Tuesday, November 25, 2014

In Re M.D. (Cal. Ct. App. - Nov. 24, 2014)

Justice Pollak tells you in this opinion where to go in this opinion if you want to pick up a 16-year old prostitute in the Bay Area:  Laguna and Ellis Streets in Concord.

Why this particular location?  Justice Pollak explains why, as well as what to look for:  "[P]rostitutes frequent the area of Laguna and Ellis Streets in Concord because it is a safe area to work. The area is a couple of blocks from a BART station, and a majority of prostitutes come from outside the area. According to Robison, for the purposes of attracting men, prostitutes in the area of Laguna Street and Ellis Street will wear revealing clothing showing their midsections and low cut tops, tight shorts, or skirts. They choose that area because it is easy to get there by BART and it has a high population density so they can make a lot of money."

Okay, then.

I thought the concept of being a prostitute near a BART station was interesting, so I looked up the area.  Which revealed that, yes, there's a BART station two or three blocks away from where this particular 16-year old prostitute (and her adult pimp) were picked up.

So that's the upside of this particular location.

There is, however, one downside.  One that's not mentioned in Justice Pollak's opinion, but that's nonetheless very clear from a map of the area.  Guess what's directly in between the BART station and the high-prostitution intersection of Laguna and Ellis Streets in Concord?

The headquarters of the Concord Police Department.

Which somewhat explains why officers are willing to police this area.  An area a block or so away from their station.

Pretty bold to parade your underage prostitute around this area, no?

Monday, November 24, 2014

U.S. v. Prince (9th Cir. - Nov. 24, 2014)

The bad news for Byron Prince is that he accidentally shot himself with a revolver.  Oops.

The worse news for Mr. Prince is that, since he's a felon, once the United States realized (presumably at the hospital) that he accidentally shot himself, they convicted him of being a felon in possession of a firearm.

Welcome to fifteen years in prison.


People v. Aleksanyan (Cal. App. Div. (LA) - Nov. 5, 2014)

Were I ever sentenced to probation, a lot of time, I think and take my lumps and just let it go.  Even if I thought the conviction was dubious in some way.

Because, yeah, I could appeal.  Because who wants a conviction on one's record?

But the downside of filing an appeal is that (1) you might lose, and (2) the appellate court might publish the opinion.  Thereby disseminating to everyone what you've (allegedly) done.

Admittedly, if I'd done a fairly routine thing, and/or had a common name like "John Smith," I might give it a shot anyway.  Good job figuring out which "John Smith" is the defendant.

But say, for example, that I've got a name like "Vahe Aleksanyan" and I'm in Los Angeles.  Now, it turns out that -- who knew -- there are a lot of Vahe Aleksanyan's.  In Armenia (and on Facebook), anyway.

But in the United States, apparently, there are only two.  So you're risking a lot if the thing gets published.

That said, maybe you're not embarrassed about the facts of the case.  You're happy to have it out there!  You're innocent, for goodness sakes!  That's why your appeal maintains that the evidence is insufficient to support your conviction.  Truth's on your side.

The only problem with that theory is that the Court of Appeal is going to recite the facts of the case.  Which will read something like this:

"Los Angeles Police Officer Tara Munjekovich testified that on January 10, 2013, she was working undercover posing as a street-walking prostitute. She wore a tank top, a jacket, shorts, leggings, and boots, and walked back and forth from one corner of Sepulveda Boulevard and Haynes Street to the other. At approximately 8:55 p.m., as Munjekovich stood at the northwest corner in front of a motel, defendant drove his car south on Sepulveda, slowed, and made eye contact with her. Defendant turned right on Haynes heading west, then right again going north on a frontage road parallel to Sepulveda. He stopped in the middle of the road, about 10 feet north of the intersection and five or six feet from where Munjekovich was standing. Defendant rolled down his driver‟s window, and Munjekovich walked up to the car.

Munjekovich said “Hi,” and defendant said “Hi” and asked if she was a “cop.” Munjekovich told him she was not, and defendant asked if she had “a place.” Munjekovich responded she had a room “right here,” pointing to the motel. Defendant asked if she wanted to get in his car; she told him again her room was “right there”; and he said, “Well, let‟s talk out of the street.” Munjekovich directed defendant to park in the motel parking lot, and he drove into the lot, got out of his car, and waited for her by the trunk of his car.

Munjekovich walked up to defendant, asked him “what are you looking for,” and he asked, “What are you good at.” She told him she was good at “everything,” and he told her he was “looking for everything.” Munjekovich responded, “We can do everything. However, I don‟t do anal,” referring to anal intercourse. Defendant said “No?” and she said, “No, I'll fuck you and I'll blow you . . . . But I don‟t do that.” Defendant said, “Okay, how about a facial,” a street term for a man ejaculating onto someone‟s face. Munjekovich told him he could do that to her, and he asked, “How much?” She told him “for something like that it was going to be a little bit more,” and they went back and forth a couple of times regarding how much money defendant had. He asked her to give him a price, and she responded, “For that, it‟s gonna [sic] be around $80.” Defendant said, “Okay, $80. How long can I go for $80?” Munjekovich testified defendant explained “he may be really fast the first time and want to go again, so how long could he get for the 80.” Munjekovich responded she would give him an hour, and defendant asked whether he “could record it on his phone.” Munjekovich told him he could record, he said “Okay,” she told him “Let‟s go into my room,” and he said “Okay.” Munjekovich and defendant then started walking toward a row of motel rooms; at that point, she gave a signal, and uniformed officers drove up and took defendant into custody."

Yikes.  Not something I'd want my mother to read about me.  Or my brother.  Or uncle.  Or pretty much anyone, quite frankly.

Plus, wholly beyond the facts of the offense, it doesn't make me look brilliant either.  First there's the "Are you a cop?" part.  Does anyone think that's actually a defense?  Does anyone think the vice cop is actually going to say "Yes?"  Seriously?

Then there's the fact that you're trying to do all this stuff for $80 bucks.  Multiple times, full service, recording it on the cell phone, etc.

There's an old saying:  If it sounds too good to be true, it probably is.  Doesn't just work at retail stores.  Ditto for prostitutes.

But at least Mr. Munjekovich has a choice.  I feel even worse for Officer Munjekovich.  She's got a very specific name as well.  Only one person in the entire U.S. with that name.  And you can find out so much.  Not just how she spends her time on vice, and what she wears on the job on Sepulveda, but also where she trains, how many sit-ups she can do, how fast she runs, her salary, her book, and so much more that I won't post.  All in less than a minute of looking.

I know it's part of the job.  More power to her, even.

Well done on the bust, Tara.  (Ditto for the promotion and being in such good shape.)

Thursday, November 20, 2014

Laguna v. Coverall North America (9th Cir. - Nov. 20, 2014)

Is that pesky Ninth Circuit perhaps getting in the way of your cushy class action settlement and fee award?  Fear not.  They've got an app for that.

The settlement at issue in this case gives former franchisees $475 in cash and adds some ancillary relief.  The attorneys get nearly a million dollars.

The district court approved the settlement.  The Ninth Circuit panel did so as well, but Judge Chen, sitting by designation from the Northern District, dissented.  He wanted to know more -- much more -- about the settlement.  In particular, about how much it was actually worth in order to justify the nearly million dollars in fees.  Are the attorneys getting rich by negotiating relief that sounds good but that's really just a cover for an actual payout of almost nothing?  At least one inquiring mind wanted to know.

More than one, apparently.  Since a member of the Ninth Circuit sua sponte expressed interest in calling for en banc review.

But the parties weren't interested.  Sure, the objector had initially filed a petition for en banc review.  But then withdrew it.  You figure out why.

But that doesn't stop us, right?  Just like the parties may not be able to settle a class action, surely we can review a decision en banc if we'd like.  Even if the objector elects -- for whatever reason (good or bad) -- to withdraw the petition.

So, in August, the Ninth Circuit orders briefs.

Fear not, parties.  The parties settled.  The objector settled.  Everyone got paid (and/or the relief they wanted).

Today, the Ninth Circuit dismisses the appeal as moot, and vacates all the opinions.

So, crappy, unjust settlement or not, it works.

Wednesday, November 19, 2014

Helgestad v. Vargas (Cal. Ct. App. - Nov. 18, 2014)

Sometimes I lean towards not talking about opinions by a particular author because I don't want to sound like a homer.  You don't need me saying five dozen times that this justice writes especially well because, well, it's self-evident. And I've already said it two dozen times, so why beat an eloquent horse?

Nonetheless, for people like me, one great thing about Court of Appeal opinions is that they retain mystery longer than some other courts.  In the Ninth Circuit, for example, you see the author of the opinion right off the bat, immediately below the caption.  But in the Court of Appeal, you have to wait until the end -- or flip forward (if you can't stand the suspense) -- to see who you're reading.

I mention this only because sometimes, the writing is so clear and cogent and of a particular style that you don't have to guess.  Not because it's full of Kozinskisms or the like.  (Though those are fun too).  But rather because, as you're reading, you're simply thinking:  "I wish I could write like that."

This is one of those opinions.

Admittedly, the first sentence of the opinion demonstrates a writing style that's somewhat idiosyncratic, so that sort of gives it away.  But notice how the first three paragraphs of this opinion so clearly tell you, in a very concise manner, not only what the case is about, but where it's going and why.  It reads:

"Family law is not getting any easier. Consider this scenario: A couple live together and have two children. They do not marry. Then they separate. The couple agree to a paternity action judgment which establishes the father’s paternity, his right to visitation, and fixes a monthly monetary child support payment to be made to the mother who will have primary physical custody of the children. Later the couple attempt a reconciliation; the father moves into the residence of the children and the mother. After about nine months, the reconciliation fails, and the father moves out. Issue: Can the father obtain any credit for actual, in-the-home child support he afforded the children during the nine months he lived with them and the mother?

The question is one of first impression in California. (See Wright, Right to Credit on Child Support Arrearages for Time Parties Resided Together After Separation or Divorce (2002) 104 A.L.R.5th 605, 610-612 [absence of California cases] (hereinafter “ALR Annot., Credit for Time Resided”.) Had the original order been made in a marital – as distinct from paternity – action, and had the couple simply switched custody so that the children went to live with the father instead of attempting reconciliation, there seems to be no question that a line of California cases beginning with Jackson v. Jackson (1975) 51 Cal.App.3d 363 would allow such credit. In fact, family law has developed a shorthand term for credits. They’re called “Jackson credits,” after the first case to allow for them. But whether the same rules obtain in a paternity action as in a dissolution action has not previously been addressed.

The trial court concluded the father here, appellant George Vargas, was not eligible for any such Jackson credits, because this case did not fit the Jackson pattern of a child support order which originated in a divorce proceeding, and also because there wasn’t a total reversal of custody, but rather a period of cohabitation – shared custody – in the context of an attempted reconciliation. We reverse because we believe the same equitable considerations that apply to support orders arising out of marital cases should
also apply to support orders arising out of paternity cases. We see no reason to differentiate total changes of custody from periods of living together in the same household; actual support is actual support."

You can read the next twenty pages if you like.  But after that introduction, if you want, you can stop, and still know volumes about what the author's saying.

That's the very definition of a good introduction.

The author is Justice Bedsworth, of course.  You'd figure that out soon enough by the writing style -- or the multiple nine-point discursive footnotes (another trademark) -- if you hadn't already by the nature of the introduction.

Wholly apart from the writing style, which is outstanding, I've got a strong sense that this one's going to be memorable on the merits.  Indeed, I think it has generated a new legal term.  I'm just trying to figure out if, in the future, we're going to call them "Helgestad" credits or "Vargas" credits.

My money's on the latter.  Technically, because Vargas was the father and is the one getting the credits.  But realistically simply because his name is easier to pronounce.

Another incredibly well-crafted and -written opinion by Justice Bedsworth.  Which I imagine will get a new shorthand name in family law circles within the week.

Tuesday, November 18, 2014

Gwartz v. Weilert (Cal. Ct. App. - Nov. 18, 2014)

Today's published opinion from Justice Franson begins by saying:  "This appeal follows a highly publicized jury trial of a fraud claim arising from a $2.3 million sale of 15 acres of land that included a residence, riding arena and associated buildings, located on South Kings Canyon Road, Parlier, California. The plaintiffs who purchased the property obtained a judgment for $1,553,800, which included $850,000 in punitive damages."

Hmmm.  I had never heard of that "highly publicized" trial before.  Maybe I just forgot about it.  So I read the rest of the opinion to see if that would help.

Nope.  Still never heard about it.

I'm sure that's just my Southern California, big(gish) city bias.  I'm sure it was a huge story in the city of Parlier.  Population 14,494.  Five miles southeast of Selma, California.

I wish also there were more details.  Because I'm sure Justice Franson's right that it's a fascinating case.

As it is, the opinion merely deals with the appellate disentitlement doctrine.  Which is itself a neat thing.  The Court of Appeal dismisses defendant/appellant's appeal because they engaged in various machinations to try to avoid, circumvent, and hide from the judgment.

To tell the truth, I've seen worse.  Lots worse.

Not that that's a defense.  But if you ever want a case for the proposition that defendants can't try to hide from a judgment and simultaneously appeal it, here's a good one.

Monday, November 17, 2014

In Re Daniel B. (Cal. Ct. App. - Nov. 17, 2014)

Mom and Dad have a one-year old child together, and are living in a small two-bedroom home owned by Dad's parents.  Mom and Dad get into a fight.

Dad stabs Mom with a knife.  In the left shoulder.  Not good.

When Dad stabs Mom, Mom's pregnant with Mom and Dad's next child.  Twenty-nine weeks pregnant.  Makes things even worse.

The only dispute between the parties is whether, when Dad stabbed twenty-nine week pregnant Mom in the left shoulder, she was also holding their one-year old child in her arms at the time (as Mom said), or whether Dad's right that she had just given this infant to Dad's parents.

As one might already imagine, a lot doesn't ride on the resolution of this particular controversy.  You know that Dad's in trouble.  He's going to jail.  And, not surprisingly, there's a dependency action.

The dispute in the Court of Appeal is not about what you might expect.  Or, depressingly, maybe it is.

Dad has a restraining order against him at this point, is homeless and living out of his car, and he has a 13-year methamphetamine addiction.  Mom seems completely clean, as far as I can tell.  Her only deficiency is essentially her relationship with Dad.

Which she might perhaps want to one day continue.

The trial court tells her that if she has any contact whatsoever with Dad, it's going to take her kids away from her.  “You are hanging by a thread with these kids. If there is any contact with this man, I guarantee you somebody is going to tell the [DCFS], and, if that is the case, your kids are gone. Got it?”  Plus it orders her, as a condition of keeping her kids in the interim, that she's got to attend group therapy classes for victims of domestic violence.  For as long as the therapists want.  Mom objects, saying she doesn't want a group, but rather individual therapy, and wants to know how long this will take, rather than an open-ended order that says she's got to participate indefinitely.  The trial court's response:  "“Not a chance. She needs to be in a group. She needs to have other people saying to her, you let him back in and you let him back in and you let him back in. That doesn’t happen . . . with Family Preservation. They are very nice people. They will do individual. No, no, no. She needs to be in a group."  As for length:  "This is up to the domestic violence treatment program and the domestic violence counselors to say how long Mother needs to be in. They may say four weeks. . . . They may say a hundred. That is their call, but it’s got to be a group.”

Mom appeals, arguing that she's the victim, not the perpetrator, but the Court of Appeal affirms.

You can see why all of this transpires.  Though, at some point, one has to be worried about the long-term consequences of approaches like this one.  If victims of domestic violence are made to feel like victims in court, and (albeit for understandable reasons) have orders entered against them under penalty of losing their children, the incentive to report domestic violence in the first place may drop dramatically.  At some point, to potentially dangerous levels.

To solve this problem, we rely in large part on the public not knowing much about what goes on in this realm.  Mothers who are victims of domestic violence largely believe that when they report it, the consequences will entirely fall on the perpetrator, not on the victim.

But as more and more cases like this one arise, I wonder if that's an entirely stable dynamic.  At some point, the word may get out.  Changing the reporting dynamic.  Not necessarily for the better.

Yes, Mom needs counseling.  Yes, Mom needs to realize there's a serious problem here.  She likely already does, but perhaps we need to send that message even more strongly.

There's nonetheless, somewhere, a line here.  I'm just not sure at what point, systemically, it's crossed.

Friday, November 14, 2014

Overstock.com v. Goldman Sachs (Cal. Ct. App. - Nov. 13, 2014)

You think that your summary judgment motion was complicated?  Check out this one:

"[D]efendants moved for summary judgment on the remainder of plaintiffs’ causes of action . . . on multiple grounds. Plaintiffs’ opposition would eventually fill 38 banker’s boxes and included thousands of pages of discovery materials that had been designated “Confidential” or “Highly Confidential” pursuant to the protective order. . . . The trial court heard three days of argument on evidentiary objections to the materials filed in connection with the summary judgment motions and a full day of argument on the merits of the motions. "


It also takes the Court of Appeal 63 pages just to resolve the resulting disputes about which of these materials should remained sealed and which should be open to the public.

But that's not all.  The Court of Appeal issues another published opinion, in the same case, on the same day, that addresses the merits.  It's 60 pages.  We're talking a lot of work by everyone involved.

Moreover, if you think the stock market is just a nice, easy place, and trading's pretty straightforward, and an individual investor really has all of the same advantages as an institutional insider, feel free to check out the first fifteen pages of that second opinion.  You'll get a tiny glimpse into what happens in the "back office" of trades.

And perhaps be horrified.

Thursday, November 13, 2014

People v. Murillo (Cal. Ct. App. - Nov. 13, 2014)

The prosecution calls a witness at a criminal trial, but the witness refuses to answer any questions, saying at the very outset "I've got nothing to say."  What we do with the witness is another issue; he doesn't have a privilege claim, so we may well be holding him in contempt.  But it's likely he'd prefer that to getting shanked -- or worse -- for testifying.

Okay.  Since the witness clearly isn't going to testify, we presumably just move on to the next witness, right?

Not here.  No, instead, the trial court let's the prosecutor ask over a hundred leading questions to the nonresponsive witness.  Essentially testifying on his behalf.  Things like:  "[D]o you recall circling number four [Murillo] and putting your initials, the date, and the time on that document?; [D]o you recall writing a statement that says, 'Number four [Murillo] looks like him, but not completely sure. Kind of the same face structure'?"

Defense counsel objects like crazy, but the trial judge is totally fine with everything.  Let's the jury hear all of the witness' purported testimony from the prosecutor's mouth.  Admittedly telling the jury at the end that the prosecutor's questions "aren't evidence".  But nonetheless letting the prosecutor get all the "facts" he wants in front of the jury.

The Court of Appeal is not impressed.  It reverses.

Usually we assume that the jury followed a judge's instructions.  But in situations like this, when there's such manifestly inappropriate conduct, I agree that it makes total sense to reverse and remand for a trial in which the jury decides the case based upon the actual evidence, not the non-evidence out of the mouth of the prosecutor.

Wednesday, November 12, 2014

Garcia v. Google (9th Cir. - Nov. 12, 2014)

Let's just say that "Innocence of Muslims" is now in reruns.  Because this morning the Ninth Circuit took the case en banc.

This is not an especially surprising development.  As I mentioned when the opinion came out, it's a high-profile case that makes fairly new law.  So taking the case en banc was reasonable foreseeable.

I'll just make one comment you may not find elsewhere.  Chief Judge Kozinski wrote the majority opinion that's been taken en banc.  Moreover, as chief judge, under Ninth Circuit Rule 35-3, he's automatically on the en banc panel.  Which means that you likely already know one of the eleven votes.

With one wrinkle.  By my calculation, Judge Kozinski only has 18 more days -- and counting -- as chief judge.  So at the time of the actual argument (indeed, even at the brief submission date), he's not going to be the chief.

I'm not quite sure how Rule 35-5 gets applied in this setting.  I'm assuming that since he's the chief at the time the case is taken en banc, he gets to be on the en banc panel.  Even though that means that the en banc panel won't have the "chief" on it.  (Which somewhat highlights that there's totally no reason to have the chief automatically put on the en banc panel; something that I hope the Ninth Circuit will eventually change.)

A foresighted judge might have delayed the en banc call and/or vote just a few weeks to get a different judge on the en banc panel.  But maybe that'd be too obviously manipulative.  Conversely, maybe the Ninth Circuit will let the new chief sit on the panel.  (Instead of Kozinski?  In addition?)  Though I do not think that likely.  Seems to me that the best interpretation of the relevant (bad) rule is that the person who's the chief at the time the case gets taken en banc gets to sit.  Otherwise you've have to deal with situations like when the transition happens the day before oral argument, etc.

We'll see what happens.

POSTSCRIPT - Or maybe not!  An astute reader applied his substantial legal talents and looked for -- and found -- a precedent.  Seems that in the prior transition, back in 2007, the Ninth Circuit dealt with a similar issue.  A panel opinion got taken en banc on October 29, 2007.  Judge Schroeder was chief on that date.  But not for long; Judge Kozinski took over a month later.  Then the en banc case got argued in December.  Kozinski had been the chief for only two weeks or so.  Who was on the en banc panel?  Kozinski, not Schroeder.

So it looks like it should be Thomas, not Kozinski, on the panel on this one.  Unless, of course, the former chief is drawn by lot.  Which would make the whole thing moot.  (Except for the irrelevant but exciting fight about who gets "listed" as the chief when the en banc opinion comes out.)

Great stuff.

Tuesday, November 11, 2014

People v. Gonzalez (Cal. Supreme Ct. - Oct. 20, 2014)

No opinions from the Ninth Circuit this morning.  And nothing from the Court of Appeal.  Enjoy your Veterans Day.

But there's still some interesting reading from a little while ago.  For example, I'm not going to recite the facts that ultimately resulted in a case over which the California Supreme Court ultimately granted review.  If only because children might stumble across this blog.

But for the adults amongst us, go ahead and read the second paragraph of this opinion by the California Supreme Court, which briefly recite the underlying facts of the case.  It's a conviction that arises from an event that transpired during the early evening of June 25, 2010 on a public sidewalk in downtown San Diego.

And ask yourself:  What was the defendant possibly thinking when he did this?

Celebrate today's holiday in style.  But let's be careful out there.

Monday, November 10, 2014

Friday, November 07, 2014

HH Computer Systems v. Pacific City Bank (Cal. Ct. App. - Nov. 6, 2014)

In his inimitable style, Justice Bedsworth tells you everything you need to know -- and more -- about the process of depositing (and stealing) checks

Thursday, November 06, 2014

Giorgio v. Synergy Management Group (Cal. Ct. App. - Nov. 6, 2014)

Defendant doesn't come off as very sympathetic in this civil case.

The Court of Appeal doesn't give a lot of facts.  But the impression one might get is that defendant is evading service of process.  Big time.

Regardless, plaintiff tries and tries and tries to serve him, but ultimately gives up, gets an order of publication, does the deal, and takes defendant's default.  For a ton of cash.

Defendant moves to vacate, claiming that he never got notice..  But the trial court denies the motion, and the Court of Appeal affirms.  Plaintiff did what he had to do.  The facts look bad.  In particular, defendant's failure to explain why the post office says he's getting mail at 1109 South Wooster St. #3 in Los Angeles, why the guys in the Netherlands says he's at that address, why he's got an invoice telling plaintiff to make payment to him at that address, and yet nowhere does plaintiff explain why he's not, in fact, at that address.

That's a problem.  Which is why he's a $250,000+ judgment lighter at this point.

The Court of Appeal also (belatedly) publishes the opinion.  Which is a bonus to the "Cromwell Group, Attorney Services," which the Court of Appeal describes as "specializ[ing] in difficult service of process."

Thanks for the free advertising, Justice Kriegler!  (And now, Professor Martin!)

Hope we both get a free ham in the mail for Christmas.

U.S. v. Mavromatis (9th Cir. - Oct. 28, 2014)

Here's a nice little disposition that makes total sense.  On the part of everyone involved (except, perhaps, the Alaska US Attorney and the district court).

It's sufficiently brief that I can quote the disposition in full:

"Appellant James Mavromatis was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Following a bench trial, the district court entered a judgment of acquittal. Based on the same incident of possession, Mavromatis was charged in a new indictment and convicted of possessing a firearm after previously being committed to a mental institution, in violation of 18 U.S.C. § 922(g)(4).

Appellee, the government, has filed a “motion for remand based on confession of error,” because it agrees that Mavromatis’s conviction pursuant to 18 U.S.C. § 922(g)(4) is barred by the Double Jeopardy Clause. The view of the Department of Justice is that Congress intended not to establish multiple offenses when the same incident of possession violates two subsections of § 922(g). The government further concedes that the Department of Justice took this position in a brief filed with the Supreme Court in 1992, when the Solicitor General agreed that § 922(g) states a single offense that supports a single conviction and sentence, rather than multiple offenses that may be charged separately. See United States v. Munoz-Romo, 989 F.2d 757, 758-759 (5th Cir. 1993) (summarizing the Solicitor General’s position before the Supreme Court).

Accordingly, the government’s motion for remand is granted.

We remand this case to the district court with instructions to vacate the conviction and dismiss the indictment.

The mandate shall issue forthwith.


Short, coherent, good.  Nice to see.

Wednesday, November 05, 2014

People v. Palafox (Cal. Ct. App. - Nov. 3, 2014)

Guess how this one turns out:

"Defendant [Luis Palafox's] maternal grandfather died in prison after being convicted of molesting a 12-year-old relative. Two of defendant’s uncles (one of whom was Hoffman) were serving life sentences for murder. Defendant’s maternal grandmother beat his mother, who, along with one of her sisters and a brother, got involved in gangs. Defendant’s father was also a gang member. Defendant’s maternal grandmother used cocaine and “speed,” and his paternal grandfather was an alcoholic.

Defendant’s mother became pregnant with him at age 15. Defendant’s father described it as an unwanted and unplanned pregnancy. Although defendant’s mother denied using drugs during her pregnancy, she smoked marijuana daily and drank — sometimes heavily — on weekends after defendant was born. Gunfire and gang activity were frequent in the neighborhood in which defendant lived.

Defendant’s parents separated in 1993. Prior to their separation, defendant was
frequently exposed to incidents of domestic violence. After the separation, defendant’s father rarely chose to see him. Defendant’s mother moved a lot and continued to drink and smoke marijuana.

Defendant’s mother became involved with another gang member, Israel Rios, and together they had four children. Rios and defendant’s mother used drugs, smoked marijuana with the children in the house, and Rios drank heavily. Rios was aggressive with the children, and whipped defendant with his hand or a belt until defendant turned 12 years old and was 'too big to beat.' Because the family moved around a lot, defendant never joined a gang. . . .

Mason’s report detailed the large number of different schools defendant attended throughout his life. In high school, he tested below basic in English and algebra, and far below basic in world history, life science, and biology. According to an aunt, he had speech problems and a lisp. Another aunt described him, as an adolescent, as 'quiet, withdrawn, and young-minded.' During his school years, he was suspended multiple times for marijuana, possession of a knife, tagging, and other behavior problems. . . .

Defendant had “self-injurious behavior,” including biting and burning. On one occasion, he set the bathroom on fire. He used drugs and drank, drinking heavily at least three times a year. He started using marijuana at age 13, and smoked it daily until his arrest in this case. He experimented with cocaine and ecstasy. Three months before his arrest, his mother caught him inhaling Freon.

Despite everything, defendant was kind and helpful to his family. He babysat and cared for his younger siblings, and got them ready for school while his mother slept. After Rios hurt his back in an accident, defendant took care of the house and yard. He also helped people in need, such as by loading grocery bags into cars for people at the store and helping his blind grandfather do laundry. His aunt tried to get defendant to live with her, as she wanted to be a positive influence in his life, but he felt he had to stay with his mother, because she needed him to care for his younger siblings."

That's basically the story of his life until the age of 16.  Which is when he and another 16-year old broke into the home of an elderly couple in Bakersfield looking for drugs and beat them to death with a baseball bat as they lay in their bed.

He's sentenced to two counts of life without the possibility of parole.  The Court of Appeal affirms.

End of story.

Tuesday, November 04, 2014

Maxwell v. Dolezal (Cal. Ct. App. - Nov. 4, 2014)

You'd normally think that an opinion that was completely fact-dependent and was simply about whether the plaintiff had adequately stated a garden variety cause of action would be unworthy of comment.  Like this one.

You'd be right.  Normally.

But I have to make at least a brief reference to the opinion for two reasons.

First, the contract at issue is a funny one.  Funny as in "strange" but also as in "ha ha".  According to the Court of Appeal, here's what plaintiff -- who filed in pro per -- said about the relevant contract:

"Maxwell alleged that Dolezal had used his photograph and his website, JordanMaxwell.com, without Maxwell’s authorization or consent and for the purposes of advertising and/or soliciting purchases of merchandise. Maxwell alleged that, as a result, he had suffered injury to his business and lost income as a celebrity; he sought damages and an injunction preventing Dolezal from using his website and likeness for advertising or soliciting purchase or rental of videos. . . .

[Maxwell] alleged that on or about March 30, 2010, he entered into an agreement with Dolezal in which he agreed to assign his intellectual property rights in exchange for free housing, free food, and 50 percent of the monies received as a result."

JordanMaxwell.com.  In return for "free housing, free food, and 50 percent."  Classic.

Second, of course, I had to investigate the actual web site.

Ordinarily I'd simply provide a link.  And I will.  But it's too good not to share directly.  It's just that awesome:

Owino v. Holder (9th Cir. - Nov. 4, 2014)

My first thought on reading this opinion was:  "Quinn Emanuel does pro bono immigration work?!"

But, indeed, it does.  At least now.

Not that I'm complaining.  That's great.  Wonderful, even.

Just not necessarily what I expected.

Monday, November 03, 2014

Aspen Grove Condo Assoc. v. CNL Income Northstar (Cal. Ct. App. - Nov. 3, 2014)

This opinion amply reflects the central problem that California faces in the modern era:  Too much water.

Okay, so maybe not all of California has this problem.  But the condo owners at Aspen Grove have precisely such a problem.  At least after Northstar Village expanded its ski operations.  Northstar built a lot of buildings and parking lots and the like, which reduced the preexisting ability of the ground to deal with runoff from melting snow and the like.  So Northstar created a nice little pond to collect all that water -- right near the condos -- but the pond didn't work, and water intrusion on the Aspen Grove property was a fairly constant problem as a result.

Northstar tried to solve the problem, but eventually just gave up.  So Aspen Grove sued.  And won.

Justice Hoch's opinion doesn't paint Northstar in a very favorable light.  Remember that the next time you go skiing in Lake Tahoe.  And feel free to rent a condo at Aspen Grove.  It's close to the slopes.  Even closer to the runoff therefrom.

People v. Eroshevich (Cal. Supreme Ct. - Nov. 3, 2014)

The month of November did not start out well for Howard K. Stern.  (To be clear, we're talking about this Howard Stern -- i.e., the "Anna Nicole Smith" one -- not the "King of All Media" Howard Stern.)

Mr. Stern was convicted at trial of conspiracy to obtain prescription drugs for Ms. Smith (a.k.a., Ms. Vicki Lynn Marshall) under a variety of false names.  But the trial judge granted a new trial, and the Court of Appeal held that although the jury's verdict might perhaps be reinstated, the Double Jeopardy Clause barred a new trial.

The California Supreme Court reversed and remanded, unanimously holding that a new trial was permissible.

Among other things, today's opinion shows just how troubling Supreme Court dicta can be.  The Court of Appeal's decision relied upon an express statement from the California Supreme Court in which that tribunal said that once a trial court finds the evidence to be insufficient, no new trial is permissible.  That statement is indeed dispositive here.  But as the Court explains, it's also wrong.  Such a holding is conclusive for Double Jeopardy purposes if made before the jury returns its verdict.  But not if made after the jury finds the defendant guilty.

The Court of Appeal felt constrained by the California Supreme Court's express statement.  Whereas the latter didn't feel similarly constrained in the slightest.