In Re R.S. and I.V. (Cal. Ct. App. - April 28, 2017)

Two opinions this morning.  Both involving juveniles.  Both from San Diego.  Both involving kids for whom, sadly, I feel this opinion may not be their only lifetime involvement with the criminal justice system.

Here's R.S.:

"On April 7, 2016, police officers detained R.S. at Crawford High School in response to a report that a nonstudent juvenile male was trespassing on campus. The officers took R.S. to the school's main office and questioned him. R.S. denied being on school grounds. He also repeatedly refused to identify himself and was "very loud and rude."

Because R.S. did not cooperate with the officers, the officers attempted to place him under arrest. As they did, R.S. "tensed up and clenched his fists and attempted to pull away." He yelled, "Don't fucking touch me Blood, get your hands off me!" R.S. struggled with the officers as they tried to subdue him. Eventually, the officers handcuffed R.S. One of the officers suffered a hairline fracture to his thumb during the struggle. School administrators reported that, before the officers arrived, R.S. had identified himself by a fake name and falsely claimed that he was a student at the school.

About two months later, R.S. and a juvenile associate were inside a Starbucks at 67th Street and El Cajon Boulevard, watching a 70-year-old man as he left the coffee shop. The man was carrying an iPhone 6. R.S. and his associate nodded their heads in the man's direction and then followed him outside "as if they were stalking him." R.S. and his associate then struck the man from behind in the back of his head. R.S. hit the man, using a "modified 'superman' punch" whereby R.S. jumped up and brought his fist down onto the man's head. The punch knocked the man to the ground, rendering him unconscious. . . . Police caught R.S. later that day. At the police station, R.S. at first denied punching the victim in the head, but later admitted to striking him. He conceded that he attacked the victim to steal his iPhone."

Less violent, but also troubling, is I.V.:

"In May 2016, 15-year-old I.V. became angry with his mother when she would not give him shopping money. He went into his bedroom in his grandfather's home, punched and kicked the walls, and threatened his grandfather when his grandfather tried to intervene. I.V.'s mother called the police, who arrived to find a broken lock on I.V.'s bedroom door, a damaged bed frame, holes in the wall, and damaged furniture. . . .

In late June, the probation department submitted a social study evaluating I.V. for the disposition hearing. The social study noted I.V.'s history of damaging property when upset and his mother's tendency to downplay his volatile behavior. . . . I.V. received failing grades in all of his classes in his first semester of high school, and he had a history of truancy. He was suspended for possessing marijuana and was subsequently expelled from his high school."

How depressing to have a fairly clear vision of where these children will likely end up.  Despite a wide variety of social efforts to make things turn out a different way.

People v. Pou (Cal. Ct. App. - April 27, 2017)

The police get a report of a woman screaming inside a particular home and go to investigate.

When they arrive, the police see two men inside a house who seem to be making gestures like they are arguing.  No women, but okay.  [POSTSCRIPT - To be clear, the police see an argument, including some loud voices.] So they knock on the door -- aggressively, presumably -- and say they are the police and want to come in.

One of the guys inside the house eventually answers the door.  The police tell the guy that they want to "come in and look at the apartment to make sure everybody was okay.”  Which makes sense.

But the dude knows his rights.  It's his house.  He's not letting them in.  "Get a warrant."

The police officers, however, have other ideas.  We don't need no stinking warrant.  So they barge in, ostensibly under the "emergency aid" exception.  Because they say they reasonably think there might be a woman in there who's hurt and needs to get to the hospital ASAP.  No time to waste.

Once they're in the house, they indeed find a couple of women.  On a couch.  Unhurt.  Totally fine.

But that's no reason to leave, right.  There may be other women.  Everyone says there's no one else, but who knows?  Maybe someone's not telling the truth.

So they look everywhere in the house.  Just in case.

Where might this hypothetical woman be?  Pretty much anywhere, of course.  And the police say that one place she might be is in a particular closet.  They're not looking for drugs or anything.  No way.  They're just looking for a hypothetical woman who might be in a closet.

And then they just happen to spot drugs in that closet.  At which point people get arrested, charged, etc.

One more thing.  It's not even the right house.

The officers were told that the allegedly screaming woman was in the house that's across the street from 2314 Jupiter Drive.  That's what the Uber driver who complained said.  It's even in writing.

But that's not the house they barged into.  They barged into 2314 Jupiter Drive.  Not the house that had the allegedly screaming woman, which was across the street.

No matter all around.  Search was reasonable.  Conviction affirmed.

In Re B.M. (Cal. Ct. App. - April 20, 2017)

Is a butter knife -- the same one you probably used in the last 24 hours -- a "deadly weapon" in California?

The Court of Appeal has previously said "No."  The Court of Appeal in this opinion says "Yes," calling the prior opinion "wrongly decided."

See which opinion you think is correct.

I will submit one argument in favor of the former.  Apart from the fact that, when I think "deadly weapon," the phrase "butter knife" doesn't necessarily immediately come to mind.

According to the Court of Appeal's opinion, "as used in [Penal Code] section 245, subdivision (a)(1), a ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.'"

The Court of Appeal's opinion repeatedly discusses whether a butter knife is "capable" of producing death or great bodily injury.  I assume it is.  So's a lego.  Stick it in the right -- or, more accurately, wrong -- place and, yeah, those things can indeed take you down.

But after defining the term, the Court of Appeal doesn't even once mention whether a butter knife is "likely" to produce death or great bodily injury.  The word "likely' doesn't even appear once.  Despite the fact that the "and" part of the definition suggests that a deadly weapon indeed needs to be both capable and likely to produce death or GBI.  Since "and" generally means and.

I think the "likely" part is whether the rubber meets the road.  Both here and generally.  A gun is a deadly weapon because it's capable and likely to produce seriously injury when you use it against someone.  A lego isn't because it's not.

And a butter knife?  Well, let me just say this.  I'd much rather have someone attack me with a butter knife than a whole, whole lot of other things.

And if someone told me that their neighbor had been attacked with a butter knife and made me bet one way or the other as to whether that butter knife caused him death or great bodily injury, I think I know on which side I'd place the wager.

People v. Vela (Cal. Ct. App. - April 24, 2017)

Here are the underlying facts from today's opinion:

"When they arrived in Santa Ana, Martinez drove around 7th Street’s territory. As they were cruising the area, they talked about Ochoa’s gun and were looking for rival gang members and rival graffiti. Vela and Ochoa asked Martinez to stop because they saw two males (later identified as Martin Herrera and David Frias) whom they suspected to be rival gang members. Martinez made a U-turn and pulled into the parking lot of an apartment complex. When Martinez stopped the car, Vela got out and said that he was going to “hit these guys up.” . . .

Martinez stayed in the car and could not clearly see what was going on because there was a tree blocking his view. But Martinez was able to see some gesturing as if words were being exchanged between Vela, Ochoa, Herrera, and Frias. During the confrontation, Vela and Ochoa stood side-by-side, about three feet away from Herrera and Frias. Ochoa then pulled out his gun and Herrera raised his hands in surrender. Ochoa shot Herrera in the head, killing him. Ochoa shot Frias in the face.

Vela and Ochoa immediately ran back to Martinez’s car and got in. Ochoa was still holding the gun and placed it in his lap. Ochoa told Martinez to hurry up and leave. In an excited voice, Vela said, “Did you see those fools crying for their life?”

One victim was killed; the other survived.  Vela was sentenced to 72 years to life.  He was 16 at the time of the offense.

Here's the Court of Appeal's holding:

"In the published portion of this opinion, we conditionally reverse the judgment. Due to the electorate’s recent approval of Proposition 57, which emphasized juvenile rehabilitation, prosecutors can no longer directly file charges against a minor in an “adult” criminal court. Only a juvenile court judge can determine whether a minor can be prosecuted and sentenced as an adult, after conducting a transfer hearing, taking into account various factors such as the minor’s age, maturity, criminal sophistication, and his or her likelihood of rehabilitation.

We find that Vela is retroactively entitled to a transfer hearing because his case is not yet final on appeal. If, after conducting the hearing, the juvenile court judge determines that Vela’s case should be transferred to a court of criminal jurisdiction, then his convictions and sentence will be reinstated. But if the juvenile court determines that Vela is amenable to rehabilitation, and should remain within the juvenile justice system, then his convictions will be deemed juvenile adjudications. The juvenile court is then to impose an appropriate disposition within its discretion under juvenile court law."

Any doubt as to what the decision is going to be on remand?

I'd be glad for the victory in the Court of Appeal were I Mr. Vela, but I would simultaneously have a realistic view of the likely limited nature of today's victory.

John v. Superior Court (Cal. Supreme Court - April 21, 2017)

The California Supreme Court held long ago -- like, a year ago -- that the vexatious litigant statute doesn't apply to defendants who file an appeal when they've been sued (and lost) as a defendant.

Now, a year later, the Court revises and reposts its opinion to revise the counsel listing page.  As far as I can tell, the only change is to redact -- in big black marks on the last page -- the address of the vexatious litigant at issue, Aleyamma John.

Okay, I guess.  A little unusual.  It's not like the address gets published anyway.  Moreover, it's not like Dr. Google forgets.  It'll always be around.

Moreover, some might think that having the address float out there serves a public purpose.  If only because, after reading the opinion and underlying facts, I doubt that a landlord would be especially excited about renting to the vexatious litigant at issue -- something the landlord could learn about with a quick internet search.  So you might want to leave that address in, if only so someone looking up the person could make sure they have the correct "Aleyamma John".

Oh, and it's not like the address is really private information anyway.  It's not John's home address.  It looks like it's actually the address of the Alhambra Post Office -- i.e., a disguised P.O. Box.

Now, deleting the litigant's (apparent) home phone number; well, that just makes sense.  Not sure why it took a year for that to happen.  But okay.

Jackson v. Mayweather (Cal. Ct. App. - April 19, 2017)

I'm confident that LA. attorney Michael Maroko cares more about the substance of this opinion than its caption.  Particularly since it concerns one of the firm's (many) high-profile clients; in this case, [litigation against] Floyd Mayweather, Jr.

Still, I'm confident that Mr. Maroko -- alongside his partner, Gloria Allred -- hope that the Court of Appeal spells the name of their firm correctly.  For the record, it's "Allred Maroko & Goldberg," not the "Allred Markoko & Goldberg" listed in the opinion.

Not the first time this has happened, I might add.  Either in the Court of Appeal or elsewhere.

POSTSCRIPT - Not surprisingly, Mr. Maroko's firm represented the woman suing Mr. Mayweather, not Mr. Mayweather.

U.S. v. Harris (9th Cir. - April 20, 2017)

Is this really right?

I mean, part of it seems right.  But I'm not sure about the very end.

Michael Harris stole some money and was convicted, so he's got a $640,000 restitution order against him.  Good luck getting him to pay much of it, though, since he's unlikely to have a great job or very substantial assets upon his release from prison.

He does, however, have parents.  Who established a couple of irrevocable trusts for their son.

Can the United States attach the trusts to satisfy the restitution order?

Well, not really.  The trusts are totally discretionary ones.  The trustees (the parents) don't have to distribute any money if they don't want to.  So you definitely can't grab the entire trust.

But what about the actual distributions to Harris?

That's what the government wants here.  They just want to file a lien on any future distributions.  So if Harris gets any money, the U.S. ends up with it (in order to satisfy the restitution order).

The trial court says that's fine, and Harris appeals.

The Ninth Circuit's per curiam opinion sounds mostly right to me.  It says, yeah, any distributions are totally discretionary, so they're not generally "property" of Harris that can be attached.  But the Ninth Circuit (rightly) also says that even though the trust says that distributions are entirely within the discretion of the trustees, under state law, that's not entirely true -- the trustees have fiduciary duties under the trust, and Harris (in turn) has the power to compel such distributions.  In the words of the Ninth Circuit:

"[D]espite the discretionary language of the trusts, California law grants Harris the right to compel distributions from the trusts, insofar as those distributions are necessary to fulfill the trusts’ purposes. Even if a trust confers “absolute, sole, or uncontrolled discretion on a trustee,” the trustee must “act in accordance with fiduciary principles” and must not act in bad faith or in disregard of the trust’s purposes. . . . Thus, even though the trust purports to grant the trustees absolute discretion over distributions, Harris can petition the probate court to ensure that the trustees’ exercise of that discretion is consistent with the trusts’ purposes."

Yep.  That sounds right to me.  Ditto for the Ninth Circuit's resulting conclusion that "Mindful of the rights granted to trust beneficiaries under California law, we hold that Harris’s interest falls within the federal definition of “property”" that can be subject to a lien.

I'm on board.  The Ninth Circuit's opinion seems logically true to me.  If Harris has the legal right to compel $X distributions from a trust, then that $X is "property" of Harris that can be attached.  Makes sense.

With the additional bonus that it helps stop circumvention of restitution orders.

But here's the thing.

Based on this conclusion -- which, again, I think is right -- the Ninth Circuit holds:

"In sum, we conclude that Harris’s interest in the trusts qualifies as property under the federal debt collection procedure that applies in this case. The government is not attempting to compel distributions from the trusts. However, any current or future distributions from the trusts to Harris shall be subject to the continuing writ of garnishment, until the restitution judgment is satisfied."

Wait.  Not so fast.

I agree that Harris has the right to compel the trustee to distribute $X from the trust.  Now, we don't exactly know what $X is right now, since neither Harris nor the government have moved to compel such a distribution.  If the trust contains, say, $500,000, maybe Harris is entitled to a distribution of $10,000 a year from it, or $1,000, or maybe $0.  Depends on what the trust says, its purpose, the needs of Harris, etc.  But, yes, the $X that is Harris' enforceable "property" in the $500,000 trust is subject to a lien.

But that's not what the Ninth Circuit does.

The Ninth Circuit, like the trial court, didn't make $X subject to a lien.  It made ANY distributions from the trust subject to a lien.  Even those greater than $X.

Worse, it expressly held that "any current or future distributions from the trusts to Harris shall be subject to the continuing writ of garnishment, until the restitution judgment is satisfied."  So, by definition, ALL distributions from the trust to Harris will be intercepted and used to satisfy the restitution order.

That remedy, in my view, doesn't at all follow from the court's analysis.

Harris owns $X.  That's it.  That's his only "property". You can put a lien on that.  But you can't put a lien on anything that's in excess of $X.  If I own $10,000 of a $500,000 trust, you can take $10,000 to satisfy a restitution order.  But if the trust distributes, say, $30,000, you can't take the whole thing, as only $10,000 of that is "my" property subject to a lien.  You don't have a lien on the other $20,000, as that's someone else's property.  (At least until it becomes mine; once it's in my bank account, maybe you can seize it at that point, but that doesn't permit the initial lien authorized here.)

So I have no problem with saying that because Harris owes $X, the government can seize $X.  Or to say the same thing without symbols, because Harris has a right under state law to a certain minimum distribution from the trust, the government can seize that minimum distribution  But it can't seize anything beyond that -- yet that's precisely what the courts here permit.  (An analogy to IRAs springs to mind.  There may be required minimum distributions -- RMDs -- that you can seize, but that does not permit you to seize the entire IRA, or any distributions in excess of the RMD.)

Now, I admit, things can get complicated here, since we don't know exactly what $X is in the present case.  Some could easily say, with some persuasive effect:  "Well, that's the government's burden, since it has the burden of showing both the existence and extent of its purported lien.  So if it wants a lien, it has to show what the legally compelled distribution is, and that -- and only that -- it can seize."

I'd be fairly sympathetic to such a view.

But I'd also understand a contrary view that says:  "You know what?  Since we don't know how much $X is, and since this is a restitution order, maybe I'm going to allow a 'provisional' lien on any and all distributions to Harris, since they may (or may not) be part of $X.  So we'll intercept them and then the parties can litigate later on whether part of the distribution was in excess of $X."

I could find that plausible.  I might need to know a bit more about trusts and remedies to express a complete view as to which of those alternatives seems doctrinally right.

But here's what I do know.  Just because you have a lien on $X doesn't mean you get to take $X + $20,000 and apply it to a restitution order.  Because that extra $20,000 is someone else's property, since it's not the $X to which the relevant person is actually entitled.

State law, for example, requires me to do X for my kids.  Feed them.  Clothe them.  Do some other stuff for them.  That's the minimum.  They're entitled to that, so that's their "property" right in some sense.  So that you can attach.  But if I do anything else for them -- things that I'm not required to do -- that's a gift.  You can't attach a preexisting lien to that.  Since that gift isn't their property.

So too here.

Everything in excess of the required minimum distributed from the trust is a gift -- a total gift -- from Harris' parents to Harris.  You can't place a lien on gifts before they're made.  And that's true whether the gift's made outside of a trust or inside it.  Just like the government would not be entitled to an order that says that any birthday gift of $5 that I make (or Harris' parents make) to Harris is subject to a preexisting lien and seizure, ditto for the excess (extra-legal) distributions from the trust.

So I follow the Ninth Circuit's analysis.  And think it sounds right.

But the court's conclusion from that analysis, and the order it affirms, nonetheless seems off, and not justified by the underlying legal principle.

Quigley v. Garden Valley Fire Protection District (Cal. Ct. App. - April 19, 2017)

Nothing from the Ninth Circuit today.  Thus far, from the Court of Appeal, only this depressing story:

Rebecca Quigley is seriously injured when she's part of a firefighting team and is run over by a truck while she's sleeping.  Seriously.  ("The truck crushed plaintiff’s chest, ribs, lungs and left shoulder, and it fractured her back. The accident permanently damaged her heart, lungs, and eyes.")  She sues, but the trial court holds that the defendants are immune, and also that the "firefighter's rule" bars recovery as well.

The Court of Appeal affirms.

Immunity is a funny thing.  (Not "ha-ha" funny.)  Injuries that would get you millions of dollars in compensation if the result of X's conduct get you absolutely nothing if those same acts are performed by Y.

Or, as here, less than nothing.  Since, adding insult to (literal) injury, the Court of Appeal orders Ms. Quigley to pay defendants' costs.

McDermott Will & Emery LLP v. Superior Court (Cal. Ct. App. - April 18, 2017)

You've got to read today's privilege opinion from the Court of Appeal.  And I say that despite the fact that I fully realize that it's 49 pages.  Not even counting the dissent.

It's a case in which Gibson Dunn gets disqualified for using a document that's privileged (even though Gibson thought the privilege had been waived) that was inadvertently produced by the other side -- not in litigation, but elsewhere.

As I said, there's also a dissent.

The opinion tells you what not to do -- at least from here on out -- when you see a document that might be privileged and inadvertently produced.  Particularly when, as here, the other side tells you that it's privileged and inadvertently produced.

Even if you don't agree.

Let Gibson Dunn's mistake be a lesson to everyone.

Don't get DQ'd.

Seriously:  A really important opinion.

Blixseth v. Yellowstone Mountain Club (9th Cir. - April 18, 2017)

Attorney Michael J. Flynn gets sanctioned by the Ninth Circuit.  A lot.  Under both FRAP 38 as well as under Section 1927.  For frivolous and bad faith litigation.  That's not good.

But that's not the end of things.  The Appellate Commissioner then has to figure out precisely how much Flynn has to pay.  And does.  At which point Flynn continues to object.

For a sense of Flynn's approach to the appeal, I'll just quote from the last three sentences of the opinion.  Which, not surprisingly, affirms the decision of the Appellate Commissioner:

"Flynn’s requests in the motion and amended motion for reconsideration for recusal of this panel, appointment of a new panel, conversion of this matter to a criminal proceeding, transfer of the matter to the United States Attorney, and holding of the awards in abeyance are denied. Flynn’s suggestion for reconsideration en banc is rejected on behalf of the Court. [Cite]. No further filings by Blixseth or Flynn will be entertained in this closed appeal unless specifically requested by further order of the court."

Sometimes it's healthier just to let things go.

People v. Becerrada (Cal. Supreme Court - April 17, 2017)

Here's a depressing way to begin a post-Easter week:

"A jury convicted defendant, Ruben Becerrada, of the first degree murder of Maria Arevalo with the special circumstances of killing a witness, murder in the commission of kidnapping, and lying in wait. As to the murder, it found true a weapon enhancement allegation. It also found defendant guilty of rape, forcibly dissuading a witness, and kidnapping."

Needless to say, the jury imposed the death penalty, and the California Supreme Court unanimously affirms the judgment.

The actual details of the crime, and the horrific domestic violence that Ms. Arevalo endured over a long period of time, are even more chilling than the one-paragraph introduction at the outset of the opinion.

Davis v. U.S. (9th Cir. - April 13, 2017)

"In this appeal, we consider whether a federal agent is entitled to qualified immunity from suit for detaining an elderly woman in a public parking lot for two hours, while she stood in urine-soaked pants, to question her, incident to a search, about her possession of a paperweight containing a rice-grain-sized bit of lunar material."

Yep.  Those are some bad, bad facts for the government.

And since the opinion begins with those particular facts, you can probably already figure out which way the panel (unanimously) comes out.

Sumrall v. Modern Alloys (Cal. Ct. App. - April 13, 2017)

I have a hard time understanding this opinion.  And I mean that literally.  I have difficulty even getting a basic understanding of what the Court of Appeal is trying to say.

It's a "coming-and-going" rule case.  An employer isn't liable for things you do on your commute; e.g., from your home to your work.  On the theory that where you live is your choice and benefits "you", not the employer.  (Put to one side whether that makes economic sense.  It's the law.)

So if you drive from H (home) to W (work), any accident on the way is on you, not your employer.  Ditto for W to H.

Conversely, if you're driving for work, that's on your employer.  So W to W is on the employer.

The difficulty here arises from the fact that "W" isn't totally clear.  It's a construction company, and there's a company "yard," where the employees meet before work, and then everyone drives (often a company vehicle" from the yard to the actual worksite.  (For what it's worth, the employees don't get paid until they're at the worksite.)

So the employees here go from H to Y to W.  And the accident happens on the way from H to Y.

So what's the rule?

The Court of Appeal says that it's a genuine issue of material fact, since it's unclear whether Y amounts to W.

I don't get it.

Clearly Y is part of the employee's work.  It's the location of the company.  The employee is required to be there.

If that's the case (and it clearly is), then it seems to me that the Yard unambiguously counts as the workplace.  Hence the coming-and-going rule applies.

The Court of Appeal seems to think that there's only one W.  But I don't get that.  There can clearly be more than one places of work.  If I tell you to be at one worksite at 8:00 a.m., and then to drive from there to another at 11:00 a.m., both of those places are W's.  When you drive from home to the first W, that's on you.  When you drive to the second -- not from your home -- that's on me.

The point is that you're driving FROM HOME.  At the direction of your employer.  That's what happens in the present case.  Home.  To do some work.  Hence the coming and going rule.

Sure, there may be some variables.  When you're "on call" or things like that.  But I don't see any of them coming into play here.

I'm sure my analysis is overly simplistic.  I'm confident that the Court of Appeal perceives some complexity that I don't see.

But I think that when you're going from your house to a company-owned yard, and from there to a worksite, the answer just seems straightforward to me.

In Re J.L. (Cal. Ct. App. - April 12, 2017)

This one probably should be published.  Which is what the Court of Appeal decides.  Albeit belatedly.

When your case is (as here) very similar to another published opinion by the Court of Appeal, when you're going the other way than that other (published) opinion, and when your opinion critiques the reasoning (or lack thereof) of that prior opinion, then, yeah, you should published your opinion.

Or at least that's my view.

Boling v. PERB (Cal. Ct. App. - April 11, 2017)

You wouldn't ordinarily think that a City was compelled to meet and confer with one of its unions over a citizen-sponsored initiative that the voters adopted, or that the failure to so meet and confer invalidated the resulting ordinance.

The Public Employment Relations Board, however, thought that this was precisely the case.

The Court of Appeal disagrees.

Just because a City helps out with an initiative doesn't mean that the "City" was the one who did the thing.  So no obligation to meet and confer.

People v. Douglas (Cal. Ct. App. - April 11, 2017)

Sometimes your senses get a bit dulled from reading the same basic criminal fact patterns again and again.  Defendant arrested for drug possession.  Defendant pulls out a gun and commits a robbery.  Defendant assaults a person in a bar.  Defendant commits domestic violence.  Defendant commits a robbery or assault or murder to "represent" his gang.

Every fact pattern is somewhat unique, of course.  But there are definitely patterns.

But then, once in while, the Court of Appeal publishes an opinion that mixes things up a bit.

So today's published opinion begins:

"After defendant Brady Dee Douglas’s former boyfriend, a male prostitute, told him Jeffrey B. had shorted him money following a prearranged sexual encounter, defendant and codefendant Clifton Sharpe tracked down Jeffrey and demanded the unpaid money. During a high speed freeway chase, Jeffrey swerved his car into defendant’s vehicle after defendant pointed a gun at him, shooting several times. Jeffrey was able to escape unharmed."

Yep.  That's a little bit different.

There's also some great doctrinal stuff in the opinion about what you do with mixed-motive Batson challenges, particularly as applied to prospective gay jurors in a case like this one.  Definitely worth a read.

And not your garden variety fact pattern.  If only because we don't have all that many freeway shootings as we did back in the old days.  Or at least not typically for reasons like this one.

Shaw v. Superior Court (Cal. Supreme Court - April 10, 2017)

Of course a trial court's erroneous decision holding that a party isn't entitled to a jury trial should be reviewable (in an appropriate case) by an extraordinary writ.  We shouldn't force the parties to waste money (or allow the losing party to sandbag) by making them participate in a meaningless trial.

Kudos to the California Supreme Court for unanimously overruling its prior precedent to the contrary.  It's good for the law to be clear (and right).

If only so lower courts won't feel compelled by precedent to do the wrong thing.

People v. Sharpe (Cal. Ct. App. - April 7, 2017)

This opinion is devastatingly concise.  It rejects defendant's arguments on appeal quickly, easily, and with the precision of a surgeon.

The basic underlying facts are that some people crept into an outdoor marijuana garden in the middle of the night, the owner confronted them, the invaders fled, and the owner ran after them.  Here are the arguments and the court's rejoinder:

"Defendant claims that, although there was evidence of the use of force (knocking Smith down) and fear (in response to brandishing of the gun), there was no evidence that defendant or his coperpetrators were in the act of taking the marijuana or attempting to flee with it when force was applied or fear was caused. We disagree. The men were in the marijuana garden cutting the marijuana. They had already stacked some of it outside the garden. When Smith confronted them, they ran out of the garden and down the driveway. In the darkness, Smith could see that they had something in their hands, yet he testified that he did not see marijuana in their hands. In the morning, Smith saw that there were pieces of marijuana scattered down the driveway. Despite Smith’s inability to identify what was in the men’s hands as they were fleeing, it was reasonable for the jury to infer from the circumstances that the men had marijuana in their hands. Based on this inference, there was sufficient evidence that defendant and his coperpetrators used force and fear as they took and fled with the marijuana, thus supporting a robbery conviction.

Defendant argues that “the circumstantial evidence suggested only that the perpetrators had been cutting and piling up marijuana to steal it, but from the moment Smith interrupted the theft their only aim was to get away.” However, as noted above, the circumstances also suggested that the perpetrators were carrying marijuana down the driveway.

Defendant asserts that the sheriff’s deputy did not see the marijuana scattered down the driveway.  But Smith testified that he saw it.

Defendant also asserts that precisely where in the driveway the marijuana was found was never established. But Smith testified he saw “little pieces of marijuana cascaded down [the] driveway like bread crumbs.”

Defendant claims that there was no evidence concerning how or when the marijuana was deposited on the driveway. But a reasonable inference from the evidence is that the marijuana on the driveway was deposited there as the men fled.

Defendant argues: “It would be rank speculation to leap from the evidence of marijuana pieces on the ground near the garden gate and plant pile (where pieces would have naturally fallen as the perpetrators hacked down 11 plants and their bamboo framing and piled up the marijuana) to the conclusion that some marijuana bits on the ground must have landed there because the perpetrators, in their rush to flee after being interrupted by Smith, were attempting to carry away marijuana but dropped some.”

This argument does not give the evidence its due. Smith testified that there were pieces of marijuana scattered down the driveway. That there were also marijuana pieces by the pile of marijuana does not mean that the jury was constrained to believe that the spread of marijuana was limited to the pile by the garden or immediately around it.

Since the jury could reasonably infer that the perpetrators were carrying marijuana as Smith confronted them and chased them down the driveway, the evidence was sufficient to support the robbery conviction."

Sounds right to me.

People v. Truong (Cal. Ct. App. - April 5, 2017)

This opinion ends not with a bang, but with a whimper.

The final argument raised by appellant's challenge to her conviction is her claim that the trial court should not have admitted the evidence about the credit limits of the credit cards she was alleged to unlawfully possess.  The opinion deals with this contention in a single paragraph at the end.

On the merits, Justice Lui seems entirely right that any error, even if it existed, would be harmless.

But there's no factual background about what evidence what admitted on the credit limit issue, or for what alleged purpose.  The reader is basically left entirely in the dark about what we're talking about.

The opinion also, strangely, feels the need to drop a footnote that defines what a credit card is.  And a long footnote at that:  "A credit card is generally defined as a “[s]tandard-size plastic token, with a magnetic stripe that holds a machine readable code. Credit cards are a convenient substitute for cash or check, and an essential component of electronic commerce and internet commerce. Credit card holders (who may pay annual service charges) draw on a credit limit approved by the card issuer such as a bank, store, or service provider (an airline, for example). Cardholders normally must pay for credit card purchases within 30 days of purchase to avoid interest and/or penalties.” ( [as of Apr. 4, 2017].)

Is that really necessary?  And, if it is, can we really not find a better source for this information than from an internet dictionary -- indeed, one I've never even heard of before?

Plus, the opinion also asserts that the error was harmless because "Credit cards, by definition, come with credit limits."  Again, I agree that any error would be harmless, and I also agree that most credit cards do indeed come with credit limits.

But it's actually untrue that "by definition," credit cards come with credit limits.  If I want, I can absolutely issue a credit card with no limit.  Indeed, some issuers purport to do precisely that.  that may or may not be a wise practice.  But it's not "definitionally" true that credit cards inherently have a credit limit.  If I want to say I'm liable for whatever amount the individual charges, I can do that.  No problem.  Not smart.  Maybe practically difficult to enforce any resulting liability if the user then runs up $1 trillion in charges buying, say, Russia.  But I can do it if I want.  That's still a credit card.

A funny way to finish up the last substantive paragraph of an opinion.

Walent v. Commission on Professional Competence (Cal. Ct. App. - March 13, 2017)

Isn't it somewhat weird that this entire appeal is about the fact-specific issue of whether the fee award granted by the trial court in that case consisted of an amount that is reasonable and yet, in the entire opinion, Justice Zelon never once mentions the actual amount of that award?

A strange omission.  You'd think that this information would be at least marginally relevant -- if not critically so -- to the analysis.

U.S. v. Gasca-Ruiz (9th Cir. - April 5, 2017)

It's not necessarily difficult to obtain a unanimous en banc opinion.  You just have to (1) have an intra-circuit conflict about the relevant standard of review, (2) on which one side is fairly clearly right, (3) in a case in which it totally doesn't matter what standard of review applies.

Here you go.

Unicolors v. Urban Outfitters (9th Cir. - April 3, 2017)

This opinion contains 21 single-spaced pages.  Thousands and thousands and thousands of words.  All about whether there was sufficient evidence at trial (under the "intrinsic similarity" test) to establish that the clothing sold by Urban Outfitters was sufficiently similar to a swath of clothing that had been copyrighted by Unicolors.

Yet, in the entire 21 pages, there's not a single picture that compares Unicolors' print to the clothing sold by Urban Outfitters.

That's what the entire lawsuit is about.  The whole thing.  Yet not a single picture.  It lacks something like this:

Just a reminder that a picture's worth a thousand words.  At least.

People v. Financial Casualty & Surety (Cal. Ct. App. - April 3, 2017)

One thing about looking at a business from outside is that you're never sure if your perceptions are based on erroneous information.  At the same time, perhaps one's "outsider" status may permit a perspective that those on the insight might overlook.

So when I read today's opinion from the Court of Appeal, my first thought was:  "Is this all a scam?"

Over the years, I've learned more than I ever wanted to know about bail forfeitures as a result of reading the (numerous) opinions that address the subject.  The basic scoop of which is easy.  When a company posts bail for someone, and the person subsequently doesn't show up in court, the bondsman has a certain period of time (180 days, though it always gets extended) to find the person and bring 'em in, and if they don't, the bail gets forfeited.

That much you could even get from just watching television.

The slight complexity is when -- as is often the case -- the person flees the jurisdiction.  In that case, you simply show up with ("catch") the person before local law enforcement and, at that point, get back the bail you posted, since at that point, you've done your job, and it's up to the state to decide whether to try to extradite the person.

Fair enough.  And, in the United States, that totally works.

But what if the person flees to Mexico?  Or some other foreign country.

Same deal.  Show up with the person before a local law enforcement officer and, boom, you get your money back.

Which is precisely what (allegedly) happens in this case, which involves an $100,000 bond.

Here's the part that made my spidey-sense tingle:

Yeah, the bail bondsman brought a guy before a law enforcement official in Mexico.  But since the guy was a Mexican national, and wasn't accused of any crimes in Mexico, that's all that could happen. Apparently, under Mexican law, you can't do anything else.  You can't take him into custody. You can't question him.  You can't fingerprint him.  You can't take a photo.  Nothing.

So here's the scam.

Just take anyone.  Grab a friend.  Grab a guy off the street.  Give the guy $10 or whatever.  Walk him to a police officer in Mexico and say to the officer:  "Here's my guy.  He's wanted in the U.S."  Even if it's totally not him.  Even if it doesn't look anything like him.  Even if it's just a totally random guy. The officer can't do anything.  The guy goes free.  And you get your $100,000 back in the States by saying that you "caught" the guy in Mexico.

That works, right?

Oh, yeah.  And it works even if you don't bribe a random Mexican police officer to say anything on your behalf.  And if you do, well, then, that's just double-sweet.  You're protected times two.

That seems like a way easy way to make $100,000 that you're at serious risk of losing, no?

It stretches credulity to think that I'm the only one who's ever thought of this.

And that fact that the alleged bail-jumper here was caught "[walking down] the main street of the tourist center in Tijuana, Mexico" -- a neat little coincidence, no? -- definitely raises some issues.

So whatchathink?  Scam?  Neat little way to make a cool hundred grand?

I wonder if that's in the back of the Court of Appeal's mind.  When it holds that, in fact, it's okay for the prosecuting agency (the D.A.) to require that the surety provide a photo or fingerprints of the subject in order to get their money back.  Notwithstanding the fact that this requirement is definitely nowhere in the relevant statute.

Stops the scam.  Or at least makes it harder.  Gotta find someone who at least marginally looks like the person for whom you're looking.

Though the Court of Appeal's holding in turn makes you wonder if this doesn't permit agencies to run a scam the other way.  They know full well that, in Mexico, the police aren't permitted to take a photo or get fingerprints.  So by requiring these things as a condition of getting your bail money back, the agency can make sure that your (substantial) bail gets forfeited.  Even if, in fact, the surety caught the right guy and validly presented him to local officers.

Lots of money at stake.  Lots of incentives to try to keep it.  On both sides.