Monday, August 31, 2015

Creech v. Frauenheim (9th Cir. - Aug. 31, 2015)

It's a state habeas case, with all the usual deference regalia.  Judge Paez agrees that the petition should be dismissed, and his opinion makes sense.  The guy clearly did stuff he shouldn't have done, and his Apprendi challenge to California's low-mid-high sentencing scheme faces a serious uphill battle.

I mention the case only because I wanted to get your take on his offenses.

Here's what the guy did:

"Creech and his wife, Reanna, have a four-year-old daughter, Sofia, and a three-year-old son, Zachary. 2 One evening in September 2007, Creech and Reanna had an argument because Creech told Reanna he had obtained a shotgun. Reanna decided to leave him that night. A few weeks later, she took the kids to her father’s house in Napa. Several days later, Creech and Reanna spoke on the phone. She told him the kids were at her father’s and suggested that they talk another time to arrange for Creech to see them.

Later that night, Creech went to Reanna’s father’s house and asked him if he could see the children. Creech’s fatherin-law said “no.” When Reanna returned to her father’s home later that night, she saw Creech waiting there and drove away. He followed her. A highway patrol officer stopped Reanna for “driving 15 miles an hour in a 45.” Reanna, who had been crying, explained to the officer the circumstances with Creech and their kids. At the time she was pulled over, Reanna was on the phone with the sheriff’s department. Creech had contacted the police department and explained that he was trying to get in contact with his children, and that he had been “threatened off [his father-in-law’s] property.” The patrol officer told Reanna that, because Creech was the only custodial parent at her father’s house, she had to go back to her father’s, otherwise Creech would be allowed to take the children. Reanna decided to return to her father’s house.

Creech testified at trial that he was angry with his fatherin-law for not allowing him to see his children. So, he decided to return the following morning to shoot at and damage his house. He grabbed bird shot ammunition because “shooting through things. . . wasn’t [his] intent.”

Late that morning, Reanna, who was at her father’s house, heard a “solid thud.” She looked outside and saw Creech holding a shotgun about fifteen to twenty feet away from the house. Reanna shouted to her stepsister, Jennifer Curry, to grab Sofia. Jennifer saw glass flying everywhere. Jennifer also looked out of a window and saw Creech standing about fifteen to thirty feet away, aiming his shotgun and tracking her and Sofia with the barrel of the gun. Reanna grabbed Zachary and went to the downstairs bathroom, and Jennifer and Sofia joined them. Juliane Rush, Reanna’s stepmother, heard a “very loud pop” from the front of the house. She saw Creech standing about fifteen feet away from the front door. . . .

Officers arrived at the Napa house minutes after the shooting, but Creech had left. They found three shells in front of the house. There were many very small perforations in the front door, and the outer pane of the double-paned window in the upper portion of the door was broken. Both layers of a double-paned window in the study were also broken. . . .

A forensic expert, Dr. John Thornton testified at trial. Among other tests, he performed ballistic gelatin testing “to mimic the behavior expected from human flesh . . . if a human body was shot with that projectile.” He performed these tests “without glass at a distance of 45 feet . . . [his] best approximation of the distance between the cluster of shotgun shells in front of the door and the door.” From this test, he opined that “there would be a minimum of an inch and a half of penetration into flesh.” With dual-paned glass, no pellets permeated the gel from 45 feet. Dr. Thornton did not perform tests at any other distance.

In addition to the gelatin testing results, Dr. Thornton also stated other opinions based on the location of the shell casings and particle dispersion. First, he opined that the shots to the door were fired from between forty and fifty feet away, while the shot to the window was fired from twenty feet away. Second, he opined that there were lead pellets in the debris collected from the study. Third, he explained that the bullet 'we’re speaking of is on the small side. It’s intended for small birds.'"

To be clear:  It is not cool to shoot at an occupied house.  Not cool at all.  Even if you're only firing birdshot.  Even if you're just pissed off.  (And even if, as here, "[a]fter the shooting, he went to his parents’ house, ingested a bottle of pills, and was taken to the hospital."  That shows some regret, at least.  But still doesn't excuse your conduct.  In the slightest.)

Okay.  So we're all on board that this guy should be punished.  The case is in California state court.  He illegally discharged a firearm, he shot at an inhabited dwelling, what he did qualifies as assault (even if he didn't actually intend to hit anyone with the birdshot), and it might even qualify as conduct that endangers the welfare of a child since there was a little kid in the house.  All that I get.

So what's the appropriate sentence?

Different people may well have different takes on this.  But I must admit that I was surprised -- very surprised -- to see that the guy got thirty one years in prison for the thing.  Perhaps I wouldn't have been shocked to see him get a decade in the joint.  Though I wouldn't have been surprised to see him get three or four years either.  But thirty one years?  Wow.

Maybe I just have failed to abandon all hope in concepts like rehabilitation and the like, whereas the state has elected to entirely jettison the concept.  But the idea that a person who -- incredibly stupidly and wrongly -- fires some birdshot at a house in an irrational rage is essentially irredeemable, and thus much spend essentially the remainder of his life in prison, conflicts with my gut intuition.

Maybe there was more here I don't know about.  Maybe there was a lot more stuff that the opinion leaves out (though I doubt it).

All I can say is that I was very surprised when I got to that portion of the opinion that mentioned that he was sentenced to thirty one years in prison.

U.S. v. Katakis (9th Cir. - Aug. 31, 2015)

Feel free to hit the "delete" button on your incriminating Microsoft Exchange e-mails.  Even if you do so with the intent of keeping those e-mails from the Feds, the Ninth Circuit says that doesn't count as obstruction of justice.  Because you haven't "concealed" them; you've simply moved them from one folder (e.g., your inbox) to another (e.g., the "deleted items" folder).  That's no different from, say, moving an incriminating document from the top of you desk to a desk drawer.

You may not be entirely off the hook, however.  The Ninth Circuit doesn't decide whether hitting the delete button (or moving the e-mails to the "deleted items" folder, which is the same thing) counts as attempted obstruction of justice.  The Ninth Circuit similarly doesn't decide whether "double deleting" e-mails -- i.e., moving them to the "deleted items" folder and then "emptying" that folder -- counts as obstruction of justice.  So you've still got look out for that.

But if all you do is to move files into the deleted items folder, that ain't going to subject you to non-attempt liability.  Mind you:  It won't stop those e-mails from being discovered by the government either, since it'll perhaps not shock you to discover that they actually check that folder (and more!) once they seize your computer.

But if all you do is hit the delete button, even with an evil intent, your malicious incompetence may well not count as a substantive federal offense.

Good to know.

Thursday, August 27, 2015

People v. Romero & Self (Cal. Supreme Court - Aug. 26, 2015)

Sometimes you read these death penalty cases and wonder what it was that led the jury to invoke the death penalty.

Not here.

Just read the first nine pages of the opinion, which recounts the various crimes that the defendants committed during two months in 1992, alongside their subsequent escape attempts from prison in 1994.

Wow.  It'd be hard to find a (death-qualified) jury that would not sentence these two to death.

A third defendant is equally culpable.  But he testified against the other two.  So only gets 51 to life pursuant to a plea deal.  Including eligibility for parole.  And gets to serve his sentence out of state.

It's good to be the one who flips.

Wednesday, August 26, 2015

Sternberg v. California State Board of Pharmacy (Cal. Ct. App. - Aug. 26, 2015)

It at first seemed a little harsh to me that the California State Board of Pharmacy revoked Andrew Sternberg's pharmacy license just because he was the pharmacist in charge when someone else stole some drugs from the office.  Seemed harsh to the administrative law judge as well, who recommended merely that Mr. Sternberg be publicly reproved.

But, reading on, I then noticed that the Board stayed this revocation, and merely put Mr. Sternberg on probation for three years.  Probation:  That seems more reasonable.

Still.  The guy's being punished for someone else's theft.  How's that fair?

But then I read more about the facts.  This wasn't just a tiny little theft, or of some insubstantial little drug.  "During a two-year period while he supervised the Target pharmacy—September 1, 2006, to August 31, 2008—Imelda Hurtado, a pharmacy technician, stole at least 216,630 tablets of Norco1 from the pharmacy, with an estimated retail value of up to $1.50 per tablet, or $324,945, and street value of up to $5 per tablet, or $1,083,150."

Dude.  That's a lot of Norcol.  That's a lot of theft.  We might well want the supervisor to, well, supervise a little more in order to prevent these drugs from hitting the street.

Then I read more.  About precisely how the theft was accomplished.  Which, in a way, was a neat little roadmap about how to steal drugs from a pharmacy.  But also highlighted the kinds of things that Mr. Sternberg did -- or, more accurately, failed to do -- to prevent such a theft:

Hurtado accomplished this theft as follows: She would place orders for up to 3,000 tablets (six bottles with 500 tablets per bottle) to be delivered to the pharmacy on a day she was scheduled to work. She did this approximately 85 times, as often as three times a week. When orders arrived, she would take the delivery to a work station farthest away from the pharmacist’s station. She would then remove the six bottles, hide them in the store room, and destroy the packing invoice. When the pharmacist on duty took a lunch break, she would go to the store room, put three bottles in her purse, and take them out to her car. Later in the day, when the pharmacist was on a break, she would take the other three bottles to her car in the same manner. Her theft was discovered when Sternberg found a bottle of Norco in the store room. The Target pharmacy normally did not sell Norco . . . .

The wholesaler (‘supplier’) typically delivered the drug orders to the pharmacy between 12:30 p.m. and 1:00 p.m. Section 4059.5 of the Pharmacy Law requires that a pharmacist sign for and receive all dangerous drugs or devices delivered to a pharmacy. [Sternberg] testified that his policy was that ‘everybody that works in the pharmacy knows that the law prevents anybody from signing for deliveries, except a pharmacist.’ [Sternberg] did not explain how he would enforce that policy, nor was there any evidence presented as to how that would be implemented. With respect to receipt of drug deliveries, when [Sternberg] signed for the delivery of dangerous drugs he would sign a ‘delivery log that is supplied by the supplier’; however, that log only disclosed how many containers were being delivered, not what was in the actual containers. He would then count the number of bottles, and give the tote to a pharmacy technician who he assigned to take care of unpacking the drugs, placing appropriate shelf labels on the bottles, and checking the invoice/packing slip inside the box to assure that the supplier delivered what was ordered. After [Sternberg] signed for the drugs, he ‘never’ looked at the invoices being taken out of the delivery container and did not check the invoices against the drugs he received. [Sternberg] admitted that as the Pharmacist-in-Charge he had the ‘discretion’ to examine the invoices, but chose not to do so. The invoices he received were given to a pharmacy technician, who then placed them in a box under a counter. After the box was filled, it was then transferred to a ‘little storage area’ in the pharmacy. The box was not checked regularly by any pharmacists, but ‘occasionally’ [Sternberg] or another pharmacist would look at those invoices, but only ‘for a specific drug that we had to order for somebody to see if it came in or if it didn’t come in.’ As a result, the missing inventory and invoices were only discovered by chance, and not for at least 18 months."

Wow.  I think we can all agree that this falls far short from "best practices" at a pharmacy.

So, in the end, I can see why Mr. Sternberg received the discipline he did.  If not more.

People v. Toloy (Cal. Ct. App. - Aug. 26, 2015)

Section 290 of the Penal Code requires that when certain people (e.g., sex offenders) are released from jail after serving a sentence of 30 days or more, these people must register their new (post-release) address with the local police department within five working days of their release.

Section 290.017a) of the Penal Code similarly provides that when these people are released from jail, these people "shall, prior to . . . release, be informed of his or her duty to register under the Act by the official in charge of the place of confinement."

You'd think those statutes are very closely related, right?

But the Court of Appeal holds that the latter statute is "directory, not mandatory".  In non-legalese, that means that even if (as here) the warden is required to -- but fails -- to inform the prisoner of his registration obligations, in violation of Section 290.017(a), that person can still be convicted of violating those registration obligations.  Even if, as a result of that express statutory directive, the person didn't know about those obligations.

POSTSCRIPT - There may be some dispute about what "not knowing" about these obligations means.  The Court of Appeal quoted a prior California Supreme Court case that said that "[A] violation of section 290 requires actual knowledge of the duty to register. A jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement.”  So you might take that to mean that actual notice of the statute is required, but that as long as you have knowledge of the statute -- whether from a prior notice, or independent reading of casebooks, or whatever -- it doesn't matter that the mandatory notice under Section 290.017(a) was provided.  But, then again, defendant here admitted that "he had initialed a form informing him of that obligation when he reregistered in January 2014, but he maintained that he believed it applied only if he was a transient," and the Court of Appeal didn't seem to think that was a defense, so one might view that as taking a more limited view as to what constitutes sufficient "actual knowledge" to justify a conviction.  Maybe defendant was not credible, or maybe that's just not a defense to "actual knowledge".  But either way, it's surely better to give the required, mandatory warnings under Section 290.017(a) -- and to say that "actual knowledge" does all the work here is not as clear in this context as it might be in some others.

Tuesday, August 25, 2015

U.S. v. Sanchez-Gomez (9th Cir. - Aug. 25, 2015)

San Diego is not Los Angeles.

So holds the Ninth Circuit.

Okay, so it's a bit more complicated than that.  But that's essentially what the Ninth Circuit holds.

Sure, in 2007, the Ninth Circuit held that the Central District of California could validly shackle all pretrial detainees appearing before a magistrate, without any particularized showing of good cause (e.g., that the particular detainee might be a threat).  But the Ninth Circuit says that holding doesn't necessarily mean that the Southern District of California can do a similar thing:

"The policy in Howard [the Ninth Circuit case involving the Central District] authorized only leg shackles, while this policy [in the Southern District] authorizes full five point shackles. The policy in Howard applied only at first appearances, while the policy in the Southern District applies to a wide range of non-jury proceedings. The policy in Howard applied only before magistrate judges; this policy applies to proceedings before both magistrate and district judges."

Plus, as I said, the Southern District isn't the Central District.  And Judge Schroeder explains some of these differences, as well as a bit of the backstory about the relevant courtroom in Los Angeles:

"The concerns in Howard were focused on the nature and location of the proceedings. The primary justification given for that policy was a concern for maintaining security in a particular courtroom, a problem peculiar to the Roybal Courthouse in Los Angeles. Howard, 480 F.3d at 1013. We discussed security concerns created by “the Central District’s practice of conducting proceedings in a large courtroom on the third floor of the Roybal Courthouse, in the presence of multiple defendants, where the risks of conflict, violence, or escape are heightened.” Id.

A bit of history is illuminating. The Roybal Courthouse involved in Howard was built several decades earlier, and was originally designed not as a stand-alone courthouse, but as an office building with a few courtrooms. This design is what gave rise to the security problems discussed in Howard and was the result of a feud between the General Services Administration and the District Court for the Central District. After the District Court rejected a proposal to move out of their existing courthouse and into an entirely new one, Congress chose instead to incorporate a few additional courtrooms into a planned office building, which became the Roybal Courthouse. . . . The Roybal Courthouse was thus particularly ill-suited to accommodate modern security concerns.

In this case, the government has not demonstrated that the courthouses in the Southern District pose similar problems for security. The record here indicates the Marshals in the Southern District pointed to problems arising from the existence of three courthouses, ostensibly brought about by the 2012 opening of a new, state-of-the-art courthouse which, unlike Roybal, presumably was designed to accommodate modern security concerns."

In short, San Diego has a shiny new, fancy courthouse with modern security, whereas Los Angeles has a converted office building with a madhouse on the third floor.  What you can do in the latter is not necessarily what you can do in the former.

U.S. v. Christensen (9th Cir. - Aug. 25, 2015)

You might expect me to critique the Ninth Circuit for taking nearly 22 months after oral argument to write this opinion.

Nope.  Not this time.

This appeal involves the convictions of notorious private investigator Anthony Pellicano and a variety of his associates.  Defendants filed fourteen briefs in the Ninth Circuit, a total of over 900 pages.  The government's answering brief was nearly 700 (!) pages long.  The Ninth Circuit opinion itself caps out at 123 (!!) single-spaced pages.  Including a dissent on a material point by Judge Christensen, who's sitting by designation from the district court in Montana.  And who, in a neat little coincidence, has the same last name as the lead defendant.

Cranking out 123 pages of published text, plus additional stuff in an accompanying unpublished memorandum disposition, takes time.  Twenty-two months, even.

So notwithstanding the fact that several of the district court captions in this appeal begin with "05", I think this is about as timely an opinion as we have any legitimate reason to expect.

Monday, August 24, 2015

People v. Seumanu (Cal. Supreme Ct. - Aug. 24, 2015)

"Nolan Pamintuan was engaged to marry Rowena Panelo on May 18, 1996. He spent the evening before, May 17, with friends and family at the rehearsal dinner at a restaurant in Daly City. Panelo gave him a wedding present that night: a black Movado watch engraved with their intended wedding date. After dinner, Pamintuan drove Panelo to her apartment and continued on to Hayward, where he intended to spend the night at his father‘s apartment. Pamintuan was wearing a brown Gucci watch, a gold engagement ring, a black leather sport coat, an Old Navy-brand pea coat, and boots. . . .

That night defendant declared his intention to steal a car in order to commit some robberies, so defendant, Iuli, Palega, and Tautai Seumanu set off to look for a suitable vehicle to steal. They eventually located a van to their liking and Tautai and defendant used a screwdriver to steal it. Back at their family compound in Hayward with the stolen van, the group changed out of their Samoan clothes and donned dark clothes; defendant brought out firearms from the outbuilding. Iuli knew ―something big‖ was going to happen when he saw the guns. Defendant spoke of committing robberies and everyone was ―in on the deal.‖ The foursome left the house in the stolen van and began looking for a robbery victim. . . . After considering and rejecting a few possibilities, the group spotted a potential victim and attempted an armed robbery but the intended victim escaped. When the group reentered the stolen van and drove off, defendant chastised Tautai for the botched robbery. They then observed Nolan Pamintuan parking his car and defendant said: "Let‘s go back and get that guy who just got out of the car." Palega turned the van around.

Defendant, holding a sawed-off shotgun, jumped out of the van with Iuli and confronted the victim. Pamintuan looked shocked and scared and offered defendant the inscribed black Movado watch his fiancée had just given him hours earlier, saying: ―Just take this, that is all I have.‖ Defendant took it and then forced the victim into the van. As they drove off, defendant and Tautai stripped the victim of everything he had, including his boots, sport coat, pea coat, ring, wallet, and watch. Defendant became angry when he discovered Pamintuan was carrying only $3 in cash. The victim offered to withdraw money from the bank and was by this time begging for his life.

They drove to a bank with an automated teller machine and defendant warned Pamintuan that if he tried to escape, defendant would kill him. Tautai and Iuli accompanied Pamintuan to the ATM, where he withdrew $300 and gave it to defendant upon returning to the van. Iuli was worried that the ATM camera had photographed him, Tautai, and the van. The foursome wanted the victim to withdraw more money, and when Pamintuan told them of the daily $300 limit they became angry. Defendant ordered Palega to drive away from the bank and find a dark spot. Defendant and Tautai argued over who would kill the victim, while Palega advised against killing him. Iuli exited the van in an attempt to stop the shooting, seeing no point, as Pamintuan had already given them all of his money. Pamintuan continued to beg for his life. Defendant then shot him in the chest with a single shot from the shotgun. The four then abandoned the stolen van in the neighborhood and went home."

Oh.  One more thing.  "At 12:15 p.m., police showed photographs to Pamintuan‘s brother, Paul, who identified the shotgun victim as his brother, Nolan. Panelo, the victim‘s intended bride, was told of his murder around 1:30 p.m.; they had planned to marry at 2:00 p.m. that day."

Yeah, you're going to be sentenced to death for that.  And the California Supreme Court will unanimously affirm.

Poole v. Orange County Fire Authority (Cal. Supreme Ct. - Aug. 24, 2015)

Justice Cuellar writes a concurrence in an otherwise unanimous case just to make clear his view that "plain" statutory language isn't always necessarily clear.  Or dispositive.  You've instead got to look at the statute as a whole.

It's five (double-spaced) pages worth reading.

If only because it's from a justice we're just starting to get to know.

Friday, August 21, 2015

In Re Marriage of Siegel (Cal. Ct. App. - Aug. 21, 2015)

When a complaint seeks only X, the trial court isn't empowered to give the plaintiff Y.

So, for example, when a complaint seeks only that the ex-husband produce evidence that he has purchased the life insurance required by a marital dissolution agreement, and at the hearing, the ex-husband provides proof of insurance, the trial court can't order that the ex-husband establish and fund a $126,910 trust.  That'd violate due process.

This is an obvious point.  But one that bears repetition.  As well as publication by the Court of Appeal.

Maybe the husband should indeed establish and fund the trust.  But plaintiff's got to ask for it first.

Thursday, August 20, 2015

Fluor Corp. v. Superior Court (Cal. Supreme Ct. - Aug. 20, 2015)

What a great opinion.  Arising out of something you very, very rarely see.

The case is about the assignment of insurance coverage after corporate mergers or spinoffs.  It's complicated and, unless you're in this field, you don't really need to know the holding.  (Though it certainly wouldn't hurt.)  For our purposes, it's sufficient to say that, in 2003, the California Supreme Court held that the rule was X; here, that an insurer could validly prohibit insureds from assigning their rights after a loss has occurred.

But -- and here's the unusual part -- notwithstanding the incredible attention to and briefing in cases in the California Supreme Court, no one noticed or mentioned that there's actually a statute that already governs this issue; in particular, Section 520 of the California Insurance Code.  A statute that's been on the books since 1872 (and that was recodified 1935).  And -- and here's the incredible part -- that statute says that insurers cannot do what the California Supreme Court said in 2003 they could.

No one saw the thing.  No one mentioned it.  It didn't get cited.  It didn't get argued.  It was simply overlooked.

But after the California Supreme Court's decision, someone stumbled across the thing.  Which led to people starting to argue.  Arguments which eventually led to lawsuits.  Lawsuits which eventually culminated in today's California Supreme Court opinion.

What do you do when you clearly held X but a statute says the actual rule should be Y?

Today the California Supreme Court answers that question.  Its holding:  You overrule the prior case and make the law Y.

Now, I'm not entirely sure that'd be the answer if the world (and justices) loved rule X.  Or if there were definite, settled, investment-backed expectations based upon that principle.  But that's not the case here:  the insurance companies didn't materially rely on rule X (since the losses had already transpired), and my sense is that the current justices on the California Supreme Court -- like many commentators -- aren't thrilled with rule X either.  So that makes it a lot easier to overrule that principle based upon an overlooked statute rather than simply affirming rule X on stare decisis grounds.

Which would be doctrinally tough anyway.  Since a common law rule really shouldn't prevail over a statutory enactment.  Overlooked or not.

So, here, you've essentially got a unanimous California Supreme Court that says, n the words of Gilda Radner:  "Never mind."

(Or, as the California Supreme Court more artfully -- and legally -- puts it:  "[T]his still does not explain why section 520 was not discussed by the parties — especially the plaintiff or its amicus curiae — in Henkel itself. And yet as observed post, part IV, such omissions occasionally happen. This reminds us that even with access to computer research technology, any human enterprise cannot be perfect; and that it is better that wisdom, or at least controlling authority, come to our attention late, rather than not at all. (Cf. Smith v. Anderson (1967) 67 Cal.2d 635, 646 (conc. opn. of Mosk, J.) [“'Wisdom too often never comes, and so one ought not to reject it merely because it comes late.'”], quoting from Wolf v. Colorado (1949) 338 U.S. 25, 47 (dis. opn. of Rutledge, J.).)"

Love it.  Great opinion.

One more thing.  I also learned something new.  Maybe you will too.  Guess when third-party liability insurance started in the United States?  The Court tells us in footnote 19:  "Liability insurance was first issued in the United States in 1886. (2 Dunham, The Business of Insurance (1912) pt. IV, Liability Insurance, ch. 43, Historical Sketch, p. 191.) It did not exist prior to then because, until the United States Supreme Court allowed such insurance in Phoenix Ins. Co. v. Erie Transportation Co. (1886) 117 U.S. 312, it was considered to be against public policy, and illegal, to insure against one‟s own negligence in tort."

Didn't know that.  Now I do.

Wednesday, August 19, 2015

U.S. v. Chadwell (9th Cir. - Aug. 19, 2015)

It seems pretty obvious.  But just in case it's not, the Ninth Circuit holds today that it's not improper to let the jury view during its deliberations a DVD that was admitted into evidence and played at trial.  That's perfectly fine, and the defendant has no right to be personally present while the jury does so.


Tuesday, August 18, 2015

First Intercontinental Bank v. Ahn (9th Cir. - Aug. 18, 2015)

It's tough to be a judge on the Ninth Circuit.

Don't get me wrong.  It's a great job.  One for which many people might give their eye teeth.

But it's a lot of work.  You've got tons of cases to decide.  In many (if not most) of which reasonable minds might reasonably disagree.  You've got petitions for rehearing and rehearing en banc to review and adjudicate.  You've got oral arguments to prepare for and attend.  You've got plenty of opinions to write, both published and unpublished.

Mind you, you've got a lot of help.  You've got at least one administrative assistant.  You've got three or four incredibly motivated and bright law clerks.  You've often got a nontrivial number of externs helping as well.  All of which somewhat lessens your burden.

But ultimately, the opinions that are produced have your name on them.  So you're responsible for them.  No small task.  Including but not limited to making sure that the opinions sound like you, even when they're written in (large or small) part by one of the other people in your chambers.  This ain't easy either.  More work.  More effort.

So when I read this opinion by Judge Milan Smith, I was somewhat sympathetic.  It's a conflict of laws opinion:  Do California's choice of law rules require application of California law or Georgia law to a dispute over attorney's fees for the prevailing party on a contract?  Not a totally easy dispute.  But one that Judge Smith's opinion seems to resolve reasonably and, I think, correctly.

So it's not the merits of the opinion that struck me as unusual.  Rather, it was its style.

Having read plenty of opinions by Judge Smith over nearly a decade, as well as plenty of opinions by other judges on the Ninth Circuit, I was struck as I read the opinion by how much this one didn't read like most of the others.  Sure, it had an introduction, and statement of facts, and legal argument; none of that was off.

But there's a style of legal writing that you see much more in law schools than you do in Ninth Circuit opinions.  And that's the style that was evident here.

You'll have to read the opinion yourself to see if you get the same sense that I do.  And it's also hard to describe exactly just what seems a bit "off" about the opinion.  The best I can do is to say that the thing is overly staccado.  Every little factor in the conflict of law test gets its own heading.  Every tiny point gets addressed seriatim and in relative isolation.  It just looks -- for lack of a better word -- weird.

I'll give an example to try to demonstrate what I mean.  Here's what the ninth page of the opinion looks like:

Is there anything substantively wrong with that?  No.  Everything in there is right.  If one of my first-year law students wrote this on a paper or in an exam, I wouldn't be surprised.

But it's not what you generally see -- or expect -- in a published Ninth Circuit opinion.  Paragraphs that are a single sentence, and that have their own heading to boot?  Headings that are nearly as long as the underlying section?  Really?

We're used to seeing things more, well, integrated.  It's not that the style of legal writing evident here is demonstrably "wrong".  But it's more of what you'd expect to see on a bar exam answer than in an erudite Ninth Circuit opinion.  Particularly one by Judge Smith.

So I was going to say something about the style of this opinion anyway.  Again:  Not to blame Judge Smith, who's got plenty to do.  But to nonetheless mention that, for whatever reason, this is a pretty good example of an opinion that doesn't read much like the product of the person whose name is on it, which happens from time to time but is still somewhat distracting.

But then read on, and felt like definitely commenting on the thing.  If only because subsequent pages of the opinion repeatedly refer to decisions of "the California District Court of Appeals".  (E.g,, The California District Court of Appeals confronted a situation similar to the one we consider here. . . . and "The California District Court of Appeals ultimately decided . . . .")

It's not that other judges haven't used a similar appellation in the past.  Even the United States Supreme Court, I've discovered, has called it the "California District Court of Appeals," and has done so a half-dozen times.  Albeit not in the past fifty years.

Ditto for the Ninth Circuit.  There appear to be nine opinions where it's previously referred to such a tribunal.  The last of which transpired in 1978, in a per curiam opinion.  You've got to back 45 years to find a signed opinion in the Ninth Circuit that uses that term.

There's a reason for that, of course.  It's not the "District".  And it's not the Court of Appeals.  It's the California Court of Appeal.  Pure and simple.  That's what the Ninth Circuit has called the thing roughly 1400 times in the past decade.  And it's what the California Constitution describes as well.

Admittedly, the Court of Appeal has districts.  So you'd be just fine in calling it, say, the Third District of the California Court of Appeal.  But it's not the "California District Court of Appeals."

As Judge Smith knows full well.

Look, this stuff's confusing.  I still mess up, on rare occasion, between the federal Court of Appeals and the state Court of Appeal.  Google "California District Court of Appeals" and you'll see lots of people who make the same mistake that's repeatedly made in Judge Smith's published opinion.

But it nonetheless still detracts from the quality of the opinion.  Particularly when combined with the stylistic point identified above.

This just seems like one of those published opinions that fell through the cracks.

Which is itself surprising.  Judge Smith, Judge Smith's law clerks, the other judges on the panel, the law clerks for the other judges on the panel, and even the publication staff in the Clerk's office:  all of 'em presumably read this thing, and none of them caught (or at least mentioned) what seems to me an obvious, repeated error.  Putting even wholly aside the style of the opinion, which is admittedly the sole province of Judge Smith and his chambers.

Anyway, an unusual opinion.  Hence worthy of comment.

Even if -- and this definitely bears repeating -- the substance of the opinion seems spot on.

Patel v. City of Montclair (9th Cir. - Aug. 18, 2015)

I'm not even sure what plaintiffs (and their counsel) were thinking in this one.

Police officers enter the public areas of the Galleria Motel and cite the owner for code violations that are in plain view.  The owner and the motel sue, claiming that their Fourth Amendment rights were violated when the police entered the motel to search for crimes.

But, to reiterate, the places that the officers went were public areas.  Where everyone was allowed.

That makes this an easy case.  Super easy.  Not even worth bringing, in my view.  You're allowed to search in public places open to the public.

Which the Ninth Circuit concisely holds as well.

Not a surprise.

Monday, August 17, 2015

People v. Blackburn (Cal. Supreme Ct. - Aug. 17, 2015)

Three of these four sentences describe a horrible crime.  The fourth is just weird:

"In 2004, Blackburn was convicted of first degree burglary and forcible false imprisonment. Blackburn had entered the home of an 85-year-old woman at night, and she awoke to find him naked and lying on top of her. He pinned her down with his legs and restrained her by pulling her hair, but the woman managed to escape. When the police arrived, they found Blackburn sitting naked on the toilet, eating pork chops, and speaking incoherently."

Friday, August 14, 2015

Demuth v. County of Los Angeles (9th Cir. - Aug. 14, 2015)

Sometimes Judge Kozinski publishes an opinion principally to shame the parties.

Like here.

Most of the case gets resolved in an accompanying unpublished memorandum disposition.  But Judge Kozinski wants to make sure to publicize both the facts of the case as well as the panel's reaction thereto.  So he writes and publishes a brief synopsis of what transpired.

I'll adopt the same course, and merely quote from the opinion:

"This story begins in Los Angeles’s Los Padrinos Juvenile Courthouse. Florentina Demuth, a public defender, arrived shortly after 8:30 a.m. She had a hearing for one of her clients that day, though it wasn’t set for a specific time. Around 9:00 a.m., she had a brief conversation with Heidi Shirley, who was the presiding referee in Demuth’s case. Demuth also had a conversation with opposing counsel in which Demuth indicated that she didn’t intend to return to court until approximately 1:30 p.m. Demuth then left to work in her office, which was located in a different part of the building. A short while later, Referee Shirley asked Li, the sheriff’s deputy on duty in her courtroom, to page Demuth over the court’s intercom. Deputy Li paged Demuth several times. Demuth heard at least one page, but she didn’t respond. Deputy Li also telephoned Demuth’s direct line. Demuth heard her direct line ringing, but she didn’t answer.

This was not unusual. Lawyers, especially public defenders, were often absent from the courtroom when their case was called, and it typically took some time—and a few pages—to get them there. While she was being paged, Demuth was with her supervisor, Patricia De La Guerra Jones, who had instructed Demuth to finish an assignment before returning to court.

Referee Shirley was eager to hear the case of Demuth’s client. She had approximately 53 cases on her calendar to hear before 2:00 p.m., and the deadline to hear the case of Demuth’s client was that day. Around 9:45 a.m., Referee Shirley made the following statement: “Alright, I order Ms. Demuth to come to this courtroom. If she refuses, then Ms. De La Guerra Jones will have to come in and explain to me why this is happening.” Li found Demuth in her office suite talking to De La Guerra Jones. Li told Demuth several times that she had been called byReferee Shirley, to which Demuth responded “just a minute,” or something to that effect. After some back and forth, Li raised his voice and demanded that Demuth come immediately. Demuth responded that “[i]f you want me to come right now, you’ll have to arrest me.” Li then did just that: He put Demuth in handcuffs and escorted her to Referee Shirley’s courtroom, where he removed the handcuffs. The arrest lasted some 11 minutes.

Demuth sued Li and the County of Los Angeles under 42 U.S.C. § 1983 and a variety of state law theories. . . ."

I must say that I was surprised to hear that attorneys routinely absent themselves from proceedings and don't come to the courtroom even when paged by the judge.  Or even pick up their phone.  Especially when, as here, the attorney is extremely young, and hasn't even been a lawyer for five years.

But clearly I'm not used to juvenile court.  Thankfully.

The panel quickly holds that the deputy had no probable cause to arrest Ms. Demuth, and wasn't protected by qualified immunity either.

But Judge Kozinski saves the central point of his opinion for the last paragraph.  Which reads:

"No one in this case has covered himself with glory: not the lawyer whose lackadaisical response to a judicial summons and disrespectful retort to a fellow court officer set off this unfortunate chain of events; not the supervisor who did not urge the lawyer to comply promptly with the deputy’s repeated requests that she come to court or admonish her for her tart response to the deputy; not the deputy who took the bait and abused his power; not the judges of the Los Padrinos Juvenile Court, who, doubtless aware of the incident, failed to mediate a minor dispute among court officers and allowed it to metastasize into a federal case. What seems to be at stake here is little more than wounded pride, as any damages suffered by the plaintiff seem hardly more than nominal. The dispute should have been resolved by an admission that the deputy violated Demuth’s constitutional rights, followed by mutual apologies and a handshake, saving the taxpayers of Los Angeles County the considerable costs of litigating this tiff."

I agree.

P.S. - For those who think the Socratic method in law school is unnecessary (or unusually harsh), check out the video of the oral argument in this case.  It's not mean.  But it's incredibly probing.  Question after question and hypotheticals galore.  Just like law school.  But with three (smart) law professors grilling you instead of just one.  For 45 minutes straight, no less.

Thursday, August 13, 2015

Rodriguez v. Robbins (9th Cir. - Aug. 13, 2015)

Sarah S. Wilson works as a trial attorney at the Department of Justice in the Office of Immigration Litigation in Washington D.C.  She's young; she graduated from the University of Georgia Law School, and joined the Georgia Bar in 2009.

A couple of weeks ago, Ms. Wilson did an oral argument in an immigration case in front of the Ninth Circuit.  The argument did not start out especially well.  As she began making her argument, multiple members of the panel told Ms. Wilson to slow down, and to talk a little more clearly.  Ms. Wilson took the advice in stride.  I can't say she entirely complied with their counsel, but presentation styles are notoriously difficult to change, especially on the fly, and especially for young lawyers.  I empathize with her plight.  But she tried her best.

But things then got worse.  Ms. Wilson then referred in oral argument to a story that had been published three days earlier in the L.A. Times.  The panel asked if this newspaper article was in the record, and Ms. Wilson was forced to concede that it was not.  That's a problem.

But it got worse still.  Judge Wardlaw, in particular, was exceptionally interested in the timing and nature of the article.  She noted that the article quoted "federal authorities" as the source of its information and wanted to know if the U.S. had planted the story in an attempt to influence the panel.  Ms. Wilson responded that it wasn't the U.S.'s policy to comment on its sources, and said she didn't know a number of details about the story.  But Judge Wardlaw was relentless, and wanted to know the scoop.  The full scoop.

Today, things got about as bad as they can get for Ms. Wilson.  The Ninth Circuit issued the following order:

"Counsel for Appellants/Cross-Appellees is ordered to show cause why sanctions should not be imposed for the improper oral argument before this Court on July 24, 2015, based on an L.A. Times news article, published July 21, 2015, three days before oral argument in this case, entitled 'Suspect was fighting deportation,' the source for which is identified as 'federal authorities' and which directly references and quotes from earlier proceedings in this case. Fed. R. App. P. 46(c); Circuit Rule 46-2(a); ABA Model Rules of Professional Conduct 3.5.

Counsel shall also provide the Court and opposing counsel with copies of the transcripts of the bond hearings for Mr. Keane Dean, including both the preliminary and the Rodriguez hearings, as well as any other bond hearings that may have taken place in Mr. Dean’s immigration proceedings, to which counsel also improperly referred during the July 24, 2015 oral argument."


U.S. v. Cook (9th Cir. - Aug. 13, 2015)

The police suspected that Oshan Cook had just dropped off some MDMA with a known dealer because his backpack looked lighter when he left the dealer's home than it did when he entered.  When Mr. Cook went back to the dealer's home, carrying the same backpack, six officers arrested him at gunpoint, ordering him to the ground.

When Mr. Cook dropped to the ground, three of the six officers handcuffed him, and he was face down on the sidewalk, with three officers on top of him, and with his hands handcuffed behind his back.  At which point one of the officers grabbed Cook's backpack, which Cook had dropped to the side when he was ordered to the ground, and searched it for twenty or thirty seconds.

The Ninth Circuit, in an opinion by Judge Nguyen, holds that this is okay.  Because even though Mr. Cook had a small build, had three officers on top of him (and three more nearby), and was planted face-down on the sidewalk with his hands tied behind his back with handcuffs, it was reasonable to conclude that this face-down, handcuffed, dominated individual might perhaps break free and reach for the backpack.  Hence the officers could reasonably search the backpack, even without a warrant, to make sure there were no guns in the backpack.  Lest the prone, handcuffed, tiny Mr. Cook break out of his metal restraints, throw off the three officers on top of him, avoid the other three nearby, zip open the backpack, grab the (non-existent) guns therein, and shoot the officers dead.

So holds the Ninth Circuit.

Wednesday, August 12, 2015

People v. Preston (Cal. Ct. App. - Aug. 12, 2015)

So you want to be a justice on the Court of Appeal, eh?  Presumably because you'll get to resolve critical, riveting cases like this one:

"This appeal arises from three separate cases. In each case the trial court granted defendant probation. In the first case, the trial court suspended execution of sentence and imposed a restitution fund fine. In the second and third cases, the trial court suspended imposition of sentence and imposed a restitution fund fine and a probation revocation fine. In September of 2013, the trial court revoked probation in all three cases and, in each case, imposed an additional restitution fund fine of $300 and a parole revocation fine of $300. Defendant Lisa Marie Preston raised a number of issues relative to the imposition of these additional fines. We requested supplemental briefing on four questions:

(1) Whether the trial court‘s failure to impose a parole revocation fine when sentence was imposed and execution stayed in case Nos. SF091142A/12F5679 (case 1) was an unauthorized sentence.

(2) Whether the trial court was authorized to impose a parole revocation fine years after it imposed the restitution fund fines in case Nos. SF112662A/12F5677 (case 2) and case Nos. SF117635A/12F5678 (case 3).

(3) Whether the trial court was authorized to impose both a probation revocation fine and a parole revocation fine in cases 2 and 3.

(4) Whether the trial court erred in failing to lift the stays on the probation revocation fines when it revoked defendant‘s probation in cases 2 and 3."

You can read the entire opinion for which $100/$300 fines were permissible, which were required, and which were impermissible.

Just remember that this whole thing is about fines that (1) may never in fact be paid -- or at least not paid with a real check (the defendant was repeatedly convicted of forgery); and (2) in any event are far smaller than the costs of prosecuting and resolving this appeal.

U.S. v. Boitano (9th Cir. - Aug. 12, 2015)

Wait:  You can be the name partner in an accounting firm, and be responsible for filing other people's taxes, and yet not file any tax returns of your own -- for sixteen years -- and still get only five months in prison?

Sort of makes me want to not file taxes either.

(Though doesn't make me want to be a partner in an accounting firm.)

Tuesday, August 11, 2015

Mann v. Ryan (9th Cir. - Aug. 10, 2015)

Judge Kozinski dissented in the panel's reversal of the death sentence, saying that the opinion might well be summarily reversed by the Supreme Court.

It might not even get that far.  The Ninth Circuit just took the case en banc.

We'll see what the draw looks like.  Which will matter.  Since my strong sense is that the en banc opinion will not be unanimous.

Monday, August 10, 2015

Madrigal-Barcenas v. Lynch (9th Cir. - Aug. 10, 2015)

The next time someone tells you how the Ninth Circuit is so out of step with the Supreme Court, agree with them.  And mention this case.

Five times the Ninth Circuit held that an alien convicted of possessing drug paraphernalia under state law was ineligible for relief from deportation.  This has been the law of the circuit for at least fifteen years.

The matter eventually goes up to the Supreme Court.  Which concludes otherwise.  In a 7-2 opinion, with only Justices Thomas and Alito dissenting.

So this morning, pursuant to a GVR from the Supreme Court, the Ninth Circuit overrules its prior precedent.  Consistent with what's required by the new Supreme Court opinion.

So, yeah, sometimes the Ninth Circuit is out of step.  But sometimes it's out of step in a way that's to the right of the Supreme Court.

Not always to the left.

Thursday, August 06, 2015

U.S. v. Leung (9th Cir. - Aug. 6, 2015)

There are several opinions in the civil procedure textbook that I assign to my first-year students that discuss juror misconduct during deliberations.  Several of them are Supreme Court cases, and others are from the Court of Appeals.

I'm going to ditch all of them, and have my students merely read this opinion by Judge McKeown.

It's concise, to the point, and tells students pretty much everything they need to know.

So thanks, Judge McKeown.  You saved my students about ten pages of reading.

Which I'll now devote to further exploration of the Erie doctrine.


People v. Brown (Cal. Supreme Ct. - Aug. 6, 2015)

Here's a nice, sensible, moderate opinion from the California Supreme Court.  To which every reasonable person can concur.

Including me.

The Court unanimously holds that it counts as a detention -- and hence requires reasonable suspicion -- for a police officer to pull up behind a parked car and activate his lights, since a reasonable person would not feel free to leave in such a setting.

Of course that's right.  Of course you wouldn't feel free to leave if a police officer did that to you.  You'd know full well that if you left, they'd simply chase you, and force you to pull over.  That's clearly true.  The Attorney General's argument to the contrary is meritless.

(The caveats in Justice Corrigan's opinion on this point are similarly sensible.  Maybe there's a different result if an officer pulls up behind a parked vehicle that's broken down on the highway and turns on her lights.  It's possible that such a person might simply think the officer was there to help.  Fair enough.)

Not only is Justice Corrigan right as an empirical matter -- a reasonable driver would not, in fact, feel free to leave -- but it's also good policy.  We should prefer to have rules that say that it counts as a detention when officers activate their lights.  If for no other reason than we want people to do precisely that -- to stop, and to not feel free to leave -- in such a setting.  Especially since citizens don't know what the officers know at the time (e.g., why they're being stopped), we don't want people to have to guess whether an officer with her lights on "really means it" or whether sitting there would simply be voluntary.  The world's a better place if there's a rule that's as bright line as possible.  When an officer turns on her lights, and those lights are clearly (as here) directed at you, I think it make sense to generally view that display as a command.  "Stop".

So I'm on board.

At the same time, I'm also on board with the Court's unanimous decision that there was, in fact, reasonable suspicion here.  I'll not bore you with the details.  But there was a 911 call about a fight with a loaded gun in the alley, the person stopped here came from that alley, you could hear the fight in the background in the 911 call, and the officer could reasonably suspect that the guy in the car had something to do with the fight.

Turns out that he probably didn't.  But no matter.  The officer had sufficient cause to briefly detain the guy to figure out the scoop.  And when the officer went up to the car and smelled alcohol, and eventually arrested the guy for DUI, that was all good and proper.  No basis for reversal.

Good opinion.  Nice, careful, rational, coherent, and sensible.  Plus unanimous.

Were they all to be this way.

Wednesday, August 05, 2015

People v. Cardenas (Cal. Ct. App. - Aug. 5, 2015)

I'm not a huge fan of locking people up for excruciatingly long periods.  But I'm nonetheless fine with Mr. Cardenas getting 18 years in prison for robbery and burglary in this case.

He's not a guy I really want walking around on the streets.

In Re A.G. (Cal. Ct. App. - Aug. 5, 2015)

Some might think it piling on.  But Justice Ramirez wants there to be no doubt about where the Court of Appeal stands:

"The evidence that even supervised visitation with father presented some danger to the child’s physical or emotional well-being is as follows. First, as the juvenile court emphasized, the child was young, only six years old, and had no bonding or relationship with father whatsoever. Father and the child had last seen each other when the child was about eighteen months old. The child had recently spoken to father on the telephone and had treated him like anyone else . . . . Second, father frequently violated his parole, had been in and out of custody for the previous six or seven years, stated under oath that he could not promise that he would abide by juvenile court orders regarding visitation and contact, and testified that he only respected the terms of his parole supervision 'To a point.' Third, this most recent violation of parole involved cutting off his GPS tracking device, drug use and sex with a prostitute only 30 days after being released from prison. Fourth, father had a long-standing problem with abusing drugs, beginning at the age of 13. Fifth, and certainly not least, father had a rather long record of serious criminal convictions, including several for sex crimes against children. [Emphasis in original]  Overall, given that father regularly engaged in such risky behavior—risky to both himself and the child—and the bond between father and the child was negligible, we find substantial evidence supports the juvenile court’s finding that even supervised visits between father and the child represented a danger to the child’s well-being and thus would be detrimental. However, as discussed below, this very substantiated finding of detriment was unnecessary given that the law does not change, once guardianship is selected as a child’s permanent plan, to suddenly give a mere alleged father a new presumptive right to visitation."

Well then.  I guess this one ain't that tough, is it?

Tuesday, August 04, 2015

Blixseth v. Yellowstone Mountain Club (9th Cir. - Aug. 4, 2015)

When the Ninth Circuit -- and Judge Kozinski in particular -- issues an order to show cause and issues an opinion that says that you might well have brought an appeal in bad faith, an attempt to "double down" and insist that what you did was completely right is probably not your best option.

That's what transpired here.  The client, Timothy Blixseth, and one of his attorneys, Michael Flynn, respond to the OSC by continuing to insist that they did nothing wrong and continuing the type of advocacy that got them in trouble in the first place.  So the Ninth Circuit spanks them, and imposes a fee and cost award, plus another $500 to the Ninth Circuit for good measure.

By contrast, four of the other attorneys on the case "allowed their names to be placed on briefs that presented frivolous and inflammatory arguments."  But those lawyers responded to the OSC with a nuanced mea culpa that distanced themselves as much as possible from what transpired.

Those lawyers avoid sanction altogether.  Apart from having their names published in the Federal Reporter, anyway.

That's a better decision.

Rounds v. Commissioner of Social Security (9th Cir. - Aug. 4, 2015)

Heather Rounds lives in Oregon.  She's 22 years old, a high school graduate, and lives with her five-year old daughter, a boyfriend, and two cats.  She's had two short-term jobs in her life:  one as a gas station cashier and one at a fast-food restaurant.  She says that she has "difficulties with social interactions, leaving the house, sleeping, remembering to eat and care for herself, and remembering instructions. Nevertheless, she stated that she was able to care for her daughter and her cats, prepare simple meals, share house work with her roommate, shop for groceries, and pay bills."

She'd like social security disability payments.  Presumably for the rest of her life, since the things about which she complains (not wanting to interact with others, etc.) will not likely change.

Ms. Rounds "sees no reason to want to work".  The Ninth Circuit opinion discusses at length the various ailments that Ms. Rounds alleges she might have, many (if not all) of which involve self-reported difficulties.  She also has "unusual beliefs and perceptions".

A number of twenty-somethings in Oregon might fit this description.

The ALJ denies benefits.  The district court affirms.  The Ninth Circuit partially reverses and remands.

Trying to separate those who are truly disabled from those who simply would prefer not to work is a difficult task.  Made even more difficult by the reality that (1) some ailments truly do not have many objective signs, and (2) some people are willing to claim ailments of this type but do not in fact have them.  There's also a fine line between finding work (as Ms. Rounds does) "'hard and exhausting' due to not fitting in with her co-workers and struggling to interact with customers" because you have real psychological problems versus simply rather being at home with your boyfriend, daughter, and/or cats instead of at work.  A reality that would describe many of us.