Thursday, March 31, 2016

U.S. v. Mallagon-Lopez (9th Cir. - March 31, 2015)

Judge Berzon concurs in today's opinion and says that, although it's not argued here, maybe she'd find a right under the Due Process Clause to be informed of the true reason for your arrest, rather than be told a made-up story by the police about why you were busted.  (Here, after some wiretaps, the police stopped a drug-laden vehicle, but told the driver that he was being stopped for an illegal lane change -- a lie -- because the police did not want to reveal the nature of the ongoing investigation.)

Judge Berzon argues that several states, including California, have adopted precisely such a rule as a matter of good practice.  And California does indeed have such a rule.

But I'll nonetheless mention that this rule contains important exceptions, including one that'd be applicable here.  In California, yes, you have a right to be told why you're being arrested.  But not if the officer has reasonable cause to believe that the arrestee is -- as here -- actually engaged in the commission of an offense.  (Ditto for if he's arrested immediately after committing the offense or after an escape.)

So don't be thinking that, in California, you always necessarily get told why you're being arrested.  In many cases, there's indeed no such state-created right.

People v. Poisson (Cal. Ct. App. - March 30, 2016)

"On March 2, 2014, at about 1:55 a.m., Robert Gerari was standing near his motorcycle outside of Gilly's Bar located at 2306 El Cajon Blvd. Poisson walked by Gerari and said, "nice bike," to which Gerari replied, "thank you."

Well, that's nice.  Good to see that polite behavior still has a place in our society.  Even outside a bar at two in the morning.

"Poisson then struck Gerari on the side of his head and attempted to run away. In response, Gerari chased Poisson, took him to the ground, and began punching him."

So much for the return of civility.

Wednesday, March 30, 2016

People v. Jones (Cal. Ct. App. - March 30, 2016)

Joan and Gary Marlow live in Yreka, and on the morning of December 4, 2011, discover that their home has been burglarized.  The burglar took the usual stuff:  a camera, a television, mobile phones, Ms. Marlow's purse, Christmas presents (presumably not yet wrapped), and . . . a carton of Virginia Slims cigarettes.

Weird.  But I guess cigarettes are getting expensive.  The new rage:  cigarette theft.

Oh, and when officers search the defendant, Robert Jones, they find in his possession . . . a carton of Virginia Slims cigarettes.

Case closed.  Clearly.

Oh, yeah.  Lots of other stuff from the Marlows was in his possession as well.

That probably helped the jury convict.

San Diego Navy Broadway Coalition v. US DOD (9th Cir. - March 30, 2016)

Judge Pregerson authors the majority opinion and holds that the redevelopment of a fifteen-acre waterfront site in San Diego can go forward because the Department of Defense adequately took a "hard look" at the consequences of a possible terrorist attack on this facility.  Judge Carr, sitting by designation, disagrees, and dissents.

Personally, I'm neither sure who's right, nor -- on a broader level -- the whole point in the first place.

I'm quite confident what the consequences would be of a terrorist attack on this, or any, facility.  It would be bad.  Extremely bad.  People would die, property would be destroyed, citizens would be freaked, traffic would be terrible, etc. etc. etc.   I don't think that actually spelling out in minute detail each one of these various consequences would matter in the slightest.  It'd be bad.  Very bad.  End of story.

It's not like someone's going to support this redevelopment project but then say:  "Oh, wait.  Now I know the specifics of how a terrorist attack might throw up dust.  Forget it.  Now I'm opposed."  Not going to happen.

Still, I get it.  The law says you've got to do X, the parties fight about whether X has been done, and the Ninth Circuit has to resolve the dispute.

But, in the scheme of things, I just don't see how fights like this matter.

Tuesday, March 29, 2016

People v. Ybarra (Cal. Ct. App. - March 29, 2016)

The California Court of Appeal will teach you a whole new set of terminology if you pay attention.

You may well already know what "gassing" entails.  And, if you don't, today's opinion -- which involves (in part) precisely such an event -- will give you a glimpse.  Fortunately, today, it's just spit.  But as you likely know, gassing can also involve some even less pleasant substances.  But there's one term.

What I didn't know until today, by contrast, is the distinction between a "bomber" and a "hitter".  The latter term I could have probably figured out.  But now I know what the former is as well.

Justice Murray explains:

"Sergeant Villanueva then turned toward the exercise area in the yard and saw three inmates punching and stabbing another inmate. He observed a fourth inmate running away from that area. . . . Officer Castellon pepper-sprayed the assailants to stop the assault. He testified that Amaya and Colon did not have weapons on or near them. Officer Castellon explained that based on his experience with Northern Hispanic gang assaults, he believed Amaya and Colon were 'bombers.' He went on to explain that the 'bombers are the people who direct the incident away from the person who actually did the stabbing and cutting,' allowing the prisoners with weapons, called 'hitters,' to get away while the bombers continue to attack the victim without weapons."

Good to know.  My prison lingo has now marginally expanded.

Monday, March 28, 2016

Brooks v. Yates (9th Cir. - March 28, 2016)

I tend to side with Judge Kozinski on this one.

Not that anyone's expressly disputing what he says.  The opinion is per curiam.  The opinion says that the petitioner gets habeas relief.  The opinion says that the petitioner had been essentially abandoned by his attorney, and names that attorney.

But Judge Kozinski doesn't think that's necessarily enough.

Judge Kozinski has gotten some flack from others in the Ninth Circuit recently for allegedly acting like a "roving commissioner" looking to identify and root out misconduct by lawyers.  And this is yet another case in which there's alleged misconduct that leads to an appeal.

So Judge Kozinski feels like defending his practice.  And this is a perfect example, in his view, of when -- and why -- spelling things out in detail appropriate.

Here's what Judge Kozinski says:

"I join and applaud the majority’s sound disposition. I write separately in fulfillment of our venerable obligation “to the public [to issue] a civil reprehension of advocates, where there appeareth cunning counsel [or] gross neglect.” Francis Bacon, Essays, Civil and Moral in 3 Harvard Classics 7, 139 (Charles W. Eliot ed., 1909). As the principal opinion demonstrates, Brooks’s federal habeas counsel, Gregory H. Mitts, satisfied both of these categories by ignoring Brooks’s communications, missing deadlines and then concealing his dereliction. In doing so, he jeopardized his client’s chance to obtain federal habeas relief. Maj. at 6. Yet Mitts continues to practice law in California with no mark on his record that would apprise prospective clients of the grave risks of hiring him to represent them. . . .

The facts are even worse than one would gather from reading the majority opinion. After Mitts was retained in March 2010, Brooks apparently sent a letter (not in the record) suggesting how the case might be handled. In October, Mitts sent an imperious response admonishing Brooks not to “micromanage” the case from prison. The letter also mentioned offhand that the California Supreme Court had denied Brooks’s pending post-conviction relief petition, but didn’t say when. Nevertheless, Mitts assured Brooks that he was “aware of the time constraints attendant to” filing his federal habeas petition.

That turned out to be untrue. Brooks’s federal habeas deadline expired just days after Mitts wrote to Brooks, but Mitts sat on his thumbs. Over the next year, Mitts systematically ignored a stream of letters that Brooks sent inquiring about the status of his case. In May 2011, Brooks wrote to Mitts pointing out his “lack of regular communication” and asking Mitts to call him at the prison. Brooks wrote again the following month, explaining that Mitts’s silence was “extremely frustrating.” Having heard nothing, Brooks wrote yet again in July. To facilitate a response, Brooks enclosed questions to which Mitts could provide “yes/no” answers and brief explanations. Brooks begged Mitts to “PLEASE ANSWER THESE QUESTIONS AND MAIL THEM . . . WITHIN 2 WEEKS.” Brooks continued to send letters to Mitts approximately once a month over the next four months. In August, he reminded Mitts of his responsibility to “be in contact and communicate with [your] client” and mentioned that he had been waiting “almost a year” for responses to his “11 previous letters.” In October, Brooks sent Mitts an “urgent” letter imploring him to communicate, even if it meant referring him to a paralegal.

In August 2011, ten months after the deadline expired, Mitts finally deigned to file a federal habeas petition, apparently without notifying Brooks. When the district court issued an order to show cause as to why the petition shouldn’t be dismissed as untimely, Mitts didn’t file a response or notify Brooks of the order. Mitts later explained that he did not respond to the show-cause order because he couldn’t contest the court’s untimeliness finding. When the magistrate judge recommended that the petition be dismissed, Mitts didn’t object. The district court thus entered final judgment on a habeas petition that Brooks didn’t even know had been filed on his behalf. Mitts has never explained why he missed the filing deadline by almost a year, or why he did not notify his client immediately of the default and subsequent court orders. . . .

A lawyer who comports himself as Mitts did is not only a hazard to clients, but also a menace to the profession and to the courts. Mitts’s actions consumed countless hours of this court’s and the district court’s time in dealing with his obstinate incompetence. If Mitts was so lackadaisical in Brooks’s case, we can only imagine what problems he’s caused, or is likely to cause, other clients. Potential clients, who will put their lives in Mitts’s hands, as Brooks did, are entitled to know that this lawyer ignores client inquiries, misses jurisdictional deadlines and does not own up to his mistakes."

I think that's a pretty persuasive argument.  Sure, there's a power differential when a member of the judiciary calls out an attorney in a published opinion.  Particularly since the ability of the attorney to draw a similar audience for any refutation of what the judge says is generally pretty low.

But when you're confident that an attorney has a serious problem, Judge Kozinski seems right that the protection of the public may justify calling him out.  If only so others, in the Google era, can perhaps learn of the attorney's prior conduct before they elect to put their lives in his hands.

Judge Kozinski ends his concurrence by saying:  "I am unaware of any disciplinary action currently underway to address what appears to have been misconduct by Mitts. The State Bar of California may not yet be aware of Mitts’s behavior. Perhaps now it will be."  No need for the "Perhaps".  I'm extremely confident the opinion will make the Bar aware this problem.


Friday, March 25, 2016

People v. Florez (Cal. Ct. App. - March 25, 2016)

I'd mention this opinion even if there wasn't a dissent.  If only because the factual settings are somewhat unusual.

It's a three strikes case where the defendant was sentenced to 25 years to life after the police caught him urinating in public.  At which point he dropped a small bag containing 0.19 grams of cocaine.  That got him put in prison forever.

After Proposition 47 passed, Mr. Florez petitions for resentencing.  But the trial court says that he's too dangerous to release.

His commitment offense -- which was in 1999 -- doesn't demonstrate dangerousness at all, obviously.  But in 1976 (!), Mr. Florez did rob two convenience stores.  More significantly, in 1983, he placed a knife at the throat of a 7-11 store employee and demanded money.  And in 1990, there's another knife at a victim's throat, this time when he also beats the victim and takes his car.

But on Mr. Florez's side, that last violent offense was in 1990.  Over a quarter century ago.

Oh, yeah.  And Mr. Florez is now 66 years old.  Having already served 18 years of his three strikes sentence.

That 66-year old (63 at the time he filed his petition) is the person the trial court thought was way too dangerous to be released.

Now, Mr. Florez has been a bit more, shall we say, "active" in prison than most of your inmates of Social Security age.  Or at least he was when he was a bit younger.  He hit another inmate with a broomstick in 2004, engaged in mutual combat with another inmate in 2007, and fought another inmate again in 2009.  Mr. Florez says that these were basically instances of self-defense.  But they are still fighting.  Albeit in prison.

Still, the last fight was in 2009.  On the bad side, he was reasonably aged then -- the last fight was when he was 55.  But on the good side, 66 ain't 55.  Your ability, or willingness, to get violent with someone in your 50s is a lot different at that age than when you're starting to notice different walker models.  Statistics, not surprisingly, back that up.

So there's an interesting debate here about when this now-66 year old who's served 18 years in prison for dropping a bindle of cocaine in the twentieth century is really sufficiently violent that he's a continuing danger to society.

But then there's also Justice Rushing's dissent on a legal point.  Which would merit mention of this case even if it stood alone.

I won't get into the details.  I'll just let you read the first paragraph of that dissent for yourself:

"My esteemed colleagues join a number of courts in refusing to apply Penal Code section 1170.18, subdivision (c) (§ 1170.18(c)), according to its plain meaning. To the best of my knowledge, only one of those decisions is currently citable. (People v. Esparza (2015) 242 Cal.App.4th 726, 734-737; see Cal. Rules of Court, rules 8.1115(a), 8.1105(e)(1).) Although I joined in that decision, I have concluded on further reflection that I erred in doing so, as I believe my colleagues continue to err here. All of these cases should be governed by the fundamental principle that statutes possessing a plain meaning must be given effect in accordance with that meaning. None of the recognized exceptions to this rule is present. Least of all can the language at issue here be credibly said to involve a 'drafting error.' The real rationale for refusing to enforce the statute according to its terms is that the effect of the statute‘s plain meaning was not pointed out in the ballot pamphlet to the voters who adopted it. I have concluded that for a court to disregard plain statutory language on such a ground is obnoxious to the constitutional separation of powers. I have also concluded that, carefully read, the statute contains ample intrinsic evidence that it is intended to accomplish exactly the result my colleagues attribute to a drafting error. In addition, it is apparent that opponents of the measure were aware of this effect and that, while they apparently chose not to refer to it in their argument in the ballot pamphlet, they did urge it in the surrounding public debate as a ground to reject the measure. For those reasons, I would apply the statute as written and would reverse the judgment here so that the trial court can reassess the issues under the legal standard mandated by section 1170.18(c)."

Read the rest if the foregoing whets your appetite.  Interesting stuff.

People v. Soto (Cal. Ct. App. - March 25, 2016)

It's bad enough when you're violating a protective order by following your ex-wife's bus in your car.

It's even worse when you're driving on a suspended license.


Thursday, March 24, 2016

Ledezma-Cosino v. Lynch (9th Cir. - March 24, 2016)

Do we still have federal statutes that refer to "habitual drunkards"?

Apparently so.

Anyone so labelled isn't eligible for cancellation or voluntary departure in deportation (removal) proceedings.  Judge Reinhardt authors a majority opinion today holding that this statute violates the Equal Protection Clause.  The way he frames the issue is this:  "[I]s it rational for the government to find that people with chronic alcoholism are morally bad people solely because of their disease? The answer is no."

Judge Clifton dissents.  He thinks the statute is fine.  Plus, he begins his dissent with a point about how the issue was raised, saying:  "The words 'equal protection' did not appear in the opening brief filed on behalf of Petitioner Solomon Ledezma-Cosino. Given that, it is not surprising that they did not appear in the government’s answering brief, either. Ledezma did not file a reply brief. So how did the issue arise? The argument deemed persuasive in the majority opinion is an argument of the majority’s own creation. Ledezma did not make that argument until urged to do so by the majority at oral argument and via a subsequent order for supplemental briefing. Perhaps that pride of authorship helps to explain why the majority finds the argument persuasive, despite its obvious and multiple flaws."

Judge Reinhardt's majority opinion is joined by a district judge sitting by designation.

I don't think you've heard the last word about this case.  Because votes en banc and/or for review by Supreme Court seem likely to me.

Tuesday, March 22, 2016

Smith v. Obama (9th Cir. - March 22, 2016)

One fairly facile way of making a case moot -- or potentially moot, anyway (hence justifying a remand to the district court) -- is to simply wait it out.  That way you won't have to write an opinion.

So Anna Smith challenges the metadata program of the USA PATRIOT Act in 2013, and an appeal of the district court's decision is filed in 2014.  The oral argument of that appeal transpires later in late 2014.  So in  normal circumstances, you'd expect an opinion sometime in 2015.

But the panel instead waits.  Because the PATRIOT Act was set to expire in June of 2015.  It got replaced by the USA FREEDOM Act, which was slightly different.  Plus there were some intervening decisions of the FISC.

So, come 2016, the Ninth Circuit is ready to dispose of the case.  So today, it dismisses part of the appeal and moot and remands other portions back to the district court for an initial determination of whether the remaining portions are moot as well.

Problem "solved".

People v. Aguilar (Cal. Ct. App. - March 22, 2016)

I'm not going to recite all the facts of this rape conviction, since they're (1) long, and (2) brutal.  Nor will I describe the defendant's purported version of the events.

I'll nonetheless say that if you ever wonder why criminal defense attorneys don't have their clients testify, today's opinion is a good explanation.

Defendant's story was simply not credible.  Full of holes.  Not plausible.  No way a jury was going to believe it.

Plus it let the prosecution get in the defendant's prior gun conviction.

Next time your criminal defense client insists upon testifying, have 'em read this opinion.

Monday, March 21, 2016

U.S. v. Nickle (9th Cir. - March 21, 2016)

The Ninth Circuit not only reverses a conviction today, but reassigns the case to a different judge on remand.

It says it does so in order to preserve the appearance of justice.  And that's undoubtedly true.  In part.

But I think the real reason is because the panel is profoundly distressed that the district court judge -- Judge Haddon (in Montana) -- didn't let the defendant plead guilty, for reasons far afield from what judges may legitimately invoke.

Once you start doing crazy things, the Ninth Circuit starts to be worried that you may be crazy.  And thinks about reassigning the most egregious of your cases to a different judge.

Thursday, March 17, 2016

Ebner v. Fresh, Inc. (9th Cir. - March 17, 2016)

The Ninth Circuit and I simply have differing views about the reasonable expectations of consumers.

There's a lip balm called the Sugar Lip Treatment that's basically (as I understand it, anyway) just a high-end sort of Chapstick or Burt's Bees.  The package says it contains 4.3 grams of lip balm or, for the "mini" size, 2.2 grams.  And that's right.

To a degree.

I say "to a degree" because the Sugar Lip Treatment packaging makes sure that the user can only actually use 75% of the product.  There's a "plastic stop device" that stops the other 25% from going over the top of the applicator and hence being applied to the lips.

I agree with Judge Tashima that there's no legal violation for the actual statement that there's 4.3 (or 2.2) grams of actual product.  Because there is, in fact, that amount of product.

But Judge Tashima, and the rest of the panel, also think it's okay not to include a supplemental statement that discloses something like "But you can only actually use 3.2 or 3.3 of those 4.3 grams because we have designed the package to make you throw away a full quarter of the product, unlike some other manufacturers (like Burt's Bees) who let you use the whole thing."  That's because, according to Judge Tashima, every "reasonable consumer" would "understand[] that some product may be left in the tube to anchor the bullet in place" since they're familiar with these sorts of tubes.

That's where the panel and I part ways.

First off, it's simply not true.  Factually.  Or, at a minimum, there's one consumer in the universe who thinks it's not true.  Me.  Because there some plastic stop gaps come over the lip of the dispenser, thus allowing you to apply all the product.  At least if you try hard enough.

I'm admittedly not intimately familiar with lip balm.  But I do use roll-on deodorant, which works on the same principle.  And you can get at all, or virtually all, of the product if the plastic "holder" stops over -- rather than under -- the lip.  That can happen.  That does happen.

So when Judge Tashima says that everyone understands that some product may be left in the tube, I think that statement's only accurate if you put a heavy emphasis on the word "may".  Maybe it could be.  Maybe it wouldn't be.  Maybe all of it will be usable.  We don't uniformly understand that every tube leaves a block of the product deliberately stuck down the tube.

More importantly, even if I -- and everyone else -- knows that there might be some product left in the tube, that doesn't mean necessarily mean it's okay for a quarter of the product to be designed to get stuck down there.  Yeah, truthfully, I know that when I get to the end of a deodorant thingy (I don't know what they're technically called -- that's my dysnomia showing itself), there's often a bit left in the little gap.  And when I have to rub my underarm against the plastic to get the rest out, that hacks me off a bit.

But I'd be super hacked if a quarter of the thing was left.  That is not what I would expect.  And I'd be miffed -- super miffed -- if I bought a product and discovered it was packaged that way.  Indeed, were I to know that at the outset, I might well not buy it.

That, in my mind, is what a reasonable consumer might expect.  They might expect a tiny bit of some product to be left in the can.  But not a huge amount.

And twenty-five percent sounds huge.

That's the part of Judge Tashima's opinion I don't get.  Nowhere does he address how much -- if any -- is too much.  And there's got to be a line, otherwise I definitely disagree with the opinion.  At least according to the actual words of the opinion, the Ninth Circuit's holding seems to be that a product in a tube wouldn't be deceptive even if 99.999% of the product was stuck beneath the tip, unusable.  It seems like the Ninth Circuit would simply say, as it does here, that  "the consumer’s knowledge that some additional product lies below the tube’s opening is sufficient to dispel any deception; at that point, it is up to the consumer to decide whether it is worth the effort to extract any remaining product with a finger or a small tool."

Yeah, because that's what a reasonable consumer would be fine with.  Ninety nine percent of the product underneath the tube's just fine so long as I can eventually get at it with a toothpick or pocket knife and slab it on my face.  That's definitely what I'm paying for.

If this had been a case on summary judgment, and there were uniform consumer surveys that said that everyone's cool with having a full 25% of the product below the line, I'd be okay with the result.  I'd be surprised, admittedly.  But were that the state of the evidence, well, it is what it is.  Maybe at the high end of the lip balm industry people are fine with 25%, or 50%, or 99% (or whatever) wasting away in the tube.  Not me, mind you.  I'm likely hacked off once the number starts hitting the double digits.  And I'd call myself a reasonable -- indeed, informed -- consumer.  But I admit I'm not the kind of guy who pumps his lips full of lip balm, and if all of those people are happy with 99% wasted, so be it.  Summary judgment.

But this is a 12(b)(6) motion.  The Ninth Circuit decides, as a matter of law, that no reasonable consumer could possibly care or be deceived about a product that says it contains 4.4 grams of product but in fact is deliberately designed so you can only get at 75% of it.

I'll have to respectfully disagree with that.  'Cause I think I'd be precisely such a consumer.  And can readily conceive that there might be at least one of me who might buy this particular product.

Hence the need for actual evidence.

At some point, I could get on Judge Tashima's bandwagon.  At 1% loss, I'd be on board for saying that no reasonable consumer would be deceived.  Ditto for 5%.

And I can't tell you exactly where I'd end.  Might change from product to product.

But I can tell you that at 25%, we're way past the line.  At least for me to dismiss a lawsuit as a matter of law.

It's a pernicious opinion.  Consumers should be informed.  Manufacturers shouldn't have an incentive to employ designs that force you to buy more than you intend.  God forbid that Pringles start getting packaged in a Chapstick-like tube where you've got to dig out a quarter of the Pringles with a fork.

So I don't like this one.  It seems wrong to me to decide this as a matter of law.

It's an opinion that makes the marketplace less informed, not more.  Less efficient, even.

That's bad.

Tuesday, March 15, 2016

People v. Appleton (Cal. Ct. App. - March 15, 2016)

You get used to seeing a certain pattern in these types of cases.  Today's opinion breaks the pattern in a couple of different ways:

"At the time of the offense, defendant was a 43-year-old computer technology worker in Mountain View. In July 2013, John Doe contacted the police and made the following statement. In early 2013, he met defendant through Grindr. Doe was 16 years old at the time. For several months, defendant and Doe maintained a consensual relationship that involved kissing, handholding, and sleeping together, but no further sexual conduct. In July 2013, Doe stayed at defendant’s residence for several days. Around midnight on July 12, defendant and Doe were sleeping in defendant’s bed when two male friends of defendant entered the bedroom. The three men forced Doe to orally copulate them over a period of about 15 to 20 minutes. Doe left the residence at around 1:00 a.m. and called the police later that night. He told another witness one of the men had forcibly sodomized him.

Doe declined a SART exam. After he expressed suicidal thoughts, he was taken into custody under Welfare and Institutions Code section 5150.

Police interviewed Doe several days later. He made the following statement, which differed in some respects from his initial statement. He had met defendant on Grindr one year earlier, but they did not start dating until February 2013. At that time, defendant bought Doe an iPhone and performed oral sex on him. Defendant performed oral sex on Doe three other times, and the two slept together for a period of several days, but they engaged in no other sexual conduct. Doe reiterated that defendant and two of defendant’s friends forced him to orally copulate them in July 2013 when Doe was sleeping in defendant’s bed. Doe declined to make a pretext call."

The charges, and the disposition, are different than you might initially expect as well.  No charges for rape.  And a favorable deal:

"The prosecution charged defendant by felony complaint with oral copulation with a minor. (Pen. Code, § 288a, subd. (b)(1).) The parties entered a plea agreement whereby defendant pleaded no contest to false imprisonment by means of deceit (Pen. Code, §§ 236, 237, subd. (a)) in exchange for formal probation, credit for time served, and dismissal of the oral copulation count. In accord with the plea agreement, the trial court suspended imposition of sentence and granted a three-year term of probation to include a jail sentence of 236 days."

Presumably no sex offender registration either.

Not your usual case of this type.

Monday, March 14, 2016

People v. Nestdrop LLC (Cal. Ct. App. - March 14, 2016)

Capitalism definitely puts a premium on creativity.  At least when demand for the underlying product is, shall we say, high:

"Pycher, Radnia, and Adam Larson founded Nestdrop in 2013. Initially, the Nestdrop app allowed Los Angeles-area users to order alcohol for local delivery within the hour. In October or November of 2014, Nestdrop’s developers expanded the app to allow deliveries of medical marijuana in parts of the City. To procure marijuana through the app, a user orders from a menu of products. The order is then placed with a medical marijuana business with which Nestdrop has partnered. According to defendants, an employee of the providing medical marijuana business or a “volunteer” then delivers the marijuana to the purchaser."

Capitalism isn't the only creative force.  The Court of Appeal demonstrates its cultural awareness as well:

"Defendants . . . . contend the measure summary and impartial analysis that appeared in the ballot pamphlet materials for Proposition D described the ordinance as authorizing delivery of medical marijuana by vehicles and they maintain that the voters enacting the proposition adopted that construction. This argument is meritless. We do not rest our interpretation of an ordinance on statements in ballot pamphlet materials where the text of the measure is otherwise unambiguous. [Citations]  But more to the point, and paraphrasing Inigo Montoya, we do not think the ballot pamphlet materials mean what defendants think they mean."

Inigo Montoya got his man in the end.  But Los Angeles area residents can't get their weed via delivery.  So holds the Court of Appeal.

Friday, March 11, 2016

Orcilla v. Big Sur, Inc. (Cal. Ct. App. - March 11, 2016)

From the Court of Appeal this morning:

"It is ordered that the opinion filed herein on February 11, 2016, be modified in the following particulars:

On page 6, the second full paragraph, insert the following as a footnote after the last sentence in the paragraph (“The Orcillas timely appealed.”):

While this matter was pending, the parties notified us that the case had been settled and the Orcillas requested dismissal of the appeal. “After the record on appeal is filed, dismissal of the action based on abandonment or stipulation of the parties is discretionary, rather than mandatory.” (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1121, fn. 5; Cal. Rules of Court, rule 8.244.) We concluded that the matter is important and of continuing public interest, warranting our review. (Burch v. George (1994) 7 Cal.4th 246, 253, fn. 4.) Accordingly, we denied the request for dismissal. In deciding the appeal on the merits, we follow established precedent in retaining jurisdiction to resolve the issues presented in the case."

That probably should have been in the original opinion.  But better late than never.

Thursday, March 10, 2016

Burton v. Davis (9th Cir. - March 10, 2016)

When Judge Bybee (joined by Judge Rawlinson) writes the majority opinion  in a death penalty habeas case, and grants relief, you should already have a very good sense that he's right.  Even if Judge O'Scannlain dissents.

That's the case here.

It's a pre-AEDPA case.  Judge Bybee expressly notes in a footnote that the result would go the other way under AEDPA.  But since there's a circuit case on point, Burton gets a new trial.

Mind you, Burton's been on death row for thirty-two years.  That's a long time for a case to work its way through the state and federal systems.  Especially for, as here, a first habeas petition.

But it is what it is.

Wednesday, March 09, 2016

Preserve Poway v. City of Poway (Cal. Ct. App. - March 9, 2016)

I think this case is closer than the Court of Appeal's opinion makes it out to be.

Not that the Court of Appeal necessarily gets it wrong.  Indeed, I have a lot of sympathy for where the Court of Appeal comes out.

But it's a decently close case.

A landowner currently operates a horse stable in the City of Poway, which likes to think of itself as a funky little country town in the middle of a city.  Now, having been to Poway many times, that's not really how I think of the place.  But be that as it may, some residents of Poway have this belief about its character, and the presence of a big horse stable in the City is consistent with that characterization.

But the landowner wants to sell off the stables and build a dozen houses on the property.  Those lots would be a bit bigger than normal, and would allow horses on 'em.  But that would nonetheless make the City look a bit less "country" than it is presently.  So some neighbors sue, claiming that there's a need under CEQA for an environmental impact report.  The trial court agreed.

But the Court of Appeal reverses.  Yeah, Justice Nares says, there may well be an impact on the city if the project goes forward.  But it's only a "psychological and social" one -- the loss of a nice place to board and ride horses -- and those types of impacts are categorically exempt from CEQA.  So there's no need for an EIR.  Reversed.  Justice Nares rejects the proposition that, as he puts it, "because Rogers, a private property owner, obtained a conditional use permit to operate horse stables they have enjoyed using for 20 years, the public has a right under CEQA to prevent Rogers from making some other lawful use of his land."

There's a lot to be said for the validity of the Court of Appeal's holding.

But there's a fair piece to be said on the other side, too.

My own view is that there's an incredibly fuzzy line between "psychological and social" impacts, which are admittedly not cognizable under CEQA, and impacts that are indeed cognizable.  For example, Justice Nares admits that "community character" impacts may require an EIR, and that those may validly include aesthetic impacts.  Well, at issue in this case is whether the City will lose a horse stables, and its associated expansive pastures, and have 'em replaced with twelve homes.  That change definitely affects the "look" of the City.  I could easily see someone thinking that a nice little horse stables with its broad pastures is a ton more attractive than twelve homes plopped on the same piece of property.  If that's the case, then there's a potential need for an EIR under CEQA.

Now, it's true that, here, the alleged "social" impacts of getting rid of the stables are broader than just not having something pretty to look at:  no more ability to board horses, to have your kids learn how to ride, etc.  But that some of the impacts are social doesn't mean that others aren't validly aesthetic.

In the end, really, I think that all of the aesthetic impacts of a development -- which can be considered -- are also "psychological and social" ones that can't.  Something's pretty.  The loss of that thing will potentially make people less happy.  That's a psychological and social impact, to be sure.  But it's still one that can be considered.

Now, I'm somewhat sympathetic with the view that someone can't be compelled to keep a pretty piece of property the same just because it's pretty.  At least when there are other properties in the area that are of the same un-pretty type that the landowner wants to create.  Which is indeed the case here, since there are other single-family homes in the area.

But as for an alleged sharp dividing line between the "psychological and social" impacts here, on the one hand, and "aesthetic" impacts on the other, well, that's less persuasive to me.

I have little doubt that Poway will be a tiny bit less aesthetically pleasing after the horse stables get replaced by single family homes.  So I'm not sure that this impact can be categorically shrugged off as merely a "psychological and social" impact of the project and hence noncognizable under CEQA.

Tuesday, March 08, 2016

Castillo v. DHL Express USA (Cal. Ct. App. - Jan. 16, 2016)

I tell students in my upper-year class on pretrial practice that California has a longstanding mandatory five-year dismissal rule that compels trial courts (with limited exceptions) to get rid of lawsuits that have been around for that long.  I also tell them, however, that in the modern era, with fast-track rules and modern case management techniques, that this statute is rarely applied, since neither courts nor litigants generally let cases linger for incredibly long periods like they used to in the old days.

But "rarely" doesn't mean "never".  As this opinion demonstrates.

I'm not sure why the plaintiff wasn't more careful.  I'm not sure why the trial court let the case linger for so long.  But both things transpired.  And, as a result, a litigation that may well have had merit -- a wage-and-hour class action against DHL -- gets dismissed.

It doesn't often happen.  But when it does, it's devastating.

Especially when it happens to you.

Monday, March 07, 2016

People v. ZarateCastillo (Cal. Ct. App. - Feb. 17, 2016)

This is why you have to be super careful when you ask questions of a witness in a criminal case:

 "The prosecutor then elicited the following testimony:

Q. And did she tell you if this touching was done under or over her clothing on her top area or both? A. Both.
Q. Did she describe the touching of her top area under her clothing to have happened more than once?
A. Yes.
Q. Did she describe the touching of her top area under her clothing to have happened more than once?
A. Yes.

As the People observe, the last two questions are exactly the same, and the answers to both of those questions establish only that defendant touched the victim’s chest under her clothing more than once. The People concede that '[r]eview of the record does not demonstrate that the prosecutor [ever] asked Detective Price whether [the victim] described the touching of her top over her clothing to have happened more than once.' (Italics added.) It may be that the prosecutor meant one of her questions to cover touching over the victim’s clothing but misspoke, or it may be that the prosecutor did, in fact, ask about the touching over the victim’s clothing but the court reporter did not record the question correctly. Whatever the case, however, it makes no difference for our purposes. On the record before us, there is no evidence that defendant touched the victim’s chest over her clothing more than once. Accordingly, as defendant contends, the evidence is insufficient to support his conviction on count 3, and therefore we must reverse that conviction."


Not that it's going to make much of a difference in the present case.  Defendant's still going away for decades on the other counts.

But still.  Gotta be careful.

Friday, March 04, 2016

Shell Offshore v. Greenpeace (9th Cir. - March 4, 2016)

There's one part of today's opinion that confuses me.

The district court enters an injunction that orders Party A to stop doing X, and says that for every hour it continues to do X, it'll be fined $2,500.  Party A eventually stops doing X -- the coercive sanction works -- but allegedly did X for seven hours after the deadline, thereby incurring a fine of $17,500.  But before the district court resolves the disputed issue about the seven hours (and determines the relevant fine), Party A appeals the injunction, and the action is stayed.

So there's no actual determination of the fine yet.  And, because the injunction is time-limited, and there's no continuing violation of it right now, the injunction has now expired.

But the parties continue to dispute whether the injunction was valid and whether Party A actually violated it (and hence should be fined $17,500).  That's the dispute on appeal.

The Ninth Circuit, however, dismisses the appeal of the injunction as moot.  Holding that since Party A has stopped violating the injunction (which has now terminated anyway), there's no live dispute.

But what about the $17,500?

The Ninth Circuit says that the fine doesn't matter now since Party A has stopped its contemptuous conduct; i.e., the threat has worked.  True enough.  But surely it still owes the fine, right?  At least if the injunction was valid, which is what the disputed appeal is about.

The Ninth Circuit appears to say otherwise; that, at this point, Party A doesn't have to pay the fine, since the point of the fine (to coerce compliance) has now passed.  Perhaps that's true as a theoretical matter, but practically, the argument doesn't really work for me.  Contempt fines don't work -- or at least don't work well -- if you can make them moot by filing an appeal and eventually comply with the injunction, thereby avoiding the actual imposition of a fine that's ostensibly now "moot".

I may well be worried, and comply, if you threaten to spank me for $2,500 for every hour I delay.  But if you don't actually impose that sanction, or -- worse -- if the Court of Appeals says that you can't impose that sanction as long as I've eventually complied, I can tell you right now that the extent of my worry, and the rapidity of my compliance, will almost certainly diminish.

I understand that, under the Ninth Circuit's ruling, in some circumstances, I might still worry about an eventual fine; e.g,, if the injunction is unlimited in time, (maybe) if the district court rapidly gets off its butt and determines an amount, etc.  But I imagine there are lots of situations that are exactly like the present case.  And if belated compliance moots out otherwise valid contempt fines, it's eminently conceivable to me that district courts will have a much harder time enforcing their orders.

Which would be a bad thing.  For me, anyway.  (Not so much for Greenpeace.)

People v. Adams (Cal. Ct. App. - March 3, 2016)

From this opinion:

"Defendants were cousins and fellow members of a violent street gang. May 2 was the gang’s 'birthday' or 'gang day.' On May 2, 2011, Diane T. was working as a prostitute. . . . Defendants approached Mr. Odhiambo’s car. Mr. Moreland pointed a black gun at Mr. Odhiambo’s head. Mr. Moreland took Mr. Odhiambo’s car keys and money. Mr. Adams asked Diane for money. He forcibly searched inside her pants and bra. Mr. Adams grabbed Diane and dragged her to the white car. Mr. Adams raped Diane in the backseat. Mr. Adams then moved to the driver’s seat. Over the course of an hour or more, while Mr. Adams drove, Mr. Moreland repeatedly sexually and physically assaulted Diane in the backseat. Mr. Moreland was armed with a gun during the assaults. Mr. Moreland forced Diane several times to orally copulate him. He repeatedly raped her. Mr. Moreland attempted to sodomize her. He repeatedly hit her on the head. . . .

Mr. Moreland ordered Diane out of the car. He punched her in the face breaking her jaw. Mr. Moreland told Diane to get on her knees. He ordered her to orally copulate him. Diane refused. Mr. Moreland pointed the gun at Diane’s forehead and fired twice. But the gun malfunctioned. Diane heard it click. Diane saw Mr. Moreland 'messing with the gun.' He was hitting it against his hand. Diane got up and started to run. Mr. Moreland ran toward the car. She heard him arguing with Mr. Adams. Mr. Adams said, 'Stop, bitch.' Diane stopped behind a truck. Mr. Adams pointed the gun at her. She heard a click. Diane ran to a nearby house and summoned help. Defendants left the scene.

After law enforcement officers arrived at the cul-de-sac, Diane described her assailants. Diane said one suspect was a 25 to 35 year old light skinned male Black, approximately 6 feet tall with a muscular build. The second suspect was a 25 to 30 year old dark skinned Black male, approximately 6 feet tall with a thin build. . . . Diane also worked with a forensic artist, Sandra Enslow, to create sketches of the perpetrators. At trial, Diane testified, '[The sketch artist] drew them perfect.' The jury was able to compare the sketches to defendants’ booking photographs as well as to how they appeared in the courtroom. Upon our own review, it is apparent that the sketches bear a striking resemblance to the defendants."

Let's hear it for the sketch artist.  That can't be an easy job.  Well done here.

Thursday, March 03, 2016

Tarango v. McDaniel (9th Cir. - March 3, 2016)

This opinion is all about the I-15 in Las Vegas.

A bunch of off-duty Las Vegas cops are hanging out at a local bar listening to a band of other off-duty Las Vegas cops.  Masked men make the unfortunate election to rob that particular bar on that particular night, entering the bar and announcing that it's a robbery.

You can guess what happens then.  A shoot-out ensues, with several patrons shot, one robber killed, and one police officer wounded.  The other robbers escape.

Six years later, Mr. Tarango goes to trial as one of the robbers. As you might imagine, police interest in the trial is extraordinarily high, and numerous police officers attend.

During jury deliberations, the jury sends a note saying it's deadlocked 11-1 in favor of a conviction.  One of the jurors, Juror No. 2, is the lone holdout.  The judge instructs the jury to continue deliberating.

The next day, when Juror No. 2 gets in his car to drive to the courthouse, and pulls on to I-15, he says he starts to be tailed by a Las Vegas police officer in a marked black-and-white cruiser.  Juror No. 2 says he checked to make sure he wasn't speeding, but the police cruiser kept right on his tail, "close enough I couldn't see his front wheels or bumper."

So Juror No. 2 gets in the far right lane, but the police cruiser stays right behind him.  This goes on for like seven and a half miles, the cruiser right on his tail, not pulling him over, but also staying so close that no one else can get between them.  Juror No. 2 pulls off the freeway, but the cruiser still follows him.  Tight.

Juror No. 2 finally reaches the juror parking lot, and pulls in. Only then does the cruiser let him go.

Juror No. 2 is freaked out.  He says he felt intimidated, and for that reason, later that day, changes his vote and votes to convict.

The Nevada Supreme Court says this isn't a problem.  It says that an officer conspicuously tailing the lone holdout in a police-involved shooting doesn't count as a "communication" so there's no relief.

Everyone on today's Ninth Circuit panel disagrees with that.  Rightly so.

But there's still a split in the panel.  Judge Murguia, joined by Judge Fisher, says that the last reasoned state court decision in this habeas case assumed arguendo that Juror No. 2 was credible, so there needs to be an evidentiary hearing about prejudice and other fact-finding.  Whereas Judge Rawlinson dissents, saying that in her view, the relevant state court didn't think that Juror No. 2 was deliberately followed by the police on the basis of his holdout status.  So she'd just go ahead and deny habeas relief.

The majority finds it troubling that an officer would just-so-happen to tailgate someone who, coincidentally, was the holdout juror in a police-involved shooting trial.  For over seven miles.  Right up to the juror parking lot.  For no reason, and without pulling him over.  Whereas Judge Rawlinson says that everyone knows that the I-5 is the main highway in Las Vegas, and is on the way the police headquarters, so it's not surprising that an officer during rush hour traffic might innocently tailgate a guy for miles.

Different views, to be sure.

Wednesday, March 02, 2016

U.S. v. Lemus (9th Cir. - March 2, 2016)

You say you want to buy two ounces of methamphetamine.  I say "Okay," but point out that this will be a hassle, since I'm a big-time player, and generally only deal in pounds.

We arrange to meet for the two ounces, but at that meeting, I tell you it's a no-go, since it'll be too big of a hassle for me to rip up my pound packages of methamphetamine just to sell you two ounces, but I reiterate that I'll sell you a pound, and offer to give you a sample.  I also say I have "pictures" of the pound that I'm happy to show you.

You say, smartly, that there'd be no proof that the sample would be representative of the rest of the package, so don't feel like seeing a (meaningless sample).  And as for the "picture" of the pound you want to sell me, come on.  That could be anything.  From anywhere.  And, in any event, I don't want a pound.

So we part ways.

Notice that you've never actually seen any drugs from me.  I've talked a big game, to be sure.  I've said I could get you a pound.  Which means I've said I have at least a pound.  Hell, I might have said I have a ton.  Or fifty tons.  Or a million.  You never saw anything.

Surely I can be convicted of lots of crimes.

But can I be convicted of possession?  Or, in particular, possession with intent to distribute over 50 grams?

The Ninth Circuit says yes to the first question, but no to the second.


Maybe that's right.  What do I know?

But as to the former, I mean, it seems eminently plausible to me that the dude has utterly nothing.  I never saw any drugs.  Including but not limited to the drugs we're now saying -- beyond a reasonable doubt -- that they guy purportedly "possessed".  And I have a sneaking suspicion that the guy may not have had any drugs to begin with.  Maybe he was just trying to rip me off.  Which is why he wanted me to agree to buy at least a pound.  Sure, maybe he in fact had a pound.  But do I know that for sure?

The Ninth Circuit says so.  Based solely on the guy's word, essentially.  Since there's no actual drugs anywhere that we can actually find.

But as for whether it's actually 50 grams, the Ninth Circuit says, that'd be total speculation.  Because we don't know for sure the purity of those purported drugs.

I'm not exactly sure why what's true for purity isn't also true for their mere existence.  Or vice-versa.  But the Ninth Circuit says we can be sufficiently sure (beyond a reasonable doubt) of the one but not the other.

Okay.  That's the law, apparently.  At least after today.

But it still seems weird.

There are, I think, some circumstances when I'd be extraordinarily confident that you actually had an item you said you had based merely on your word and the fact that you were trying to sell it to me.

But if I meet a guy in a bar and he says he has a pound of methamphetamine to sell to me, there's surely a chance he's actually got a pound.  But if you think it's beyond a reasonable doubt that he in fact has a pound, rather than is actually just trying to rip you off . . . well, I think you may need to hang around more criminals.

'Cause they ain't exactly the trustworthy type.

Tuesday, March 01, 2016

People v. Dobson (Cal. Ct. App. - March 1, 2016)

Hmmm.  I didn't think about this.

Prop. 47 was passed to ameliorate the harsh consequences of the three strikes law for nonviolent offenders.  There's been a ton of litigation about that as Prop. 47 works its way through the courts.  Tons.

That presents problems of its own.  But those problems, while tough, are relatively straightforward.

What I didn't think about was how Prop. 47 might -- or might not -- affect a different class of offenders.

The criminally insane.

Let's say you're a guy who was charged with burglary, and you had a prior strike or two.  If you were convicted, and your sentence was enhanced, you're eligible (in lots of circumstances) under Prop. 47 to relief.  You may well get your sentence reduced.

But let's say that, instead of pleading guilty, or losing at trial straight up, you were found not guilty by reason of insanity.  In that case, you don't go to prison.  But you do to go a mental hospital.  For how long?  Well, the trial court says that the amount of time you spend there (absent other proceedings) is how long your sentence would have been if you weren't insane.  So if, for example, your three strikes sentence would have been 25 years, your maximum amount of time in the hospital is also 25 years.

But then, after Prop. 47 passes, the dude who was actually convicted of the crime get Prop. 47 relief, and gets his sentence reduced.  But you -- someone who "beat the rap" and got an NGI verdict -- are not eligible for relief.  You stay in the hospital for your maximum "three strikes" term.

Petitioner here says that's not cool.  But the Court of Appeal disagrees.

Justice Poochigian's opinion seems right on the merits.  There's a rational basis for this differential treatment.  Which, it bears mention, doesn't necessarily mean that the distinction is rational.  Only that it satisfies the rational basis test.  Someone non-nutty might well have wanted to grant relief only to "ordinary" criminals, not criminals found not guilty by reason of insanity.  So petition dismissed.

We might have wanted to put more thought into this when we passed Prop. 47.  Maybe we'd have done the same thing in any event.

But I readily admit this wasn't something I thought about at the time.  Or since.

Until I read this opinion, anyway.

Stuard v. Stuard (Cal. Ct. App. - March 1, 2016)

When the original opinion came out in January, I said that in an appropriate case, I thought it would make sense to think deeply whether taking a child away from admittedly fit parents and granting the child's grandparents twenty percent visitation -- a weekday overnight visit, one overnight weekend a month, and a seven-day vacation each summer -- might violate the parents' rights.

Today, the Court of Appeal amends its opinion to make clear that, in the present case, the appellant "provided no constitutional analysis of the facts upon which he now rests his as-applied challenge -- namely, the financial and practical day-to-day effects of the visitation order so disrupt his and Riley‟s life that the visitation order violates substantive due process."  The Court of Appeal essentially thinks the issue was waived.

Fair enough.

But let's be careful in the future.  If there really are trial courts who are giving out twenty percent visitation orders to grandparents over the objection of the child's fit parents, that's a big deal, IMHO.

Maybe this is a one off.  Maybe it's not.  Time will tell.