Tuesday, June 30, 2015

People v. Awad (Cal. Ct. App. - June 29, 2015)

This is an awesome opinion.  It shows a manifest concern for justice.  Three cheers for the Court of Appeal.

I'll let the 4/3 explain the thing in its own words:

"Appellant has appealed his felony conviction for multiple counts of forgery and grand theft and is currently serving a sentence for his conviction. Following his sentencing, in November 2014, the California voters enacted Proposition 47, entitled “the Safe Neighborhoods and Schools Act.” (See Note, Deering’s Ann. Pen. Code, foll. § 1170.18 (2015 supp.) p. 79.)

Proposition 47 reclassifies as misdemeanors certain non-serious, nonviolent crimes that previously were felonies, and authorizes trial courts to consider resentencing anyone who is currently serving a sentence for any of the listed offenses.

Appellant tried to take advantage of Proposition 47’s postconviction procedure by petitioning the trial court to reduce the felony sentence for one of his forgery counts to a misdemeanor. The trial court declined to do so, on the ground it lacked jurisdiction to recall the sentence while appellant’s case was pending on appeal.

Thus, appellant and many other similarly situated defendants face a Hobson’s choice. On the one hand, they can wait to seek Proposition 47 relief until they complete their appeals from the underlying judgment of conviction. But by then, it may be too late to gain any benefit from a sentencing reduction because they already will have served the time in question. On the other hand, they can give up any pending appeal in order to obtain speedy Proposition 47 relief from the trial court.

There is a way out of this jurisdictional conundrum: a discretionary remand by the Court of Appeal to the trial court for the sole and express purpose of determining, within a specified time frame, a Proposition 47 petition to recall a sentence. We have authority to do so pursuant to Penal Code section 12601 to effectuate the resentencing provisions in Proposition 47 in a timely manner.

We grant appellant’s motion for a limited remand, and stay the pending appeal for a short period of time to allow the trial court to conduct a Proposition 47 postconviction hearing."

The remaining nine pages of the opinion explain why the Court of Appeal is permitted to do what it has equitably decided to do.  And it's right.

These are often short sentences.  They may well be over by the time the case gets fully briefed and eventually heard in the Court of Appeal, and then booted back down for a Proposition 47 hearing.  It makes sense to put the horse before the cart and do a limited remand on the Prop. 47 issue -- which only the trial court can do -- and thereafter adjudicate the full-fledged appeal.  Well done.

This is an especially great move by the Court of Appeal because the 4/3 appears to have come up with the idea on its own.  Appellant's counsel simply moved to expedite the appeal.  It looks like the Court of Appeal was the one who came up with the "limited remand" concept.  Great demonstration of initiative.

I also liked how the Court of Appeal ended its opinion:  by remanding the case and ordering the completion of the Prop. 47 hearing within 45 days.  With a report to the Court of Appeal five days after the hearing has been completed.  In short:  telling the trial court to get on the stick.  Given that there are two departments in the trial court that apparently do nothing other than hear Prop. 47 motions, that seems a fair timetable.  As well as efficient for everyone involved.

The only thing that made this whole process less than perfect -- albeit still very much commendable -- was giving the appellant multiple extensions of time to complete his brief (a total of over two months) and then granting respondent an extension of time for an additional month.  Given the need for speed, perhaps counsel should be held to the fire as well.  Not just the trial court.

Nonetheless:  Great job, 4/3.

Ironridge Global v. ScripsAmerica (Cal. Ct. App. - June 30, 2015)

The rule's fairly simple:  Follow the trial court's injunction, or get it stayed.  If you do otherwise, you may well find your appeal dismissed.

As the Court of Appeal does here.

I'll add that today's opinion is also not a ringing endorsement of the appellant, ScripsAmerica, Inc.  If it conducts its business like it litigates, you probably want to steer clear of the place.

Maybe that's why its stock is trading for six cents a share.

Monday, June 29, 2015

Ninth Circuit Mandamus Actions (9th Cir. - June 29, 2015)

Today is apparently "Judge Jones" day in the Ninth Circuit.

Judge Jones, from the District of Nevada, is the subject of not one, but two (unrelated) published mandamus opinions today.  The first stems from his routine practice of denying pro hac vice status to U.S. government attorneys.  The United States finally got fed up with the practice and filed petitions for writs of mandamus.  In that one, the Ninth Circuit declined to formally issue the writ, since Judge Jones had technically reversed the practice in the particular case in which the writ was filed, but still issued a published opinion that essentially made clear that Judge Jones should cut it out.

In the second opinion, the Ninth Circuit in fact issues a writ, in a case in which Judge Jones had involved himself in a criminal plea negotiation, and also assigned the case to a different judge on remand.

So not an especially good day for Judge Jones.

The criminal mandamus case was unanimous.  The pro hac case, by contrast, was authored by Judge Milan Smith, but Judge Wallace concurred.  Judge Wallace's main beef was that the court shouldn't have issued an advisory opinion (and he's got a point there), and that the problem was best resolved by the Judicial Council of the Circuit rather than on a writ.  My sense is that Judge Smith didn't think that such a remedy was effective, particularly given how long Judge Jones has continued his practice, and felt like a more immediate response (e.g., a published opinion) would be preferable.

Two tiny additional things.  First, I thought it was interesting that in the criminal mandamus case, the Ninth Circuit never once mentioned that the judge at issue was Judge Jones.  Not once in the text, and (interestingly) not even in the caption.  Usually -- like in the pro hac case -- you've got a line that says "On Petition for Writ of Mandamus to the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding".  But in the criminal mandamus case today, the court leaves out that last part -- the part with Judge Jones' name.  The only way you can tell who we're talking about is by reference to the district court case number, which ends with "RCJ"; i.e., Judge Jones.

The second interesting thing is that one of the members of the pro hac opinion is Judge Wallace.  He was, indeed, the judge who concurred.  That puts him in a slightly tough spot, because guess who was a law clerk for Judge Wallace after graduation?  That's right:  Judge Jones.  Gotta be tough to preside over the alleged misconduct of a former clerk of yours.

Neat little opinions today.  A little insight into some justice as practiced in one particular courtroom in Nevada.

Friday, June 26, 2015

U.S. v. Jefferson (9th Cir. June 26, 2015)

Headline:  George Jefferson gets a decade in prison.  He's no longer movin' on up.  But he is going to the big house.

Okay, so it's not Sherman Helmsley's George Jefferson.  But he is nonetheless a guy who's similarly feeling the sting of a particular social structure.

Mr. Jefferson drove a vehicle that contained some methampetamine into the U.S.  He admitted that he knew his vehicle contained some drugs, but thought it was a small amount of marijuana.

Too bad.  The Ninth Circuit follows binding precedent that says that it doesn't matter whether you knew the type of the drug or the quantity.  You're still subject to the 10-year mandatory minimum.  If you thought that Jimmy had put a single joint of marijuana in your glove box but it was actually a kilo of meth, you automatically get the full ten years.  Mandatory.  See ya in a decade, Joint Boy.

Judge Fletcher doesn't like that rule, and would overrule it.  So writes a separate concurrence from Judge Wardlaw's opinion in which he expressly says so.  But it's nonetheless the law.  Sorry, Mr. Jefferson.

Two other tangential points.  First, many of us are fairly well-aware of the crack/powder sentencing disparity with respect to cocaine, as well as what had been done to try to alleviate that problem.  But I was surprised to discover today (as a result of Judge Wardlaw's opinion) just how methampetamine is treated.

You can import up to 50 kilos of marijuana, and there's (1) no mandatory minimum at all, and (2) a statutory maximum of 5 years.  So marijuana is (not surprisingly) not huge deal.  Cocaine is, to be expected, treated differently.  Importing 500 grams of cocaine -- a little over a pound -- gets you a mandatory minimum of 5 years.  Not surprising.

So where does methamphetamine fall along this line?  About twenty times worse, by my count.  Since 50 grams of meth (as opposed to 500 grams for cocaine) gets you a mandatory minimum of ten years (as contrasted with 5 for cocaine).  So a tenth as much gets you double the time.

To an unsophisticated person like myself, this seems strange, if not crazy.  Both cocaine and meth are "bad", but I would have thought that people thought cocaine was (maybe just a little) "worse".  Or was at least worse on the "importation" front; we want to stop importing cocaine that would essentially cut off supply, since there's little to no home-grown cocaine, whereas there's plenty of domestic meth, so we'd presumably not feel as much of a need for a hammer on the importation front for the latter.

So I was surprised to see essentially a 20:1 ratio.

Now, I'll forthrightly admit that I'm a novice on this front, having never used either of the relevant drugs.  So it may perhaps be that it takes more cocaine to put you where you want to be than it does meth.  My unsophisticated brain thought they were both basically powders and a line was a line and hence basically equal.  Thank God for the internet, of course.  Though there's definitely no standard resource here, the sketchy places I've looked tend to suggest that maybe typical doses of cocaine are indeed a bit higher than typical doses of methampetamine.  Though not at all like 20:1, and it also very much depends on how you use (e.g., snorting vs. IV).

And, again, on this front, I'm totally talking out of my butt.

Still, 20:1.  Treating cocaine more favorably than methampetamine.  That's surprising to me.

Second point.  I was born in 1966, so I distinctly remember the efforts in the 1970s to get people to use the metric system.  Meters, liters; all that good stuff.  It was a total failure.  People just didn't at all want to have to convert, say, 55 miles to hour to whatever kilometers per hour that might be.  So the effort failed notwithstanding the indisputable value it would have to move our measuring systems to those used by the rest of the world with which we trade.

In that light, isn't it somewhat surprising how the metric system has totally caught on in the much more informal area of drugs?  You ask for a "kilo" of cocaine, not a "pound".  Even unsophisticated users who barely made it through junior high school know what a "gram" of methampetamine entails.  The standard measure of heavy drugs is the metric system.

Isn't that weird?

(Mind you, it also makes it very easy for even casual observers to figure out who the drug dealers are; say, in high school.  When I was a kid, all I had to do to figure out if a guy was "in the know" was to ask him how many grams were in a pound.  Any denim-jacket wearing dude who knew the answer to that question was a guy who either sold himself or who knew plenty of people who did.)

It's also a bit funny because my sense is that for marijuana, it's different.  There, in general, we use the English system; an ounce, an "eighth" (of an ounce), a pound, etc.

(Mind you, in the modern "medical" marijuana industry, there's been a demonstrable shift towards grams, so even here, the metric system's making far more inroads than it ever did in modern culture.  Two liter bottles aside.  Plus, I admit that the English system still has some use on the "hard drugs" side.  "Eightballs" of cocaine, for example; e.g., an eighth of an ounce.  Still, I think the metric system dominates on the non-marijuana side of things.)

My only way of potentially reconciling the difference between the use of the metric system for "real" drugs and the English system for marijuana is that maybe it arose because the former is generally imported whereas there's a large home-grown market for the latter.  So maybe we followed "kilos" when we discussed, say, cocaine and heroin because that's the measure that the producers of those products used, and we dutifully followed along.  Even though in "normal" international trade we expected the use of our own system.  Whereas in marijuana the presence of a nontrivial domestic production market let us indulge ourselves in the use of our own system.

That's not a perfect explanation, since meth has a big home-grown component too, and there's a fair amount of imported marijuana.  But it's at least a shot.  Otherwise I'm not at all sure why drug users have a much better knowledge of the metric system-- or at least weights and measures therein -- than, I'd estimate, 90 percent of "average" Americans.

Americans:  We like our speedometers in English, but our drugs in metric.

Thursday, June 25, 2015

People v. McDonald (Cal. Ct. App. - June 25, 2015)

There's such a fine line between a tiny little bit in prison and a ton of time in prison:

"On August 19, 2012, Christopher Patterson snatched a gold chain from around the neck of 71-year-old Guadalupe Ramos. In the process, he either knocked or threw her to the pavement of a grocery store parking lot. . . . Guadalupe developed an irregular heartbeat. She was pronounced dead about an hour after the robbery."

If things had gone as planned, and the snatch-and-grab would have worked out as it was intended (e.g., the chain broke easily), Mr. Patterson would have been guilty of a relatively minor offense.  As it actually transpired, however, he's facing first degree murder charges.

So too is the defendant in today's opinion: a guy named Maxamillion McDonald, who sat in a car waiting for Mr. Patterson to return.  He gets convicted on first degree murder as well.  As well as sentenced to life without the possibility of parole.  Plus 12 years.

The Court of Appeal reverses various convictions on instructional (and other) grounds, so Mr. McDonald gets some relief.  At least for now.  We'll see what happens on remand.

But the Court of Appeal doesn't do so due to the totally happenstance nature  of the offense.  We still impart incredible significance in sentencing to chance:  A and B may commit the exact same crime, in exact same settings, but if A's victim falls one way, and B's victim falls another, the punishment we give to identical acts is often radically disparate.

P.S. - As to how Ms. Ramos died:  "Visual examination of the body at autopsy showed abrasions and contusions to the right side of Guadalupe’s body, including her neck. She had a history of hypertension, and the autopsy revealed some kidney disease, fibrosis in the lungs, and a fatty liver. The cause of death was determined to be cardiac dysrhythmia (irregular heartbeat), associated with blunt force trauma on the trunk and extremities. Basically, the marked excitation accompanied by physical exertion and emotional distress surrounding the event accelerated her heart rate and led to internal imbalance. There was a surge of adrenaline, followed by deceleration during the waning effect of the adrenalin, causing the heart to beat irregularly and leading to a heart attack. In essence, Guadalupe literally was scared to death."

Wednesday, June 24, 2015

Wong v. Stoler (Cal. Ct. App. - June 23, 2015)

Unlike the Court of Appeal, I sort of liked what the trial court (Judge Buchwald from San Mateo) did here.  Though I understand why the Court of Appeal had to reverse.  Still, on remand, I might continue to lean in the direction of the trial court's sentiment rather than the Court of Appeal's.

It's a "fraud" case.  Though only marginally.  Ira and Toby Stoler have a beautiful home in San Mateo.  They sell it to Wayson and Susanna Wong for $2.35 million.  (Sucks to be poor, eh?)

The sellers fill out the usual paperwork, including a transfer disclosure statement that says that there's no HOA and that the home was connected to a public sewer system.  But these statements were only "sort of" correct.  Whether the Stolers knew it or not, the developer of the property (including the property of a dozen of the Stolers' neighbors) actually built a private sewage line to connect all the properties together and then ran it down a hill to connect it to the public line.  So the home was technically itself connected only to the private line, and while there was no formal HOA, the 1,000-foot private line was legally owned in common by the 13 homeowners that connected to it; e.g., they'd be responsible for any repairs and/or breaks.

So that's a negligent misrepresentation by the Stolers.  Which is admittedly wrong.  Regardless of the fact that the CC&Rs (reviewed by the Wongs) sort of mention this private sewer line.  The Stolers should not have said what they did.

The Wongs originally try to deal with the problem in a neighborly fashion, and try to simply get the City of San Mateo to take over the line.  But no dice.  So then they hire lawyers.  Who sue the Stolers as well as the real estate agent.

What remedy do the Wongs want?

You might initially think damages.  The difference between the value of the home they thought they bought (with a public sewage line) versus the value of the home they actually did buy (with a shared interest in 1000 feet of a private line).

That probably wouldn't be a massive amount of money.  It'd matter a bit to most buyers, perhaps.  It's some exposure.  But in the grand scheme of things, not much.  Bet it didn't matter virtually at all, for example, to the 13 buyers who built it from the developer.

So if that's the measure of damages -- and surely full compensation is a just result -- then we can resolve this lawsuit fairly easily.  Indeed, we can easily resolve it, since the Wongs already got a $200,000 settlement from the real estate agent.  I'm confident that's more than sufficient to cover an actual damages remedy.

But did I mention that the sale of this $2.35 million home transpired in 2008?  That's right.  Immediately prior to the crash.  And consequent plastering of real estate values.

Now can you figure out what remedy the buyers want?

That's right.  Rescission.  They want to give the house back to the Stolers and have their $2.35 million refunded.  Never mind the fact that the Wongs have, in the meantime, remodeled the property and (in the words of the Court of Appeal "much of the home was down to the studs as a result of the demolition work."  The Wongs want the full purchase price back, regardless of the downturn in the market, and are willing to give what's left of the studs back to the Stolers.

All because of some erroneous wording about a 1000-foot private sewage line.

The trial court doesn't like that.  It things that rescission is an equitable remedy.  Which it is.  The trial judge doesn't think the Wongs' demand for relief is equitable.  Which, IMHO, it's not.

So he comes up with a creative solution.  The Wongs get to keep the house.  But the Stolers will be responsible for any repairs, maintenance, or replacement of the private sewage line.  Either for 10 years or until the Wongs sell the house, whichever comes first.  With a cap of $360,000 in liability, offset against the $200,000 the Wongs already received in the prior settlement.  That way the Wongs will essentially get what they thought they were buying:  a particular house, but without the burden of having to potentially repair a private sewage line.

Nice.  Creative.  Fair.  I applaud Judge Buchwald.

Admittedly, I would still reverse.  The Court of Appeal is right that the trial court's remedy doesn't fully put the Wongs in the position they thought they'd be in.  Or one thing, what if repairs cost over $360,000?  For another, what if the repairs were required in the 11th year rather than the 10th?  Finally, what about the fact that the Wongs are now going to have to disclose this private sewer line to the next buyer, with no indemnity by the Stolers -- hence perhaps reducing the selling price of the home?

Those are all problems.  They aren't solved by the trial court's remedy.  So I agree we need to try something else.

Mind you, I think there is a solution in equity.  My thought is that we simply make the Stolers responsible for the property's share of the private line.  Period.

We have a name for that sort of thing.  Insurance.

In my mind, we simply have the court declare that the Stolers are responsible, and the Stolers respond by buying an insurance policy to cover any required repairs.  Maybe the premium's $1,000/year.  Maybe it's $5,000/year.  Whatever.  The Stolers just purchase the policy and pay for it.  That way the Wongs get the property they were promised and we're good to go.  Fair and equitable.

As a bonus, this remedy also gives the Stolers a possible out.  Several, even.  If they don't want to buy insurance, they can make a sum-certain deal with the Wongs to get out of it.  A lump sum payment of $50,000 (or $150,000, or whatever).  Then when the Wongs sell the home to the next person they disclose the private line and everything's hunky dory forever.  Alternately, the Stolers can buy the insurance (or take on the liability themselves) and, sometime down the line, buy the house from the Wongs (or a subsequent purchaser) and then immediately flip it with full disclosure.  My bet is that'd cost the Stolers only a minimal amount of money, since my guess is that buyers won't actually care much about the private line.

Regardless, there's an equitable solution available.  Something that makes the Wongs whole -- maybe even more than whole given the prior $200,000 settlement -- and yet doesn't unjustly hose the Stolers.

So I think a solution like that, potentially on remand, would be a very fair way of resolving the case.

But that's not what the Court of Appeal does.

The Court of Appeal instead just takes the case at total face value.  As if the origins here were not based in equity, nor contain equitable limitations.  It says that victims of fraud are entitled to rescind, and this counts as fraud, so the Wongs get to rescind.  End of story.  Sure, there are some complexities about the value of the Wongs' improvements, and the cut shrubbery, etc.  But that's all detail.  The Wongs get to rescind.

Which is what they want.  Precisely because it gives them a windfall.  They buy the house at the top of the market, and want to give it back once property values plummet.  The latter event having nothing to do with the negligent error made by the Stolers.

I like my remedy better.

In the end, hopefully, as things turned out, maybe the inequitable nature of the Court of Appeal's remedy will have dissipated by now.  Because guess what?  The real estate market has turned.

The Wongs say that they want their $2.35 million back.  Okay.  At least according to Zillow, the value of the property is now over $3.4 million.  So if they want $2.35 million for it, I bet the Stolers may well take that deal.  Heck, the Wongs can even keep the extra $200,000 settlement.  Even though rescission means that they're supposed to turn over pretty much everything they got; e.g., including the $200K.

Lest there be any doubt that it's the general real estate market -- not the actual consequences of the Stolers' misrepresentation -- that's driving the action here, my money's on the Wongs no longer seeking to turn over the property in return for their $2.35 million.

The Court of Appeal's opinion, unlike the trial court's, gives the Wongs a one-way option on the overall real estate market.  That's not attractive to me.  And may work a serious injustice.

At least in the present case, I hope it doesn't matter.  Hopefully the option is valueless.

Since I'm not sure it should have been given in the first place.

U.S. v. Rodriguez (9th Cir. - June 24, 2015)

Judge Silverman captures my sentiments precisely in the opening paragraphs of this morning's opinion:

"There ought to be a law against shining a laser pointer at an aircraft. In fact, there is, and it’s punishable by up to five years in prison, as appellant Sergio Rodriguez discovered for himself. Rodriguez, his girlfriend, and their kids were fooling around with a laser pointer one summer evening in the courtyard of their apartment complex – trying to see just how far it could go – and they shined it at overflying helicopters. Rodriguez was convicted of Aiming a Laser Pointer at an Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced to the maximum sentence: five years in prison. Rodriguez does not challenge that conviction.

He also was convicted of another crime stemming from the same conduct – Attempting to Interfere with the Safe Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5) and (8). That crime requires proof of a willful attempt to interfere with the operator of an aircraft, with either the intent to endanger others or reckless disregard for human life. Rodriguez was charged with and found guilty of the reckless variety, and for that offense, was sentenced to fourteen years in prison.

The evidence clearly shows that Rodriguez was rightfully convicted of aiming the laser pointer at a helicopter (§ 39A). However, there is insufficient evidence that he willfully attempted to interfere with the safe flight of the helicopter (§ 32(a)(5)). Rather, the evidence showed that he was attempting to see how far his laser would go at night – a stupid thing to do, yes, but there is no evidence that he was trying to interfere with the pilot. Section 39A is designed for knuckleheads like him. On the other hand, 18 U.S.C. § 32(a)(5) is designed for both the Osama bin Ladens of the world – people trying to bring down a plane, intending to cause harm – and those who are aware that their actions are dangerous and could harm others, but just don’t care. The failure to recognize this distinction is to fail to appreciate that Congress saw fit to create two different crimes, one more serious than the other, for two different types of offenders.

About a year after Rodriguez’s conviction became final in district court, we decided United States v. Gardenhire, 784 F.3d 1277 (9th Cir. 2015). On very similar facts – a case in which another knucklehead aimed a laser pointer at a passing airplane just for the fun of it – we held, for the purposes of the applicable sentencing guidelines, that there was no evidence “that Gardenhire acted recklessly when he aimed his laser beam at the aircraft. The record is devoid of evidence, let alone clear and convincing evidence, that Gardenhire was aware of the risk created by his conduct.” Id. at 1280.

We face a similar situation here. There’s no problem with Rodriguez’s conviction for Aiming a Laser Pointer at an Aircraft, 18 U.S.C. § 39A. But his conviction under 18 U.S.C. § 32(a)(5), (a)(8), for Attempting to Interfere with the Safe Operation of an Aircraft, required both proof of a willful attempt to interfere with an aircraft, and proof of a reckless disregard for human life. That conviction is not supported by the evidence and must be reversed. Because the district court did not have the benefit of Gardenhire and because it premised the sentence for the § 39A conviction, in part, on the fact that Rodriguez had also been convicted of violating § 32(a)(5), (a)(8), we also remand for resentencing on the § 39A conviction."

I think "knucklehead" is an exactly right appellation for offenders of this sort.  Wouldn't have thought of it myself, but glad that Judge Silverman did.  As well as repeatedly uses it.

For my part, I'll mention only that I think it's similarly knuckleheaded -- though admittedly not as much -- to sentence a guy to fourteen years in prison for being an idiot.  Or, to be honest, even to sentence someone like Mr. Rodriguez (as Judge O'Neill did) to the maximum five years in prison for the § 39A offense.  Or even to authorize (as Congress and the President did) such a sentence.

It's massive overkill.  As well as ruins lives for no reason.

Knuckleheads like Mr. Rodriguez aren't going to be more prospectively deterred by a five-year sentence than they will be by a one-year sentence.  They don't even know it's a crime.  Or (most likely) dangerous.  And if they did, they'd almost certainly either (1) not do it if they thought there was any chance of spending a full year of their life in prison as a result, or (2) do it anyway, regardless of the possible sentence, because they're simply morons.

Length of sentences sometimes matters.  What you do during a kidnapping may depend on the severity of the resulting sentence.  Drug offenses might be deterred by the length of a particular sentence.  There are surely situations in which you successfully deter someone by threatening a higher sentence.

Laser pointer crimes aren't one of them.

We'd be much better off -- e.g, the world would be safer -- if we took the $100,000 or so that we'll directly spend on Mr. Rodriguez's five-year incarceration and spend it on advertisements telling the public that's it's dangerous (and a crime) to point lasers at aircraft.  As a neat side benefit, that'd also salvage a significant portion of Mr. Rodriguez's life (i.e., five years of freedom), and benefit his family, friends, and everyone who will be required to support Mr. Rodriguez and his family both during his incarceration as well as thereafter.

People shouldn't shoot laser pointers at planes or (as here) helicopters.  People shouldn't think that laser pointers purchased for $7 on amazon.com -- which is where the present one came from -- are merely toys and are completely harmless.  Though I know full well that many do.

But imposing long sentences on such knuckleheads doesn't make any sense either.

And that's a mistake that emanates from people who should know better.

Tuesday, June 23, 2015

People v. Sokau (Cal. Ct. App. - June 23, 2015)

Well, now.  This is a really interesting dispute.  I'm not completely sure what I think about it.

Everyone agrees on the factual underpinnings.  Richard Sokau had a terrible interpreter at his trial.  A really, really terrible one.  The judge knew it; the prosecutor knew it; the defense counsel knew it; and I'm sure everyone in the courtroom knew it as well.  I'm not sure how hard it is -- or should be -- for a certified interpreter to translate Palauan (the language of Palau) into English and vice-versa.  But the interpreter here failed on nearly every metric.

On that everyone agrees.

But what to do about it?

On the one hand, the defendant here probably spoke fairly decent English himself, as evidenced by his ability to answer a few initial questions in English.  Plus, even though the defense counsel was clearly frustrated by the interpreter's incompetence, it's not like counsel repeatedly objected, or asked for a mistrial, or even asked for a new interpreter.  So maybe there's waiver.  Or it's no big deal.

On the other hand, there is a state constitutional right to an interpreter in a criminal trial.  And it's got to be a competent interpreter.  Otherwise you're not getting the rights to which you're entitled.  Plus, the interpreter here was so bad that the jury might have viewed the defendant's testimony -- which was riddled with interpreter-induced inconsistencies -- disfavorably, perhaps leading to a conviction in this he-said-she-said credibility contest.

So what do you do?

Justice Yegan writes the majority opinion, and says it's no big deal.  The defense didn't do a very good job at objecting.  And the jury got to hear the "basics" of Mr. Sokau's defense anyway.  So the Court of Appeal's not going to grant relief.

Justice Gilbert dissents.  He thinks it is a big deal.  That the defendant objected enough and that it's a pretty big deprivation to have your state-provided interpreter totally botch your testimony.

Both sides make decent points.

My own views -- which leave me uncertain -- stem from my internal comparison of the right to a competent interpreter to the right to competent counsel.

Both are in the California Constitution.  Both are felt to be essential to a fair trial.  The state attempts to satisfy both by appointing people to assist the defendant.  Given these similarities, it strikes me as fairly reasonable to maybe apply the same doctrines in one area that we do in the other.  And since the "right to competent representation" doctrines are extraordinarily well-developed, I wonder if it might be enlightening to apply these principles to the fairly novel (to me, at least) area of "right to competent interpretation."

If that's right, I'm inclined to be more sympathetic to Justice Gilbert's conclusion.  I don't have any doubt that if Mr. Sokau's court-appointed attorney was as terrible as his court-appointed interpreter, the trial court and Court of Appeal would grant him a new trial.  And that this would be the result even were it true that the incompetent attorney still got the "basics" across to the jury and even if there was only a halfhearted objection to counsel's ineptitude.  If that's the case, why not apply those same principles to incompetent interpreters?  Seems like it's pretty important to have the jury actually hear what you're in fact saying, as opposed to some butchered summary coming from the mouth of an inept interpreter.  Especially when your life and/or liberty's on the line.  The fact that this right is enshrined in the California Constitution only amplifies the point.

Do I think the defense attorney -- or the judge, or even the prosecutor -- should have expressly asked for a mistrial here, or at least (at a minimum) that this incompetent translator get booted?  Absolutely.

But I'm not sure that's a bar to relief.  Any more than I would think that a defendant's failure to ask that his incompetent attorney get booted should bar him from relief either.

People v. Rojas (Cal. Ct. App. - June 22, 2015)

"A Fresno County jury found Benjamin Rojas guilty of sexually abusing his young stepdaughter . . . . [and] was sentenced to 40 years to life in prison . . . . On or about August 6, 2011, Rojas’ wife awoke in the middle of the night and found herself alone in bed. After getting up and searching through the house, she located Rojas in her daughter’s room. He was naked, and her daughter was clothed only from the waist up. According to the mother’s trial testimony, the child accused Rojas of touching her vaginal area with his fingers. She also said that Rojas had previously molested her 'a few times.' . . . The jury deliberated for approximately one hour before finding Rojas guilty on all counts. He was thereafter sentenced to a total of 40 years to life in prison. The sentence was calculated as follows: As to Count 1, a mandatory term of 15 years to life. As to Count 2, a mandatory term of 25 years to life, to be served consecutively. The trial court imposed the middle term of 12 years for Count 3 . . . ."

The Court of Appeal reverses the conviction on Count 2 on ex post facto grounds.  Though the prosecution could retry Mr. Rojas again on this count were it to so choose.

We'll see if it does.  To say that we're hard core about molestation offenses is an understatement.  As demonstrated by the mandatory 40 years to life sentence here.

Monday, June 22, 2015

In Re Welch (Cal. Supreme Ct. - June 22, 2015)

Here's an example of speedy justice.

To be clear:  I'm being sarcastic.

David Welch committed a heinous crime.  In 1986.  The jury found him guilty, and sentenced him to death, in 1989.

The California Supreme Court only took a full decade to resolve his direct appeal.  It affirmed in 1999.

To reiterate:  All these events transpired in the previous century.

Welch filed his first state habeas petition in 2002.  That's going to take a little while to percolate through the system, right?

Yep.  It's now 2015.  Over a dozen years later.  And only today does the California Supreme Court resolve the merits of this petition.  Which it unanimously rejects.

Mr. Welch was 28 at the time of his offense.  He's now 57.  And he hasn't even commenced litigation of this federal habeas petitions.

There's no way he's going to be put to death.  He'll die in prison.  The nearly thirty years (and counting) of litigation about his sentence are a meaningless waste.

Robinson v. Jewell (9th Cir. - June 22, 2015)

Here's the judicial equivalent of a lottery ticket.

The Kawaiisu is a non-federally recognized Native American group that claims to own an incredibly valuable piece of property -- the Tajon Ranch, one of the largest contiguous pieces of private land in California.  The Kawaiisu claim that they own this land notwithstanding a plethora of treaties with Mexico as well as various other tribes.

The district court dismissed the lawsuit for failure to state a claim.  The Ninth Circuit affirms.

There was no way this lawsuit was going to prevail.  On the merits or otherwise.  Robinson (and his counsel) would have been better off spending their time and money on Mega Millions.

Friday, June 19, 2015

Mitchell v. U.S. (9th Cir. - June 19, 2015)

Cases like this put Judge Reinhardt in a tough position.

It's a death penalty case, so you know how he's going to vote.  It's currently a habeas case, but a federal one.  Which means that there was also a prior opinion on direct appeal.  Judge Reinhardt was on that panel as well.  Which voted 2-1 to affirm.  You can guess who the 1 was.

At this point, the claim is ineffective assistance of counsel.  Notwithstanding Judge Reinhardt's dissent, there's not especially good evidence of attorney misconduct.  It was a federal prosecution, so multiple veteran federal public defenders, plus an attorney in private practice, were assigned to represent the defendant at trial.  This wasn't some backwater state prosecution with intoxicated lawyers doing a half-assed job just to make a buck.  This was a real defense.  So it's extraordinarily hard to find incompetent representation.

Oh, and who was the district court judge who oversaw the case?  Judge Murguia.  Currently on the Ninth Circuit.

So this leaves Judge Reinhardt with three options.  All of which he advances.

First, he notes that it's pretty weird that this guy ends up being sentenced to death.  Which is true.  The victim's family doesn't want it.  The Navajo Nation doesn't want it.  The relevant U.S. Attorney doesn't want it.  But John Ashcroft did.  So a guy with no criminal history gets sentenced to death even though his more culpable partners get life.  A result especially strange since the murder charge itself doesn't lead to the death penalty (since the Navajo Nation has opted out); only the fact that there was an underlying carjacking gets the dude sentenced to death.

This provides ample fodder for Judge Reinhardt's dissent.  And he uses it well.

The only problem being that this isn't a legal argument against the imposition of the death penalty.  So no relief there.

Second, Judge Reinhardt can go down the straightforward legal path and try to paint the lawyers as incompetent.  Which he does.  Well.

But, in my view, the facts just aren't there.  Even if hindsight was 20/20, I'm not at all confident that Judge Reinhardt's preferred "he's a bad guy but had a bad upbringing" strategy was any better than the choice of the actual defense attorneys to paint him as a good guy who did a terrible thing.  It's at least sufficiently close to make deference to the people with boots on the ground appropriate.  So that doesn't work.

Which leaves Judge Reinhardt to ask the President for clemency.  Which he does also.  Again:  Well.

There's lots to recommend such an approach.  Plus, maybe it's possible.  Maybe Obama or Clinton or someone else will listen.

But it's still a longshot.  These are political issues.  I'm not confident that a President will elect to use his or her capital on something like this.  Especially since one of throats that was slit belonged to a nine year old girl.

This isn't a state case that has been around forever.  It has progressed through the federal system fairly quickly.  The murder was in 2001.  The defendant was 20 years old at the time.  The conviction and sentence have already been affirmed on direct appeal, and now the habeas petition has been denied on the merits.  The only things left are a petition for rehearing and en banc review, and attempt at certiorari in the Supreme Court, and then a successive habeas petition.  All of which are even less likely, in my estimation, than executive clemency.

So, absent a blanket moratorium, you're probably looking at someone who's actually going to be executed.  Notwithstanding the fact that Mr. Mitchell is probably on the low end of the "irredeemably evil" scale as contrasted with his contemporaries on death row.  The likelihood that this 35-year old guy dies in prison before the sentence is carried out is not especially high.

Thursday, June 18, 2015

People v. Saez (Cal. Ct. App. - June 18, 2015)

"On May 6, 2007, Saez assaulted a female victim with a garrote—a wire weapon used for strangulation—on a San Francisco street in broad daylight. A witness called the police after seeing Saez “stomping” on the victim as she lay on the sidewalk. Officer James Barber located Saez near the scene and detained him. Saez volunteered that “[t]he bitch was already dead” and was bleeding from her mouth when he came across her. 

Officer Barber found a homemade garrote in Saez’s jacket pocket. Saez’s jacket was bloodstained, and the garrote had hair and skin attached to it. Later DNA testing established that both the victim’s and Saez’s blood was on the jacket, and the victim’s blood was on the garrote. 

Officer Lynn Reilly found the victim where she had been assaulted. Officer Reilly described the victim as having “blood all over her face,” and she noticed blood on a garage door near the victim’s head. The officer testified that the victim was unconscious and there was a “gurgling, labored breathing sound coming from her mouth, and there was blood that appeared to be coming out of her left ear.” Sergeant Carolyn Lucas, who was also at the scene, testified that the victim was “either unconscious or barely conscious.” 

The victim was taken to the hospital. The attending trauma surgeon, Jan Horn, M.D., testified that when the victim was admitted she had lacerations on her neck, tongue, and fingers, and blood around her nostrils and mouth. She also had fractured bones near her eye socket and cheek, which were consistent with having had her face 'stomped' on."

I gotta admit that this factual recitation doesn't make me feel much sympathy towards Mr. Saez.  Indeed, when I read that he received a sentence of 39 years to life in prison, that sounded pretty right to me.  And that was even before I read about his prior convictions.

Nor was I especially impressed with Mr. Saez's legal argument that the prosecution didn't sufficiently prove that the prior convictions were his.  The evidence showed that a guy who committed these prior offenses was named Jose Antonio Saez, had a birthdate of February 22, 1960, and at that time lived at 425 E. Garfield in Milwaukee, Wisconsin.  When the present defendant was booked, he had multiple identification cards that listed his name as Jose A. Saez, with a birthdate of February 22, 1960, and listed an address at 500 E. Garfield in Milwaukee, Wisconsin.

That's good enough for me.  Beyond a reasonable doubt, even.  Regardless of the fact that there may well be lots of people named "Jose A. Saez" in the universe.

It was good enough for the Court of Appeal as well.

Mr. Saez gets a marginal amount of relief in the California Court of Appeal.  But my guess is that he'll nonetheless spend the remainder of his life in prison.

His offense was that heinous.

People v. White (Cal. Ct. App. - June 18, 2015)

"White does not contest that he engaged in sexual intercourse with the victim. He also does not contest the victim had been "partying and drinking" on the night of the alleged assault and was "drunk" when the group reached the hotel at about 2:30 a.m.

However, White contends there is insufficient evidence he knew or should have known that the victim was prevented from or unable to resist the act of intercourse due to either intoxicating substances (§ 261, subd. (a)(3)) or unconsciousness (id., subd. (a)(4)(A)) because there allegedly is no evidence of the victim's condition at about 5:30 a.m. that morning when sexual intercourse occurred, including evidence of whether she was awake or sufficiently conscious at the time such that White would know or reasonably know she was unable to resist."

None of those contentions on appeal succeed.  White gets sentenced to prison and has to register as a sex offender.

Wednesday, June 17, 2015

People v. Miranda (Cal. Ct. App. - May 13, 2015)

It's interesting how all the various rights line up here.  In a case ironically involving a guy named Miranda.

David Miranda wants a speedy trial.  He's got a right to one in the Sixth Amendment.  He's also got an appointed attorney.  That's in the Sixth Amendment too.  But the appointed attorney isn't ready to go to trial so quickly.

So Miranda decides to represent himself since that's the only way to get to trial quickly.  He's got a right to do that under -- you guessed it -- the Sixth Amendment.  (Parenthetically, it may make sense for Miranda to want to exercise his speedy trial rights, since he's sitting in jail while he awaits trial since he can't make bail.  Notwithstanding his right to bail under the Eighth Amendment.)

So the trial court grants Miranda the right to represent himself, and the case goes to trial.  Evidence at trial, however, reflects that Miranda may have some serious mental problems.  Which is total news to the trial judge.  As well as a problem, since Miranda has right to adequate counsel under the (again) Sixth Amendment.  Which he won't have if he's being represented by someone incompetent/loony.

That puts the trial judge in a bind.  Does he declare a mistrial?  Make standby counsel take over?  Let the trial go forward?  All of these options potentially imperil various rights, as well as the efficiency of the process.  Tough call.

Ultimately the trial judge lets the thing go forward.  Miranda's convicted.  At sentencing, the trial judge again expresses his dismay.  He sentences Miranda to probation, saying:  "[Had] the defendant not represented himself at this trial and pretrial, there’s no question in my mind that had the defendant retained or had appointed competent counsel a disposition like the one that I intend to go forward could have been negotiated for this defendant. He was his own worst enemy by attempting to represent himself specifically with his mental health history of [sic] and the court has been totally unaware throughout the entire pretrial and trial."

Which I understand.  That should indeed have been the sentence.  And the plea.  And likely would have been if everyone was on the stick.

But in my mind, it wasn't really Mr. Miranda's fault.  He just wanted out of jail.  What he wanted to do was understandable, if misguided.  By contrast, the prosecutor and the defense attorney were fully able to have done what the trial court wanted -- a just and reasonable plea deal -- quickly.  At least in theory.  But the prosecutor didn't care about speed, since s/he's overworked, and he defendant's in jail in the meantime anyway.  And the defense counsel's overworked as well, and has to ability to coerce a deal from the prosecutor if the latter's not (currently) interested.

Which leaves Miranda in precisely the bind he's in.  As well as (subsequently) the trial court.

There's a serious tension between our interest in having the just resolution of criminal cases -- which generally requires competent counsel -- and our interest in allowing defendants the autonomy to make the incredibly stupid decision to represent themselves.  There's another serious tension between our desire to expend as few resources as necessary on the criminal justice system and our hope that the results of this system comport with morality.

In Miranda's case, these tensions are amply demonstrated.

With serious consequences to Mr. Miranda.  Who's forced, among other things, to languish in jail even though everyone agrees that the "right" result here would have been a quick probation deal.

The Court of Appeal ultimately affirms.  Nothing's "legally" wrong with what transpired.

But I think the process is far from optimal.  To say the least.

Tuesday, June 16, 2015

People v. Hill (Cal. Ct. App. - May 13, 2015)

I hate to be cruel.  And fear that I am.  But I nonetheless hope that Rosa Hill and her mother, Mei Li, never get out of prison.  Ever.

I'll not attempt to summarize the underlying facts of this 56-page opinion.  Suffice it to say that Ms. Hill and Ms. Li were convicted of the first-degree, premeditated murder of a 91-year old woman and the attempted murder of her grandson (the former spouse of Ms. Hill).  In circumstances that are the archetype of actual premeditation, as opposed to the weak form of premeditation that you often see in contemporary appellate cases.

Read the first dozen or so pages of the opinion.  I rarely read more chilling stuff.  And I've read a lot.

The Court of Appeal ultimately reverses the first-degree murder conviction of Mei Li on the basis of instructional error.  Which made me sad -- even though I'm sure the Court of Appeal's disposition is the correct one -- because I fear that the D.A. might well elect not to try Ms. Li again, despite the fact that I'm quite confident that she'd again be convicted of this offense.

I'd wager that the theory in the D.A.'s office will be that it's not worth it to spend money on a retrial, even though the Court of Appeal reversed the first-degree murder conviction that resulte in a 25-to-life sentence for Ms. Li, since it simultaneously affirmed her attempted murder conviction that results in a sentence of life.  Why bother going for the additional 25 years when you've already got life?

(Though, of course, we know full well that life doesn't necessarily actually mean life.)

Which distressed me a tiny bit since, again, I didn't (and don't) want Ms. Li to ever get out of prison.

But then I read elsewhere that Ms. Li is 58 years old.

Fair enough.  A "life" sentence should do the trick.

P.S. - Ms. Lei's husband might also be happy I wasn't the trial judge in his case.  He was apparently an accessory, pled guilty, and was sentenced to four years in prison.  Maybe that's okay.  But if I did something different, I can assure you his sentence would be longer, not shorter.

Friday, June 12, 2015

Monterossa v. Superior Court (Cal. Ct. App. - June 12, 2014)

I thought I was going to stridently disagree with today's opinion by Justice Butz.  But in the end, I agree.

With one (important) caveat.

The statute says that the court can award attorney's fees to a prevailing party, and also says that a borrower is a prevailing party if s/he obtains injunctive relief and/or damages.

A borrower files a lawsuit and obtains a preliminary injunction.  Can she obtain fees?

Ordinarily, I'd be inclined to say "No."  When we talk about who's the prevailing party, we generally look at the end of the litigation.  So the fact that you've obtained some provisional relief doesn't much matter to me.  Similarly, my sense is that when the Legislature talks about someone getting injunctive relief and/or damages, it's referring to the stuff that happens at the end of a trial.  Not in the middle (or at the beginning).

My intuitive sense in that regard was only magnified in the factual context presented by the present case.  The borrower here was trying to stop the foreclosure of his home.  He made some allegations, and the trial court decided to grant some provisional relief and temporarily delay the foreclosure.  The balance of hardships in this situation comes out on the side of the borrower; if the foreclosure goes forward, it's irreperable.

But -- and this is important to me -- the injunction's granted only on the condition that the borrower put up a bond of $20,000 (or pay the pending mortgage payments).  That will stop the borrower from just living in the house rent-free, which is sometimes/often the real objective of this type of litigation.

You could see why a trial court might enter such an order even if the borrower's lawsuit may be complete crap.  If the borrower wants to pay the mortgage (or post a bond), there's no harm in enjoining the pending foreclosure process.  Conversely, if the borrower won't pay, that's a decent sign that maybe he shouldn't get injunctive relief and is just gunning for free rent.

So a trial court might grant these orders simply as an equitable matter.  May even make a great deal of sense to do so.  Such provisional orders don't necessarily reflect the merits.

Which is another reason why it'd be unjust to award attorney's fees to a borrower just because it obtained such "put up or shut up" injunctive relief.

That was my sense as I read Justice Butz's opinion.  So when she held that provisional relief did count, I was pretty skeptical.  Even after reading the opinion.

There are, admittedly, several things in the opinion to recommend Justice Butz's conclusion.  She does a very good job, for example, explaining that in a lot of these borrower lawsuits, there's nothing really at issue other than preliminary injunctive relief.  So if you waited to see if the lender subsequently stopped the foreclosure process (thereby mooting damages and/or final injunctive relief), you might get a mistaken impression of who the true "prevailing party" really was.

That makes sense to me.  Mind you, I'd still be extremely concerned that the Court of Appeal's ruling might grant fees merely to borrowers who got a "preserve the status quo" preliminary injunction.  But I'd nonetheless at least understand where the Court of Appeal was coming from.  Even if that policy concern didn't necessarily completely turn me around.

But, in the end, I'm ultimately good with Justice Butz's opinion.

With one caveat.

If the statute said that the court "shall" award attorney's fees to a prevailing party, than I'd be very concerned about the Court of Appeal's holding.  And maybe even think it's wrong.

But it doesn't.  It says "may".  So I'm assuming that the statute's discretionary.  The trial court could award fees if it wants.  But it doesn't have to.

With that caveat, I'm more than fine with the Court of Appeal's opinion.  Indeed, I'm affirmatively psyched for it.

If the trial court primarily granted the injunction simply to make the borrower put up or shut up, then I'm confident it wouldn't -- and shouldn't -- award fees.  By contrast, if -- as perhaps here -- the trial court granted a preliminary injunction because it thought the plaintiff's case was indeed looking good, and that the foreclosure should indeed be halted on the merits, then, yeah, I think a fee award would be justified.  As well as permissible under the statute.

But the caveat's nonetheless worth mentioning.  Because it's critically important.

Justice Butz never mentions that the statutory fee award is (I think) discretionary.  I think it is.  And I think that's a critical point that's more than worth putting in the opinion.

Because, at least to me, that's a dispositive point.  Without it, the merits perhaps should come out the other way.

Thursday, June 11, 2015

U.S. v. Alcantara-Castillo (9th Cir. - June 11, 2015)

The majority thinks the AUSA improperly vouched for the border agent, so reverses the conviction.  The dissent thinks not.

Personally, I think that the evidence of prejudice is fairly low.  I believe Judge Wardlaw when she says that the border agent here had -- and I think this is unusual -- fairly substantial credibility problems.  But at least he had a story that made some sense.  I guess it's possible that a jury could believe the defendant's story that he "accidentally" crossed the heavily-patrolled U.S.-Mexico border in a methamphetamine-induced haze.  I gotta admit that it's not an especially good story, however.

And the fact that this guy had previously been convicted four times for illegal reentry doesn't help him either.

My money's on the dude being convicted at retrial.  Even without vouching.

And I'd give big odds to anyone who wanted to take that action.

Wednesday, June 10, 2015

Banning Ranch Conservancy v. City of Newport Beach (Cal. Ct. App. - May 20, 2015)

Justice Ikola drops a footnote to say:

"Collectively, the parties’ thorough, well-researched “briefs” exceed 300 pages. The City’s appendix features 1,489 pages and the Conservancy’s appendix adds 98 pages. The electronic administrative record totals a whopping 49,046 pages. We have striven to limit our recitation of facts to those strictly necessary to the analysis of the issues before us and to refrain from discussing unnecessary background material and the parties’ arguments in the alternative. We assure the parties, however, that we appreciate their diligence in bringing all potentially relevant materials and issues to our attention."


Tuesday, June 09, 2015

Bemore v. Chappell (9th Cir. - June 9, 2015)

When I saw that it was a death penalty habeas case, and that Judge Berzon had written the opinion, I felt I had a reasonable guess as to how it might come out.  When I saw that Judges Reinhardt and Gould were on the panel, and that neither had dissented, I felt even more strongly that I knew where this one was going.

But as I started to read the syllabus, I began to falter.  Deficient representation, sure.  But no prejudice.  No prejudice again.

Could it be?  Could this panel really affirm a death penalty case?!

Fear not.  I finally reach the end of the syllabus.  The conviction gets ratified.  But the death sentence gets reversed.

Which is what one might have guessed purely from the caption.

Monday, June 08, 2015

A.M. v. Superior Court (Cal. Ct. App. - June 8, 2015)

Ms. S. lives in Weimar, California.  Population: 29.  She's adopted several special needs kids already.  She loves and cares for them.  She's willing to adopt A.M. as well.  Indeed, she very much wants to.  But the social worker doesn't want this placement.

Why not?  Seemingly no good reason.  There's no dispute that Ms. S. does a wonderful job with the children in her care/family.

What about A.M.?  What does he want?

Well, he's eight years old.  So even under normal circumstances, it'd be hard to tell.

But these are not normal circumstances.

A.M. is the product of incest.  He was born when his father/grandfather impregnated his mother.  A fourteen-year old child.  As a result of "parental consanguinity," A.M. is severely disabled.  Even at eight years old, he's already outlived his normal life expectancy.  Here's a summary of his life:

"[A.M. has] “profound mental retardation,” microcephaly, cerebral palsy, seizure disorder, spastic quadriplegia, and respiratory insufficiency. He had been hospitalized seven times, usually for breathing difficulties.

He was in a “semi-vegetative state.” He “d[id] not have any purposeful movement.” He could not walk or talk. He could not eat; he required a gastrostomy tube (G-tube). He had to be fed via the G-tube five times a day. He had no bladder or bowel control. He had to be catheterized approximately every four hours.

His vision and hearing were impaired. He “d[id] not respond to visual stimuli and rarely respond[ed] to auditory stimuli.” He had no facial expressions. He did not respond at all to “social interaction.” . . .

A.M. was “completely dependent on caretakers for all of his needs.” He needed “breathing treatments” every six hours. He needed a constant supply of oxygen, and his oxygen levels had to be checked once per shift. He had difficulty maintaining his body temperature, which had to be checked three times per shift. His daily medications included phenobarbital, Keppra, Trileptal, Valium, baclofen, Singulair, albuterol, Pulmicort, Bromocriptine, Robinul, Phos-Nak, Tums, Lactinex, Senokot, MiraLax, and Nutropin. He needed approximately 20 additional medications from time to time. He had to be repositioned every two hours to prevent bedsores."

Ms. S. is nonetheless willing to take on all of these tasks.  More power to her.

The trial court orders placement with Ms. S.  Minor's counsel appeals.  The Court of Appeal affirms.

What's the basis for the opposition to Ms. S.?  Who knows.  There's "speculation" that maybe she just wants to adopt A.M. "for the money".  But I can't fathom that the compensation for adopting a special needs child is anywhere near the level that would justify doing all the tasks for A.M. that are required for his continued survival.  There's "speculation" that maybe Ms. S. was also getting another special needs child around the same time.  IMHO, again, more power to her.  If she's indeed loving and caring -- which everyone seems to say she is -- then that's awesome.  Feel the love.  Something we should encourage, not dismiss.

Is it possible that some people just don't like the fact that Ms. S. is 70 years old?  Could be.  Though I think it's almost certain that Ms. S. will outlive A.M.  Regardless of what shape she's in.  Plus, she has made plans for her own demise.  There's someone who can take care of her kids after.

Enjoy Weimar, A.M.  Enjoy the life you have.

Well done, Ms. S.

People v. Scott (Cal. Supreme Ct. - June 8, 2015)

"In March 1988, Thomas Meyer and Dan King worked and lived at a construction site in Palm Springs. One night, they were awakened in their camper when Scott confronted them through a screen door and demanded money. Meyer threw his jacket to Scott, who remained outside. After finding no money in it, Scott became agitated, banged on the doorsill, and said, 'I have a double barreled sawed off shotgun here, and I am going to blow your mother fucking head off if you don’t give me some money now.' King took a gun which he kept under his pillow and fired four shots at Scott. Meyer thought Scott had returned fire from a shotgun. Scott appeared to be injured and was rolling on the ground about 10 feet from the door. He said, 'God. I am never going to do this again.' Meyer and King left the camper, and within minutes, the police arrived and arrested Scott."

Scott should have followed his own advice.  Four years later, again in Palm Springs, Scott broke into a home, found a woman in her bed, and killed her.

Scott was sentenced to death.  Something with which every member of the California Supreme Court is okay.

Friday, June 05, 2015

Maroney v. Iacobson (Cal. Ct. App. - June 4, 2015)

Here's a really good example of nineteenth century justice.

Plaintiff moves for a new trial after the jury returns its verdict, and the trial court thinks the motion is well founded.  But for complicated procedural reasons, the trial court isn't certain that the motion's timely.

The trial court accordingly decides to "conditionally grant" the new trial motion, saying that it thinks that the motion is right on the merits, but that it wasn't filed in time -- but that if the Court of Appeal disagrees on the (difficult) timeliness issue, then the motion's granted.

This leaves both of the parties in somewhat of a pickle.  Who exactly is the "losing" party here?  Is it the plaintiff, since the motion was only "conditionally" granted?  Or is it the defendant?

To play it safe, both parties appeal.  Which makes sense.

The Court of Appeal ultimately decides that the motion was, in fact, timely.  And publishes its opinion so holding.

So the plaintiff gets its new trial, right?


The Court of Appeal says that the trial court was wrong that the motion was untimely.  So plaintiff was right on that front.  But what the trial court did was a "nullity" since you're not allowed to "conditionally" grant new trials.

Okay.  I get that the trial court did something wrong.  But the plaintiff (1) timely moved for a new trial, and (2) was right on the merits.  So it gets a new trial.

Not according to the Court of Appeal.  It says that there was conflicting evidence at trial, so the plaintiff did not demonstrate that the jury verdict necessarily lacked substantial evidence to support it.  Hence the Court of Appeal couldn't reverse the denial of a new trial by the trial court.

But wait.  The trial court granted a new trial.  It thought that the verdict was contrary to the evidence.  And it's expressly allowed to act as a "thirteenth juror" when deciding new trial motions.  Which is what it did in the present case.  So what's all this about the Court of Appeal not being "allowed" to accept the verdict of the trial judge.  The one judicial officer who was there at trial and who could view (and weigh) the evidence and the credibility of the various witnesses?

Sorry, says the Court of Appeal.  The trial court didn't "really" grant a new trial.  It only "conditionally" granted it in the event the motion was timely.  Which, as the Court of Appeal explained, was a "nullity".  Hence the trial court "really" denied the motion for a new trial.  Which we're required to affirm because the trial court's "denial" of a new trial was supported by some evidence.

That's just crazy.

The trial court admittedly got confused as to what procedure to employ.  But what it held is crystal clear.  It thought the motion was untimely -- a matter of law.  But it also forthrightly recognized that its conclusion on that legal issue might well be wrong.  So it expressly said that, on the merits, it would grant a new trial, were it allowed to do so.

The Court of Appeal turns that into a denial of a new trial on the merits, and then pretends that such a view of the evidence is protected from review on appeal.

Which ain't right.

Imagine that the trial court had said -- in identical circumstances -- "I think the new trial motion's right, but I'm uncertain whether it's timely, but just to play it safe, I'm going to grant the motion, and if the defendant is right on the legal point, they'll win on appeal."  If the trial court had done that, there's no doubt that the Court of Appeal's decision would have to go the other way, and plaintiff would get its new trial.  The motion was timely, and the trial court's decision to grant a new trial despite the timeliness fight would be reviewed for abuse of discretion, and unquestionably affirmed.

The difference between this "hypothetical" and what the trial court did here is insubstantial.  It should make no difference whether the trial court got the timeliness issue -- an issue of law -- right or wrong.  It decided the merits one way.  It decided the timeliness issue another.  If the latter's wrong, then we should grant a new trial.  Period.  Doesn't matter whether the trial court decided the close (legal) issue one way or the other.  If the motion's timely (which it was), and the trial court was within its discretion to grant a new trial (which it was), a new trial should be granted.

Nineteenth century courts routinely elevated form over substance in the way the Court of Appeal does here.  But I thought we were beyond that.  I understand that new trial motions have strict procedural requirements.  But when the trial court (rightly) decides the merits, and simply wrongly decides a legal issue, that's doesn't vitiate the exercise of its discretion on the merits.  If the legal issue comes out the other way on appeal, the trial court's grant of a new trial should be effectuated, not negated by an artificial (and unjust) claim that the Court of Appeal is compelled to deny a new trial on the basis of "deference" to a denial on the merits that does not, in fact, exist.

The Court of Appeal decides to persist in its erroneous course even after a rehearing.  That's unfortunate.  It's not twenty-first century justice.

Thursday, June 04, 2015

Escobedo v. Applebees (9th Cir. - June 4, 2015)

Part of this morning's Ninth Circuit opinion seems undeniably right.  The opinion itself declares that "the resolution of this case emerges as simple."  True enough.  When you file a lawsuit alongside an IFP application, the filing date for statute of limitations purposes is the date you file, not the date your IFP motion is granted, or denied, or you eventually pay the fees.  Filed means filed.  Stops the limitations period. End of story.

That part's clearly true, and it's fairly surprising the district court got it wrong.

The other part of the opinion is a tougher call.

The (important) question there is how much income counts as "too much" in order to be granted an IFP waiver for filing fees.  On the one hand, $350 (the filing fee in Nevada) is a fair chunk of change to most people.  On the other hand, it's a fraction of the costs that are actually incurred (both by the judiciary as well as the parties) in order to resolve a civil lawsuit, and lots of other people are paying it.  So when should we say that someone's sufficiently "poor" so they're entitled to a waiver?

Part of today's case is (again) easy.  The plaintiff says she only makes $210/week (i.e., around $900/month), and pays $684/month in rent and $15/month in credit card debt.  That leaves her with around $200/month to pay for everything else.  Food.  Medical care.  Transportation.  Etc.

(The Ninth Circuit's opinion says it leaves her with "less than $150 per month".  I think that's a math error.  $210/week x 4.3 weeks/month = $903/month, minus ($684 + $15) = $204/month.  A relatively small difference.  But a meaningful one to most people; if you're living off of less than $150/month, it would probably be a fairly big change if your income went up to $203/month -- a 35%+ increase.)

When you've only got $200 (or $150) a month to spend on food etc., I agree with the Ninth Circuit that's an easy case.  Of course you'd be entitled to IFP status.  Just trying to live by spending less than $7/day on food alone.  Good luck.  Clearly that's count as sufficient for a waiver of a $350 filing fee.  On this point the Ninth Circuit has no doubt, saying that "[i]f we were to consider only the monies coming to Escobedo herself, as set forth in her affidavit in support of her IFP application, we would have no hesitation in concluding that the magistrate judge’s denial of the application constituted an abuse of discretion. Escobedo was plainly indigent, and her application should have been allowed."

Clearly right, IMHO.

The harder -- and more interesting -- part is what happens when you count the husband's income as well.  Ms. Escobedo says that he makes $1800/month in disability income.  Well now.  That's a lot more than the $200 (or $150) per month we talked about before.  If you're making that much, should IFP status be granted?

For procedural reasons, the Ninth Circuit doesn't have to directly resolve this question.  The district court didn't assess in detail the husband's income, or his expenses.  Maybe there were other things (e.g., child support payments for other kids) that sucked up all -- or nearly all -- of the $1800/month.  On this record, we don't know.  Hence the remand.

The Ninth Circuit nonetheless goes out of its way to express an opinion on the subject.  It says that even the district court properly added the $1800/month to the $900/month, resulting in an income of $2700/month, the denial of IFP status would "represent[], at best, the outer boundary of stringency."

Hmmm.  Now that's interesting.  As well as important for a nontrivial number of litigants.  Does it ring true?

An income of $2700/month is $32,400/year.  That's not a huge number, to be sure.  Which is why I think the Ninth Circuit has a sense that this figure would probably justify IFP status.  Federal judges, after all, make over six times more than this, and still feel like they're scrimping along.  Imagine you had to live on one-sixth of that?!  The horror.  That's really poor.

So I get from whence that perspective derives.  I'm also personally sympathetic to it.

But there's another side as well.  An income of $32,400 is far from trivial.  Indeed, guess how many families in America survive on less than that?  More than half.  Is the Ninth Circuit really saying that over half of America is entitled to IFP status?  That nearly half of American families are so poor that they shouldn't be forced to pay $350 towards a lawsuit that could easily cost tens (or even hundreds) of thousands of dollars to resolve?  Really?

That's a tougher sell.

To me, I'm not sure that the Ninth Circuit's focus on income is exactly right.  Don't get me wrong: of course it matters.  If you're only making (say) $900/month, sure, you get IFP status.  I don't care what else is going on in your world.  It'd be unreasonable to make you dump $350 towards a filing fee.

But at $30,000 or so -- and maybe even at lower stages -- to me, what may well matter much more than income are expenses.  Not only the quantitative size of those expenses, but their qualitative nature as well.

On the one hand, if you're making $2700/month, are spending $700/month on rent and $2000/month on food and transportation and medical care for you and your six kids, well, geeze, no problem, I'm going to give you IFP status every single time.  You've got a cheap apartment (with six kids!) and you are spending $60/day just to clothe and feed your brood.  Of course I'm not taking food out of their hungry little bodies by adding another $350 to your expenses.  Welcome to federal court for free.  (At least on the expense end.  Good luck getting a lawyer to take your case for less than $350.  All-in.)

But let's say you're making $2700/month, are spending the same $700/month on rent, but don't have any children, and spend $500/month on clothes and $500/month (net!) on lottery tickets.  Well, at that point, I don't at all think it'd be the "outer bound[s] of stringency" to make you cut back -- for a single month, no less -- on lottery tickets or purchases of new clothes in order to pay a $350 filing fee.  Not in the slightest.

Now, I know that there aren't in fact many people making $32,000/year who spend $500/month on clothes.  But the point remains the same.  In deciding whether a $350 expense is overly burdensome, what really matters is what it trades off with.  What one's other expenses are.  That's what's of critical significance, at least to me.  Much less than your mere gross income.

So I agree with the Ninth Circuit that you can't judge someone's eligibility for IFP status on the basis of their spouse's income without simultaneously assessing the extent of that spouse's expenses.  And I also agree that at a certain gross income level -- here, $10,000/year -- giving someone IFP status is a no-brainer.

But I'm not entirely persuaded that denying IFP status for someone who makes $32,400 a year would "represent[], at best, the outer boundary of stringency."  I like to sentiment, to be sure.  It stems from good principles, and the motivation is pure.

I'm just not sure it's right.

At a minimum, I'd express that sentiment differently.  As well as highlight the fact that it's not only income that matters, but also expenses.

Especially at $30,000-plus a year.  The income level of half of America.

Kohn Law Group v. Auto Parts Mfg. (9th Cir. - June 4, 2015)

It's more than understandable why a Santa Monica law firm -- the Kohn Law Group -- would want to litigate its case in the Central District of California rather than in the Great State of Mississippi.

Too bad.  Mississippi justice is what you get.  That's the first-to-file rule, and there's no reason to depart from it here.

Wednesday, June 03, 2015

Oregel v. PacPizza, LLC (Cal. Ct. App. - June 1, 2015)

When you're representing the appellant, it's not a good start when the first paragraph of the opinion reads:

"Seventeen months and more than 1,300 attorney hours after plaintiff Julio Oregel (Oregel) filed a class action against his former employer, defendant PacPizza, LLC (PacPizza), PacPizza petitioned to compel arbitration of Oregel’s claims. The trial court denied the petition, finding PacPizza waived its right to enforce a purported arbitration agreement between the two parties. PacPizza appeals, primarily contending the court erred in denying the petition, and also asserting two other claimed errors. We conclude the petition was properly denied, a conclusion that moots PacPizza’s remaining arguments. We thus affirm."

But it's even worse when the second paragraph reads:

"We begin with an observation that, as the appellant, PacPizza was tasked with providing in its opening brief a summary of all evidence in the record that is material to the issues raised on appeal. (Cal. Rules of Court, rule 8.204(a)(2)(C); Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) This, it failed to do. PacPizza sets forth a less-than-candid 'Chronology of Pertinent Events Underlying Appeal' that suggests little transpired in the 17 months between Oregel’s filing of his complaint and PacPizza’s filing of its petition to compel arbitration. Among other things, PacPizza has omitted any discussion of the extensive class discovery it conducted—an omission that is nothing short of brazen given the trial court’s finding that Oregel was prejudiced by the discovery the parties conducted on his class allegations during the lengthy period of time PacPizza delayed in seeking arbitration. What follows is a chronology of what actually transpired."

I won't pile on by quoting the various other portions of the opinion in which Justice Richman makes it clear that he's none-too-pleased with counsel for appellant, Robert Michael Bodzin.  It's enough to say that Mr. Bodzin was undoubtedly displeased with the opinion.

Nor the subsequent decision to publish it, I'm sure.

Tuesday, June 02, 2015

Mira Overseas Consulting v. Muse Family Ent. (Cal. Ct. App. - June 2, 2015)

"The Muse Parties are 20 investor entities that made loans to BTM Funding, Inc. (BTM), a company wholly owned by David T. Smith (David). In 2008, David used BTM to purchase a residence in Pacific Palisades, California (the property) for approximately $10 million. David had BTM take title to the property to hide it from his former wife during their contentious divorce proceedings. David married respondent Carmen Copple Silva (Carmen), who is also trustee of the Carmen Copple Silva Revocable Living Trust (trust). In November 2008, David caused to be executed a quitclaim deed which transferred the property from BTM to himself. On the same day, David signed a quitclaim deed transferring the property to Carmen. A year later, Carmen executed a quitclaim deed transferring the property from herself to her trust. None of these quitclaim deeds were recorded until 2009, after financial problems with BTM surfaced. Because David had listed the property as the primary asset of BTM, the effect of the quitclaim deeds was to render BTM insolvent.

Meanwhile, during the divorce proceedings, David’s former wife (whom he later remarried) [Me: !] claimed that he hid assets from her, including the property. She and David eventually settled the issue by having Mira, a British Virgin Islands entity, originally beneficially owned by David transferred to her."

With all those machinations, yeah, I can see why things could rapidly get confusing.

Fortunately, Justice Ashmann-Gerst sorts it all out.

Monday, June 01, 2015

People v. Charles (Cal. Supreme Ct. - June 1, 2015)

I've read hundreds of cases in which, in my mind, the defendant was far more deserving of death than in this one.  Yet those defendants are sentenced to life and this one gets sentenced to the needle.

Seems somewhat arbitrary.

Not that what Mr. Charles did was at all okay.  It's not.  He killed his family:  his mother, father, and 19-year old brother.  For seemingly no reason.  He had dinner with 'em.  No arguments or anything like that.  But he inexplicably decided to come back later that night and kill them.  Stabbing his brother to death, choking his mom, and beating his father to death with a wrench.

Utterly no (rational) reason.

It's also not that Mr. Charles had otherwise indicated his profoundly righteous inclusion in the category of defendants properly sentenced to death.  He was an auto mechanic in a shop.  He had friends and family who still loved him notwithstanding his senseless crime.  He seems to have been completely nonviolent prior to this heinous act, and had utterly no prior criminal history whatsoever.

Hardly the poster child for a death sentence.

It also bears mention that this is this fourth penalty phase trial for Mr. Charles.  The first jury deadlocked on the penalty, and the prosecution retried him.  The second jury decided on death, but the trial court reversed this decision for juror misconduct.  The third jury deadlocked on the penalty again.

The fourth time, however, was the charm.  At least for the state.  Sentenced to death, and unanimously affirmed by the California Supreme Court.

You can't find manifest fault with the logic of the California Supreme Court's decision.  The jury found the guy guilty, and for ample reason.  What he did justified a death sentence under existing law.  There didn't seem to be an manifest impropriety in the process of the trial (though a couple of the prosecutor's statements during closing argument seemed a bit excessive to me).  Plus, there were reasons the jury decided to impose the death sentence.  It was a triple murder.  Twenty years ago, right after being first put into prison, Mr. Charles put a choke hold on a fellow inmate in the shower and knocked him unconscious.  And there was also a hacksaw in his prison cell.  Presumably Mr. Charles was scared after being sent to prison and looking to escape.  All these things undoubtedly explain why the overwhelming majority of jurors in all of his various penalty phases thought that Mr. Charles should be killed.

Yet from the perspective of someone who -- unlike the jury -- has seen a plethora of reported murder cases over the past couple of decades, it's hard for me to say that what Mr. Charles did was qualitatively different -- or even qualitatively worse -- than a ton of other cases in which the defendant was not sentenced to death, or in which the death penalty was not even sought.

You spin the wheel and you select some people for death.  Some people would be fine with that.  But that's a little to arbitrary for me.

And what we have is only slightly qualitatively different.

State Dept. of State Hospitals v. Superior Ct. (Cal. Supreme Ct. - June 1, 2015)

The month of June 2015 begins with an especially depressing fact pattern in the California Supreme Court:

"In 2007, Gilton Pitre was paroled from state prison. Before his release, the State Department of Mental Health (DMH) assessed whether he should be civilly committed under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) Ultimately, the Director of Mental Health did not request a petition for commitment and Pitre left prison. Four days later, he raped and murdered plaintiff Elaina Novoa‘s 15-year-old sister, Alyssa Gomez."

You might think that since the California Supreme Court is hearing the case, and it's one that involves the above facts, it's a death penalty opinion.  Not true.  At issue is a civil lawsuit against the State.  Mr. Pitre received life in prison, not death.

You might also think from the lineup in the California Supreme Court that it's a contentious result.  Justice Corrigan's majority opinion is joined by three justices -- Chief Justice Cantil-Sakauye and Justices Chin and Cuellar -- and Justice Werdegar's contrary opinion is joined by two (Justices Liu and Kruger).  So it's a 4-3.

Yet that's not really true either.  Every single justice agrees not only on the result, but also that there's no proximate cause.  It's true that the Department of Mental Health was required to evaluate Mr. Pitre before his release with two doctors, not just one.  (The one doctor concluded that Mr. Pitre was not a sexually violent predator, and on that basis the state exercised its discretion not to seek the further involuntary commitment of Mr. Pitre.)  But even if that might have been a but-for cause of Ms. Gomez's death, the California Supreme Court unanimously agrees that it wasn't the proximate cause.  Hence that the lawsuit against the Department of Mental Health was properly dismissed.

The only disagreement between the justices is over precisely why there's not proximate cause; in particular, whether public policy concerns also support the conclusion that there's no proximate cause.

Which is an interesting debate, but also one that's entirely academic. Because there's no proximate cause here.  End of story.