People v. Thomas (Cal. Ct. App. - Sept. 29, 2017)

"Defendant Edward Lewis Thomas repeatedly molested his daughter for 10 years, beginning when she was four or five years old. He admitted his conduct in a pretextual telephone call with his daughter and in a letter to her mother. A jury convicted defendant of nine counts of aggravated sexual assault on a child. The court sentenced him to a total indeterminate sentence of 135 years to life."

Doesn't matter if you're truly apologetic, admit your crimes, and have no apparent criminal history.  You're going away forever.

In Re Marriage of Berman (Cal. Ct. App. - Sept. 27, 2017)

This opinion is so, so right.  And I'd have been harsher -- in tone if not in content -- to the appellant, Kevin J. Berman.

Of course Mr. Berman was trying to shaft his ex-wife out of alimony when he transferred his business that had over $200,000 of annual income to his current wife for absolutely no consideration.  When I read the facts of the opinion, I thought that this was an obvious sham.  Sure, Berman said that he was merely old and decided to retire -- all of this on top of the $30,000+ disability payment he receives every year from his prior career as a police officer.  But the trial court found him uncredible and said he was in fact doing this merely he could reduce his alimony yet simultaneously retain all the benefits (through his current wife) of the business that he was now ostensibly "giving up".

Darn tootin'.

Every word the Court of Appeal says in affirming the decision below is spot on.  As Justice Flier recounts:

"It is undisputed that Kevin transferred to his wife an asset that had generated $220,000 in business income the previous year. It is undisputed that there was no consideration for the transfer of this apparently valuable asset. As the court noted, Kevin presented no evidence to explain the lack of consideration for the transfer. The court could reasonably infer that Kevin had arranged this transaction to eliminate his business income on paper while still enjoying its benefits through his wife’s ownership. Similarly, the court could infer that Kevin’s wife “could . . . be expected to act at his behest” (Dick, supra, 15 Cal.App.4th at pp. 164-165), and therefore Kevin had the ability to pay spousal support despite the transfer of his business. The only evidence that the transfer was in good faith came from Kevin’s declarations and papers below, in which he insisted that he did not transfer the business to avoid his support obligations. The court did not believe him, and that credibility determination is binding on this court."

Totally, indisputably right.  As is the remainder of the opinion.

If I was Mr. Berman, I'd be embarrassed to even bring this appeal.  And if I were on the Court of Appeal, you could be darn sure that I'd award his ex-wife her attorney's fees, an issue that the opinion (in a footnote) leaves to the trial court to resolve on remand.

In Re: J.P. (Cal. Ct. App. - Sept. 26, 2017)

Meanwhile, in the "it just keeps getting worse and worse the more you read" department . . . .

"J.P. is the youngest of nine children. All his siblings were involved in dependency proceedings at one time or another, and two found adoptive homes several years before J.P. was born. J.P. was born in 2006 and has been in the juvenile dependency system almost his entire life. . . . He was removed from mother’s home in May 2011 after she was arrested for assaulting her boyfriend with a deadly weapon. . . . Adoption was originally identified as the permanent plan for J.P., but his mental and emotional health never stabilized to the point where a long-term foster home, let alone a prospective adoptive home, could be identified. Between November 2011 and July 2014, J.P. attempted suicide and had numerous involuntary psychiatric hospitalizations."

Man oh man.

U.S. v. Jayavarman (9th Cir. - Sept. 26, 2017)

You can see why this opinion comes out where it does.  Judge Clifton begins the thing with a nice little summary:

"It is a crime to produce outside the United States a visual depiction of a minor engaged in sexually explicit conduct and to then transport that visual depiction into the United States. 18 U.S.C. § 2251(c). It is also a crime to attempt to produce and transport into the United States a visual depiction of a minor engaged in sexually explicit conduct. 18 U.S.C. § 2251(e).

In this case, we consider what happens when a defendant believes that the victim appearing in a depiction is a minor but the victim turns out to be an adult. That defendant cannot be convicted of the completed version of the crime, but can he be convicted of attempt? We answer that question in the affirmative: a defendant attempts to produce and transport a visual depiction of a minor engaged in sexually explicit conduct when he believes that the victim is a minor, regardless of the victim’s actual age."

That holding largely follows from the nature of attempt crimes.  Mistakes of fact don't generally stop you from being guilty of attempt.  So there you have it.

Just note that -- as is often the case -- the real fights are in the footnotes.  Particularly this one:

"This case does not present, and we do not decide, the issue of whether a defendant may be convicted of an attempt to violate § 2251(c) if he believes that the victim is an adult but the victim turns out to be a minor."

Ditto for the substantive offense, right?  I could easily see courts imposing strict liability for sex offenses with minors; e.g., you don't get to claim that you thought she was an adult.

The net effect of which -- if it comes out that way -- would be to make this a one-way ratchet.  You're guilty if you thought she was a minor (even if she wasn't) and you're guilty if you thought she was an adult (but she wasn't).

Howard v. City of Coos Bay (9th Cir. - Sept. 25, 2017)

If you remember your first-year Civil Procedure class, my guess is that you'll recall that res judicata -- issue and claim preclusion -- was a somewhat difficult subject.

But I bet your final exam on the topic was nowhere near as complicated as this one.  And I'm pretty much certain that your final exam answer wasn't -- as here -- 33 single-spaced pages.

It involves claim preclusion.  It involves issue preclusion.  It involves the merits.  It's got everything a complicated law school hypothetical would present.  Plus a whole lot more.

It's even an unfair law school hypothetical.  Which are the ones I love best.  Since part of the opinion is about complicated issues of first impression; e.g., whether there should be a bright-line (or, in the alternative, a flexible) rule regarding when post-filing events should potentially be subject to claim preclusion.

(You'll be happy to know that the Ninth Circuit adopts the bright-line rule.  Which, by definition, is easier to both remember and apply.  "We now confirm that for purposes of federal common law, claim preclusion does not apply to claims that accrue after the filing of the operative complaint.")

Interestingly, most of the 33-opinion is actually dicta.  Important, still.  But dicta nonetheless.  The district court dismissed the plaintiff's second suit as barred by both claim preclusion as well as issue preclusion.  The Ninth Circuit disagreed -- at least in part -- on both points.  Claim preclusion didn't apply because the cause of action accrued after the first suit (even though there was undeniably some overlap), and issue preclusion only applied to certain portions of the damages claims.

But the Ninth Circuit nonetheless affirmed the district court, holding that the plaintiff's claim was barred on the merits.  Her First Amendment conduct was not, the court held, a substantial factor in the City's refusal to hire her.  Instead, it refused to hire her because she had previously been fired by the City for cause.  Despite the fact that the first jury concluded that this firing was pretextual.  It still works, the panel says, to bar her from recovery on the merits.

All interesting stuff.  Even for readers whose eyes might gloss over every time the word "preclusion" rears its ugly head in the opinion.

In Re Joiquin C. (Cal. Ct. App. - Sept. 20, 2017)

I know that we're talking in this opinion about someone who's confused a lot, but I too was confused by this sentence (with an additional sentence for context):

"Carrasco offered Veronica C. an appointment book, but she said she would not forget her appointment. She told Carrasco that said she had been wearing her mother’s gold earrings, which confused her; she took them off and was fine."

Wait. Who's wearing the earrings, whose mother owned them, and who was confused?

Pronouns pronouns everywhere.

In Re Destiny D. (Cal. Ct. App. - Sept. 11, 2017)

Lest there be any doubt, domestic violence doesn't only harm the direct participants thereto:

"Sergio D., the presumed father of 15-year-old Destiny D., had a history of alcohol abuse and was a current abuser of alcohol . . . . Sergio and Claudia have a long history of engaging in domestic violence in Destiny’s presence. During one incident in August 2016 Sergio held a knife to Claudia’s throat. Destiny intervened to protect her mother; Sergio shoved Destiny, injuring her. . . .

During an interview Claudia told the social worker Sergio had been violent throughout their 18-year relationship, but she had remained with him to keep her family together. Following the August 2016 incident, however, she finally had had enough and obtained the restraining and custody orders to protect herself and Destiny from Sergio.

Destiny confirmed her father’s history of violent behavior toward her mother, stating he had “[p]ut his hands on my mom more times than I can count.” Destiny reported Sergio typically did not hit her, but he did shove and injure her during the August 2016 incident when she tried to defend her mother. Destiny also admitted to engaging in self-harming “cutting” behaviors when she was 13 years old because she had been unable to cope with her parents’ marital conflict."

As a bonus:  "Both Claudia and Destiny stated Sergio abused alcohol regularly and had a history of driving while intoxicated with Destiny in the car."

Children are at least somewhat products of their environment.  Sometimes that's great.  Sometimes not so much.

R.E.V. v. City of Anaheim (Cal. Ct. App. - Sept. 19, 2017)

I'm sympathetic to -- and on board with -- the result of this opinion.  Which involves res judicata and a ton of other civil procedure stuff that's near and dear to my heart.

But I'm not at all certain that the holding of the case is doctrinally right.

You can see why the panel comes out the way it does.  Plaintiff files a federal civil rights case that asserts a federal claim and some supplemental state law claims.  The district court grants summary judgment to defendants, and then (with the federal claim dismissed) predictably declines to exercise supplemental jurisdiction over the pendent state law claims.  So those get litigated in state court.

The plaintiff (again, predictably) appeals the dismissal of the federal claims, and the state claims go forward in state court) at the same time.  The Ninth Circuit affirms the dismissal of the federal claims, and the state courts then hold that the federal holdings preclude the state suit (issue preclusion, etc.) since they're basically the same thing.

End of story.  Lawsuits gone.  Both state and federal.  Federal on the merits, state because of issue preclusion given the federal result.

But then something unexpected happens.

The federal claims rise from the dead.

The Ninth Circuit takes the case en banc and reverses the grant of summary judgment.  So now the federal claims are alive again, and there's no adverse issue preclusion.

Except for one thing.  The state claims are now over.  Their dismissal has been affirmed by the Court of Appeal.  And the mandate has issued.  So there's nothing left to do.

You see the injustice there.  The state claims got dismissed for X reason, but X no longer exists.  So the state claims should be revived.  Yet they're dead, and the timeline to petition for rehearing etc. in the Court of Appeal is over.  So what to do?

The Court of Appeal today has an answer.  It doesn't like this result.  Understandably so.  A person has potentially important claims that have merit that were wrongly dismissed, for a reason we now know is wrong.  So the Court of Appeal wants them to be addressed on the merits, rather than doing an injustice by keeping them dead.

I feel the same way.

So the Court of Appeal has a way to accomplish this end.  Plaintiff in the present case filed a new state court lawsuit.  One identical to the one that was dismissed.  Normally that'd be totally barred by res judicata.  As indeed the trial court held.

But the Court of Appeal holds that res judicata doesn't apply.  That "exceptional circumstances" mean that it's okay, in this case, to file an identical suit to the one that's dismissed, and yet that suit gets to go forward.  Because those exceptional circumstances -- the injustice that would result by not letting plaintiff have his day in court -- justify an exception to the usual res judicata rules.

That makes sense.  On its own terms, anyway.  We want people to have their claims heard on the merits, rather than dismissed for a legal reason that we got wrong, and denying res judicata to the second (totally identical) suit solves the problem.  Plaintiff gets its claims adjudicated on the merits.

Problem solved.

The Court of Appeal discusses at length what it believes to be the primary arguments in opposition to that principle; namely, that the plaintiff should have sought a stay, tried to keep the first suit alive, etc.  To be clear:  Those are decent arguments.  In lots of cases, that's in fact a better approach.  And not granting res judicata effect does indeed diminish the incentive for plaintiffs to adopt these alternative (superior) approaches.

But the Court of Appeal nonetheless thinks that these counterarguments as a whole don't justify doing an injustice and depriving plaintiffs of their day in court.

And I get that.  Both the sentiment as well as the doctrinal holding.

Here's the thing, though.

The procedural mechanism that the Court of Appeal adopts to deal with this problem is to create an exception to prevailing res judicata principles.  Yes, that's one way to do it.  But it's a procedure that creates lots of problems and inefficiencies of its own.  It allows (indeed, requires) plaintiffs to file a duplicative second suit that's identical to their first (dismissed) one.  It allows plaintiffs to potentially forum shop by filing that second suit in a different forum with different (perhaps more sympathetic) judge.  It requires a new tribunal to get totally up to speed on a case that the first tribunal has already fully considered and has some familiarity with.  There are, in short, definite downsides -- practical as well as doctrinal -- in permitting multiple duplicative lawsuits about the very same thing.

The Court of Appeal's holding will nonetheless engender these downsides in the service of a greater good:  adjudication on the merits.  And it gets those benefits by creating an exception to res judicata.

But there's a different way.  A way that doesn't change res judicata law, that's simpler, and that doesn't engender the downsides of permitting multiple (potentially forum-shopped) adjudications.

And, as a bonus, it's the way the federal courts deal with this issue.  Without tinkering in the slightest with res judicata law or requiring duplicative (identical) lawsuits.

Rule 60(b)(5).

See, in federal court, we have a principle -- backed up, even, by an express rule -- that says that the way we avoid this injustice is to permit the losing party to file a motion in the trial court for relief from the underlying judgment.  And Rule 60(b)(5) involves precisely the situation presented here: when (in the express words of the rule) "the judgment . . . is based on an earlier judgment that has been reversed or vacated;" i.e., when (as here) the final judgment was based on applying res judicata from a prior judgment that was subsequently reversed.

So in federal court, you don't file a second duplicative suit.  You file a post-trial, post-judgment motion in the trial court that says that the judgment should be changed because the other suit that formed the basis for the res judicata finding is now no more.  And you'd win.  Ergo getting your day in court.

And, unlike paragraphs (1) through (3) of Rule 60, there's no temporal limit on Rule 60(b)(5) motions.  They can be filed at any time, not merely within a year.

Problem solved.  Without the (substantial) difficulties necessarily engendered by the Court of Appeal's res judicata holding here.

The Court of Appeal never cites Rule 60(b)(5), nor does the opinion ever mention or discuss how the federal courts deal with this exact issue.  Nor do I see anywhere in the opinion a case that holds that the federal way of dealing with things is foreclosed by California law.  (And if I was going to find, or create, an exception for "exceptional circumstances," I would personally be just as willing -- or more so -- to do so in California's analogue to Rule 60 as I would to California's longstanding res judicata principles.)  Admittedly, the Court of Appeal says that because the mandate had already issued in the Court of Appeal, the deadline to petition for rehearing there was already gone.  But Rule 60, or the California judicial analogue, doesn't involve filings (or deadlines) in the appellate courts.  It's a filing in the district court.  And it's timely even when a similar filing in the appellate court would be time-barred.

So, in a nutshell, I agree with the result reached by the Court of Appeal.  Plaintiff should have his day in court.  And, in federal court, he definitely would.

But unless there's a California Supreme Court that's on all fours with this exact case, I'd get there via the Rule 60 route, not by fundamentally tinkering with res judicata.

That's a much better way.

(Oh, and if, perchance, there's a square California Supreme Court holding of which I'm unaware that says that you can't file a Rule 60-ish motion on the basis of the reversal of the judgment to which the prior court gave res judicata effect, then I'm confident that exact same reasoning would apply to the Court of Appeal's holding here.  There's no way that the underlying equities don't permit you to file a motion for relief from the judgment and yet those exact same equities permit you to file an entirely separate lawsuit about the very same thing.  So if the Court of Appeal for some reason couldn't adopt the Rule 60 route that I suggest here, then it can't backdoor this same result by creating an exception to res judicata principles to do the same thing.)

People v. Romero (Cal. Ct. App. - Aug. 23, 2017)

It's a slow start of the week here in California.  Nothing published from the Ninth Circuit.  Only one published opinion thus far from the California Court of Appeal, and that one's not especially worth reading -- that is, unless you're keenly interested in finding out whether someone who tried to help the Shingle Springs Band of Miwok Indians open a casino gets paid.  (Summary:  No.)

So we can start out the week on the slow side as well.  And maybe just give what might otherwise seem to be an easy reminder to trial courts when they're deciding whether or not to bounce a juror for cause.

Because you'd think that a trial court would totally understand that it should definitely excuse a juror who says that she had the victim in an alleged rape case as a student of hers three years ago and has positive recollections of her.  Especially when the defense challenges her and says, yep, she needs to be replaced.

But apparently not every trial court would similarly so conclude.

And, as a result, now we need to do an entire new trial.

Just replace the juror with an alternate.  It's that easy.  Pretty darn clear, even.

Ass'n Des Eleveurs v. Becerra (9th Cir. - Sept. 15, 2017)

In 2004, California passed a law that prohibited force-feeding ducks or geese to produce foie gras (or, more significantly, prohibited sale in California of foie gras produced in this manner.)  The industry was given seven years to transition to a different manner of producing this product.  Predictably, the industry sued.  But although the district court concluded that California's prohibition didn't violate the Due Process or dormant Commerce Clause, after that plaintiffs amended their complaint, the court held that the statute was nonetheless preempted by the federal Wholesome Poultry Products Act.

The Ninth Circuit reverses.  Which should pretty much put an end to both this litigation as well as the sale of foie gras produced in this particular manner.

Judge Nguyen writes a fairly comprehensive and scholarly opinion.  It's worth a read.  You'll likely get other opinions written on the same subject as additional states join the anti-foie gras bandwagon, but this one's a pretty good template for how the analysis will go.

Judge Nguyen does make an interesting observation in upholding California's prohibition.  She says that California's ban on foie gras was inspired in part by California's related ban on horsemeat.  And when it passed the bill, the California Assembly did indeed argue that these provisions are similar in intent.  Judge Nguyen says that "as societal values change, so too do our notions of acceptable food products. Like foie gras, horsemeat was once a delicacy. Today, many states, including California, ban horsemeat because they consider the idea of eating horse repugnant. California, like a growing number of countries around the world, has concluded that forcefed foie gras is similarly repugnant."

All that's right.  Though I think that there's a qualitative difference between the horsemeat and foie gras statutes.  We can horsemeat because -- at a superficial level -- we like horses.  So we think it's disgusting (or "wrong") to eat them.  Or at least to use them directly as food.  The ban is based upon our reaction to the nature of the species.  We like dogs, we like cats, we like horses.  We deal with them all the time.  We societally consider them to have a certain level of sentience or what have you.  So we have a visceral reaction to eating them.

Ducks and geese are different.  We're totally happy to eat them.  (Or at least most of us are, though I personally don't.)  We don't think of them as having the requisite level of sentience or familiarity or whatever it is that puts 'em in the "eating them is disgusting" category.

The prohibition on foie gras is instead based entirely on "unnnecessary or unusually high suffering" grounds.  In other words, the correct analogy is to animal cruelty laws, not species-specific reactions to consuming their flesh.  California banned foie gras -- or this particular manner of foie gras -- for the way in which these animals were killed for food.  A way that, in my mind, at least, does seem to be incredibly cruel:

"Force-feeding commonly requires a worker to hold the bird between her knees, grasp the bird’s head, insert a 10- to 12-inch metal or plastic tube into the bird’s esophagus, and deliver large amounts of concentrated meal and compressed air into the bird. The bird is force-fed up to three times a day for several weeks and its liver grows to ten times the size of a normal liver. This process is [] so hard on the birds that they would die from the pathological damage it inflicts if they weren’t slaughtered first.”

Dude!  Bodily violations so severe that you would literally die of mental distress if they didn't kill you first.  That sounds pretty darn bad, no?

My point is that this isn't like the ban on horsemeat.  We generally don't eat dogs or horses no matter how humanely they're raised or killed for a certain set of social reasons.  Whereas we do eat (at least as a society) ducks and geese if they're humanely raised and killed.  The two are materially different.

Not that any of this matters to the opinion, which is entirely about preemption.

But when we're dealing with an important issue like when our species elects to kill (or not kill) particular other species, I thought it might at least be worth setting the descriptive story straight.

In Re J.T. Thorpe (9th Cir. - Sept. 14, 2017)

Sometimes the chambers of one of the judges on a panel writes a lengthy bench memorandum/draft opinion, which it hopes will eventually become the backbone of the ultimate opinion by the panel.  In tons of cases, that in fact transpires.  Efficient for everyone.

But sometimes it doesn't.  Occasionally leading to opinions that look, well, a bit different.

So, for example, for the most part, dissents are concise and targeted.  They're shorter than the majority opinion and, except for additional relevant details, don't recite a full-fledged "Statement of Facts" about the overall cases.  There are other typical characteristics of dissents as well.

But, sometimes, you see opinions like this.

The majority opinion is a crisp five pages long, and contains as its first section the usual factual summary of the case.  It's exactly what you'd expect from a majority opinion.

The dissent, by Judge Korman (sitting by designation from the Eastern District of New York), is 32 pages long.  Over six times the length of the majority opinion.  And around a full nine of those pages -- yes, nine -- simply recite the underlying facts and procedural history in exhaustive detail.

That's fine for a majority (or panel) opinion.  But for a dissent, it's distracting.  To me, anyway.  A ton.

Maybe that's simply Judge Korman's writing style.  Or what you're used to when you've been writing district court opinions for over thirty years.

Readers just typically see something different in Ninth Circuit dissents.  For better, IMHO.

Roth v. Plikaytis (Cal. Ct. App. - Sept. 13, 2017)

Sometimes cases are worth mentioning not because they're particularly interesting, but rather simply because they might be helpful to the reader.

Which is why I mention this one.

The relevant part of the holding is a simple one:  You're allowed to incorporate by reference prior motions and supporting evidence.  That's something that attorneys do somewhat routinely, and yet, other attorneys prefer to be on the safe side and refile the entire shebang.

Good to know that you have a choice.

As Justice Dato explains:

"Rule 3.1110(d) states that "[a]ny paper previously filed must be referred to by date of execution and title." Rule 3.1113 provides rules for the memorandum in support of the motion, and rule 3.1113(j) states that "[t]o the extent practicable, all supporting memorandums and declarations must be attached to the notice of motion." Consistent with these rules, a litigant may incorporate previously filed documents and, where practicable, should file them with the motion. But a litigant is not required to do so absent a rule precluding incorporation by reference. (Cf. rule 3.1345(a) & (c) [requiring separate statement for certain discovery motions and stating "[m]aterial must not be incorporated into the separate statement by reference"].) . . . .

Code of Civil Procedure section 437c now expressly contemplates incorporation by reference in summary judgment papers. (Code Civ. Proc. § 437c, subd. (b)(7).) We see no reason why incorporation by reference would be any less appropriate for a fee motion. . . . .

Refiling materials to support fee motions may be typical, and even prudent, but it is not required. Denied motions are part of the record. And even assuming record size imposes an additional burden, to aid the court Plikaytis did provide courtesy copies. At a minimum, if the court felt Plikaytis's efforts were insufficient to rely on incorporation by reference, it could have permitted her to refile the documents. Simply refusing to review the materials was an abuse of discretion."

So there you have it.  The rule.  As well as some practical advice from the Court of Appeal about that same rule.

People v. Hunter (Cal. Ct. App. - Sept. 11, 2017)

This isn't what you expect to see at all.

A group of seven people decide to rob Monaco Jewelers in lovely San Juan Capistrano.  A pretty heavy crew.  Seize the location, take the high-end jewelry, grab the security tape, and leave.

So the crew enters the store and starts pointing guns.  At which point the shooting starts.

But the shooting isn't from the perpetrators.  It's from multiple employees in the store itself, who shoot and kill two of the would-be robbers.  At which point the others (wisely) flee.

Nor was this a meek little crew.  One of the robbers was Robert Avery, who " towered over Pashaian [the store manager] even though Pashaian stood six feet tall" and who pointed a gun at the manager's head as he told him to "Come here, you motherf****r."

Which turned out to be Mr. Avery's last words, as he was then promptly shot three times by the father of one of the store's employees who was in the back room with the manager.

Two robbers dead and the others fleeing, desperate to escape.  Two of whom (Mssrs. Hunter and Paschall) are then caught and convicted of first-degree murder under the provocative act doctrine.  Because even though neither of the defendants were shooters -- indeed, even though neither of them were even in the store, since Paschall was acting as the lookout and Hunter was the getaway driver -- that doesn't matter.  They're sentenced to 30-to-life because one (indeed, two) of their accomplices died.

And there's more.

As is often the case, there's a plea deal for some of the participants, who then agree to testify against the others.  The defense attorneys who represent the remaining defendants then turn on the counsel for the "rat" and demand their interview notes, but counsel for the pled-out defendant refuses to turn over those notes.  Because even though everyone's in the same boat for a while, once there's the plea deal, everyone looks out exclusively for their own client.  At which point there's fighting and an appeal.

Though for naught.  Everything's affirmed.

But nonetheless and unusual case.  Not the usual result of a seven-person robbery.

People v. Lujano (Cal. Ct. App. - Sept. 11, 2017)

I had to read this morning's opinion from the Court of Appeal a couple of times just to make clear that I was reading it correctly.  I thought that the victim was initially a certain age, then later I thought that I must have gotten it wrong, only to find out (upon further review) that I was right all along.

Regardless, it's not the fact pattern that might instantly spring to mind when you read the first line:

"A jury convicted Andres Lujano of sodomy of an intoxicated person (Pen. Code, § 286, subd. (i)),1 and the trial court sentenced him to six years in state prison.  He appeals . . . .

The victim, Marco M., testified Lujano had lived next door to Marco’s family for three years, and Marco trusted him. . . . Marco testified that on May 26, 2015, he was sad because his baby was in the hospital with respiratory problems. Sitting in his truck in front of his house, he started drinking beer with his friend Jose at about 8:00 p.m. At around 11:00 p.m., he tried methamphetamine (provided by Jose) for the first time, and it made him feel more awake. Jose went home around midnight, but Marco did not go to sleep that night. Between 8:00 p.m. and about 5:30 a.m., in addition to the methamphetamine he ingested, Marco smoked marijuana and drank more than 20 beers. Marco testified he is five feet, five inches tall and weighs about 130 pounds."

Okay.  Let me just stop there for a second.  Marco smokes methamphetamine for the first time, is emotional, and then has more than twenty beers?!  And only weighs 130 pounds?!

This is not going to end well.  Things like that never end well.

"At about 5:30 a.m. on May 27, Lujano approached Marco in the truck and asked him if he wanted another beer; Marco had socialized with and drunk beer with Lujano previously. Marco said he did want another beer, and Lujano told him to come get it from his house. Marco went inside Lujano’s home to get the beer and sat down in the living room while Lujano was in the kitchen washing dishes. Marco was “pretty intoxicated” and dozed off sitting on Lujano’s couch."

So it's 5:30 in the morning, you've already had over 20 beers, and you're thinking:  "Yeah, you know what I really need at this point?  Another beer.  That'll probably help things."  Oh my.

"Marco testified he woke up because he felt “hard pain” “in [his] butt.” When he opened his eyes, he saw Lujano’s hands on top of his hands, he was face down over the side of the couch with his pants below his waist, and Lujano’s body was on top of him. When Lujano saw that Marco had opened his eyes, Lujano immediately stopped, got up, and started putting on his clothes. Marco got up, said he had to leave, and tried to go through the front door, but the door required a key to unlock it from the inside. Lujano could not find his keys and told Marco to go through the window. He gave Marco $6 and told him not to tell anyone. Marco was “still hurting” and “wasn’t able to walk right.”"

Ugh.  Terrible.

The next part of the opinion's factual recitation is the one that got me wondering whether my mental impression of Marco's age was totally off:

"Immediately after climbing through Lujano’s window, Marco went inside his own house and told his mother what had happened—that he “got raped.” She started crying and told him to call 911, which he did at 6:54 a.m. While Marco was still on the witness stand, the prosecutor played the recording of the 911 call, in which Marco told the operator “my neighbor just raped me.” Crying throughout the call, Marco said he was drunk and “just woke up and he was on top of me.” Police officers arrived about five minutes later, spoke with Marco, and took him to the hospital. Officers also took Lujano into custody that morning."

Nonetheless, I get it.  It's a traumatizing series of events at a definitely traumatic time.  Especially given the underlying physical symptoms:  "The supervising nurse practitioner who performed Marco’s sexual assault exam two to three hours after his 911 call testified Marco had an actively bleeding anal laceration—a “fairly significant injury.” She noted Marco was “shut down” and had difficulty talking about what had happened but told her he had had a lot of alcohol and was going to have a beer at Lujano’s house but “passed out” on the couch; when he “awoke,” Lujano was penetrating him. She testified Marco’s examination was consistent with his report. The parties stipulated that sperm found on Marco’s anal swab matched Lujano’s DNA profile."

Oh, man.  What a horrible, horrible night.

People v. Williams (Cal. Ct. App. - Sept. 8, 2017)

I'm usually not a fan of the California Supreme Court reaching out to depublish an opinion by the Court of Appeal.

But here's a good candidate for precisely that.

There's a loose horse out in a rural area, so police officers (understandably) investigate.  The horse seems trying to get back into a particular property, and the police follow it around, block it off, call for backup, try to contact anyone at the house (by knocking on doors, windows, calling the property, etc.).  Eventually the authorities succeed in getting the horse into a horse trailer that they've brought to impound the horse.

Cool.  Great work.  I have absolutely no problem with any of that.

While they're doing all of this, they hear some dogs barking, see some dogs that appear to be fairly poorly kept up (when they peek inside the windows), and generally just get a sense that there might be something going on with respect to the dogs.  Now, truthfully, they already know that already, as they'd previously been out to this same house on a couple of prior occasions, and knew that there were lots of dogs.  But the owner showed 'em the proper permits etc., so everything passed.

But now the authorities feel like they've got free reign of the place.  The owner's not home.  They've already done everything that conservative Supreme Court precedent allows 'em to do -- enter a home property without consent, repeatedly knock on every door, peek inside all the windows, etc.  Stuff that'd freak you out if you saw a stranger doing to your home, but that nonetheless the judiciary says is okay, since it's the "curtilage" of your home and hence involves a "sidewalk, pathway, common entrance or similar passageway [that] offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there."

Okay.

But then the police cross the line, in my view.  Both literally and metaphorically.  There's a fenced in back yard.  Something that clearly doesn't offer "implied permission" for anyone to enter.  The police nonetheless enter the back yard, at which point they see some dogs with scars and a missing lip and some additional evidence that makes 'em think that there might be dog fighting.

And then, two weeks later, based on these observations, they go back to the property and take some more (entirely permissible) pictures.  Then they wait another three weeks, and finally get a search warrant, which they obtain by reciting all the evidence described above.  And during the search, they find evidence of dog fighting and charge the defendant.

The critical issue is whether the search was permissible; in particular, the officers crossing into the back yard.

The Court of Appeal says that was okay -- proper -- because of "exigent circumstances".  Based on the presence of several barking dogs and one letting out some whines somewhere.  Justice Grimes relies on an "exigent circumstances" case that said that it was okay for a police officer to hop over a fence when he saw a gun lying on the ground and says it's the same thing here:  gun, barking and/or whining dogs, no difference.  Exigent circumstances.

But the two are radically distinct.  Particularly here.

First off, of course there are barking dogs.  Come to pretty much any house with a dog -- or more of 'em -- and knock on doors and windows and peer in and see what happens.  They'll bark because (1) that's what they do, and (2) that's why (in part) we have 'em.  Because we want them to bark their heads off when random dudes go traipsing around our front hard for an hour knocking and peeking into every window.

So that's hardly exigent circumstances.  That's hardly reason to fear that the dogs are in mortal danger, which is the "exigent circumstance" that the Court of Appeal finds.

Now, there's also a dog that whines a little, and some dogs that look a little thin and the like.  Now, mind you, that exact same stuff -- and worse -- was there last time the authorities were called to the place, and the authorities did absolutely nothing.  So I'm not really sure how "exigent" all this stuff is.  But even ignoring past history, it'd be one thing if there really was a dog that was about to die or who was yelping like it was in mortal danger or whatever.  But that's not what was happening, and was definitely not what the police perceived.  The dogs were just doing what we'd totally expect them to do with randoms on their lawn who weren't leaving.  And, yeah, there might perhaps have been some systemic problems with the alleged weight of the dogs or a smell of feces or whatever.

So you know what you do in that situation?  Get a warrant.  It takes, like, hours.  Maybe a day, tops. There's absolutely no reason to believe that one of these dogs is in such distress that it's going to die or the like in the time it takes to get a warrant.  And it's nowwhere near as dangerous as a gun lying unsupervised on the ground.  Get a warrant, get a warrant, get a warrant.  Because we want a neutral magistrate to decide -- except in the most extreme cases -- whether circumstances truly warrant (pun intended) making people no longer "secure in their persons, houses, papers and effects."  Not merely the unilateral whim of the police.

But the Court of Appeal thinks that the dog situation is so extreme -- so exigent -- that it warrants the police exceeding their normal authority and invading the back yard.  And let's be crystal clear what's at stake in his holding.  If exigent circumstances -- the alleged dying dogs or whatever -- permit the police to invade the back yard, those same exigent circumstances permit them to bust down the door and enter the house.  Because both places are the "home" under the Fourth Amendment.  The fact that the police here only elected to invade the fenced back yard, rather than the home itself, doesn't make the Court of Appeal's holding any less dangerous, because what's good for the former is good for the latter as well.  If barking, smelly dogs are exigent circumstances that negate the need for a warrant, that's a view that's not limited to merely inspecting the back yard; you get to go full out at that point.

So it's an opinion that really does matter.

Oh, and lest you think that the "dangers" of the barking dogs were really all that substantial -- that I'm understating their perceived seriousness -- let me just remind you of just how serious the police who witnessed them first-hand thought they were.  How "exigent" and critical the circumstances were.  Those facts were so serious that after the police invaded the back yard and did all their stuff, they promptly left and did absolutely nothing.  Those "critically at risk" dogs were just left to their own devices.  For weeks.  Until the police did another drive-by and took some more pictures.  And then let three more weeks pass until seeking and obtaining a warrant.

When that's how serious the police perceive the matter to be in real time -- i.e., not at all -- I think it's super difficult to argue that on the facts of this case, the barking dogs were really so exigent that they authorized entirely dispensing with the requirement of a warrant.  Because every fact you'll mention to identify how allegedly "serious" the circumstances might have been were not, in fact, perceived to be at all that serious -- that requiring of immediate intervention -- by the people who were actually there and perceived them.

Anyway, that's my take.

And, in the end, the Court of Appeal concludes its opinion by saying that the seized evidence was permissibly introduced in any event because even if you excise the impermissible stuff from the affidavit (i.e, the back yard stuff), the remaining (proper) evidence was more than sufficient to justify the warrant's issuance.

Which totally negates the need for the rest of the opinion.  The bad -- and dangerous -- part about why exigent circumstances allegedly permit the police to invade your home whenever analogous circumstances like this exist.

Which in turn is why, even though I'm not normally a fan of depublication, I think this is a perfect candidate.

U.S. v. Del Mundo Faagai (9th Cir. - Sept. 7, 2017)

It's a natural human tendency to become more persuaded over time about the validity of your own articulated beliefs.  Not everyone does it.  But lots of people do.  The reality is that as time passes, people start believing their own bull.  A lot.

It happens to regular people.  It happens to lawyers.  (Which explains in part why litigators often overestimate their probability of success.)  And it happens to judges.

Once initially seemed like the "right" conclusion to you over time becomes "obvious" and then "crystal clear" and then "so undisputably true that only a moron could possibly disagree."

And if you're a judge -- especially one writing a dissent -- that evolution sometimes affects the ultimate tone and content of your opinion.

Those are some of the thoughts when I read Judge Kozinski's dissent from today's Ninth Circuit opinion.

It's not that Judge Kozinski doesn't have a point.  He definitely does.  He might even be right.  It's certainly not crystal clear that there's probable cause to believe that the defendant here would have some drugs in his car.  Sure, there's some prior (recent) history of drugs, and some suspicious stuff, and a lot of talk on the wiretaps that sounds a bit weird and might be code for a drug deal.  But there may well be an innocent explanation for all this stuff as well.  Which Judge Kozinski spells out at length.

So I could definitely see someone coming to Judge Kozinski's conclusion.  The quantum of proof here may not meet the standard for probable cause.

But here's the thing:  It might not meeet that standard, but it totally might as well.  That's what two neutral judges on the panel think, after all.  And, as I read the competing opinions, I can see where the majority is coming from.  There's definitely stuff in there that's suspicious.

But not to Judge Kozinski.  He admits that probable cause "is not a high standard," but says that the government "came nowhere close to meeting it here."  And the tone and content of his dissent is very much consistent with that expressed view.  That this is a totally easy case.

Except it's not.  Reasonable minds can differ.  If the government's evidence didn't show probable cause, I gotta say, at a minimum, it at least came close.  As I read the facts, there's definitely stuff that's suspicious there.  That makes you think that, yeah, they may well be talking about doing a drug deal.  Notwithstanding the fact that I definitely agree that someone reviewing those facts would in no way, shape or form be certain that they were doing a drug deal, since the evidence was indeed subject to multiple reasonable interpretations.

Judge Kozinski does a great job parsing out the innocent explanations for the evidence that the government was able to identify.  He'd have been a great defense attorney.  But his pursuit of those innocent explanations blinds him, in my view, to arguments he makes that just aren't that persuasive.  In the vernacular, it looks like he just starts strongly believing his own bull.  (And, yes, I know that there are another four letters that often conclude that final word.)

I'll mention just one example.  The two alleged conspirators talk about setting up a meet to shop for some "food".  The majority (and government) think that "food" is a code word for drugs, and Judge Kozinski thinks it's a code word for . . . food.  So they arrange to meet at a particular Costco.  But that Costco is a full half hour away from their location, and there's a much closer Costco nearby.  To me (and the majority), that seems weird.  Suspicious, even -- at least in the context of the other evidence.

But that fact doesn't bother Judge Kozinski at all.  He says that not all Costco's are the same, and says that it would make sense to meet at the farther-away Costco because it's relatively newer and also has a fresh deli.

Is that possible?  Sure.  Maybe.  That's possible.  But the guys don't mention the deli, don't talk about it being newer, and don't give any reason at all why they're chosing that one over the closer one.  With all due respect to Judge Kozinski, that's unusual.   If you're really just shopping for actual "food," you usually don't inexplicably drive half an hour out of your way to a Costco when there's a much closer one nearer.  Because, yes, they're all different, but they're also quite similar.

Let's put it this way.  If my wife -- or, I imagine, Judge Kozinski's wife -- said she was going to shop for some food at Costco, and then mentioned that she was going to the Costco that was 40 minutes way from us (rather than the one 10 minutes away), wouldn't that seem at least a little strange?  At least enough to say, "Hey, that's cool with me, but why are you going to that one?"  I promise you I'd ask the question.  If she said it was because it was newer, or had a deli, fine.  I wouldn't suspect that she was buying a pound of meth.  But it's still something.  Yet Judge Kozinski's dissent doesn't admit that it's even that.  Which I think is a downside of his vision, and is the type of stuff that helps gives rise to his thinking that this isn't even a close case.

Of course, as usual, there's some great stuff in what Judge Kozinski says as well.  Like taking the government to task for saying that it was suspicious that the guys were setting up to meet in a not-very-busy place (thus supporting probable cause) where in other cases the government has said the exact opposite -- that drug dealers like to set up in busy places where there's a lot of traffic.  That's spot on.  Damned if you do and damned if you don't.  Everything's suspicious and support probable cause.

But in the overall context of this case, I can definitely see people disagreeing about whether the evidence here was merely "suspicious" or whether it satisifed the quantum of proof necessary for "probable cause".  That's a fine line, and smart people could (and would) argue about whether that line was crossed here.

But the line was at least approached.  It's a close case.  Not an easy one at all.

Notwithstanding Judge Kozinski's stridently articulated view to the contrary.

People v. Washington (Cal. Ct. App. - Sept. 5, 2017)

There have been only two published Court of Appeal opinions thus far in September.

The one published today, after the long Labor Day weekend, should definitely be reviewed by the California Supreme Court.

It's an opinion that decides to ditch a central constitutional principle that's stood for over half a century.  The opinion itself accurately describes the contours of this rule:

"Under the so-called Aranda/Bruton doctrine, a trial court may generally not allow a jury in a joint criminal trial of a defendant and codefendant to hear the unredacted confession of the codefendant that also directly implicates the defendant—even if the jury is instructed not to consider the confession as evidence against the defendant. (People v. Aranda (1965) 63 Cal.2d 518, 529-531 (Aranda), abrogated in part by Cal. Const., art. I, § 28, subd. (d); Bruton v. United States (1968) 391 U.S. 123, 128-136 (Bruton).) Such a confession is so 'powerfully incriminating,' the doctrine provides, that the jury cannot be expected to heed the court’s instruction and put it out of its collective mind when evaluating the defendant’s guilt."

That rule has not only been consistently applied for the last fifty-plus years, but it's also one that's at issue in a relatively large number of cases.  And it's critically important, as it involves what's thought to be the pinnacle of reliable testimony:  a suspect's confession.

The Court of Appeal holds that this longstanding precedent is no longer good law after the Supreme Court's 13-year old decision in Crawford, which limited the Sixth Amendment right to cross-examine witnesses to "testimonial" statements.  You might rightly think that the fact that confessions are surely "testimonial" means that Crawford doesn't abrogate the Aranda/Burton doctrine at all.  But the Court of Appeal believes that the necessarily implication of that decision (and its progeny) mean that the 50 years of precedent that followed Aranda and Burton are no longer good law.

There are definitely those who will find Justice Hoffstadt's reasoning persuasive.  And there are definitely those who will find it unpersuasive.  To me, given those facts, before we ditch a critical principle of criminal procedure and constitutional law, the California Supreme Court should definitely weigh in, rather than let a panel of the Court of Appeal conclusively decide this issue.

There's a lot to be said for the other side of this dispute.  If only because I think that even if the Sixth Amendment didn't apply here (which it may well), then the Due Process Clause might require the same result.  The Court of Appeal thinks it doesn't, arguing that if a more specific clause doesn't apply, then a more general one shouldn't require a different rule.  But my view is that even if there's not a specific right to cross-examine a particular witness, to admit testimony with a required limiting instruction that we practically know the jury will ignore is indeed something that the Due Process Clause cares about.  Quite a bit.

Moreover, if, indeed, there's no constitutional barrier to admitting the testimony here, then I surely think that separate trials (or at least separate juries) should be required.  Particuilarly in high-stakes cases like the first-degree murder trial here.  The Court of Appeal holds that one trial was just fine.  But if we're indeed going to revolutionize confession admissibility like the panel does here, my own view is that -- at a minimum -- the burden of two juries is definitely worth it.  If only to avoid the manifest prejudice that we all recognize will otherwise arise from admitting the confession.

There are powerful reasons for the Aranda/Burton rule.  There's the Sixth Amendment at stake.  As the opinions recognized, there's also a Due Process issue.  And that rule was also adopted by the judiciary in part pursuant to its inherent supervisory powers.  All those principles are still in play.

The Court of Appeal holds that the law now is different -- beneficially different -- than that of the last fifty years.

The California Supreme Court should grant review and decide whether it agrees.