which is what ultimately gets the defendant, Michael Pizarro, a new trial in the first-degree muder of his 13-year old half-sister.  A trial that will be required notwithstanding the fact that the murder was nearly a quarter-century ago and Pizarro has already been unanimously convicted for this offense twice.

No one is happy out this result.  Not me.  Not Justice Kane.  No one.

But that's what happens when a juror goes on the Internet and reads the published decision by the Court of Appeal in the case that's the exact one the juror's deciding on remand.

Cannot do that.  Improper.  Likely criminal.  Reversible error.

So for any jurors who may be reading the California Appellate Report while you are still a juror:  Stop now.  Turn off the computer.  You can come back and read all you want after you are discharged from service.  Do everyone -- everyone -- that favor.

But the majority of Justice Kane's opinion actually concerns a different issue.  DNA evidence.  That is the part that has literally exhausted me.

It is not just that the topic is complicated.  As well as, commendably, addressed at intellectual depth in the opinion.  All that's tiring, for sure.

It's also pure volume.  The opinion spans over 115 pages.  In, again, incredible depth.

Yikes.  You just don't see that usually in the Court of Appeal.

For me, it felt less like reading an opinion than reading a dissertation.  A science dissertation, no less.

I learned a lot.  A ton.  But I'm exhausted.  Spent.  Done.

So go ahead and read this one if you want to learn a lot about DNA evidence.  Which is, admiringly, a fascinating as well as critical field.

But I warn you ahead of time.  It's going to take you forever.  As it did me.

And, at the end, you're going to need a nap.

Enjoy.

People v. Lopez (Cal. Ct. App. - May 20, 2013)

I have a couple of reactions to the underlying facts of this case.  So I thought others might be interested in those facts as well:

"Respondent [Sergio Jose Lopez], a practicing attorney, was Sirena Zavala's boyfriend. They lived in Zavala's house. On September 16, 2011, Deputy Aaron Scheller interviewed Sirena Zavala. Zavala stated as follows: During an argument with respondent the previous day, she asked him to move out. Respondent grabbed Zavala by the throat and started choking her. Zavala said that she would stay with respondent, and he 'let go.' Zavala walked into the bedroom and sat on the bed. She was crying. Respondent asked her 'if they were okay.' Zavala responded that 'they were not okay.' Respondent 'pulled her head out of her elbows where she was crying and brandished a silver handgun revolver in his right hand.' Respondent said, 'I told you if you were ever going to leave me, I will shoot you and shoot myself.' Respondent inserted a single bullet into the revolver's cylinder. He cocked the revolver and put the muzzle against his temple. Zavala pleaded with him not to fire the weapon. Respondent repeatedly pointed the revolver at her and then at himself. When respondent pointed the gun at Zavala, it was only inches from her head. Respondent fired the revolver. The bullet struck the bed's headboard and mattress. Zavala said that she was not going to leave respondent, and he put the weapon down. Zavala walked out of the bedroom and told respondent that she was going to take a break. Respondent replied, '[Y]ou're not going anywhere.' Zavala felt 'an object hit her in the buttocks.' Respondent had thrown a candle at her. Respondent grabbed her by the shoulders, pulled her back into the bedroom, and threw her onto the bed. For several minutes, he hit her with his fists in the face, body, arms, and legs. Respondent stopped hitting her when she said that her children were going to be home soon from school.

Respondent's Porsche was parked at Zavala's house. Deputy Scheller searched the vehicle and found a revolver that was registered to respondent. The revolver's cylinder contained one expended cartridge and no live rounds. Under Zavala's bed, Deputy Scheller found a bullet fragment. There was a bullet hole in a bed sheet. Zavala gave Scheller a bullet fragment that she had found underneath the hole in the sheet. Scheller saw 'an impact mark on the wood of the headboard.'"

The rest of the facts are about what you'd expect.  Criminal charges for assault with a firearm, injury on a cohabitant, negligent discharge of a firearm, etc.  Restraining order issued that bars Lopez from further assaulting or contacting the victim, etc.  The usual stuff.

But here are some things that might surprise you.  Or at least that surprised me:

(1)  Remember that Lopez is an attorney.  Surely he was disbarred -- or at least suspended -- for all of this, right?  Especially since he'd only been admitted to the California Bar around three years before these offenses.  We care seriously about domestic violence, about firearm offenses, about an attorney who allegedly lacks impulse control, etc.  No way a guy like this gets to keep his license, right?

Wrong.  Lopez is still an active, practicing member of the California Bar.  Specializing in, ironically, criminal law and family law.

(2)  You'd think that Lopez's criminal prosecution would be a slam dunk.  They find the gun and the bullet hole.  Good witness testimony.  To be sure, it's a classic he-said/she said dispute, but that's lots of domestic violence cases.  Seemed to me like there's no reason the state couldn't win this one.

I was wrong again.  The jury outright acquits Lopez on the assault, false imprisonment and negligent discharge of a firearm counts.  It hung on the inflicting corporal injury on a cohabitant count, which the prosecutor then dismissed.  Those are the biggie counts, and are the one most relevant to the central facts.

The jury finds Lopez guilty essentially only on ancillary counts:  one count of attempting to dissuade a witness (the victim) from testifying, and one count of violating the restraining order.  The latter is only a misdemeanor, and as to the former, the trial court grants a new trial, holding that this verdict was against the weight of the evidence.  "Thirteenth juror" theory stuff.

Which means that Lopez essentially just gets time served and -- after the Court of Appeal's (correct) ruling that the new trial order on the dissuasion count isn't a double jeopardy bar, a potential second trial on that one.

The guy could have done much, much worse.  Indeed, I'm at a loss to explain why the jury came out the way it did.  The Court of Appeal's opinion includes a lot about the facts on the prosecution's side, but nothing about Lopez's defense.  So hard to assess why the case came out the way it did.

Point (2) may be linked to Point (1).  Maybe Lopez is still a lawyer because he got off of the most serious counts.  Though now that his conviction is (essentially) final on the restraining order violation I wouldn't bet on him remaining an attorney for long.  Even if he beats the dissuading witness count on retrial (or has the trial judge dismiss it).

(3)  Third surprise:  I didn't know that just hanging out with a potential witness in a hotel, hoping that they thereby avoid a subpoena, was a felony.  My baseline here was always that people were free to avoid subpoenas as long as they did so legally.  No requirement that I answer the door, for example, if I fear it's a process server.

I think that's the case, anyway.  But there's apparently a distinction people who "help" someone not answer the door; that's a crime.  Even if there are no threats and the third party truly is only advancing the internal desires of the would-be witness.  I knew that professional responsibility rules for lawyers sometimes draw a related line, but had no idea that the criminal law did something similar.  Good to know, and at some later point, I might even think about this issue in more detail.  (For now, I'm just happy to be introduced to the concept.  And I agree with the Court of Appeal that if that is indeed the law, the evidence here was not legally insufficient, and that a reasonable jury could find that Lopez was not just "hanging out in a hotel room with his girlfriend" but was instead helping her avoid a subpoena so she didn't have to testify against him at his preliminary hearing.)

(4)  Final point.  If you ever doubt that there's such a thing as BWS (Battered Women's Syndrome), reread this case.  Look at what the victim does on Lopez's behalf even after she's "free" and able to escape his psychological clutches.  That someone doesn't leave an alleged batterer doesn't mean that there wasn't battery.  It may not make rational sense, but people aren't uniformly rational animals.

Case in point.

In Re Martin (San Diego - May 13, 2013)

Regular readers may notice that I have been very light on posts this week.  In fact, I must forthrightly confess that I have probably read fewer pages of the Federal and California Appellate reporters this week than any week during the past decade.  A period that includes a plethora of vacations, crushing workloads at the office, etc.  Because I enjoy learning and thinking about the law and legal problems, I almost always find some spare time to do so, edven when things are busy.

This week has been an exception.  I have done virtually nothing on the law side since I got on my bicycle at the end of work on Monday to return home.

Since I generally post about legal matters, I won't bore you with the factual details of my week.  I also don't have to.  All I have to do instead is to refer you to this post, which I wrote almost exactly five weeks ago.

The prescience of that post is almost freakily scary.  Similarly eerie is how the facts of Spriesterbach describe nearly perfectly -- stunningly so -- how my Monday the 13th, as well as the rest of the week (and counting), turned out.

With one exception.  In my post, in addition to discussing legal doctrine, I took Spriesterbach to task -- rightly so, I think -- for, immediately after the accident, "saying 'You fucking bitch.  I am going to sue you.'  He picked up his bicycle and threw it, and picked it up again and threw it against a tree.  He pulled earplug from his ears and called the police."

By contrast, yours truly -- and I remember the events as vividly as anything in my memory -- could only manage to repeatedly moan a single sentence fragment, over and over.   "Oh my God.  Oh my God.  Oh my God.  Oh my God.  Oh my God.  Oh my God.  Oh my God."

I've been posting from my "temporary office" since then, and likely for a while longer.  I will pick up the pace of my "recreational reading" -- and publishing my reactions -- as I'm increasingly able.

In the meantime, I want to emphasize again what I said five weeks ago.

Let's be especially careful out there.

It matters even more than I previously realized.

P.S. - Today's Bike to Work Day.  Coincidental timeliness strikes yet again.

Greene v. Bank of America (Cal. Ct. App. - May 16, 2013)

Not too long ago, I litigated an appeal in which the attorney for the defendant (Jan Chilton) was the same one as in this appeal. l.  I found Him to be reasonable, sophisticated and smart.

I do not think that these qualities in an opposing counsel uniformly exist.  Far from it.

I ended up (partially) winning my appeal.  Mr. Chilton loses this one.

But I mention the identity and qualities of the respondent's counsel because it perfectly explains, in my view,what happens here.

This appeal is a no-brainier.  Appellant is totally right.  The trial court clearly got this one wrong.  Justice Armstrong's opinion persuasively and concisely explains why appellant's arguments are both basic and entirely right, and why respondent's are wrong.  It is a totally simple case.

But it is nonetheless a mark of a good lawyer that s/he is able to make totally erroneous arguments look at least plausible and/or facially appealing.  That's what Mr. Chilton does here.

Sometimes ou lose and there's nothing to be ashamed of.  Your side was wrong.  Nothing you could do about that but put the best possible, albeit losing, argument forward.

And be proud even in defeat.

Slater v. Clarke (9th Cir. - Nov. 19, 2012)

I'm not sure how the Massachusetts officials who (allegedly) decided not to extradite Daniel Tavares could possibly have made that decision rationally.  Nor could the survivors of the two people who died as a result.

But I'm also not sure how Judge Leighton, from the Western District of Washington, could deny the defendant's immunity motion.  State officials are absolutely immune for these sorts of executive, prosecutorial decisions.  That's clearly the rule.

Fortunately, Judge Christen isn't as confused as the above-mentioned officials.  Reversed.

County of Tulare v. Nunes (Cal. Ct. App. - April 29, 2013)

Doesn't the Court of Appeal find it somewhat ironic that the County of Tulare adopted -- and the Court of Appeal affirmed -- an ordinance that bars the cultivation of medical marijuana in places zoned for agriculture?

Gonzalez v. F.E.V. (9th Cir. - March 23, 2013)

There's a dissent in this Section 1983 police excessive force case.  The panel consists of Judges O'Scannlain, Trott and Clifton.  One need not speculate as to the identity of the dissenter.

It's a fascinating case.  Judge Clifton's dissent raises an interesting point that I should have -- but haven't fully -- considered previously:  that in many police excessive force cases (as well as others), the sole surviving witnesses are the defendants themselves.  Accordingly, on a summary judgment motion, a core issue involves the degree of reasonable inferences necessary before a jury reasonably could conclude that the officers' story lacked credibility.  That's a darn good point, and it's one that I didn't sufficiently appreciate until I was reminded of it by Judge Clifton's dissent.

One can summarize Judge Clifton's dissent by saying that there was sufficient evidence here for a reasonable jury to find that the police officer deliberately shot the unarmed decedent in the head at point-blank range when the vehicle the decedent was driving was travelling four miles an hour.  The majority says that, as a matter of law, that's not excessive force.

Read it and see if you agree.

People v. Fisher (Cal. Ct. App. - May 10, 2013)

It may well be -- as the Court of Appeal holds -- that a criminal court doesn't have the statutory power to enter a restraining order in an extortion case, unlike some other criminal cases (e.g., stalking, domestic violence, etc.).

However, if that's indeed the case, the law should be changed.

Defendant tries to extort a job from someone by threatening him.  Defendant gets convicted.   After trial, defendant sends the victim a note that says he was "looking forward to seeing [the victim] at the trial, but no matter; other opportunities will present themselves.  Have no doubt; I will be a regular fixture at the races, in the future."

I think it should be just fine in a case like that for the court to include as part of its sentence that the defendant have no further contact with the victim.  Ever.

The Legislature should get on it.

Duchrow v. Forrest (Cal. Ct. App. - April 30, 2013)

I'm looking for someone to root for here.

Lawyer A represents Lawyer B in an action against Lawyer B's employer.  Lawyer A withdraws at the beginning of trial, and the case is dismissed.

Lawyer A then sues Lawyer B for alleged unpaid fees and costs.  Lawyer A's complaint seeks $44,000, but on the fourth day of a five-day trial, seeks to up that amount ("conform to proof") by several hundred thousand dollars, relying on a provision that he knew about for years.  The trial court allows the amendment, and the jury gives him a six-figure award, but the Court of Appeal reverses.

Lawyer B, by the way, represented herself at trial.  He's a transactional lawyer.  She's also been declared a vexatious litigant.

How Lawyer B -- Ernestine Forrest -- gets to keep a spotless public disciplinary record despite having been declared a vexatious litigant I'll never know.

I'm not in favor of Lawyer B.  But I'm definitely not in favor of Lawyer A either.

If only we could just give the six-figure back pay award that Lawyer A received to the deserving poor rather than ration it out between these two . . . .

In Re David & Sharon Welsh (9th Cir. - March 25, 2013)

I certainly do not have a firm understanding about how bankruptcy works.  For what it's worth -- which is not much -- it seems to me that this Ninth Circuit opinion, which affirms a (split) decision of the Bankruptcy Appellate Panel, seems correct on the merits.

But I do wonder about the equities of the thing.

David and Sharon Welsh live in Montana.  They have a house worth $400,000 -- which buys you a lot in Missoula (check out this 5 bedroom, 4 bath home with 4200+ square feet and two acres of land) -- and lots of equity in the home.  They own three cars, an Airstream trailer, and two ATVs.  They also earn nearly $100,000 every year, plus many additional thousands of dollars in Social Security benefits.  In short, for Montana, they're rich.

But, like many of us, they have debts.  They cosigned their daughter's student loan and have a $50,000 line of credit with Bank of America.  They don't feel like paying these debts.  So they file for bankruptcy and propose a plan that has them continuing to pay off their secured debts (the house, cars, trailer, ATVs, etc.) but pay only $15,000 of their $180,000 unsecured debts.  Despite the fact that their disposable income, even as calculated pursuant to the bankruptcy rules (e.g., excluding Social Security income), would allow them to make far more substantial payments.

The Ninth Circuit says that the debtors' plan was nonetheless required to be affirmed.  Which indeed seems to be the case.

I'm all for giving people a fresh(ish) start.  Though case like this one, while perhaps not the most egregious, might not give the bankruptcy rules a great name.

Goldstein v. City of Long Beach (9th Cir. - May 8, 2013)

Ninth Circuit judges certainly know their way around a dictionary.

Thomas Goldstein spent 24 years in prison based upon the perjured testimony of an unreliable jailhouse informant, Edward Fink.

Judge Reinhardt describes the informant as "the eponymous Edward Fink."  Judge Thomas delves even further into the dictionary, calling him "the aptronymic Edward Fink."

Eponymous.  Aptronymic.  Informant = Fink.  Get it?

It's been a big year already for the word "eponymous."  In the Ninth Circuit alone, Judge Wardlaw used it last month in a lawsuit involving Donald Trump and Trump University, and Judge Berzon used this same term in a different opinion the previous month.  So Judge Reinhardt makes it three months in a row. 

I'm looking forward to seeing what June brings.  Maybe a reference to sprinter Usain Bolt?  Sexting Congressman Andrew Weiner?  The possibilities are endless.

But Judge Thomas ups the ante.  As far as I can tell, "aptronym" has never been used in any published or unpublished federal or state court decision.  Ever. 

And it works.

Let's keep 'em coming.

Elija W. v. Superior Court (Cal. Ct. App. - May 8, 2013)

I had a lot to say about this opinion when it first came out in February.  Suffice it to say that I didn't especially like it, and found it -- at a minimum -- insufficiently reasoned.

Today the Court of Appeal amended the opinion after rehearing.  It reaches the same conclusion.  But it's substatively lots better.  With emphasis on the penultimate word of that sentence.

There are still lingering thoughts in my mind as to whether this is the right result.  But the opinion at least makes more sense, and concrete reasoning, than before.  So that's great.  Whether psychologists are cateogrically mandatory sex abuse reporters -- or whether there's an exception (as the Court of Appeal holds) for psychologists appointed as part of a "defense team" -- is still a tough issue.  But here's one view.  One that's now articulated reasonably well, and in a manner that, unlike the initial opinion, strikes me as a reasonable approach.

So I'm glad to see the changes.  I think the Court of Appeal's decision on rehearing is both a lot more coherent as well as more intellectually defensible.  Even though it reaches the same result.

I will say that it struck me as unusual to see the change in authors.  The panel remains the same.  But whereas Justice Woods wrote the original opinion, and remains on the panel, Justice Perluss authors the opinion on rehearing.  Maybe Justice Woods thought the original opinion was just fine.  Maybe Justice Perluss decided to do a solid and take on the editing task himself.  Whatever the reason, I'm glad the opinion got changed.

But usually it's the original author that either makes the changes (or doesn't).  Rare to see what went on here.

The Los Canos Co. v. Kramer (Cal. Ct. App. - May 7, 2013)

Plaintiff in this case has a point.  One with which I agree.  Court reporters charge way too much for copies of transcripts.  So when they say the fees are unreasonable -- e.g., $16,000 for simply sending an already-existing uncertified electronic copy of a transcript (for which the reporter has already been fully paid by the noticing party) -- I couldn't agree more.  Plaintiff's proposal, which is around $35 or so rather than $16,000 -- seems about right to me.  That's reasonable.

The Court of Appeal nonetheless also seems right in affirming the dismissal of plaintiff's putative class action lawsuit.  Trial courts are expressly allowed by statute to limit how much court reporters can charge a nonnoticing party for a transcript.  That's effectively the exclusive means of limiting the court reporter's charges to "reasonable" amounts.  So when the plaintiff didn't file a statutory motion before the rendering trial court, that's the end of the matter.  Case dismissed.

I can imagine some cases in which recourse to the statutory procedure might be difficult.  Previously terminated actions, for example, come to mind.  But there's no reason to believe there was a problem here.  So the statutory motion is exclusive.

Makes sense.  And, I might add, worth filing.

Because two dollars a page to copy a transcript that's alerady been created (and paid for) is absurd.

People v. Williams (Cal. Supreme Ct. - May 6, 2013)

It seems so easy at first.  Scam someone in a drug deal.  Buy some kilos of cocaine with bundles of "cash" wrapped in plastic that are actually ripped up phone books in the shape of bills.

Yeah, in theory, that works.  A theory that sounds even more attractive when you've been smoking a ton of weed when you come up with the plan.

But one of the many deficiencies of the plan -- and by no means the biggest, I might add -- is that one of the guns you bring with you to the scam might accidentally go off and shoot someone.  At which point you may feel compelled to deliberately kill the remaining witness, as you're already guilty of felony murder.  All of the sudden you find yourself convicted of two counts of first-degree murder and sentenced to death, and although the prosecutor strikes the first five African-American women in the jury box, the California Supreme Court affirms.  Sure, you've still got federal habeas.  Good luck with that.  Not exactly what you'd hoped for when you had the bright idea to acquire some cocaine with ripped up phone books.

Working at McDonald's and the like may not be fun, and you'll definitely not get rich quickly (if at all).  But at least you won't be sentenced to death.  (Or, hopefully, kill anyone.)

City of Riverside v. Inland Empire Patients Health and Wellness Center (Cal. Supreme Ct. - May 6, 2013)

I kept waiting for the other shoe to drop in this one.  It never came.

The California Supreme Court holds that Riverside -- and any other municipal entity -- can totally ban the sale of medical marijuana notwithstanding the initiative (and subsequent statute) that allows medicinal use.  So it's okay for you to use marijuana for your cancer, terminal illness, etc.  But good luck actually getting some.  Every municipality can prohibit such conduct as a public nuisance.  Such ordinances aren't preempted by the state law.

The decision itself was not entirely surprising.  Neither the Court of Appeal nor the California Supreme Court have been particularly favorable when it comes to medical marijuana.  They've taken a very limited approach, and this morning's opinion is fully consistent with this outlook.  It's also true that advocates of medical marijuana have sometimes understood the relevant statutes more broadly than they in fact are.  Possession and sale of marijuana remains a crime, albeit a federal (rather than state) one.  Moreover, states possess traditional police powers to extensively regulate -- viz zoning and other regulations -- even entirely legal and/or constitutionally protected conduct; e.g., housing, adult bookstores, etc.  All this, plus a strong presumption against preemption, makes today's opinion not a complete shocker.

But as I read the opinion, I nonetheless kept waiting for the dissent.  Something that never came.  The opinion was unanimous.

That, by contrast, was surprising.  At least to me.  Notwithstanding the fact that I'm fully aware that the justices are -- beneficially, in my view -- generally a get along, go along group.

I agree there's no express ("conflict") preemption.  But the case for implied preemption is strong.  The California Supreme Court makes much of the fact that state law doesn't "positively" allow the sale of medical marijuana, but instead merely provides an exemption from certain criminal laws.  But as the Compassionate Use Act itself expressly makes clear, the intent of the statute was to advance -- indeed, "to ensure" -- the ability of "seriously ill Californians . . . to obtain and use marijuana for medical purposes."  That's a positive right.  Or at least a positive intent.  With all due respect to the California Supreme Court, that can't successfully happen if every municipality in the state prohibits (as Riverside does) the sale of marijuana to critically ill citizens.  Nor can it happen if someone sick in Riverside is required to get in their car and drive up to whatever municipality -- say, in Humboldt -- elects to exercise legislative grace and allow medical marijuana dispensaries.

Justice Liu has a brief concurrence that tries to explain the preemption point with an analogy to the Federal Arbitration Act.  I appreciate that.  Especially since I'm in the midst of writing a law review article that makes a very related preemption point.  He's right, for example, that just because the FAA requires courts to enforce arbitration agreements, that doesn't require employers to use them.  True.

But let me draw a closer analogy.  Imagine that Riverside passed a zoning ordinance that said that no building with an office in Riverside could write, draft, enforce, or have employees sign an arbitration agreement, nor could any arbitration hearing be conducted therein.  Because, in Riverside's view, such proceedings (and clauses) are "nuisances".  Would conflict preemption exist?  Clearly, yes.  Because the local ordinance conflicts not with the text of the statute, but with the accomplishment of its purposes.  Particularly when, as with medical marijuana, lots of municipalities pass similar laws, and especially when (as here) there's little to no recourse to an out-of-state forum.

There's admittedly a structural problem underneath all of this, and one that the California Supreme Court either overlooks or deliberately fails to mention.  The Compassionate Use Act was a statute passed by initiative.  The Legislature was an obstacle, and had to be bypassed.  For that reason, the statute is not easily modified, since that would require yet another initiative.  Nor, for similar reasons, can the statute flexibly respond to attempts to circumvent it.  Those who draft the statute have to try to anticipate efforts -- like those of Riverside here -- to defeat the objectives of the Act, and if they are unsuccessful in anticipating a particular means of circumvention, that puts the objectives of the initiative at risk.  The Legislature can't (or, more accurately, won't) adopt a "quick fix" as would happen in the case of a legislatively passed statute.

In one universe, that's where the judiciary would come in.  Courts would apply implied preemption to make sure that there isn't a structural public choice failure.  They'd make sure that localities could not circumvent the purpose of a statute by engaging in conduct that there's every reason to believe would defeat the central objectives of the statute.  If you asked someone who voted for the CUA at the ballot box whether they wanted medical marijuana to be legal but whether localities should nonetheless be able to categorically prohibit its sale, I have no doubt whatsoever what the response would be.  In one universe, that would matter.

But that universe is not California.  Not even for a single justice.

So I was surprised.  Perhaps not at the ultimate result.  But definitely at the uniformity.

People v. McCoy (Cal. Ct. App. - May 3, 2013)

The facts of this opinion start on page four, and take up three double-spaced pages.

Read them.

I'm rarely at a loss for words.  This is one of those times.

U.S. v. Mancuso (9th Cir. - May 1, 2013)

Think dentistry is a profession for nerds?

Whatever else dentist Jerome Mancuso was, he was assuredly not a nerd.  As Judge Bea notes in the opinion, Dr. Mancuso "distributed a lot more than free toothbrushes to his friends and acquaintances in Billings, Montana."  In particular, Mancuso liked to distribute . . . cocaine.

It's not that Mancuso was a straight-up dealer.  Make no mistake:  He did, indeed, distribute coke.  But he didn't sell it from his office like you'd normally think.  Rather, he was principally a buyer.  Albeit a buyer who liked to party.  A lot.  Lots of witnesses testified that Mancuso had a particular catchphrase:  "I'll buy and you fly."  Mancuso bought the cocaine and shared it with his friends.  For free.  How's that for a drug distribution network?

But distributing drugs for free is still distribution.  Whether it's in a dirty alley or, as here, tooting lines with your friends in (as Judge Bea puts it) "bars, restaurants, golf courses and ski resorts."  Apparently Mancuso did not realize that it's no longer the 1980s.

So Mancuso's found guilty, and the district court has to sentence him.  Lots depends on how much cocaine Mancuso distributed.  The PSR calculates the drug amount as over 750 grams.  That's a lot.  But it divided that amount in half on the theory that Mancuso snorted half of it himself.  Which is nearly a pound of cocaine.  Which is only the amounts to which the witnesses testified at trial.  Who knows how much Mancuso snorted with others or by himself?

In short, Mancuso liked cocaine.  A lot.  Now he gets to pay the piper.  (Beyond, of course, the fact that his heart and nose are almost certainly trashed forever.)

Ultimately, both the AUSA and district court are pretty nice to Mancuso.  At least with respect to the sentencing issues.  The district court uses only a calculation of 263 grams, and then it downwardly departs to result in a sentence of less than half the lowest guideline range.  So Mancuso receives a sentence of only 16 months.

On the theory, in part, that he still has the potential to be "an outstanding doctor."  At least if he stops spending all his spare time doing lines.

The Ninth Circuit gives Mancuso a partial victory on his appeal, vacating some of his convictions and remanding for potential resentencing.  Though it also grants the government's cross-appeal regarding its attempts at forfeiture. So maybe Mancuso gets a month or two less time in jail and ends up losing the $160,000 the government seeks.

Hopefully Mancuso won't need that much money anyway.  In the future, he can put the money in the bank instead of up his nose.