Dromy v. Lukovsky (Cal. Ct. App. - Aug. 30, 2013)

This opinion resolves a straightforward question:  What are "normal business hours"?

The Court of Appeal hold that "normal business hours" include 1:00 p.m. to 4:30 p.m.

On Saturdays and Sundays.

My guess is that if I asked you what normal business hours were, you would not include Saturdays and Sundays.  And that if you were interviewing at a law firm, and asked 'em what hours they kept, and they responded "Normal business hours," you'd be pretty bummed if you found out they expected you to work from nine to five every single day of the week.

Even Skadden ain't that bad.

In this particular case, the statute allows a landlord to enter a rented condo "during normal business hours" for various purposes.  Including showing it to prospective buyers.  No biggie.

But the landlord here doesn't just want to show the place to isolated buyers.  He wants to hold open houses in the thing.  On the weekends.  All afternoon.  Nearly every other weekend.

Presumably until he either sells the thing or harasses the tenant enough for her to move out.

I understand and appreciate that open houses are usually on weekends.  But I'd have preferred to see a reciprocal understanding by the Court of Appeal (1) that it's exceptionally possible to sell a condo without an open house -- indeed, I bet a huge number (if not most) of them are sold by merely listing 'em on the MLS and giving private showings or letting the buyer's agent use the lockbox, and (2) that there's a real danger in letting landlords abuse this right as a means of driving out an "unfavorable" tenant.

The thing about the weekends is that -- unlike "normal business hours" -- you're generally in your home during this period.  Letting a landlord pop in while you're at work and (if you have them) your kids are at school is no biggie.  Letting your landlord take over your home for an entire afternoon on the weekends, which forces you to flee the place every other week, is a much bigger deal.

Imagine that you have a tenant you don't like.  She's got rent control.  She's got kids.  She requires you to actually do repairs.  Whatever.  She's a huge pest.  Here's an easy solution for you:  Put the place up for sale.  Set the price at 20% or so above market.  If you get a sale, great.  Huge profit.  That almost certainly will not happen.  But like you care.  You hold open house after open house.  Two weekends a month.  Like here.  If it takes a year, so be it.  No skin off your back.  Not like you've got to do anything.  You're not even there.

My bet's that your tenant gives up soon, and vacates the place. Victory.  At a minimum, you've taught her who's boss.  (And good luck if she tries to "prove" that you don't really want to sell the place.  Who doesn't want to make a 20% profit?)

Maybe -- maybe -- I'd let an occasional open house.  Maybe once every couple of months, or -- if you really pushed me, and showed me that it was absolutely essential -- once a month.  Though even that would end after three or four months.  At that point, you're not getting a sale that way.

But I'm heavily leaning towards saying that "normal business hours" don't include the weekends.  Unless it's for exceptionally limited intrusions.

If a faucet breaks on the weekend, and the landlord wants to come in on the weekend for an hour and fix it, fine.  If a private party wants to come in on a Saturday and look the place over for ten or fifteen minutes to see if they want to buy it, I'm generally okay with that.

But entirely taking over the place -- repeatedly -- for entire Saturday afternoons?

No thanks.

In Re Flores (9th Cir. - Aug. 29, 2013)

They've been on the Ninth Circuit together for nearly 20 years.  They've been on innumerable en banc courts together during this period.

If there's ever previously been a case when the only dissenters were Judges Kozinski and Pregerson -- an unlikely duo -- it's one I definitely don't recall.

But it happens here.

Proof that bankruptcy cases sometimes make for strange bedfellows.

People v. Dowl (Cal. Supreme Court - Aug. 29, 2013)

It's not that the California Supreme Court gets this one wrong.  It doesn't.  It's exactly right that the defendant forfeited any objection to the "expert" testimony of the police officer.  It's also right that the evidence against the defendant wasn't insufficient as a matter of law.

So why do I bother to mention the case?  Besides, of course, a desire to kiss up to the California Supreme Court?  (Because goodness knows I uniformly do that, and never say anything that might incur its ire.)  *Sarcasm Alert*

Two reasons.

First, in truth, the evidence against this guy is far less powerful than the Court makes it out to be.  Yes, it's legally sufficient.  But it's somewhat more lame that one might otherwise think.

The guy obviously had marijuana.  He admits as much.  The question is simply whether he had it for personal use -- which is permissible under the Compassionate Use Act -- or whether he instead possessed it for sale.  Since that's the offense for which he was convicted.

We've seen this defense raised in innumerable cases.  Usually brought by guys caught with like four or five pounds of pot or 300 or so marijuana plants.  Those guys pretty much seem guilty.  But they still raise (sometimes credibly) the defense.

But this guy ain't one of them.  He's playing loud music in his car, the police stop him, he tells 'em there's weed in the car and produces his CUA card, and they find a grand total of . . . two ounces of marijuana.  Not two pounds.  Two ounces.  The weight of a sixth of a can of soda.

I can guarantee you that there are plenty of people who possess two ounces of marijuana who use all of it themselves (and wouldn't even think of selling it).  Plenty.  In fact, I'd bet a fair piece of money that that's true right now for thousands of San Diego residents.  Including but not limited to, I'd guess, at least one or two of my current students.  Two ounces ain't a little.  But it ain't by any means a lot.  You could definitely go through that in a week (if you really liked the stuff) or a month.'

The thought that it's for personal possession is thus definitely plausible.  Indeed, for most people, I think it's more likely than not.  My (admittedly somewhat uneducated) guess would be that if you took all the people in California who currently possess two ounces of pot and put them into a room,  (1) that room would be the size of a football stadium, and (2) the majority -- perhaps the vast majority -- of those people possessed it for personal use, not for sale.

In short, two ounces ain't much.

But here's the additional evidence they have against Dowl.  All of it:

(1)  He also had $21 in cash with him.
(2)  He had 17.2 grams in a baggie in his pocket.
(3)  He had no bong or rolling papers with him.
(4)  He had a WD-40 can with a hidden compartment containing marijuana residue.
(5)  He had 3 grams in 10 baggies in his driver's side door, and 6.5 grams in 3 baggies in the back seat.
(6)  He had no pay-or-owe sheets with him.
(7)  He had a belt buckle that said "CA$H ONLY".
(8)  He was on probation for a prior offense of possession with intent.

Let's take those in order.

(1)  $21 in cash.  Seriously?!  That's all?  You'd think that'd be evidence that he didn't sell the stuff, since dealers generally carry more.  I've got more than that in my wallet right now.  So, I bet, do you.

(2)  17 grams in a pocket baggie.  You'd expect that from a guy who admittedly smoked pot.  That's a normal baggie.  A sixth of an ounce.  I've "heard of" guys who'd easily go through that in one sitting.  (To make clear:  I might have put quotes around that, but that's absolutely not a self-reference.)  That isn't evidence the guy is a dealer.

(3)  No bong or rolling papers.  That's because the dude's in his car.  Not surprising.  Plus, he's got a cigar "splitter" -- used for blunts -- on his keychain.  Not evidence he doesn't use.  Indeed, it's ample evidence he does.

(4)  Fake WD 40 can.  Yes, the guy clearly hid his weed.  So would you.  Even if you just used.  To hide it from the police (even if what you were doing was legal) and from would-be thieves.  Totally common.  Doesn't distinguish at all between users and dealers.

(5)  Baggies of 3 and 6.5 grams.  That's some real evidence, in my view.  Makes it legally sufficient.  But plenty of people distribute their weed; some here, some there.  Often in different baggies, and do so especially when (and if) they buy at different times.  Yes, that the baggies were "exactly" 3 grams -- a normal $5 or (rarely) $10 bag -- hurts the guy here.  But they'd be that if he bought 'em that way too.  Not just if he was selling them.

(6)  No pay-or-owe sheets with him.  The "expert" police officer said that was "very significant" and established that the guy sold for cash instead of credit.  Get real.  Users don't have pay or owe sheets either.  What'd be actual evidence is if the guy had pay-or-owe sheets.  Then he'd be a dealer.  This is a classic example of utter crap testimony.  Having pay or owe sheets proves you're a dealer.  And if you don't have 'em, then you're a dealer too.  Everyone's a dealer.  What a crock.

(7)  "CA$H ONLY" belt buckle.  The "expert" says this proves that Dowl sells weed for cash.  What it really establishes is Dowl's a Kern County redneck.  Plenty of people have stupid belt buckles.  We call them losers.  Or posers.  Or just plain pathetic.  Yes, I'm sure some dealers wear this.  They might also wear dreads and Marley t-shirts.  So do users.  You can't distinguish a dealer from a user by their attire.  It's just silly.

(8)  On probation for a prior offense.  Some evidence.  But then again, maybe he got busted then on the exact same evidence -- or even less evidence -- than that available here.  The belt buckle, the WD 40 can, the lack of a bong or pay-or-owe sheets.  Maybe that all stayed the same.  Alternatively, one might easily imagine a guy who used to sell -- or sold once -- and after getting busted, now merely uses.  That you once committed a bank robbery doesn't necessarily mean that every time you go into a bank you're planning on doing it again.

The California Supreme Court takes each one of these pieces of "evidence" incredibly seriously, and recounts each them in detail when explaining why the evidence was sufficient.  I think that the vast majority of them are utterly meaningless.  And were I the one writing the opinion, despite the fact that I would have reached the same result,  I would have expressly said so.  Because "evidence" like this -- coming from a police "expert" that explained how each of these facts purportedly proved that Dowl was a dealer -- is (1) common, and (2) a crock.

He's guilty because a jury said so, because he had lots of separate nickel bags, and because he was previously convicted.  End of story.

The rest of the stuff proves Dowl's guilt no more than the fact that he also happens to be African-American.  Which is to say, not at all.  Regardless of what an officer or a jury might think about the attire and habits of your "usual" drug dealer.

Right result.  But I'd have definitely expressed it in a different way.

My second point is much more concise.  I know I've said that wearing a "CA$H ONLY" belt buckle (available at, amongst others, LuxuryDivas.Com) isn't evidence of guilt.  But if you are, in fact, a drug dealer, please, please:  GET A CLUE.  Hold up your pants a different way.  'Cause it's just criminally stupid to advertise yourself that way.  To the police.  To jurors.  To anyone.

Come to think of it, strike all the caveats.  What I said is true whether you're a dealer, a user or just a guy on the street.  Strike the "criminal" part before "stupid" as well.  It's just incredibly lame.  There are so many other vapid, utterly pathetic belt buckles out there.  Get one of them instead.  If you feel a desperate need for a dollar sign, I'm sure that Ke$sha would be happy for some royalties instead.

But when it comes to a "CA$H ONLY" belt buckle:  Just say no.

E.R.K. v. State of Hawaii Dep't of Education (9th Cir. - Aug. 28, 2013)

From the statutory text, it seems that when Congress passed the IDEA, it wanted disabled students to be receive the same (or equivalent) education as nondisabled students.  At least until they were 21.  At that point, they're on their own.

Hawaii offers a GED program.  For lots of people.  But it decides not to follow the IDEA for 20 and 21 year old students.

I understand -- even if I might not necessarily agree -- with that decision.  Hawaii wants a cheap and easy GED program.  It doesn't want to have to prepare IEPs and deal with all the hassles (and expense) involved in trying to educate disabled people.

But the IDEA has other ideas.  If you give an educational program to 20 and 21 year olds that looks like a secondary school program -- e.g., one that essentially gives you a "high school diploma" -- you've got to give that program to disabled people as well.

The Ninth Circuit agrees.

So from Hawaii's perspective, its GED program just got more expensive.  But from the perspective of a disabled Hawaii student trying to get a GED, doing so just became a bit more feasible.

Roldan v. Callahan & Blaine (Cal. Ct. App. - Aug. 27, 2013)

This opinion is total common sense.

Plaintiffs are elderly Section 8 recipients who want to sue their attorney for allegedly pressuring them into a terrible settlement.  Including but not limited to seeking to have the court appoint a guardian ad litem for the three when they balked at taking the deal.

I'm not expressing a view on the merits.  Perhaps the lawsuit's a total crock.  The point is that the plaintiffs are hardly rich.

The case is instead about whether the plaintiffs can be compelled to arbitrate.  Defendants say they can, based on an arbitration agreement plaintiffs (allegedly) signed.  Plaintiffs, however, say that there's no way they can afford the up-front arbitration fees, and the fact that they've been granted in forma pauperis status in the trial court tends to suggest they may be right.

Defendants say, in essence, "Tough crap."  Moving to dismiss both the lawsuit and the arbitration because plaintiffs can't pay.

The trial court agrees.  The Court of Appeal reverses and remands.

Justice Rylaarsdam can't make the arbitration tribunal waive its fees.  He can't make defendants pay those fees either.

But he can give defendants a choice.  The Court of Appeal holds that if the plaintiffs are indeed indigent and can't pay the up-front costs, then defendants can either (1) pay those costs for 'em, or (2) waive their right to arbitrate.

The only alternative would be to hold that an attorney can protect its own (potential) misconduct by including an expensive arbitration provision that he knew the clients could never employ given its expense.  And that's a worse -- and untenable -- result.  Unconscionable, even.

I like the opinion.  It makes sense.  And is written in common, easily-understood language.  Justice.

Plus, it's now a holding of the Court of Appeal.  One with broad implications for other mandatory arbitration clauses as well.

Despite my appreciation of the opinion, I will add one cautionary note.  This opinion is from the California Court of Appeal.  It's not one -- in form or substance -- that the United States Supreme Court would write.  Which matters, since the Federal Arbitration Act has federalized the underlying jurisprudence.

The Supreme Court wouldn't have written this opinion, but it nonetheless currently stands as the law in California.

On this issue, at least, I greatly prefer the California Court of Appeal to the United States Supreme Court.

Oshodi v. Holder (9th Cir. - Aug. 27, 2013)

Judge Reinhardt writes an immigration decision that Judge Rawlinson doesn't like.  So the latter files an opinion that "distinguishes" the former.

The distinction isn't solid, so even outsiders like me say that Judge Rawlinson's opinion needs to be taken en banc.  Regardless of which of the opinions is correct on the merits.  A majority of judges on the Ninth Circuit agree.

This morning we learn who prevails.

It's Judge Reinhardt.  8 to 3.

Both Reinhardt and Rawlinson get picked for the en banc panel, so you know how they come out.  Judge Paez authors the majority opinion.  Joined by some largely predictable votes, including Judge Reinhardt, but also by some much less predictable votes (e.g., Milan Smith).

Judge Kozinski authors the dissent.  Joined by Judges Rawlinson and Bybee.

It's a relatively good draw for the immigration petitioner.  Ends up not even being all that close.

U.S. v. Hilger (9th Cir. - Aug. 26, 2013)

I've always thought that the Opper rule was something of an odd duck.  That principle basically says that you can't convict someone solely on the basis of an uncorroborated confession.

I get the reason behind it. We don't want people thrown in prison for crimes that they didn't actually commit.

But the principle always seemed to me somewhat overprotective.  What are really the odds that someone confesses to a crime that didn't even happen?  Seriously?

My reaction in this regard probably isn't unique.  I've read a handful of Opper cases in the past.  Pretty much every one of them holds that the kind of "corroboration" that you need is really minimal.  As long as we can point to something that even hints that there was a crime and that the defendant was involved -- e.g., that the defendant was somewhere in the same area code within a week or so -- we're more than happy to throw away the key.

I've never been too bummed about that.  Despite the fact that I know that false confessions undeniably exist, my sentiment is still to not worry too much about having much "proof" of the crime apart from some low level indication that, yes, a crime in fact transpired and it's at least possible that the defendant did it.

Given those foundational predicates, I wasn't surprised either at how this case came out or my initial reaction to it.  The question is whether the Opper rule requiring corroboration applies to parole revocations; or, more accurately, in federal courts, to revocation of supervised release.  State courts have uniformly said it doesn't.  The Ninth Circuit goes the same way.

Yes, the offender gets thrown into prison in both cases.  But there are a variety of differences between parole revocations and actually convicting someone in the first instance.  Not the least of which being that parole revocations only require proof by a preponderance of the evidence (rather than reasonable doubt), and also allow a boatload of otherwise inadmissible evidence.  Parole and supervised release are viewed as a "privilege," so we're willing to be more "flexible" with these procedures.  So it's not surprising that Judge McKeown holds that, indeed, the Opper rule is inapplicable.

This again comports with my intuition.

Even more so, I might add, once I read the facts.  The defendant here is a sex criminal (kiddie porn) and confesses to his probation officer that he violated several conditions of his supervised release, including but not limited to having impermissible -- as well as creepy -- interactions with children.  He gives lots of really scary details about how he approached the relevant kids, where they were, what they were wearing, what they did, etc.

Totally credible.  Lock the guy up.  What are the odds he's just making this stuff up and that we're throwing him back in jail for something he didn't do?  Pretty much nil.

My gut reaction is, again, that there's no reason for this guy to lie, and that his theory that he said all of this detailed stuff "just to get his probation officer off his back" doesn't make any sense.  Judge McKeown has the same reaction, I think, holding that the level of detail was so specific that it more than justified putting the guy back in prison.

I couldn't have been some sympathetic.

Though let me tell you a story.  One that -- coincidentally -- I was telling my wife just last evening.

After I graduated from Dartmouth, while I was at law school in Boston (just a short drive away), I decided to go back and take some additional classes.  I'm not entirely sure why.  Part of me, perhaps, thought that I hadn't gotten all that I could out of college, and wanted to remedy that situation.  Regardless, through some procedure I can't currently recall, Dartmouth let me enroll in some classes -- and happily cashed my check -- and off I went.  The plan being to "do it right" this time and really engage in the classroom.

Except, not surprisingly, I got busy.  With law school.  With life.  My enthusiasm for "doing it right" quickly waned.  In the end, I treated the additional classes just as I had treated classes before I had graduated.  I attended few -- if any -- classes, took the exam, and was done.

I remember being exceptionally frustrated with myself for my failure to live up to my internal goals.  To have had ambition to do the right thing and to have so readily abandoned my ideals.  That frustration increased to a fever pitch when I got back my grades in the relevant classes.  Terrible.  The worst I've ever received.  At any level.  Sufficiently terrible that I'm embarrassed -- to this day -- to reveal them.  But I can promise you I have a distinct, and incredibly vivid, recollection of opening up my grade report in the mail and looking at the grades.  As well as how I felt as a result.  I can picture it like it was yesterday.

I can picture even more vividly how I felt when I got my monthly statement from the bank and, after getting my grades, viewed the cancelled check that I paid for that quarter's tuition.  Even more miserable.  I could tell you exactly -- virtually to the dollar -- how much the check was for.  No small sum, especially given my financial circumstances at the time.  I remember my handwriting on the check, which was blue, and how I wrote "Dartmouth College" in big cursive letters on the payee line.  The embarrassment.  The internal shame.  When I recall those events, even twenty-some years later, I still shudder.

All of this is incredibly vivid.

There's only one more thing I'll add to this tale of internal woe and misery.

I have no idea if it's true.  Literally.  No idea.

It's very possible that the story I've recounted is true.  It's etched in my memory even more solidly than the meal I had yesterday.  (Grilled fish.)  It's vivid.  It's credible.  I remember it.

But, somewhere, there's a part of my memory that tells me that it's not true.  That this was just a dream.  A repeated one, perhaps.  But something that I confabulated.  Something that I think I did, but that I didn't in fact do.

I have no idea which of these two versions of the truth in fact recounts the story of my life.  If you asked me to bet, I would have an incredibly hard time picking which version to put my money on.  I simply couldn't tell you whether what I've just described in fact transpired.

There are a couple of other events like this in my life.  Minor ones, to be sure.  But ones that make me think that it's entirely possible for someone to make things up and entirely believe them.  The only reason I'm able to tell my personal version of this story is that there's a part of me that thinks it's fake.  Are there parts of my internal life story that are utter fiction; that I've confabulated with no recognition that they're false?  I have no idea.  Definitionally, if you make things up and actually believe them, then you believe them.  You doubt them no more than any of your other memories.  So you have no idea they're there.

The point of recounting this (perhaps overly personal and revealing) story is that I recall these events in vivid, excruciating detail.  Even if they didn't, in fact, transpire.  As a result, I'm not sure that the emphasis in Judge McKeown's opinion -- which, again, I initially shared -- on the "details" that Hilger was able to remember as proof that he actually committed these offenses is nearly as powerful as one might initially think.  It's not that we should primarily be worried that Hilger was making up the stories on the spot.  Such stories might indeed lack detail.  Our more pressing concern might instead be that Hilger might at some level believe his version of the truth.  Even if it in fact does not reflect reality.

That's especially true in a situation like this.  Everyone agrees that Hilger's an incredibly impressionable person.  Low functioning.  Moreover, he's a sex offender.  Someone who has thoughts about little kids.  Presumably including fantasies about little kids.  But who's unable (for a variety of reasons) to actualize those fantasies in real life.

Distinguishing those fantasies from reality is no small task.  Particularly when, as here, no one steps forward to confirm anything Hilger says.  He says he met a variety of little girls on a particular trail and acted in very creepy ways towards them.  Sure, there's such a trail.  But even after presumably extensive investigation, no little girl comes forward and yes, yep, that happened to me.  We simply take Hilger's word for it.  His belief, for example, that he convinced a 10-year old girl to touch his penis, and that the little girl then agreed to take off her shirt, but didn't.  Someone wearing pink shorts, sandals, and who lived in a nearly trailer park.

Someone who perhaps existed only in Hilger's mind.

Look, in the end, I have no beef with Judge McKeown's opinion.  I think it's the right result.  We are pretty lax about putting people back into prison.  Even if there might perhaps be little principled distinction between putting someone back in prison for X offense based on Y, on the one hand, and straightforwardingly putting them into prison for Y.  We do, in fact, fundamentally distinguish between the two.

So given that doctrinal backdrop, the Ninth Circuit's holding seems right.  Because Hilger might have in fact inappropriately touched a little girl.  And it doesn't detain us much that we might not be able to establish this beyond a reasonable doubt.  No matter.  Back to prison.

We may nonetheless want to be a little bit careful here.  Or at least rely less on the availability of detail as a predictor of accuracy.

Because memories can be incredibly detailed and still demonstrably untrue.  Trust me.

On my own end, I think I can verify whether my particular memory is a confabulation.  There's a chest full of old college memorabilia in my bedroom closet.  Including my grade reports.  I think that if I in fact received a grade from particular post-college classes, I would have kept it.  So it'd be in there.

I thought about looking in there before typing this post.  But to be totally honest, I'm a little nervous about looking in there.  In part for fear that I'll find out that, in fact, it's true.

I kid you not when I say that's an incredibly real possibility.  I think there's a darn good chance there's a grade report -- and/or a cancelled check -- in there.  I have such a vivid memory of them, and had (and have) such a strong reaction, I can't imagine I'd have thrown them out.

But it's also distinctly possible that they're not there.  Because they never existed.

Memories are weird things.  Detailed or not.

People v. Estes (Cal. App. Div. - Aug. 23, 2013)

I generally like the published opinions of the Appellate Division of the Superior Court.  Because there are so few of them, the ones that get selected to be published are often really good.  Plus they often involve lower-level offenses that are more likely to confront "regular" citizens in their day-to-day lives (e.g., traffic tickets, low-level misdemeanors, etc.).  When Superior Court judges step on the stage and publish their opinions, I'm generally psyched to read them, and rarely find myself in disagreement.

Here's proof that that's not uniformly the rule.

It's not an opinion that makes me quake in my boots personally.  It's about the appropriate punishment for a commercial fisherman who takes way too many undersized Dungeness crabs.  State law prohibits the taking (read: killing) the baby crabs; i.e., any crab under six and one quarter inches in breadth.  We want those to be thrown back so they can grow up, get bigger, reproduce, and then we'll catch them.  Makes sense.

So if you've ever seen any of what my children call "The Crab Shows" (e.g., Deadliest Catch), you'll already know that the deckhands inspect (and, if it's close, measure) the crabs once they're caught.  They throw the little ones back and keep the big ones.

Makes sense.  Stops overfishing.  Keeps the resource sustainable.  Exactly the kind of law we should pass (and enforce).

In the first part of its opinion, the Appellate Division holds that the statute -- California Fish and Game Code Section 8278(a) -- is a regulatory offense, and hence imposes strict liability.  You don't have to prove that someone was "negligent" or "deliberately" took an undersized crab.  They took it.  That's enough.

That seems right.  The reasoning in the opinion on that point seems solid.

Then we get to Estes sentence.  The statute already allows for some "leeway".  There's no liability even if you've got a lot of undersized crabs as long as they're (1) at least 5 3/4" wide, and (2) not more than one percent of the catch.  But Estes has blown through even that.  He's got nearly half a ton of undersized crabs.  Approximately 2.2% of the catch, or over double the statutory leeway.  So he's clearly guilty.

But Estes nonetheless essentially gets a nonsentence.  After a jury convicts the guy, the trial judge imposes a suspended sentence of three years of unsupervised probation.  Basically nothing.  Plus a $1000 fine.  Less than what Estes paid his attorneys to fight the thing at trial, I'm sure.  Moreover, as the Appellate Division notes in its opinion, as a regulatory offense, a conviction's no big deal.  Didn't harm Estes' reputation.  He's still out there fishing away.

But the trial judge also imposes one more consequence.  Forfeiture.  Which is expressly authorized by the statute.  Since Estes took way too many tiny crabs, the trial judge doesn't think it's right if Estes makes money on the load.  So Estes forfeits the profits for that particular trip.  Which amounts to $47,000.  Which goes to the Fish and Game Preservation Fund.

Seems reasonable, right?

Not according to the Appellate Division.  Which holds that this consequences is "grossly disproportionate" to the offense and hence violates the Eighth Amendment.

I hereby register my profound dissent.

Yes, $47,000 is a fair piece of money.  But it makes eminent sense to order forfeiture of one's ill-gotten booty in a case like this.  Yes, I admit, $47,000 represents the profits from all the crabs, not just the baby ones, which were 2.2% of the catch.  But failure to order a significant forfeiture like this would create huge incentives to violate the statute.

Just do the math.  Assume you're the captain on a crabbing boat.  Every baby crab kept increases your marginal profits.  You're already given a 1% leeway, and when you offload your crabs, (1) lots of times inspectors won't be there (or will be inattentive/subject to bribes), and (2) you've got a lot of big crabs in which to hide your tiny ones.  It's super tough for an overworked fish and game person to tell whether 1 in 50, or 1 in 100, crabs are undersized.  Especially when all they have time for is to grab dozens of crabs and measure them individually.  Plus, we know from basic statistics that you're in pretty good shape as long as the number of crabs inspected (n) is pretty low.  Even if you've got three or five percent babies, if they're at the dock and pull 100 crabs and measure 'em, you've still got a totally decent shot at getting away with it, as in a fair number of cases, they'll still only pull one baby out of the 100 even though the normal distribution is three or five.

So you're looking good -- real good -- at getting away with the crime.  And it's profitable.  Remember that every extra crab is extra profit.  The load that Estes got caught with here (even minus the babies) was sold for over $75,000.  So if you can pile on another five percent or so, you're looking at an extra four grand or so.  A load.  (Alternatively, you can catch the same load and both save fuel and go home early.  Either way, it's a win.)  You figure if you can get away with it for thirty or so loads a season, that's $100,00 extra.  Per year.

And what happens, under the Appellate Division's ruling, if you get caught?  Essentially nothing.  You plead guilty to a totally minor offense, no one cares, get sentenced to a minor fine and unsupervised probation, and (maybe) stop doing it for a while.  Big upside.  Little downside.

If that's your incentive structure, how much do you really, really try to make sure your deckhands are good with the calipers?  That they really make sure to throw the babies back.  With no excuses.

Not much, I think.  Especially if you think that the laws against undersized catches are "stupid" or that it's really hard to make a living as a crabber and "the man" doesn't care.  At a minimum, your incentive to make sure that you don't keep a fair number of babies is a lot, lot less when your monetary loss is a fine of $1,000 than when you lose $47,000 and it means your trip was for naught.

I'm no mathematician, but I'd say that the financial incentive to avoid a $1,000 fine is about 47 times less than the incentive to avoid a $47,000 forfeiture.

And what's the loss, by the way, of ordering big forfeitures in cases like this?  What kind of incentives does that create?  It assuredly creates an incentive to be super careful.  Maybe even overly careful.  So maybe some really tiny crabs -- some that are just barely over the 6 1/4" limit -- get thrown back.  On the theory that it's better to be safe than sorry.

The horror.

So I don't see the problem with ordering a fairly hefty forfeiture.  Seems like it instead makes eminent sense.  And certainly isn't so "grossly disproportionate" that it violates the Constitution.

Oh, one more thing.  Remember that the trial court only took the profits from Estes' trip.  Of the $75,000 he got from his crabs, we gave him back the actual expenses of the trip.  So the only thing he's out is his time.

Yeah.  That's constitutionally excessive.  Not.

Compare this penalty, by the way, to permissible alternative penalties that are clearly constitutional.  It'd be clearly okay to sentence Estes to six months in prison for the offense.  It's at least a misdemeanor, after all.  So the Appellate Division's holding means that it's okay to take away someone's entire liberty for a full six months, and put 'em in prison, but it's not okay to take away the fruits of someone's week or so on a ship.  An experience which may or may not be entirely fun, but is certainly a lot -- lot -- better than prison.

Doesn't make much sense.

We also might want to compare the Appellate Division's ruling here to other forfeiture cases.  The Supreme Court has held that it's okay for the government to take someone's car if someone else (i.e., their husband) drives it to pick up a hooker -- something the owner totally doesn't benefit from and would surely prevent if they could.  The government can seize your entire house if your grandson, unbeknownst to you, decides to sell some crack to an undercover cop therein.  Those are okay.  As are a lot more serious forfeitures, with much more at stake for the innocent owner.

Look, I'm sympathetic to the view that forfeiture laws are overly abused.  So my initial predisposition would not be to think that the government here was necessarily entitled to impose a $47,000 forfeiture.  And if they tried to seize the boat itself -- even though it's clearly an "instrumentality" of the crime -- you'd probably hear me complain about it.  Because losing a million bucks or so seems way too onerous.

But just losing merely the profits you obtained from that particular trip?!  Come on.  That seems an entirely reasonable consequence of taking way too many baby crabs.  One that creates wholly rational incentive effects.  And one that's certainly not "grossly disproportionate" to the offense.

So I'm with Fish and Game on this one.  And am surprised to see the result the Appellate Division reaches here.

Doesn't make sense to me.

Barry v. State Bar (Cal. Ct. App. - Aug. 22, 2013)

For a full 24 hours after I read this opinion, my thought about it was this:

I don't even understand it.  It's incomprehensible.  It couldn't be more wrong.  I don't even understand how anyone could even possibly come out this way.

That's a slight overstatement.  I "understand" how a court could decide something like this.  But it seemed -- and seems -- to be the result of a basic, really quite fundamental mistake.

The issue is a pretty straightforward one:  Can a court grant attorney's fees to a prevailing defendant on an anti-SLAPP motion when the reason the complaint lacks merit (i.e., the defendant demonstrates in part two of the test) is that the court lacks jurisdiction?

At some level, I "get" what the Court of Appeal is saying here.  Something it says in an incredibly short (five double-spaced) pages.  It says that if the defendant's correct that the court doesn't have jurisdiction, then the court doesn't have jurisdiction to make an award of fees either.  So, here, it reverses a fee award.  Despite the fact the defendant properly prevailed on its anti-SLAPP motion.

As I said, I couldn't fathom how the Court of Appeal could possibly come out this way.  It seems to have made a basic mistake.

Courts indisputably have jurisdiction to determine their jurisdiction.  So, for example, if you improperly file a lawsuit in federal court in a nondiversity case, and either punch the judge or do something else that subjects you to a sanction, you can still be punished even if the court dismisses the lawsuit for lack of subject matter jurisdiction.  Plaintiff's decision to file the lawsuit in federal court grants the court the jurisdiction to decide whether it has jurisdiction, and alongside that power is the power to make whatever orders -- whether they be discovery orders, sanction orders, etc. -- that happen to arise in the meantime.  That's been the law for centuries, and is beyond dispute.  So even a court that "lacks" jurisdiction still has power over parties (both the plaintiff, who voluntarily filed there, as well as the defendant, who decided to show up) in the meantime.  A power that includes the authority to make fee (and other) awards despite the fact the fact that it "lacks" jurisdiction.

That basic principle seemed -- and still seems -- squarely dispositive.

The Court of Appeal recognizes this principle, but holds that it's inapplicable to anti-SLAPP motions because the second part of those motions decides the "merits" of the lawsuit.  The Court of Appeal holds that the lack of jurisdiction prevents the trial court from doing so, hence there's no ability to award fees.

I'm very much unpersuaded.  For at least two reasons.  First, the second part of an anti-SLAPP motion does not, in fact, necessarily decide the "merits".  It merely determines whether the lawsuit will succeed, an inquiry that could -- but definitely need not -- decide the merits.

The present case is a perfect example.  Plaintiff's an attorney who entered into a stipulation with the State Bar of California in response to two disciplinary proceedings brought against her, and later decided that she wasn't psyched about those agreements, so filed a lawsuit against the State Bar to try to get out of them.  In response, the Bar filed an anti-SLAPP motion, which it won, proving in the first part of the test that the suit arose out of protected activity (the filing of disciplinary charges) and in the second part that plaintiff would lose the lawsuit because the trial court had no jurisdiction to vacate stipulations in state bar court (since any such motion would have to be filed in that latter court instead).

Defendant thus won part one by proving it engaged in protected activity and part two by proving that there was no jurisdiction.  That wasn't a determination of the "merits".  It was a determination of jurisdiction.  And that's something the trial court's clearly permitted to do.  As well as make any ancillary orders associated therewith.  Jurisdiction to determine jurisdiction.

So I don't get why the Court of Appeal thinks this principle is inapt.  Seems entirely apt to me.

There's another doctrinal problem with the Court of Appeal's holding as well.  If the absence of jurisdiction prevents the trial court from making a statutorily authorized fee award, then why doesn't it similarly preclude the court from making a statutorily authorized cost award?  We know -- and precedent is clear -- that trial courts are allowed to do the latter.  Why are they any different?  The Court of Appeal seems to think that anti-SLAPP motions are "different" because with "cost" awards a trial court's purportedly only determining jurisdiction, but that's the only thing that an anti-SLAPP motion that objects (in part two) to jurisdiction is doing as well.  If the absence of jurisdiction precludes a fee award in anti-SLAPP cases, seems to me like it's got to preclude a cost award as well.  But it doesn't.

That doesn't make any doctrinal sense.  Jurisdiction is jurisdiction.

The anti-SLAPP motion basically incorporates the English rule for prevailing defendants when plaintiffs file a lawsuit in response to protected activity.  Normally, costs don't include fees.  But in SLAPP cases, they do.  If a court has the power to award costs in SLAPP cases (which they clearly do), those costs can include fees in such cases as well.  That the court "lacks jurisdiction" matters equally to cost and fees.  Which is to say, not at all.

Not only does the Court of Appeal's holding make very little doctrinal sense, but it's also fundamentally bad policy.  The Legislature wants to deter Strategic Lawsuits Against Public Participation.  Not only frivolous ones, but meritless ones as well.  Including but not limited to ones like this one.  Plaintiffs who file a SLAPP suit in a forum without jurisdiction (including this one) seem at least equally -- as perhaps more -- culpable (and in need of deterrence) as people who file lawsuits that fail on the merits.  They shouldn't be able to get out of fee awards by essentially saying:  "Oh, well, yeah, I filed in response to your protected activity, but I filed in a forum without jurisdiction, so ha, you can't get fees from me."

That's bad policy.  Your decision to file in a jurisdictionally improper forum shouldn't immunize you from the normal fee award attendant to filing a SLAPP suit.  Doesn't make any sense.

Plus, it generates deleterious strategic choices as well.  Ones which everyone should both recognize and take advantage of in appropriate cases.

Under the "Shaun" rule (i.e., where you recover fees if successful), if you're a defendant in a SLAPP case, you've got an incentive to file your anti-SLAPP motion and make all the applicable (and true) arguments as to why plaintiff's lawsuit will and should be dismissed.  If you win, you get your fees.

But under the Court of Appeal's rule, if you want your fees, you're often better off omitting from part two of the test your argument that the court lacks jurisdiction.  Instead, just argue the merits.  That way, if you win, you get your fees.  Rather than simply a jurisdictional dismissal in which (according to the Court of Appeal's holding) the trial court's precluded from awarding fees as a matter of law.  And if you lose the anti-SLAPP motion, well, you can always appeal.  As well as subsequently raise any jurisdictional objections based on lack of subject matter jurisdiction.  Since those aren't waived.

That makes strategic sense for a party.  But no sense for a court.  We want to know if there's jurisdiction.  We don't want parties sandbagging objections and preserving them for later merely because of some crazy principle that precludes the normally available recovery of fees whenever a party also identifies the fact that the court lacks jurisdiction.  Again:  Doesn't make sense.

So those are my thoughts.  Ones that were sufficiently strong that I thought that the Court of Appeal was crazy to hold otherwise.

I still hold to my beliefs about the merits.  But as I sometimes do, I gave my wife -- who's incredibly smart (and also a law professor who teaches Civil Procedure) -- a factual hypothetical that raised this issue and that did not indicate which way I felt about it.  Her initial reaction was the same one as the Court of Appeal.

Mind you, I think I prevailed in the resulting argument (er, I mean, "discussion") about whether her initial impression was right.  But the fact that she was initially inclined towards the Court of Appeal's view at least made me realize that the Court of Appeal wasn't crazy.  Apparently someone rational can have at least that same initial sense as well.  Or at least someone (like my wife) with a legal education from a seriously deficient law school.

So I remain steadfast in my belief that the Court of Appeal got this one wrong.  In a case that may make quite a big deal.  Because anti-SLAPP motions are pretty darn common.  And this opinion creates a huge incentive not to make even entirely appropriate (and correct) jurisdictional objections as part of that motion.

Unfortunately, it doesn't make economic sense for the State Bar to file a petition for review with the California Supreme Court.  Since the fee award they lose out on here is for all of a whopping $2,575.04.

But I still hope they do.  Because as both a doctrinal and policy matter, I think the Court of Appeal's holding is pretty bad.

This may also be one of those exceptionally rare cases where the right thing to do is simply to depublish the opinion.  I care not about getting $2500 from Patricia Barry.  Even assuming she'd ever actually pay it.  I care much more about the resulting legal principle.  As long as that goes away, I'm pretty much fine.  She gets off easy, but at least no bad (and controlling) holding that binds future trial courts.

But for now, at least, the decision stands.

Smith v.Clark County School Dist. (9th Cir. - Aug. 21, 2013)

Judge Gould correctly holds that it was permissible for the district court to reconsider (and reverse) its prior decision on a summary judgment motion once it realized that it had applied the wrong legal standard.  Judge Gould says:

"It is common for both trial and appellate courts to reconsider and change positions when they conclude that they made a mistake. This is routine in judging, and there is nothing odd or improper about it."

I'll add to that.  It's not only "not improper," but is an affirmatively good thing.  Judges, like everyone else, are somewhat invested in their decisions.  They're not excited to admit that they were wrong.

It's a good sign when judges reconsider their previous orders.  It shows that they're conscientious.  It shows that they care.  It demonstrates that they've kept an open mind, and are willing to do the right thing even if it means admitting a mistake.

That's what it means to be a grown-up.

It's a good thing, not just a permissible one.  So I'll go ahead and say so.

I'm also not entirely sure that Judge Gould's correct that it's "common" and "routine" for judges to actively reconsider and correct their prior rulings.  Or, more accurately, I think this practice is less common than it should be.  Unfortunately.

Judges -- especially district court judges -- are overworked.  Many federal judges rely substantially on their clerks, who are (understandably) reluctant to, and perhaps sometimes incapable of, understanding that they have made a mistake.  And in some cases, judges may not especially care all that deeply about the result in a particular case.  For these reasons, I think there are a nontrivial number of cases in which federal courts get the wrong result initially and, were they conscientious, would get it right upon careful and informed reflection.

But that happens only rarely.  It is not "common" to see a decision substantively changed (or reversed) upon reflection by the district court or the Court of Appeals.  It's very much the exception, not the rule.

Which, again, is unfortunate.

Some of this is human psychology.  Some of this is workload.  Some of this is intellect.

But all of it's something that it's valuable to be aware of and to attempt to fight.

So I think it's valuable for Judge Gould to say what he's said here.  I'd go even further.

But I also wish that the judicial world in which we live was a bit closer to the one that Judge Gould describes.

People v. Nguyen (Cal. Ct. App. - Aug. 20, 2013)

Read this opinion.  It involves a hearing to determine whether Vinh Nguyen was a Sexually Violent Predator (SVP) who should continue to be locked up.  The petition was filed in 2005.  There were 37 hearings.  The vast majority of which seem to be requests to continue.

The hearing itself was in 2009.  Nguyen was present for exactly one of the 37 hearings, including but not limited to the trial (for which he was absent).  Indeed, Nguyen was present at the one hearing by accident; the hospital apparently inadvertently sent him there.  At that hearing, Nguyen requested to be present in the future.  Didn't happen.

Notice, by the way, that the appeal is decided in 2013.  Eight years after the petition to keep Nguyen in the hospital was filed.  The Court of Appeal affirms the decision to keep him in, notwithstanding his presence.

Thirty seven hearings.  Present at none.  Eight years.

Does anyone else get a keen sense that no one really cares about this guy?  Or is at all interested in trying to make anything actually happen on anything near a timely basis?

P.S. - I'm not saying that Nguyen is a saint.  At all.  Or that he should necessarily be released.  But it'd be nice to actually give the guy his day in court, no?

People v. Martinez (Cal. Supreme Ct. - Aug. 8, 2013)

The legal issue is what you have to show in order to get relief when the trial judge doesn't tell you -- as the statute requires -- that a guilty plea might potentially result in your deportation.  It's an important issue.  Even more so given that the overwhelming majority of criminal cases end with plea bargains.

The California Supreme Court decides the issue.  Unanimously.  In a decision by Justice Werdegar that makes total sense.  As well as one that favors the defendant.

I'll nonetheless mention that I can't imagine a more sympathetic case in which the issue is raised.  Here are the facts:

"[Officer] Estrada testified that on May 15, 1992, while undercover, he observed defendant Rodrigo [] Martinez hand another man a brown bindle of marijuana in return for what was later determined to be $8. Defendant, an 18-year-old citizen of Mexico, was on a bicycle when the transaction occurred, and was still on the bicycle when Estrada apprehended him approximately one hour later. Defendant had no money on his person. Estrada provided a detailed description of the person he had seen, stating he had no doubt defendant was that man. Defendant was charged with a single count of the sale or transportation of
marijuana in violation of Health and Safety Code section 11360, subdivision (a).

Pursuant to the terms of a plea bargain, defendant pleaded guilty to the charged offense and received a sentence of formal probation for a period of three years, a probationary jail term of 111 days with 111 days‘ credit for time served, and was ordered to pay a fine, register as a narcotics offender, and undergo counseling. The written minute order for the plea proceeding has boxes to be checked for the advisements given a pleading defendant, including a box explaining that a defendant has been advised that the conviction might lead to immigration consequences. Unlike other boxes appearing there, the box referring to the advisement of immigration consequences is not checked. There are no other existing records of the proceedings. We accordingly presume defendant did not receive the required advisement. . . .

Defendant successfully completed probation, and nothing in the record suggests he has since had any brushes with the law. He is now in a long-term marriage to a lawful permanent resident, has four minor children who are United States citizens and, due to his wife‘s blindness, is the sole support for his family.

In May 2008, upon defendant‘s application and in accordance with section 1203.4, which authorizes relief to persons who have successfully completed probation, the superior court allowed defendant to withdraw his plea and enter a plea of not guilty, and dismissed the information against him. Defendant‘s conviction was therefore expunged from his record. That action, however, has no effect on the federal immigration consequences of his conviction. [Cite]

Two months later, defendant sought an adjustment in status to lawful permanent residency. His application was denied because of his conviction. Removal proceedings have been initiated against him, and he now faces deportation and permanent exclusion from this country."

Sometimes the particular facts of a case, though legally irrelevant to the result, nonetheless reaffirm the justice of a particular result.

Like here.

Hayes v. City of San Diego (Cal. Supreme Ct. - Aug. 19, 2013)

One of the downsides of certifying questions to state court -- as the Ninth Circuit has increasingly done -- is that it may take some time to resolve the already-lengthy appellate process.  I have a general sense (based on nothing) that the California Supreme Court may be resolving these things faster than it once did.  But the entire process may still take some time.

Take this case, for example.  The question is whether two Sheriff's Deputies in San Diego wrongfully shot and killed a suicidal person who was holding a knife.  The district court grants summary judgment to the defendants.  Plaintiffs file their appeal in 2009.

The panel issues a split opinion in March of 2011 that partially reverses and remands.  Three months later -- presumably in response to en banc grumbling -- the panel certifies the underlying state law question to the California Supreme Court.  Which decides to answer the question.  Issuing an opinion this morning that gives the Ninth Circuit an answer.

So it's now been four years on appeal.  But we're not even close to over.  The Ninth Circuit now has to take the California Supreme Court's legal answer and apply it to the facts.  Most likely, it decides to send the case back to district court.  More time.  So we're five or six or seven years out and we're still in the middle of the lawsuit.  That's not particularly good for justice, which we hope to be speedy.  It's also not particularly good for taxpayers, who have to fund the defense.  About the only people who benefit are the plaintiffs' attorneys, since it's a Section 1983 case and they get their fees paid if they win.  But only if they win.

It may be inevitable that cases like this take forever.  It's certainly more important to get these types of cases right than it is out crank out an opinion speedily that's wrong.

But one downside of certification is that it often ends up taking a fair amount of time.  Even in the best of circumstances.

This case is a reminder.

Griffin v. Harrington (9th Cir. - Aug. 16, 2013)

I admit that I too would be a bit flummoxed if a witness said "No" to the standard question (at the outset of his testimony) as to whether he swore to tell the truth, the whole truth, and nothing but the truth.  Who says "No" to that?!

You nonetheless gotta do better than this.  Which essentially amounts to just letting it go and having the witness testify anyway.

As a result, someone sentenced to 60 years in prison for first-degree murder gets a new trial.

California Science Center v. State Personnel Board (Cal. Ct. App. - Aug. 16, 2013)

I often mention that one of the downsides of filing an appeal of an adverse ruling in the trial court is that it may end up in a published opinion that publicizes things that you'd prefer remain unknown.

That's exactly what transpired here.  Someone noticed the published opinion, and as a result, the plaintiff was fired from work.  Justly, holds the Court of Appeal.

As they say, be careful what you wish for.  'Cause you just might get it all.  And then some you don't want.

People v. Persolve LLC (Cal. Ct. App. - Aug. 15, 2013)

A debt collector (and its attorneys) engages in conduct expressly prohibited by both the California and the federal Fair Debt Collection Practices Acts.  The Kern County District Attorney brings a civil enforcement action under the unfair competition statute to get them to stop and to obtain restitution of ill-gotten booty.

A righteous action if ever I saw one.

The trial court nonetheless dismisses the action.  Holding that everything illegal that the debt collectors might have done was protected by the litigation privilege.

The trial court's holding makes even less sense to me than it did to the Court of Appeal.  Which reverses.

In Re Patrick S. (Cal. Ct. App. - Aug. 15, 2013)

Proof that judges are often parents as well:

"At the time of the dispositional hearing, P.S. was 13 years old. He was entitled to have his wishes [about whether to live with his father or with a foster parent] considered. However, a child's preference is not the deciding factor in a placement decision, even when that child is a teenager. . . . The court found that although P.S. did not want to live with his father, he was resigned to doing so. Resignation does not constitute substantial evidence of emotional detriment. (In a teenager, resignation and submission is often as good as it gets.)"

I smiled when I read that last sentence.  Couldn't be more true.

Even with 'tweens, I might add.  From personal experience.

Thrifty Payless v. The Americana at Brand (Cal. Ct. App. - Aug. 14, 2013)

I've previously noted the Ninth Circuit's recent infatuation with the word "eponymous".

Today the California Court of Appeal jumps on the bandwagon.

I'm officially calling 2013 "The Eponymous Year".  Even though that year is not eponymous.

In Re Brown (Cal. Ct. App. - Aug. 14, 2013)

There are two surprising things about this case.  Or, more accurately, there are two things that should be surprising, and what's surprising is that they're not a surprise.

The facts are simple.  Jamall Brown gets convicted at trial of vandalism.  He receives a two-year sentence, which is doubled if he has a prior juvenile adjudication for robbery, which counts as a "serious" prior strike. Brown's defense attorney looks at a piece of paper the prosecutor shows him -- presumably, a document that reflects (accurately) that Brown was indeed charged with robbery five years ago -- and asks Brown if he was convicted, and Brown responds affirmatively.  As a result, Brown's attorney advises him to admit the prior strike, Brown does, and Brown's two-year sentence turns into four.

There's only one problem.  Brown was not, in fact, previously found guilty of robbery.

Yes, that was indeed the initial charge.  But it was later amended to include an additional charge of grand theft.  Dispositively, at trial, the judge found Brown guilty of that latter charge -- which doesn't count as a serious strike -- and dismissed the robbery count.

Oops.

Now, you might think that this is a pretty straightforward case.  Brown received a two-year sentence for something he didn't do.  He's essentially innocent of that alleged conduct.  So of course he gets relief, right?

Fear not.  One of the surprises is not that the Court of Appeal keeps Brown in prison for four years despite the fact he's only earned two.  That would indeed be a surprise -- and a fairly shocking one -- but it doesn't happen.  The Court of Appeal grants him habeas relief.

But I was nonetheless surprised (or, in a perfect world, should have been surprised) by two things.

First, the California Attorney General's Office doesn't concede relief.  It instead aggressively argues that Brown should indeed remain in prison for four years based on a prior offense for which it admits Brown wasn't found guilty.

That's surprising.

The AG's Office argues that Brown has to stay in prison an unjustified two years because his attorney's performance wasn't ineffective.  It was reasonable, the AG argues, to rely upon the charging sheet and the recollection of his client.  So no ineffective assistance of counsel, the AG says, and hence no relief.

Justice Zelon crushes those arguments in her opinion.  Though she does so in a nice way.  It's not reasonable to rely upon an initial charging document, she holds, when what matters is the readily available document that reflects the offense (if any) for which the defendant was actually convicted.  It's similarly unreasonable to rely upon a lay client's recollection of what particular offense he was eventually found guilty given that these issues are often complex.  Particularly for (as here) someone who was sixteen years old at the time.  It may well be that the client thought he was convicted of X when he was actually convicted of Y, and while it may not matter to the client at the time (who just cares about how much time he has to serve), it may make a huge legal difference in the future.  Again, as here.

Which is why you need to actually go ahead and pull the sheet rather than taking someone's word for it.

Look, I understand why the AG's office might want to keep Brown locked up.  They probably think he's a bad guy.  They probably think he deserved four years in the first place.  They're probably somewhat pissed that the jury acquitted the guy of assault with a deadly weapon at trial and only convicted him of vandalism.  They want the dude in prison for a long time.  So they're not about to let the guy shave his "generous" four-year sentence down to two.

All that's understandable.  From an emotional perspective, anyway.  So it's perhaps not surprising to see the AG's Office not concede error.

But it should be surprising.  Because -- to reiterate -- Brown's innocent of the offense for which they've put him in prison for two additional years.  He doesn't have a prior serious strike.  Everyone admits that fact, the AG's Office included.  That Brown might "deserve" an extra two years in some moral sense doesn't matter a whit.  We are a nation of laws.  The law doesn't provide for an additional two years if the guy doesn't have a prior strike.  Brown doesn't.  End of story.

The nonexistent strike is no different than a nonexistent offense.  Imagine that Brown robbed someone by pointing a carrot at them, and the AG's Office thought Brown was a really bad guy.  But pointing a carrot only permitted a two-year sentence, but pointing a gun would authorize a "just" four-year sentence.  Would the AG's Office be ethically permitted to charge Brown with the additional element of using a gun during the robbery?

No way.  Absolutely no way.  Were the AG's Office to do so, everyone would justifiably go ballistic.  If you know someone's innocent under the law, you can't charge them with something you know to be untrue.

So too here.

So I understand what's going on.  The AG's Office thinks it might be able to persuade the Court of Appeal to deny relief.  Despite the fact that it knows that Brown was not, in fact, found guilty of a prior strike.  So it decides to so argue.  Thinking that it will thereby achieve a "just" result.

That's not surprising.

But it should be.

The second point is somewhat related to the first.  You'd think that there'd be an easy way for people to get out of prison (or shorten their sentences therein) if they didn't, in fact, commit the offense.  You'd think that it would be incredibly straightforward, at least when (as here) everyone agrees that a conviction or sentence is based upon an erroneous and untrue factual predicate.  The dude's legally innocent, after all.  Surely you can just say (and prove) that fact and be entitled to relief, no?

No.

No, instead you have to jump through a plethora of procedural and doctrinal loopholes.  Which is why the Court of Appeal's opinion is structured the way it is.

You can't just say you're innocent.  God forbid we made it that easy.  No, instead, you have to prove -- as here -- that your counsel was ineffective.  That everyone agrees that you don't actually have the prior strike for which you received two years isn't enough.  We instead require you to also prove that your attorney was constitutionally ineffective for failing to find that out.  Otherwise you stay in prison.

That should strike us as bizarre.  Even though it doesn't.

Imagine, for the example, that the AG was right.  Imagine that it was okay ("reasonable") for the attorney to rely upon the charging document and the recollection of a sixteeen year old.  I'll even go beyond this:  for the purposes of argument, imagine that the attorney had pulled a minute order that reflected that his client had, in fact, been found guilty of robbery.  A minute order that we all now recognize is totally erroneous.

Under those set of facts, we really are going to require someone to spend an additional two years in prison for something he didn't do?!  When (1) the law says that you spend an additional two years in prison if you've previously been convicted of a serious strike, (2) this defendant was not previously convicted of a serious strike, then (3) what follows from (1) and (2) is that this defendant is required to spend an extra two years in prison?  That's the logic of our existing criminal justice system?

If so, that should be a surprise.

I've probably got a third "should-be" surprise in mind as well:  namely, the steadfast refusal of Brown's trial counsel to admit that he should have pulled the disposition order rather than relying on the charging sheet in advising his client to stipulate to the strike.  Just seems to me that you should fall on your sword on this one.  As well as realize, at least in retrospect, that what you did wasn't reasonable.

But two surprises is enough for one afternoon.

Even if none of 'em are really surprising.

Albanese v. Menounos (Cal. Ct. App. - Aug. 7, 2013)

Just because you cut the hair of a B-list celebrity does not make you a celebrity.

Cordoba v. Holder (9th Cir. - Aug. 13, 2013)

I could be snarky and describe this morning's opinion by Judge Reinhardt as containing the following holding:

Rich people are a protected class and so can get asylum in the United States.

It'd be a pretty accurate description, too.

But I'll do slightly more than that.

Judge Reinhardt actually paints a pretty sympathetic picture of the plight of landholders in Mexico and, especially, Columbia.  There's a thriving business in kidnapping in both countries.  Often run by drug cartels in the former nation and, in the latter, by a rebel group (FARC).  If you're rich, you may well be targeted.  As amply demonstrated in these two cases.  Judge Reinhardt does a very good job of recounting the very detailed and exceptionally credible stories relayed by these two asylum petitioners.

Judge Reinhardt doesn't actually give 'em asylum.  Though I'm sure he thinks they're entitled to it.  The Ninth Circuit instead remands to the BIA.  Holding that being a landowner is indeed "membership in a particular social group" that may potentially entitle someone to asylum.

You don't typically think of Judge Reinhardt as a protector of the rich and powerful.  But when they're fleeing another country to escape persecution and abuse, he's more than happy to help out.

Understandably.

American Nurses Ass'n v. Torlakson (Cal. Supreme Ct. - Aug. 12, 2013)

Around one in 400 school-age children has diabetes.  If I had to make a guess, given the rise in childhood obesity, that number will almost certainly grow.

Many of those children need to take insulin.  If they can stick themselves, fine.  If they can't, who's going to stick them when they're at school and need a shot?

The American Nurses Association would like it to be a nurse.  An actual nurse.  Both because they think they can do it better and because, not surprisingly, the American Nurses Association would like more jobs for nurses.

Strapped school districts don't want to pay for nurses.  They'd like trained volunteers to be allowed to stick the kids.

The children just want their shots.

Who wins?

School districts.  The California Supreme Court unanimously holds that state law allows trained volunteers to administer insulin shots in school, as long as the parents and the kid's doctor are okay with it.  That doesn't count as the unauthorized practice of nursing under state law.

City of Perris v. Stamper (Cal. Ct. App. - Aug. 9, 2013)

This is a doctrinally difficult case, since it combines two distinct lines of precedent.  Perhaps for this reason, its holding is at least a bit off.

Two general principles come into play.  First, the determination of whether a particular governmental act constitutes a "taking" that constitutionally requires just compensation is made by a judge.  A judge -- not a jury -- decides whether an uncompensated taking is permissible, and in an appropriate case looks at (among other things) the rough proportionality between a particular development and the governmental requirements for that development.  For example, when a developer wants to develop X property, but the government requires the developer to dedicate a certain percentage of that property for roads, school and the like that will be required by the development, it's a judge who decides whether the conditions are proportional.

By contrast, in an eminent domain case, a jury -- not a judge -- decides the value of the property.  That's true even if certain governmental acts that might affect the value of the property are at issue.  For example, if a property is currently zoned agricultural, and the government condemns it, the landowner has a right to try to prove that the property is worth more than agricultural land because it could have easily gotten the property rezoned for residential development had it attempted to do so.  The possibility of rezoning is part of the value of the land.  So a jury decides the issue.

The complexity in this case arises from the confluence of these two principles.  Who decides the issue when a landowner says that the property is worth $X because even if the government attempted to condition the development of the property on dedication of a certain portion (for roads and the like), that attempt would be unconstitutional?  Valuation is usually decided by a jury.  By contrast, constitutionality is usually decided by a judge.  Which principle governs?

The Court of Appeal holds that because the constitutional issue involves determinations of facts, a jury gets to decide the issue.  In Justice King's words, "a jury must be allowed to determine whether, and to what extent, the [] take . . . is roughly proportionate to the Stamper Property's anticipated impacts on area traffic if and when the Stamper Property is developed."  A jury, then, gets to determine "whether all or any part of the 1.66-acre take could be constitutionally imposed as a dedication condition on development."

At best, I think that statement's too broad.  In a way that's critically important.

It's possible that Justice King is correct that a jury gets to make underlying predicate findings of fact.  True, in a pure constitutional case, a judge (rather than a jury) gets to make those predicate factual findings as part of the constitutional analysis.  But perhaps the Court of Appeal is right that valuation of eminent domain cases is assigned (at least in California) to a jury.  So predicate factual questions get transferred to a jury.

But even if that's the case, the Court of Appeal errs when it holds that the dispositive legal issue -- whether an uncompensated taking would violate the Constitution -- gets decided by the jury.  On that issue, a judge, not a jury, is the relevant factfinder.

Yes, a jury might perhaps properly be called upon to make certain findings of fact relevant to that legal determination.  For example, a jury might be asked "How much traffic will development of the Stamper Property cause?" and/or "What percentage of the traffic on the road that runs through the Stamper Property will consist of traffic generated by the Property itself, as opposed to traffic from some other source?"  Those are factual questions, and indeed they're relevant to whether there's rough proportionality between the taking and the approval of the development.

But whether those predicate facts satisfy the constitutional requirement of "rough proportionality" is purely a question of law.  The jury decides the facts.  It doesn't decide the law.  Judges do that. Whether a certain set of facts suffices to satisfy the dictates of the Constitution is purely a legal issue, subject to initial determination by a trial court and, thereafter, de novo review on appeal.  Juries don't get deference on that issue.  Nor do they get to decide the issue in the first instance.  That's for the judge.

So, yes, a jury could properly be instructed to find certain predicate facts.  Would the City of Perris try to take a portion of the property?  How much traffic would be generated?  Stuff like that.  But a jury is by no means "allowed to determine whether, and to what extent, the [] take is roughly proportionate" or whether the take "could be constitutionally imposed as a dedication condition on development."  That ultimate fact is for the judge.  Informed, perhaps, by the jury's special findings of fact.

That's a meaningful difference.  Because courts determine the constitutionality of a governmental act.  Not juries.

Ching v. Mayorkas (9th Cir. - Aug. 7, 2013)

I know that some people might disagree.  But it does seem to me -- as it does to Judge Thomas (and the rest of the panel) -- that when you accuse someone of a sham marriage based entirely on an affidavit of their now ex-spouse, and on that basis deny them permission to live in the U.S., the other side should have a chance to cross-examine the ex-spouse at an evidentiary hearing.  When there's a stark contrast between the testimony of two people, a factfinder should decide who's lying.

Mind you, from what I've read, I think there's a darn good chance that Teresita Ching did indeed pay at least one person to marry her, and that she should accordingly live elsewhere.  But she should nonetheless have a reasonable opportunity to try to convince a factfinder otherwise.

People v. Johnson (Cal. Ct. App. - Aug. 8, 2013)

"In 2011, Johnson pled no contest to two counts of second degree robbery and was sentenced to six years in prison. The sentencing court suspended execution of the sentence and placed Johnson on three years formal probation with various terms and conditions, including the requirement that he agree to submit to searches by law enforcement officers with or without a warrant or probable cause.

On January 13, 2012, Sheriff’s deputies Eddie Ochoa and James Chambless detained Johnson and, upon searching him, found 18 baggies of marijuana and 4 debit and credit cards in names other than his own."

Whoops.  Enjoy those six years in prison we previously suspended.

People v. Maciel (Cal. Supreme Ct. - Aug. 8, 2013)

Once you read a certain set of facts, you'll understand why this is a death penalty case:

"On Saturday, April 22, 1995, between 10:00 and 10:30 p.m., three adults — Anthony 'Dido' Moreno, his sister, Maria Moreno, and Gustavo 'Tito' Aguirre — and two of Maria‘s children — five-year-old Laura Moreno and six-month-old Ambrose Padilla — were shot to death in a house located at 3843 Maxson Road in El Monte, California. Richard 'Primo' Valdez, a Sangra street gang member, shot and killed Anthony Moreno and Gustavo Aguirre, while his fellow Sangra gang member Jimmy 'Character' Palma shot and killed Maria Moreno and the children."

You kill a five-year old kid, and a six-month old baby, and you can see why the jury might sentence you to death.

Oh.  But this case isn't about either Valdez or Palma.  Palma, for example, was indeed sentenced to death.  But he was killed in San Quentin by other inmates while on death row.  Presumably by the Mexican Mafia.  Which has a strict policy of not killing women or children. (Plus, one of its members expressly said that the group would kill Palma for "killing the babies."  So I think I've got a pretty good handle on why Palma was killed before California took its turn.)

Presumably Maciel's the guy in the Mexican Mafia who ordered the hit on the adult victims, right?  One of the victims had indeed dropped out of EME, and so there's indeed likely a shot-caller there who gave the order.

Nope.  That's someone else too.

Well, then, Maciel didn't do any of the actual shootings, but was among the people who barged into the house.  He was at least there.  So he's as responsible too.

Strike three.  Not even there.  Has a rock solid alibi.  Prosecution doesn't even argue otherwise.

No, what gets Maciel sentenced to death is that he allegedly "conspired" -- maybe, and in some uncertain and totally unclear -- way to get one of the adults killed.

I cannot emphasize enough how weak the evidence is against Maciel.  Did he know the murder would go down?  Probably.  Just like perhaps half of the Mexican Mafia.  But the evidence that Maciel actually did something affirmative to help out the murder of his friend is incredibly weak.  Incredibly, incredibly weak.

Is it legally insufficient?  The California Supreme Court unanimously holds that it's not.

I'm nonetheless left with a firm conviction that Maciel might, in fact, be innocent.  That we're going to kill a guy for a crime he didn't commit.

Is Maciel a bad guy?  Sure.  He's probably -- though the most we can say is probably -- killed someone in the past.  (Though I'll mention that the only evidence in this regard is the statement of his "sponsor" in the Mexican Mafia that when "one of his homies killed that one year-old baby a few months ago, [Maciel's] the one that took care of them."  In short, that Maciel killed someone in retaliation for someone killing an infant.  I'll briefly mention that killing someone who's killed a child is hardly the most offensive murder in the world; indeed, many proponents of the death penalty would do the same thing.  As well as the irony of sentencing Maciel to death for helping to kill a baby when the best evidence of a murder he actually committed was of someone who had killed a baby.)

Still, Maciel's not a nice guy.  Especially in prison.  Assaults, etc.  Seems definitely a totally violent guy.

Nonetheless, we want to kill people for crimes they actually committed, right?  And here, I'm not at all sure we're doing so.

Moreover, this is not a case where we're ever going to be able to "prove" Maciel's innocence and give him relief.  There's no DNA evidence.  There's no "finding the actual killer" -- we've already done that.  There's no one who can dispositively testify that Maciel didn't have anything to do with the crime.  So absent federal relief, Maciel's going to be executed.

You rarely see death penalty cases in which guilt or innocence is really at issue.  This is one of those cases.

It's a good example of just how amorphous a "conspiracy" entails.  As well as proof thereof.  Especially in the context of a gang.

It's also proof of just how serious the consequences can be if we get it wrong.

I feel deeply for the victims here.  Seriously.  I'm always especially touched by the killing of innocent women and children.  Something that understandably raises profound emotions.

But I wonder about whether Maciel might in fact be innocent.  Maybe he had something to do with the thing going down.  Maybe.  But I'm incredibly far from sure.

Read the whole thing to see if you agree.  And ponder the decision to seek the death penalty against Maciel as well as to execute the sentence.

Seltzer v. Green Day (9th Cir. - Aug. 7, 2013)

This is precisely what I expected once I read the facts.

What the band Green Day did at one of its shows (and at the MTV Music Awards) did indeed constitute fair use.  So it properly obtained summary judgment.

But the issue wasn't crystal clear.  So it was error for the district court to award Green Day over $200,000 in attorney's fees.

Appellant accordingly loses the merits but obtains a reversal of the fee award.

Seems exactly right.

Ellis v. Toshiba America Information Systems (Cal. Ct. App. - Aug. 7, 2013)

Here's a case study on how not to request a fee award in a class action.

Justice Johnson's lengthy opinion is a blistering indictment of attorney Lori Sklar.  Who could not have done herself more harm -- either in the trial court or on appeal -- if she'd tried.

U.S. v. Underwood (9th Cir. - Aug. 6, 2013)

I bet that when you're a district court judge who's granted a motion to suppress, you like it when the Ninth Circuit affirms your decision.  And that you like it even more when they describe the order in which you did so as "lengthy [and] scholarly."

After this morning, we can ask Judge Wilson to find out if that's true.

K.M. v. Tustin USD (9th Cir. - Aug. 6, 2013)

I understand that the Ninth Circuit here isn't deciding the question.  It's simply reversing the grant of summary judgment and remanding to the district court.  Given the relevant statutes, as well as the position of the DOJ (which is entitled to some deference), that may perhaps be the right course.

But I'm still relatively amazed.

The Ninth Circuit holds that it's plausible that a school district might well be required to hire a full-time stenographer ("court reporter") to transcribe everything that a high-school student's teachers say in class because the student -- who's hard-of-hearing but not deaf -- finds it "difficult to concentrate" (leaving her "drained" at the end of the day) when she's required to listen to the teacher.

I'm hugely sympathetic to the educational needs of students.  Hugely.  People deserve the opportunity to learn.  Everyone.  We should go to substantial lengths to make this happen.

But wholly beyond the potential weirdness of having a court reporter sitting in and transcribing a high school class, I think about the cost.  Stenographers ain't cheap.  One student.  One stenographer.  The entire day.  I can't imagine you're not talking about a serious chunk of change.

With recognition that -- especially in the modern era -- funds devoted to X are not available to be deployed for the educational benefit of Y and Z.

I get that the Ninth Circuit doesn't decide whether the administrative or financial burden justifies denying the students' requests here.  That's an issue for remand.

But I wonder if it nonetheless says something when we've reached the point at which -- on remand -- it may well be possible that a school district is ordered to provide a full-time stenographer for a student.

Maybe that says something good.  Maybe not.

Saesee v. McDonald (9th Cir. - Aug. 5, 2013)

Let's discuss a list of things that one should unambiguously not do:

(1)  When you're out barbecuing some meat, and several gang members show up and ask whether you're a member of a rival gang, it's fine to deny that you are.  But do not add to your denial:  "F**k OTs [the name of the gang], f**k Crips . . . . What, you guys gonna shoot me?"  Because you know what?  Yes.  Yes they will.  As they do here.  Killing you.

(2)  When you're the defense attorney charged with defending the alleged killer, it's fine -- albeit risky -- to hinge your entire opening statement on an alibi claim.  Even if that alibi is that your client couldn't have done the killing because he was with his 13-year old girlfriend (!!) at the time.  But do not conclude your opening statement by claiming that the grandfather of the 13-year old was "mad as hell" about things and that you're "counting on him to tell the truth and corroborate" the girl's testimony.  At least when, as here, you then end your defense case by asking the court to "check outside for one witness in the hope he might be here" and, when he's not, saying "The defense rests."  Whenever your opening statement hinges on the testimony of a particular witness, you really need to make sure that witness is going to in fact testify.  Otherwise your client will be convicted.  And the Ninth Circuit will grant no relief.

(3)  One last thing.  I would have thought it went without saying, but then again, I would have thought that about the preceding two points as well.  So here it is:  Don't shoot and kill anyone.  Especially for no reason. Otherwise you'll get LWOP and spend the rest of your life in prison.  As here.

Three important lessons from this Ninth Circuit opinion.

BNSF Railway v. PUC (Cal. Ct. App. - Aug. 5, 2013)

Justice Robie may perhaps be correct that the railroads still have to blast their trains at all railroad crossings in San Clemente.  Federal preemption.  Not surprisingly, we have a long history of requiring trains to make audible warnings in order to avoid collisions, and the relevant statutes and regulations back this up.  That's all very understandable.

It's nonetheless unfortunate.

In the old days -- i.e., several years ago -- there were no pedestrian crossings across the tracks in San Clemente, and people just crossed wherever they wanted.  Which resulted in lots of crossings, since the tracks in that area are right on the beach.  Yours truly crossed there many a time.

The downside of that practice was that inattentive people could be hit.  The upside of that practice was that since there was no "formal" crossing, trains weren't required to blow their (exceptionally loud) horns.  Which is a huge deal to those who live near the beach in S.C. since around fifty trains pass through there every day.

Then San Clemente did something that made total sense.  It created several "formal" pedestrian crossings over the tracks, and put shrubs and other stuff in the way in order to channel pedestrians towards the formal crossings.  At the same time, it didn't want fifty loud horns a day.  So it created sound devices at the location of the crossings themselves.  That way, a horn would indeed sound a warning whenever a train was coming.  But because the sound was right at the crossing, instead of a quarter mile a way, it could be much less loud.  Pedestrians could hear it, but not every homeowner within a couple mile radius.  Smart.

Except the Court of Appeal holds that San Clemente can't do that.  Reversing the ruling (and regulation) of the Public Utilities Commission, which had allowed the practice.

San Clemente and the PUC had at least a colorable argument that the relevant statutes and regulations only required that a horn be "sounded" at the crossing.  But Justice Robie has a similarly colorable argument that the structure of these things essentially incorporates a definition that requires this sounding to be from a horn that's located "on" the train.  Thereby precluding sounds from horns at the crossing itself.

Justice Robie may be right.  The opinion might benefit from a recognition that this result is suboptimal.  For everyone.  It harms homeowners (as well as beach visitors).  It discourages cities like San Clemente from enhancing pedestrian safety (since the result will be massive annoyance to its homeowners).  It seems not to advance public safety in the slightest.  It's simply the result of an ossified historical structure -- the traditional use of horns located on the train -- that does not comport with modern technological capacity.

So I might have added a call for change.  Even if I ultimately ended up the same way as Justice Robie.

But in the meantime, when you're taking the train from San Diego to Los Angeles (or vice-versa), or if you're on the (beautiful) beaches of San Clemente, get ready for some noise.  'Cause you're gonna hear it.