Thursday, December 20, 2018

USC v. Superior Court (Cal. Ct. App. - Dec. 20, 2018)

No one looks good in this one.  Not the fraternity, not USC, not SAE, not the USC students.  No one.

"Several fraternities and sororities affiliated with USC occupy houses in an area near the USC campus known as Greek Row, including a chapter of Sigma Alpha Epsilon Fraternity. On October 10, 2013, the day of a home football game, several fraternities, including Cal. Gamma, held parties on Greek Row where alcohol was served. The street was crowded with partygoers. . . .

USC’s Policy on Alcohol and Other Drugs required fraternities and sororities to obtain prior authorization to serve alcohol at social events. USC’s Social Events Policy prohibited parties after 10 p.m. on evenings preceding school days, and allowed parties only between Fridays at 3:00 p.m. and Sundays at 5:00 p.m. Cal. Gamma’s party on Thursday, October 10, 2013, was unauthorized and violated both of these policies. USC was aware of prior violations of university policy and other misconduct at Cal. Gamma, some involving the use of alcohol, and had recently issued warnings and imposed discipline on the fraternity.

USC’s Department of Public Safety (DPS) employed safety officers who patrolled the USC campus and Greek Row. On October 10, 2013, before Barenborg’s injury, two DPS officers visited Cal. Gamma several times in response to complaints of loud music and public drinking. On each visit, they saw an abundance of alcohol on the property. They asked the person in charge at Cal. Gamma to turn down the music and reminded him that public drinking was not allowed, but they did not shut down the party. The two officers were not aware of USC’s policy prohibiting parties on Thursdays and generally were untrained in the enforcement of USC’s policies governing alcohol use and social events.

Barenborg was a 19-year-old student at Loyola Marymount University at the time of her injury. On October 10, 2013, she visited parties on Greek Row with a group of friends. Barenborg consumed cocaine and five to seven alcoholic beverages before arriving at Cal. Gamma, and she continued drinking alcohol after she arrived there. . . .

A platform approximately seven feet tall constructed from tables was being used for dancing. Barenborg and two female friends were stepping up onto the platform where USC student Hollis Barth and another woman were dancing when Barth gave them an unwelcoming look. Just as Barenborg and one of her friends reached the top of the platform, Barth bumped Barenborg and her friend off the platform, they fell to the ground, and Barenborg sustained serious injuries."

The injured Loyola student sued USC.  The trial court denied USC's motion for summary judgment.  The Court of Appeal grants a writ and reverses.  No duty.

Wednesday, December 19, 2018

In re Marriage of D.C. and T.C. (Cal. Ct. App. - Dec. 19, 2018)

I'll quote the second sentence of this opinion, and you tell me if it makes sense to you:

"The trial court found that a significant increase in Wife's earnings since the last spousal support order amounted to "changed circumstances" and on that basis reduced her support payments to Husband."

Read that again.

Yes, you read it right.  The Wife made more money.  That's a changed circumstances.  That justifies reducing the amount of money she had to pay to Husband.

And the Court of Appeal agrees with that.

I literally read that sentence three times when I first read the opinion.  I figured there had to be a typo.


It wasn't until around a third of the way through the opinion that I finally understood what the Court of Appeal meant.  Only then did it make sense.

It's not that the support payments to Husband were actually reduced.  No.  That would be crazy.  They were instead merely reduced compared to what was called for in their marital settlement agreement.

Which is a big difference.

See, the MSA called for Husband to receive ten percent of anything Wife eventually made over $180,000.  So, for example, if she made $200,000 in a certain year, Husband would get an extra $2000; i.e., ten percent of $20,000.

As it turns out, she ends up making a boatload more money than expected, because she gets a better job.  So Husband wants his ten percent of the extra cash, but Wife doesn't want to pay.

And the trial court lets her out of the deal.  So what Wife pays is (1) more than what she was paying before, but (2) less than what was called for under the MSA.

The Court of Appeal starts its opinion by focusing on (2).  Which is confusing, because the opinion hadn't yet even talked about an MSA -- much less its contents -- and normally, when you say that a party gets "less" money, you're talking about (1).

So a bit confusing.

On the merits, by the way, I see why the Court of Appeal ends up where it does.  It holds that the trial court can modify the MSA since Wife's making more money than the parties expected, but shouldn't have "capped" the amount in the way the trial court did.  I get that.  Equitable, in a way.

But I gotta also say that I'm not at all certain why it wouldn't also be equitable just to enforce the agreement.  The parties were married for eighteen years.  They've got two kids together.  Both of them worked during the marriage.  The MSA only calls for support payment for seven years.  It doesn't seem crazy to me to say that if Wife (or, for that matter, Husband) suddenly starts making a boatload of money more than expected -- money that would otherwise have gone to the marriage had the parties stayed married -- then the ex-spouse should get a tiny piece of that.

Like -- coincidentally enough -- ten percent.

Doesn't harm the ex-spouse much, who still gets 90 percent of the unexpected windfall. And puts the other ex-spouse in a very slightly better position, and compensates them for the fact that after the divorce, the poorer spouse is now in a much worse position than when s/he had two incomes coming into the family -- and in a super worse position than if those two incomes would have included the new high-paying job received by the now-ex-spouse.

Should that "bonus" money be split 50/50?  No way.  But a ten percent slide to the ex-spouse for a brief period of time -- e.g., seven years -- after two kids and an eighteen-year marriage.

Doesn't seem crazy to me.

Tuesday, December 18, 2018

In re Cody R. (Cal. Ct. App. - Dec. 17, 2018)

Nothing published from the Ninth Circuit or California Court of Appeal today.  Some judges may be wrapping presents.  Others may be celebrating the Tenth of Tevet.  Others may just be working away on draft opinions.  Another cold(ish) and lazy(ish) day in December.

Does that make you think:  "Hey, maybe I should be an appellate judge?!  I like days off too."  Well, perhaps.  But then you have to deal with facts like these, from an opinion yesterday out of San Diego:

"Shortly before Christmas 2016, the children's former court-appointed special advocate (CASA) visited the family, which by then included another son and an infant daughter. The CASA observed that three-year-old Cody, who had been a "chunky" baby, was severely underweight, weak and lethargic. His extremities were purple. The CASA, a former paramedic, said Cody appeared to be near death and advised the parents to take him to the emergency room.

Cody was barely responsive when he arrived at the hospital several hours later. He was significantly malnourished. At three-and-a-half, Cody weighed 21.6 pounds, which was less than he had weighed at his last doctor appointment shortly after his second birthday. Bruises and abrasions on Cody's face, back, and legs were concerning for nonaccidental trauma.

During his hospitalization, Cody gained almost five pounds in less than five days. There was no other cause of failure to thrive other than malnutrition and neglect. Cody was severely neurologically delayed due to psychosocial and nutritional deprivation. Physicians characterized the parents' treatment of Cody as "essentially starvation" and advised the social worker that Cody would be at risk of death if returned home.

In foster care, Cody displayed extreme food seeking behaviors, which was "textbook behavior" for children who had been food deprived. . . . The Agency detained Cody's siblings in protective custody in March 2017, when Shauna and C.R. were arrested on charges of felony child cruelty and held without bail. Cody's baby sister was placed with him in foster care. The older siblings were very guarded when first removed from their parents. They later disclosed the parents said the entire family would go to jail if they talked about what had happened in the home.

The eldest sibling, C.R., Jr., said the parents did not feed Cody and would make him watch while the others ate. The parents locked the kitchen cabinets to prevent Cody from eating at night. C.R., Jr. explained that he and his siblings left food on the ground for Cody but the mice would eat it. Cody was so hungry he ate his feces from his diaper. He was not allowed to play with toys. He was not allowed out of the bedroom and had to stay in bed all day. C.R., Jr. said the parents made him stay home with Cody to avoid having Cody be seen in public. The three oldest children reported that the parents hit all the children, leaving marks and bruises, and encouraged them to hit each other and Cody."

Not exactly It's a Wonderful Life.  More like exactly the opposite.

Monday, December 17, 2018

Biel v. St. James School (9th Cir. - Dec. 17, 2018)

The Ninth Circuit represents itself well in its sole opinion from today.  Since Judge Friedland's opinion (joined by Judge Watford) is much more persuasive than the dissent from Judge Fisher (sitting by designation from the Third Circuit).

The question is whether the defendants get to take advantage of the "ministerial exception" to justify their decision to fire a substitute teacher at a Catholic school who got canned when she told the school that she had breast cancer and would need to take time off to undergo chemotherapy.  (The school's response was to tell her that she was fired because, inter alia, “it was not fair . . . to have two teachers for the children during the school year.”  Nice.)

Judge Friedland summarizes some of the basic facts about the fired teacher in a easily understood fashion that helps make clear why the ministerial exception doesn't apply:

"After graduating in 2009, Biel worked at two tutoring companies and as a substitute teacher at several public and private schools. St. James, a Roman Catholic parish school within the Archdiocese of Los Angeles, hired Biel in March 2013 as a long-term substitute teacher. At the end of that school year, St. James’s principal hired Biel as the school’s full-time fifth grade teacher. Biel is herself Catholic, and St. James prefers to hire Catholic teachers, but being Catholic is not a requirement for teaching positions at St. James. Biel had no training in Catholic pedagogy at the time she was hired. Her only such training was during her tenure at St. James: a single half-day conference where topics ranged from the incorporation of religious themes into lesson plans to techniques for teaching art classes.

Biel taught the fifth graders at St. James all their academic subjects. Among these was a standard religion curriculum that she taught for about thirty minutes a day, four days a week, using a workbook on the Catholic faith prescribed by the school administration. Biel also joined her students in twice-daily prayers but did not lead them; that responsibility fell to student prayer leaders. She likewise attended a school-wide monthly Mass where her sole responsibility was to keep her class quiet and orderly."

The Third Circuit's Judge Fisher would hold that the ministerial exception would apply to these facts, but to me, the majority opinion wins the battle fairly clearly.

There might well be some judges on the Ninth Circuit who would see things the same way as Judge Fisher.  But I don't think they're a majority.  Or anywhere near.

Thursday, December 13, 2018

People v. Superior Court/Smith (Cal. Supreme Court - Dec. 13, 2018)

You can't really argue that much with today's opinion from the California Supreme Court.  After the Court granted review of the case, the Legislature quickly passed a new statute that made it clear that the People should win.  That's one of the big advantages of being a Legislature; if it looks like you're going to lose a case, one solution is to just change the law.  So there's a reason why today's opinion unanimously finds in favor of the State.  You can't say much about the merits other than "Yeah, given the law now, that sounds about right."

Nonetheless, I wanted to say just a tiny bit about the language of the opinion.  Because I have a sense that people 100 years from now may view the opinion in a slightly different way than contemporary readers.

The opinion is written by Justice Cuellar, a kind soul.  It's about various discovery provisions in the procedures used to commit sexually violent predators (SVPs).  Justice Cuellar ultimately holds that, pursuant to the recent statutory amendment, some otherwise confidential medical information gets to be disclosed to the district attorney and her experts.  Fine.  That's the law.

It was Justice Cuellar's description of the SVP proceedings that nonetheless caught my eye.  There are various sentences in the opinion that describe these proceedings kindly, with language like the following:  "When we take account of the relevant provisions and structure of the law, and the SVPA’s broad purpose of identifying dangerous sex offenders so that they may receive treatment . . . ."

Okay.  Look.  I know that one theory behind SVP proceedings is the one described by Justice Cuellar:  that we're trying to "identify" sex offenders so we can "treat" them.  But, in reality, I think that's pretty much a classic euphemism:  a mild word that we substitute when the truth is unpleasant.  We commit SVPs in theory to treat them.  In reality, we just want them locked up.  So we "civilly" commit them.  Not because we have much hope that we can make them better.  But just because we don't want them on the outside.

Take the guy in this actual case, for example (Richard Smith).  The opinion is all about procedure, so it doesn't say what he did or what his problems are.  But he was in prison and about to get paroled when, in 2002, the District Attorney initiated SVP proceedings.  And he's been locked up since then.  Fifteen-plus additional years.  Getting "treated".  'Cause that's why we're locking him up, right?  Not merely to keep him off the street.

The obvious reality is that the central purpose of SVP proceedings like these is to incarcerate someone even when they've done their time for the crime (if any) for which they were convicted.  Do we have a hope that, somehow, they'll be magically cured?  Of course.  And we make an effort.  But we know full well that for a huge number of these people, our "treatment" won't work, and we'll just be locking them up for an additional eternity.

And we're cool with that.

Just look at the language of the statute, as well as what we call these people.  Violent.  Predators.  Does that sound like soft language we'd employ if our central purpose was to "treat" someone?  Or is it more what we'd say when we were looking for ways to lock these Violent Predators up?

I express no necessary normative judgment about whether locking people up in these circumstances makes sense, or whether there's a superior alternative.  That's a policy (as well as moral) decision, and one rendered in circumstances that are far than ideal.

But I nonetheless think it's worthwhile not to soft pedal what we're doing.  Or to use language that describes softly and with a peaceful purpose what we're, in fact, harshly trying to do here.  Especially when we're talking about an area in which "treatment" euphemisms have routinely been employed by governments to achieve less savory results.  Not good, in my view, to have a neutral judiciary seem to go along with -- or, worse, implicitly support -- the program by using flowery (and, in truth, one-sided) language to describe what we're doing.

That doesn't mean that Justice Cuellar is factually wrong.  I'm confident that one purpose of the SVP program is to try to "treat" patients.  To the degree we can, anyway.

But there are other purposes and motivations at play as well.  And to describe a program by focusing primarily the benign seems to me to do a disservice.  In the same way that I might feel disturbed if someone wrote an opinion (or history book) that said that the "broad purpose of interning American citizens of Japanese descent during World War II was to protect the country during wartime."  Yeah, I guess, someone could say that.  But that description seems to me to have the wrong focus.  On a topic that's incredibly serious to both the system as well as to the individuals adversely affected therefrom.

So too here.

It's not that Justice Cuellar entirely ignores the fact that we're talking about locking people up.  At the outset of the opinion, for example, he says that "Although designation as a sexually violent predator (SVP) is not a punitive measure, individuals so designated are subject to a variety of serious consequences, including civil commitment."  But even that seems fairly soft to me.  Were it me, I'd mention that people (like Mr. Smith) get locked up for 15-plus years, with no end particularly in sight.  And I wouldn't focus on the ostensible "treatment" rationale for the statute.

Because I think that downplays, in a fairly dramatic fashion, what's at stake here.  In a way that readers a century from now -- and some readers currently -- might find disturbing.  Or at least overly palliative.

My thought, anyway.

Wednesday, December 12, 2018

Doe v. USC (Cal. Ct. App. - Dec. 11, 2018)

The Ninth Circuit is taking some time off -- it has only issued one published opinion the entire week.  Meanwhile, the California Court of Appeal publishes this excruciatingly detailed tale, which describes at length an alleged acquaintance sexual assault at USC.  The Court of Appeal ultimately holds that USC didn't provide the accused student a proper hearing before expelling him.

The facts are a cautionary tale for everyone involved.  Alcohol and sex.  Not good.

Tuesday, December 11, 2018

Cobb v. City of Stockton (9th Cir. - Dec. 10, 2018)

There are lots of different legal and factual issues at play in this appeal.  But I wanted to mention only the one I thought was the most interesting, and as to which there may be some disagreement between the majority and the dissent:

Does the Fifth Amendment trump a discharge in bankruptcy?

To put it differently:  If you're entitled to "just compensation" because someone (e.g., a city) has taken your property, is your takings claim against that entity constitutionally entitled to super-priority over all other claims, secured as well as unsecured?

I could see why someone might say "Yes."  The Constitution expressly says you're entitled to "just compensation" if your stuff is taken.  So maybe you're automatically entitled to that compensation.  Period.  Even if the entity that took your stuff doesn't have enough money to pay everyone, you get your money.  End of story.

But I could also see why someone might say "No."  There's not enough money to pay everyone.  We've got a long history of distinguishing, for example, between secured and unsecured creditors.  When there's not enough money to go around, it might not make sense to someone automatic priority just because they've got a particular type of constitutional claim.  Just like people with Section 1983 constitutional claims don't get priority in bankruptcy.  It's a generally applicable law about how to allocate the residual money of a bankrupt that doesn't violate the Fifth Amendment.

And I could also see why someone might say "Maybe."  Maybe what counts as "just" compensation depends not only on the value of the property, but also -- in cases where there's not enough money to compensate all the creditors -- how such compensation would affect others.  Maybe paying someone less than what their property is worth is okay if the relevant entity is bankrupt and so paying one type of claim would necessarily harm those with other types of claims.  Maybe not.

I'm not sure I have a definitive view on this issue.  Each of the various alternatives has its upsides and downsides.

But it's something I hadn't thought about before, and it's interesting.  So I thought I'd share the case.  (Which doesn't really answer the question either, but which definitely raises it, albeit in an incredibly complicated procedural setting that mucks things up a bit.)

Monday, December 10, 2018

U.S. v. Valencia-Cortez (9th Cir. - Dec. 10, 2018)

I usually don't read the unpublished opinions.  There are too many of them, they typically lack a ton of reasoned analysis, so I'll leave 'em to the parties.

But I happened to look at this one today.  Not because I cared (or knew anything) about the case.  But just because the Ninth Circuit today didn't list any published opinions -- yet omitted the "No Opinions Filed Today" blurb that it uses on every other such day -- so just took a quick look to make sure that the Circuit was still hard at work.

And, once I read the thing -- it's very short -- I wondered:  "Why isn't this opinion published?"

Here's the relevant part:

The District Court denied Valencia’s request for a Ninth Circuit pattern eyewitness identification instruction (the “Model Eyewitness Instruction”) and, in doing so, did not abuse its discretion. In its final jury instructions, the District Court discussed Valencia’s identification defense and provided a general witness credibility instruction. Further, the District Court permitted Valencia to elicit comprehensive expert testimony on, among other things, eyewitness memory, memory for the details of events, the ability to pick faces, and suggestibility. Counsel for Valencia extensively argued the identification defense to the jury based on this testimony. The jury was thus alerted to potential weaknesses in the Government’s eyewitness identification evidence. Accordingly, we see no abuse of discretion in the District Court’s refusal to give the Model Eyewitness Instruction.

While we see no abuse of discretion, we are troubled by the comment to the Model Eyewitness Instruction that recommends “against the giving of an eyewitness identification instruction.” Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit § 4.11 cmt. (2010) [hereinafter MMCJI]. There is now a robust body of scientific research and evidence that highlights the unique perils of eyewitness identification testimony as “one of the greatest causes of erroneous convictions.” Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 313–45 (3d Cir. 2016).

The Supreme Court has acknowledged the fallibility of eyewitness testimony and characterized eyewitness instructions as due process safeguards that “warn the jury to take care in appraising identification evidence.” Perry v. New Hampshire, 565 U.S. 228, 246 (2012); see also id. at 246 n.7 (citing the Ninth Circuit Model Eyewitness Instruction). Other Circuits have also encouraged the giving of such instructions, recognizing the inherent dangers of this type of evidence. United States v. Hodges, 515 F.2d 650, 653 (7th Cir. 1975); United States v. Holley, 502 F.2d 273, 277 (4th Cir. 1974); United States v. Telfaire, 469 F.2d 552, 556–57 (D.C. Cir. 1972). Further, we have previously suggested that the need for heightened jury instructions should correlate with the amount of corroborating evidence. See United States v. Masterson, 529 F.2d 30, 32 (9th Cir. 1976) (noting that “[i]n both Holley and Telfaire a single eyewitness was the only incriminating evidence against the defendant”). Without disagreeing that courts are given discretion in fashioning jury instructions, we encourage the Jury Instructions Committee to reassess their comment as it is inconsistent with legal precedent and growing scientific evidence.

For similar reasons, we are also troubled by the following language in the comment to the Model Eyewitness Instruction: "The Ninth Circuit has approved the giving of a comprehensive eyewitness jury instruction where the district court has determined that proffered expert witness testimony regarding eyewitness identification should be excluded." MMCJI § 4.11 cmt. This comment seems to suggest that a district court may either give the Model Eyewitness Instruction or allow expert witness testimony, but not both. Again, because of the particularly unreliable nature of eyewitness identification evidence, we encourage the Jury Instructions Committee to make clear that it is within a court’s sound discretion to provide both safeguards if the facts and circumstances of the case so require."

I get that even an unpublished opinion can be send to the Jury Instructions Committee.  But this discussion seems to me pretty important on the merits.  As well as useful to contemporary litigants and judges in the plethora of eyewitness identification cases that happen every day in the district courts.

So I'd publish this one.  Something that's far more informative and significant, honestly, than some of the published opinions we see.

J.W. v. Watchtower Bible and Tract Society (Cal. Ct. App. - Dec. 10, 2018)

Here's a primer on how to turn a simple discovery dispute into a $4-million-plus judgment against you.

I'm sure that the defense counsel thought every step of the way that what s/he was doing was okay.  Making arguments, thinking the trial court was wrong, thinking you could get out of producing some documents that the client really didn't want to produce (and thought were privileged).

But at some point, you've got to realize:  You've lost.  Time to face the music and comply with the court's order.

Otherwise this will happen.  Even though you keep telling yourself it won't.

That's a mighty big judgment.  One that will in fact be paid.

Don't mess up discovery.  It can cost you.


Friday, December 07, 2018

C.S. v. Superior Court (Cal. Ct. App. - Dec. 7, 2018)

You're a 14 year old kid.  You make the mistake of wearing blue shorts to a public park.

The depressing details:

"The 14-year-old victim, Heriberto R., went to the park at about 6:30 p.m. to play basketball with his older brother, his father, and his uncle. Heriberto was wearing blue shorts.

C.S. was at the park along with several members of the RPL, including Victor Villar, who was the gang’s shot-caller. Villar signaled to C.S. and another gang member to confront Heriberto. Villar also told a third gang member to “go.” 

C.S. and the two other gang members approached Heriberto, asking, “Do you bang?” Heriberto “looked like he was confused.” One of C.S.’s companions lifted Heriberto’s shirt to look for tattoos but did not see any. 

Heriberto’s older brother approached and said, “Leave my little brother alone. He doesn’t play that stuff. He doesn’t bang.” However, one of C.S.’s companions said, “Bullshit. You’re a fucking scrap,” referring to Heriberto’s apparel. 

One of C.S.’s companions then punched Heriberto, causing him to fall to the ground. C.S. and other gang members punched, kicked, and stomped on Heriberto’s head. C.S. was the last person to stop stomping on Heriberto’s head. . . . . Heriberto suffered a skull fracture and died."

What a world.

Thursday, December 06, 2018

Love v. State Dep't of Education (Cal. Ct. App. - Dec. 6, 2018)

Here's another challenge to California's repeal of the "personal belief" exemption to California's immunization rules.  One that goes the same way as all of the others and in which the Court of Appeal rejects the plaintiff's claims.  With Justice Robie saying that those claims "are strong on hyperbole and scant on authority."

In short:  Immunize your children.

Wednesday, December 05, 2018

People v. Berch (Cal. Ct. App. - Dec. 5, 2018)

It's a day of mourning for President George H.W. Bush, and there's nothing from the Ninth Circuit and only one opinion from the California Court of Appeal.  It's also a grey day of drizzle down here in San Diego, so I thought about just staying quiet today.

But today's (sole) opinion nonetheless got me thinking.

It's another one of those cases that's technically moot because the defendant has already served the underlying sentence, but in which the Court of Appeal nonetheless exercises its discretion to decide the merits since the issue is likely to recur and otherwise escape review.  (Here, it's about whether a commissioner can revoke probation, and by the time the case was argued on appeal, the defendant had long ago served the relevant 120 days in jail.)  I'm generally pretty happy with that result.  The Court of Appeal gets the merits right (in my view), and it's also correct that unless you decide these things, the typical probation revocation sentence in this context is so brief that it'd otherwise evade review.

So everything's right with the world.  On this front, anyway.

But the fact that we decide cases like this made me wonder:  Why only decide these types of moot cases?  Why not decide others?  At least in the criminal context.  What are the appropriate limits?

The classic reason not to decide cases that are moot is because no one cares any more.  The winning side doesn't care because it already got what it wanted, so has nothing to lose, whereas the losing side doesn't care because it's got nothing to gain.

We nonetheless hear the merits of these types of appeal.  Even though, by the time the briefs are being written, they totally don't matter to the individuals actually involved in the case.

Why do we nonetheless hear the merits of these the-litigant-doesn't-actually-care appeals?  Because, in truth, we know that there are still people who actually matter that do care about the appeal.  And who have adequate incentives to still write really good briefs that allow us full information to decide the merits.  The public defender (or, as here, the appointed appellate attorney) wants to protect other clients.  The prosecutor (or, as here, the AG's office) wants to prosecute other defendants in the future more easily.  So they write good briefs, and we're confident we can accurately decide the case.

What's funny to me is that the same thing would be true even if the case became moot even before even the Notice of Appeal was filed.  Or even if there wasn't a particular case at the moment that raised the issue (e.g., there was only a prior case, or one that we knew for certain would exist in the future).  Yet we don't allow those cases to be heard.  They're actually moot.  Even though the briefs in those cases would often be just as accurate and informative as the briefs here.

So I wonder whether the decide-the-case-even-though-it's-technically-moot doctrine is actually internally consistent and treats like cases alike.  I'm confident we get cases like today's right.  But I wonder whether similar reasoning shouldn't permit us to decide other types of technically moot or "hypothetical" disputes.  Seems to me like maybe it should.

Just something to ponder on a (relatively) cold and rainy day in Southern California.

Tuesday, December 04, 2018

Calvert v. Binali (Cal. Ct. App. - Dec. 4, 2018)

I can summarize this 14-page opinion in a single sentence:

When the Superior Court orders that you serve process on the defendant via publication in the Orange County Register, don't publish the thing in the Laguna News-Post.

Otherwise your $1.9 million default judgment is void.

People v. Burton (Cal. Ct. App. - Dec. 4, 2018)

Some cases are very hard to win at trial.  Some cases are easy.

This is not one of the former.  At least for the prosecution.

It involves the brutal and inexplicable murder of an elderly couple.  So already there's a huge sympathy factor.  Moreover, the evidence against the defendant was overwhelming.  Usually the defendant doesn't testify in her own defense.  This time she did.  But it didn't help at all.

Here's the prosecution's closing argument:  "The People argued defendant at first only intended to get pills and money, but when Melvin refused to cooperate, she made a deliberate decision to kill him. A “blink of an eye” or “fraction of a second” was enough time; “A cold, calculated choice can be arrived at quickly. And that’s exactly what happened in this case.” Defendant was a liar. She first told Detective Meux she was not there (refuted by her DNA), then claimed self-defense (belied by the severity of the injuries, including defensive wounds), then claimed the Bains killed each other (which made no sense). It made no sense that defendant had to hit Jean (a smaller and much older woman) multiple times with a flashlight to stop an attack, or that after being hit repeatedly by a flashlight Jean would continue the attack. It made no sense to claim that Melvin could have killed his wife when he was found beaten to death as well. Defendant claimed Melvin had been her good friend, but she displayed no remorse. Defendant had a prior conviction evidencing moral turpitude. The prosecutor referenced defendant’s admission to lying and the instruction allowing the jury to “consider that” in determining guilt and then listed many of the lies defendant testified she had told Meux."

The jury took a grand total of 80 minutes before it returned its guilty verdict.  Defendant's sentenced to LWOP.

When the evidence is so overwhelming, don't be surprised when the Court of Appeal doesn't reverse the conviction.  There was an evidentiary error here.  But the Court of Appeal concludes that there's no prejudice therefrom given the state of the overall evidence.

Sometimes an attorney should be congratulated for winning at trial.  But sometimes all you need to do is to not screw up and you'll pretty much definitely win.

Monday, December 03, 2018

Murder (Cal. Supreme Ct. - Dec. 3, 2018)

Monday mornings are traditionally a downer anyway, but they're even more depressing when you start your workweek reading what the California judiciary publishes today.

One murder case (that results in a death sentence).  Another murder case (that also results in a death sentence).  Then a case from the California Court of Appeal that also involves a murder.

That first-filed opinion is particularly depressing.  It's a mother who stabbed three of her little kids to death.  At least two of the three little kids had defensive wounds.


FTC v. AMG Capital Mgmt (9th Cir. - Dec. 3, 2018)

Here's a useful statement by Judge Bea that'll be somewhat helpful to defendants in lots of different types of cases.  But I say "somewhat" because the statement (1) is only in a concurring opinion, and (2) is, to me at least, totally silly.

Judge Bea categorically states that "the question whether something is 'likely to deceive' is inherently factual and should not be decided at the summary judgment stage."  Judge Bea would so hold because he thinks that when three judges on the panel can understand what the fine print of a contract means, then that means that maybe the average consumer can understand it as well.  Hence precluding the grant of summary judgment on the point.

One can respond to that point in a number of different ways.  But it's sufficient to me to simply state that just because a panel of three learned federal judges -- alongside their law clerks -- can (after full briefing by the parties) understand a particular provision in fact says virtually nothing at all about what a reasonable consumer under far different circumstances would understand.  Most consumers haven't gone to law school and studied how to interpret contracts.  Most consumers haven't been confirmed by the Senate.  Most consumers don't have the experience reading or deciphering fine print -- or the time to do so -- that federal judges hearing a particular lawsuit possess.

That the top one percent of the top one percent of consumers can perhaps understand a contract does not preclude summary judgment about whether that contract's "likely to deceive" a regular consumer. Just like a hypertechnical medical statement or a complicated physics equation might well be likely to deceive me even though Einstein or a medical expert would totally understand that it meant the exact opposite of what I -- and others like me -- thought it meant.

To take a concrete example from a different context, imagine that a contract said that "You can prepay this loan, if you want, on any Friday!" and then, buried in the fine print, ten pages later, in a place virtually no one ever looks and that you can get to only after clicking on seven different hyperlinks, there's a clause that says that "Payments during non prime number years must be made in a habitable microgravity space."  Now, I'm a lawyer, and I read that provision, and understand that it means that since the last prime number year was 2017, the only time you can pay on Earth is in 2027, and that in every other year, you've got to make your way to the International Space Station if you want to pay early. So it's literally true.  But it's also likely to deceive.  And summary judgment would be entirely proper.

There are other problems with Judge Bea's statement, at least for me, but I'll leave it at that for now.  Nonetheless, if you're looking for a nice quote and trying to survive summary judgment, go ahead and give it a shot.  You'll at least know you've got one kindred spirit on the Ninth Circuit on your side.

Wednesday, November 28, 2018

Mayall v. USA Water Polo (9th Cir. - Nov. 28, 2018)

Most of the time, I'm merely intellectually interested in the result of a particular published opinion.  But this Ninth Circuit opinion from today hits extraordinarily close to home.

It's a putative class action against USA Water Polo -- the governing body for water polo in the United States -- that alleges that USA Water Polo didn't do anything to stop its players from getting put back into games after they'd suffered a concussion.  Which resulted in some players getting another (more serious) concussion.

The district court dismissed the lawsuit on a 12(b)(6) motion, and USA Water Polo offers a lengthy defense of that dismissal on appeal, arguing that (1) the primary assumption of the risk doctrine bars any claims for injuries, (2) USA Water Polo's rules satisfied its duty of care anyway, and (3) there wasn't "gross negligence" in any event.

The Ninth Circuit squarely rejects every one of these defenses.  In a way that makes it fairly clear (at least to me) that even beyond getting remanded, the case will survive summary judgment.  Which in turn means it's going to eventually settle.  Because even though this is a pleading opinion, what the Ninth Circuit says is strongly pro-plaintiff here.  Which has consequences for how the thing will play out on remand.

The reason why this case is of particular interest to me is because (1) all four of my kids play water polo, (2) all of 'em are members of USA Water Polo, (3) several of them have been concussed, and (4) one of them was and is on the USA National Team, which -- as today's opinion notes -- had a separate and fairly detailed set of concussion rules.  So it's a topic I'm familiar with.  Even though, until today, I had no idea there was a pending class action about the thing.

Water polo is a rough sport.  Rougher than perhaps most people who are unfamiliar with the game -- which definitely included me, until my kids started to play -- realize.  And that ball gets thrown very, very hard.  And sometimes hits people's heads.  Not to mention the elbows and other flying things that very easily give players concussions sometimes.  (I'm also totally putting to one side the out-and-out deliberate punches, which I've seen in games and, yes, happen.)  In short:  It's rough.  Injuries are indeed part of the game.  Unfortunately.

But the Ninth Circuit says that even though initial injuries are inevitable, putting someone back in after they've been injured isn't.  Hence why it reverses the dismissal below.  Because, allegedly, USA Water Polo could and should have done more.

I suspect my family's USA Water Polo annual dues (which, ironically, we just paid earlier today) will increase after this thing settles.  And that a part of 'em have already gone to pay USA Water Polo's lawyers.

That too is the nature of the "sport" -- litigation -- that we also play.

Tuesday, November 27, 2018

U.S. v. Tydinco (9th Cir. - Nov. 27, 2018)

Today I learned that it's a federal crime to provide shelter to an unauthorized immigrant.  And that we actually prosecute people for it.

A husband and wife live in Saipan (in the CNMI).  They go to China to visit Wife's family and the like and meet up with a friend, who's got a 10-year old kid.  The friend wants the 10 year old to try out studying in an American school, so the husband and wife take the child to Saipan and enroll him in the public elementary school there.

That's okay; the CNMI allows anyone from China to go there for up to 45 days, without a visa or anything.  You've just got to have proof of a return flight back.  Which the kid does; he arrived on September 26 (near the beginning of the school year, presumably), and has a ticket back to China for a month later.  So the kid goes to school, lives with husband and wife, all is fine.  Husband and wife identify the kid a Chinese citizen to the school and Border Patrol, etc., and he lives there for a bit and tries out school.

The kid apparently decides he likes it there, since he skips his flight back and stays with the family (and seemingly keeps attending the school) for around 18 months or so, when he finally leaves.  At some point thereafter, the wife voluntarily speaks to immigration officials and tells them everything about the kid's travels etc.

At which point they prosecute both husband and wife for "harboring" an illegal alien.  And instruct the jury that to "harbor" an illegal alien means "to provide shelter to".

And get convictions of both family members.

I'll forthrightly admit that I didn't realize that we prosecuted situations like this one.  And, to be clear, this is not a "Trump thing" -- the prosecution here transpired in 2015.

Now I know.

Monday, November 26, 2018

David L. v. Superior Court (Cal. Ct. App. - Nov. 26, 2018)

This sounds right to me.  I'm not positive it's right.  But it nonetheless sounds right.

You (of course) take a risk that when you have sex with someone that it'll result in a pregnancy.  (If this is somehow news to you, all I can say is, wow.)  Similarly, if you have sex with a woman who resides in California, you (of course) take the risk that she'll potentially have a kid -- your kid -- in California.  In the parlance of civil procedure, we'd say that it was "foreseeable" that your act (having sex) would have an effect in California.

But that's not enough for personal jurisdiction.  Justice Dato doesn't cite the case in today's opinion, but we know from the Supreme Court's opinion in Worldwide Volkswagen that such a foreseeable effect doesn't establish minimum contacts.  When you sell a car, or have sex, the fact that your act could have an effect -- an explosion or a baby -- in the forum state isn't enough.

Now, if you have sex in California, that'd be enough.  California sex plus California resident equals California personal jurisdiction.  But here, they had sex in Nebraska, not California.  Or at least that was the sex that gave rise to the pregnancy -- and we're talking about specific jurisdiction, so we care about the contacts that gave rise to the cause of action, not those contacts (like other sex) that didn't give rise to the child at issue.

Sex in Nebraska, albeit with a California resident, doesn't create specific jurisdiction in California.

As I said, that seems likely right.

The only thing that gives me slight pause in that conclusion is the other (previous) sex between the parties in California.  (I agree that the concerts, business trips, etc. in California are totally irrelevant.)  I could see an argument that those contacts are sufficiently "related" to the eventual pregnancy -- even though they didn't directly cause it -- to give rise to specific jurisdiction.

But I think the other view -- the one adopted by the Court of Appeal -- seems slightly more persuasive.  No purposeful availment with respect to this cause of action.  Hence your paternity action needs to be brought where the defendant lives (Connecticut) or, perhaps, where the cause of action indeed arose (Nebraska).  You choose.

Fortunately, we have fax machines and airplanes.  So not prohibitively difficult.

Even though I concede that it'd obviously be easier for the plaintiff if she could file in California.

Monday, November 19, 2018

County of San Diego v. Commission on State Mandates (Cal. Supreme Ct. - Nov. 19, 2018)

We're slowing coming to the Thanksgiving break, so you'll likely see a trickle of published appellate cases from the Ninth Circuit and California Court of Appeal as we head into Turkey Thursday.

Meanwhile, check out the new format of today's California Supreme Court opinion.  As contrasted to the old format.

Like it?  Hate it?  Indifferent?

I'm not sure whether this is the "new normal" or merely a one off.  But if it's the former, I'm sure we'll get used to it.

Or maybe we're just changing things up for the holidays.  Time will tell.

Meanwhile, today's opinion is a pretty clear win for the counties -- and a loss for the state -- which will get more money to help pay for SVP proceedings.  Though precisely how much will be decided only on remand.

Still.  Unanimous opinion today.

With a funky newlook.

Thursday, November 15, 2018

People v. Randolf (Cal. Ct. App. - Nov. 14, 2018)

Doing this job -- or at least writing this blog -- you get used to various personalities and institutions in the Court of Appeal.  I was reminded of that when I read this otherwise totally innocuous amendment to a prior opinion.  A tiny little thing.  That states, in toto:  "On page 5, footnote 7, beginning 'In raising this appeal, appellant' is deleted in its entirety."

Okay.  Out goes footnote 7.  Guess it wasn't really necessary.

But I did just wonder:  What did footnote 7 say?  I know it starts with "'In raising this appeal, appellant . . . ."  What's the rest?

Not much, as it turns out.  But the "rest" is nonetheless meaningful.

The original footnote read, in its entirety:  "In raising this appeal, appellant does not contend the officers should have been designated as experts pursuant to Evidence Code section 801, subdivisions (a) and (b)."  So the Court of Appeal deletes that footnote.  Which leads one to believe that, well, maybe, appellant did contend that the officers should have been designated pursuant to Section 801.

Which in turn makes me think:  Well, what about that?!  If they did in fact argue that -- otherwise, why delete the footnote -- what about the merits of that argument.  Does it work?

The Court of Appeal doesn't say.

Of course, the Court's under no obligation to say why it does what it does.  So I can just deal.  But I will say that the amendment nonetheless did leave an open question in my mind.  Not a burning open question or anything, but still, something that the Court of Appeal might have liked to say something about.  If, in fact, the reason for deleting the footnote was because the appellant did indeed argue the thing that the Court of Appeal (originally) said it didn't, and hence, that the Court of Appeal didn't address.

Now, the Court of Appeal not only doesn't have to satisfy my curiosity -- or anyone else's, for that matter -- but is also fairly busy.  Though, in that regard, it probably bears mention that this is the Fifth District.  In my experience, you can count on that district to publish an opinion about once every week or two.  Rarely more.

So, for example, this (tiny) amendment was on November 14.  The Fifth's most recent published opinion was two weeks earlier, on November 1.  Then one a week before that, on October 23.  Then October 19th and October 12th, then one on October 1, then just one opinion in all of September (on September 10).

Which is just a longwinded way of saying (and/or showing) that there aren't legions and legions of published opinions typically coming out of the Fifth.  So maybe a tiny explanation for that argument that we're now hinting the appellant did, in fact, potentially make -- and its merits, or lack thereof -- might potentially be something we could do.

All of which is not to blame the Fifth.  It's been understaffed, especially recently.  It just got two new justices -- Justices DeSantos and Snauffer -- in August.  Being two short can make a big deal for a district that only has ten or so justices when it's fully staffed.  So I get it.

Still.  Could have potentially seen a more detailed amendment on this one.  If in fact the appellant did in fact make the argument we initially thought it didn't.

Wednesday, November 14, 2018

C.A. v. C.P. (Cal. Ct. App. - Nov. 13, 2018)

The first line of this opinion will tell you a lot about (1) California, and (2) where the law in this area is likely to go in the future.  It's a line that will strike horror (or bemused cynicism) in the minds of many viewers in different parts of the country, as well as one that would have been unlikely to have been written in most appellate courts twenty or thirty years ago.

Here's the line.  Authored by Justice Duarte:

"This case involves a little girl bonded to and loved by each of her three parents."

Three parents.  Controversial now (at least in some minds).  Likely to be more prominently -- and more formally -- accepted in the future, I think.

It's a good case for that line.  A good set of facts.  So while the opinion might well be mocked by certain audiences, who might view it as a classic example of the nuttiness that is California, here are the circumstances that lead Justice Duarte to say what she does:

"The child was born in July 2012 to wife, who was then and remains married to husband. . . . Defendants [the husband and wife] never questioned plaintiff’s status as the child’s biological father, a fact each defendant had known before the child was born. Wife led plaintiff to believe she was separated but continued to cohabit with husband without plaintiff’s knowledge. Plaintiff and wife were coworkers, and wife wanted to ensure other coworkers did not find out about the affair, which caused plaintiff to refrain from seeking paternity leave from their employer. Plaintiff was involved with the child’s early medical evaluations and treatment, openly held her out as his daughter, received her into his home, paid child support, and had regular visitation until defendants cut him off after he filed the instant petition. Plaintiff’s close relatives (sister, nieces, and mother) also developed relationships with the child. Plaintiff had thought the child bore his last name until he saw a prescription bottle showing otherwise, when the child was about eight or nine months old.

Plaintiff had regular overnight parenting that increased over time to every other weekend, and saw the child “from time to time” during the week, from when the child was about seven months old until late in 2015, when this petition was filed. . . . [P]laintiff [paid] informal child support payments, set in an amount determined by wife. Plaintiff only stopped paying when defendants refused to let him continue to see the child. Plaintiff respected the marriage and wanted to co-exist with husband; in turn, husband was committed to maintaining his marriage and conceded that if the roles were reversed he would want to be recognized as a third parent.

The trial court found “no doubt” the child was “well bonded to [plaintiff] and his extended family” and that “he has established a strong, long and enduring bond with” her that defendants had allowed to form. Plaintiff and husband were each found to be a presumed father of the child. Weighing the two presumptions, the court found it appropriate to recognize all three adults as parents, otherwise the child would suffer detriment. The judgment declares that the child has three parents who shall share custody, with mediation to resolve any conflicts, and also adds plaintiff’s last name to the child’s existing set of names, though not as her last name."

So you can see why the trial court did what it did.

The harder part is how this holding comports with California's existing statutes.  Which, as you might suspect, are the product of earlier times (and thinking).

But the Court of Appeal gets around this by saying, essentially, that while the Legislature said that the husband of a child born during a marriage is conclusively presumed to be "Daddy," that doesn't mean that he's the only Daddy.  You can have two (plus a Mommy).  Hence the relief here.

California and the twenty-first century.  Encapsulated into nineteen double-spaced pages.

Tuesday, November 13, 2018

Tricarichi v. CIR (9th Cir. - Nov. 13, 2018)

Beware of individuals who claim to be able to reduce your tax liability by millions of dollars.

Maybe it'll work, of course.  Maybe.  But maybe that little "Midco Transaction" they're pitching -- the saga of those notorious deals is recounted here -- will instead attract the attention of the IRS.  And in the end subject you to being individually liable for over $35 million in taxes, penalties and interest.

Greedy people sell these scams.  But greedy people also buy 'em.  Hard to be particularly sad when someone gets socked with tax liability that's entirely appropriate.

Or when the Ninth Circuit affirms.

Monday, November 12, 2018

Williams v. Filson (9th Cir. - Nov. 12, 2018)

It's a holiday today -- even though many of us (myself included) nonetheless remain hard at work -- so no published cases today.

But this death penalty case from Friday reminds us that cases -- even (and perhaps especially) death penalty cases -- are straightforward and easy when you don't have all the facts.

The knifing murder of a pregnant woman and her baby during a botched nighttime burglary is surely a terrible crime.  It's what got the defendant sentenced to death.  A murder that was described at trial and at sentencing in excruciating detail.

But there's also a long story about how the defendant -- who was 19 at the time of the murder -- got to that point.  Only a fraction of which was presented at sentencing.

So the Ninth Circuit remands.  Read the full opinion for more details.  But be forewarned that pretty much everything about this case is depressing.  None of it will make for a happier day.  None of it.

I've also got to at least mention how long all this took.  The murder was in 1982.  The death penalty was imposed (after defendant pled guilty) in early 1983.  That's thirty five years ago.  And we're only now on the first federal appeal.  The state proceedings took until 1998.  Though that leaves nearly two decades for the case to eventually wind its way from the district court to the Ninth Circuit.

That's a long, long time.

Of course you want to get these things right.  There are few things more important than whether someone lives or dies.

But still.  That's a long time.

And it's not even nearly over at this point.

Thursday, November 08, 2018

1550 Laurel Owners Ass'n v. Munshi (Cal. Ct. App. - Nov. 8, 2018)

Here's something that's good to know.  The Court of Appeal holds that you can't bring an anti-SLAPP motion to strike in a limited civil case.  That's at least the interpretation of the existing statutes.  (I'm not certain that's what the Legislature intended, so maybe they'll be a fix, but at least for now, after today's decision, that'll be the rule going forward.)

So if you've got a case that's worth less than six figures, and are worried about the defendant filing an anti-SLAPP motion (and potentially recovering fees and/or delaying the case with an appeal), maybe limit your recovery to $25,000 and file a limited civil action.  That'll get you faster relief and avoid an anti-SLAPP motion.

Worth thinking about.

Wednesday, November 07, 2018

Guerrero v. California Dep't of Corrections (Cal. Ct. App. - Nov. 7, 2018)


For some reason, I've never before commented on an opinion by Justice Streeter.  Or at least if I have, I've never mentioned him by name.  He's been on the Court of Appeal for almost four years now, so I'm certain I've read some of his opinions.  But for whatever reason, they've never stuck out to me -- or at least I never felt the need to call him out by name.

Today's opinion is different.  It definitely stuck out to me.

Because it's absolutely brilliant.

It's about something (1) that's incredibly complicated, and (2) about which I know fairly well -- the preclusive effect of a federal judgment on subsequent state court litigation, particularly when (as here) the federal court either cannot or declines to exercise jurisdiction over part of the claim (e.g., supplemental state law claims).  So I have a healthy respect for the subject matter, alongside high standards -- despite the indisputable difficulty of the task -- for any attempt to resolve the matter.

But Justice Streeter nails it.

It's not just that the opinion is a persuasive one.  It's more than it's just such an incredibly smart opinion.  Super smart.  Brilliant, even.  Cogent, in depth, sophisticated, nuanced.  All these things.  Everything you want in an opinion and more.

Sometimes -- rarely -- I see an opinion that I could never write in a million years.  Because it displays talents -- in writing, in style, in other things -- that I know I do not possess and never will.

This is not one of those.  Rather, this is precisely the type of opinion that I would always hope to write, even though the vast majority of times I would come short.  Even if I tried my hardest.  It's my style, and my mode of analysis, and precisely my type of sophistication.  At least what I'd strive for.  But Justice Streeter pulls it off in a way that puts most of my own efforts to shame.

An incredibly thoughtful, incredibly sophisticated, incredibly cogent opinion.

I'm profoundly jealous.  No joke.

Absolutely wonderful to see.

Tuesday, November 06, 2018

Murray v. BEJ Minerals (9th Cir. - Nov. 6, 2018)

Here's something that never in my wildest dreams did I previously think would be litigated in a federal court:

Are dinosaur fossils minerals?

It totally matters.  Because the dinosaur fossils found on this property are worth millions of dollars -- tens of millions, even.  And one owner of the land has the right to use the surface of the property and owns one-third of the rights to the "minerals" on the land, whereas another owner owns the right to two-thirds of the "minerals" on the land.

So are the fossils "minerals" or not?

What's funny is that no one disputes that the fossils are in fact minerals.  'Cause that's what fossils are.  Even "regular" bones mostly contain minerals -- and here, the fossils are either hydroxylapatite or francolite, both of which are minerals.

But when you sell (or maintain) your oil and "mineral" rights to a piece of property, that definitely covers gas, and gold, and copper, and the like.  But does it cover dinosaur fossils?

No one thought about the issue at the time.  'Cause no one knew there were fossils on the property.

So who owns the thing?

The district court said that "mineral" rights don't include fossils.  The Ninth Circuit reverses, in an opinion written by Judge Robreno (sitting by designation from Pennsylvania) -- and joined by Judge Smith -- to which Judge Murguia dissents.

I remember that during the first days of my Property class in law school we talked about who owned foxes and the like.  Maybe we can now add to that fascinating discussion whether the ownership of "mineral" rights includes fossils.

Probably not many cases on that.  But, today, we've got the leading one.

Check it out.

Monday, November 05, 2018

People v. Vera (Cal. Ct. App. - Nov. 5, 2018)

Mr. Vera's real complaint is that the officer who just so happened to be travelling with a drug-sniffing dog just so happened to stop him for "illegally tinted windows" as an excuse to search for drugs.  But unfortunately for Mr. Vera, the Supreme Court has allowed pretextual stops, so that argument doesn't work.

So Mr. Vera's attorney makes the argument that at least legally works -- that getting the drug-sniffing dog out of the car etc. unreasonably prolonged the stop.  The problem with this argument, however, isn't the law, but is instead the facts.  We're talking 30 or 90 seconds or so.  Time during which the other officer's busy writing the ticket.  That's not illegally prolonging the stop sufficient to compel the suppression of the evidence.

So those 4.5 kilos of methamphetamine that the dog smelled, and that hence the officers found, is coming in at trial.

Good job refusing consent to search.  But bad job having illegally tinted windows that allowed 'em to stop you in the first place.

Friday, November 02, 2018

U.S. v. Carter (9th Cir. - Nov. 2, 2018)

It's pretty important in a criminal case to have the victim actually testify in court.  I'm using the phrase "pretty important" as a deliberate understatement.  There's even part of our foundational document (the Constitution) -- we call it the Confrontation Clause -- that's devoted to the subject.

I understand that, sometimes, the world's not perfect.  If you've got a very good reason, maybe we can allow a critical witness to testify through a camera.  One-way, or two-way, or whatever.  So, here, in a particular case, maybe having the victim testify via a two-way video while she sits in Minnesota (the trial's in federal court in California) might perhaps be okay.

But when there's an readily available alternative -- just delay the trial for a couple of months, since the reason the victim can't testify in person is because she's seven months pregnant and says that her doctor doesn't want her to travel -- that doesn't count as "good cause" to do the thing on television.  Putting a guy away (as here) for forty years is a pretty big thing.  Let's try to get it right, shall we?  Even if that means doing a trial in July rather than April.

The Ninth Circuit, in an opinion by Judge Bybee, basically says the same thing.  Albeit in 26 pages instead of three paragraphs.

Thursday, November 01, 2018

Palmieri v. California State Personnel Bd. (Cal. Ct. App. - Oct. 31, 2018)

This opinion is yet another classic example of the Streisand Effect.  (Parenthetically:  How cool would it be to have something like that named after you.  I'm not sure that I'd want any particular thing to be called the "Martin Effect," but even if it were something bad, hey, as long as they spell your name correctly, right?)

Before reading this opinion, I had never heard of Pamela Palmieri.  She was just one of many attorneys hired by California to prosecute various disciplinary cases against prison guards.  She allegedly had some problems at her job, so California fired her.  She appealed her dismissal, the lower tribunals ultimately affirmed her dismissal, and she promptly took the thing to the Court of Appeal.

Prompting this opinion, which (1) affirms her dismissal, (2) requires her to pay court costs in favor of the California Board, and (3) issues a published opinion that explains to the world precisely what Ms. Palmieri did and why she was fired.

Not a great Halloween treat, to be sure.  At least for Ms. Palmieri.  (It's probably a treat for the Board, but that's a fairly amorphous body, not someone with actual feelings.)

I'll leave it you the reader to check out the opinion to learn the things that got Ms. Palmieri fired.  Suffice it to say that her nickname is probably not "Prompt Palmieri," at least when it comes to attending various court hearings and other things on time.  ("The OAH ALJ found Palmieri returned late “numerous” times “not just a few minutes late, but substantially longer.” He found her tardiness was “extreme.”)  A reader may also infer that she perhaps has some temper issues that she may want to work out in a more constructive fashion.  (On Friday, April 30, 2010, at 4:30 p.m., Palmieri severely abused a coworker (N.) in the personnel office. She began yelling about a mistake with the withholding in her paycheck, she swore, she pounded her fist, and called the employees “terrible.” When N. said she would look into the problem “Palmieri responded that [N.] should make it fast because she was parked at a meter.” N. found an error in Palmieri’s paycheck but did not return to the counter immediately because she was upset and crying. . . . N. “described Palmieri’s behavior as the most [abusive] and aggressive she has experienced in 15 years” in human resources. The OAH ALJ found Palmieri’s “screaming, demanding, and profanity laced tirade at the personnel staff was outrageous and cruel.”"

Plus there's that whole alleged "dishonesty" thing.  (Side note:  It's never good when an opinion about you in the Court of Appeal recites various bad facts about you and then adds a paragraph that begins with the sentence:  "And there was more.")  Culminating in a sentence that reads "We agree with Palmieri that some of her conduct, such as misleading a quasi-judicial officer, may well present grounds for the State Bar to investigate her."

Oopsies.  Not exactly something that you want to see in a published opinion.

So be careful what you wish for.  On the upside, the Court of Appeal definitely investigated your complaints and came to a conclusion.  Unfortunately for Ms. Palmieri (whose prior disciplinary record via the Bar can be seen here), the conclusion it reached was not exactly in her favor.

And it told the world in published opinion why.

Wednesday, October 31, 2018

Knox v. Brnovich (9th Cir. - Oct. 31, 2018)

Like a lot of states, Arizona allows early voting.  By mail and otherwise.  But also like a lot of states, you've got to personally mail (or otherwise return) your ballot yourself.  Other than a few specified exceptions (giving the ballot to family members, etc.), you're not allowed to give your ballot to someone else.  Even to mail the thing for you.

Today the Ninth Circuit decides that these restrictions are valid.  They're not preempted by federal laws that govern the Postal Service.  And they're not invalid under the First Amendment.  They're instead just fine, and survive.

You can see why we might not want others to possess your ballot.  Because we're principally worried that they might vote for you -- that you might just give 'em your ballot and have 'em vote it.  That's in part why we want to make sure you do these things personally.

Mind you, that concern only goes so far.  It's a good reason why someone else shouldn't possess your unvoted ballot.  And also why someone else shouldn't be able to change your voted ballot once you give it to 'em.

But, for me, there aren't especially powerful reasons why you can't give you voted ballot to someone else and have 'em mail it (or drop it off) for you.  It's still your vote.  It's still your ballot.  If someone is willing to save you a trip to the polling booth and drop off (or mail) your ballot for you, I don't see a good reason why they shouldn't be able to do it.  Or at least no good reason sufficient to outweigh our desire to help everyone vote and make the thing easy.

But if a state disagrees, today's opinion holds that the Constitution (and federal postal laws) are no bar.  The net effect might be -- and undoubtedly is -- to suppress a certain degree of voting, and to make the process harder than it otherwise would (and probably should) be.  But that's up to states.  Some can make it easy, some can make it hard -- as long as it's not too hard.  This doesn't fall into that latter category, nor does it infringe upon "free speech," so it's constitutional.

Parenthetically, I was in Arizona last weekend, and I gotta say I'm generally impressed with Arizona's efforts to get out the vote.  There are not only a ton of campaign signs -- much more than here in San Diego, at least -- but I also heard and saw tons of billboards, radio advertisements, and other efforts of a nonpartisan nature to encourage people to vote.  Great to see.  Particularly given that not all states see it the same way, and deliberately make it harder to vote as a means of ensuring a particular outcome (since the demographics of who doesn't vote when it's difficult to do so are quite known to the various participants in the state legislative process).

But if Arizona wants to make sure that people mail their ballots themselves, that's up to Arizona.  So holds the Ninth Circuit.

Monday, October 29, 2018

People v. Henry (Cal. Ct. App. - Oct. 29, 2018)

Usually, when one district in the Court of Appeal expressly disagrees with another district, the resulting split is a good candidate for review by the California Supreme Court.  Particularly when -- as in the present case -- the split involves a fact pattern that's fairly prevalent.

But this may be one of those rare cases when leaving things as they are may well be just fine.

Today's opinion says something that sounds pretty right (to me, at least).  If you do X, and there's a statute that expressly says that doing X is a misdeameanor, then you can't be charged with the more general felony Y -- even if what you did technically counts as a violation of Y.  'Cause the passage of X by the Legislature pretty much convincingly proves that they thought that the right penalty for doing X was to find you guilty of a misdemeanor.

To make things less theoretical and more concrete:  Here we're dealing with some who gave a false name to a police officer during a traffic stop.  That's the "X".  That's a misdemeanor.  Because there is a specific statute that says that doing that specific act ("X") is a misdemeanor offense.  But doing that same thing might also count as a felony -- as "false personation".  So that's what the prosecution charges the defendant with as well.

But the Court of Appeal says, nope, can't do that.  Specific statute trumps general.

The only problem with that (or at least the largest one) is that the's a prior Court of Appeal case that expressly goes the other way, and allows the greater ("Y") felony charge.  So the Court of Appeal today creates an intra-California split.  Something that we generally want the California Supreme Court to potentially review.  Particularly when the underlying act (e.g., giving a false name to a police officer) is something that doesn't just happen once in a blue moon.  We don't want what rule applies to depend exclusively on what particular panel you draw on appeal.  We generally want the same rule to apply statewide.

But even though that's the general principle, Justice Premo's opinion explains at some length that the contrary prior opinion in the Court of Appeal was decided a fair piece ago -- before some relevant California Supreme Court cases were decided.  Given that reality, if the California Supreme Court thinks that today's opinion probably got the merits right, you might just want to let the thing stand.  See whether trial courts (and other panels in the Court of Appeal) agree with the most recent case -- Justice Premo's -- and agree that the prior case is old, bad law.  If so, then the world is basically fine.  Everyone (at least in the modern era) agrees.  If not -- i.e., if a subsequent case thinks, contra Justice Premo, that the new case is wrong, and the old case is still right -- then grant review.  Over that one.

But let the issue percolate in the lower courts a bit more.  See what transpires.  Then act if and only if necessary.

That's what I'd probably do here.

If only because there's a decent chance that (1) Justice Premo is right, and (2) future courts will see it that way.  If so, no need for the California Supreme Court -- already super busy -- needs to step in.

Friday, October 26, 2018

People v. Saelee (Cal. Ct. App. - Oct. 26, 2018)

It's a testament to the volume and nature of Proposition 64 petitions -- which seek to reduce certain prior convictions to a misdemeanor -- that the Court of Appeal has a write a published opinion that says that when the prosecution attempts at the hearing to make a certain required showing (e.g., that the defendant will be dangerous if released), they've got to actually introduce evidence on that point.  Not merely argument of counsel.

You'd think that the proposition that "you need to introduce evidence at court hearings" would be a pretty basic one.  Intuitive, even.  Apparently not.

Lots of this evidence will be subject to judicial notice; prior convictions, etc.  But lots of it isn't.  In any event, you gotta at least try.  Not just merely say things and back 'em up with zip.

Good to know that parties have to introduce actual evidence in the future.  A pretty important concept in a judicial system.

Wednesday, October 24, 2018

MCI Communications Inc. v. California Dep't Tax Admin. (Cal. Ct. app. - Oct. 24, 2018)

This is an otherwise boring tax case, as well as one that reaches what seems to me a straightforward resolution of the thing.  So I'm not mentioning the opinion for that reason.

(In case you're wondering what it's actually about, here's Justice Guerrero's helpful synopsis:  "The California Sales and Use Tax Law (Rev. & Tax. Code, § 6001 et seq.) (SUTL) imposes sales and use taxes on retailers and purchasers for the sale, use, storage, or consumption of tangible personal property within California. Certain categories of property are excluded from the definition of tangible personal property and therefore are not subject to sales and use taxation. Under section 6016.5, one such category of excluded property includes "telephone and telegraph lines, electrical transmission and distribution lines, and the poles, towers, or conduit by which they are supported or in which they are contained." This appeal requires us to decide whether the tax exclusion in section 6016.5 extends to the pre-installation component parts that may one day be incorporated into completed telephone and telegraph systems. We hold that section 6016.5 excludes only fully installed and completed telephone and telegraph lines from sales and use taxation, not the pre-installation component parts of such lines. Accordingly, we affirm the judgment."  Seems exactly right to me.)

Instead, here's the sum total of my reaction to the case:

"Wait.  MCI's still around?!"

Those of us who grew up in a certain era -- post-breakup of AT&T but pre-cell phones -- remember the days when long distance was expensive (but not absurdly expensive) and a valuable commodity.  For kids, having to spend $20 a month (or whatever) on phone calls to long-distance girlfriends (or whatever) was no small expenditure.  So we -- or at least I -- shopped around, and one of the major players in the long distance industry was MCI.

But that was then.  I haven't heard of the company since then.  Apparently it was bought by WorldCom (another infamous company of a different era) and then bought by Verizon and substantially disappeared.  Seems like true long distance providers of the MCI type don't really even exist at this point.

But, so it seems, they live on as corporate shells.  Hence today's opinion involving taxation of MCI.

Who knew?!  A memorable relic from a bygone time.

Tuesday, October 23, 2018

U.S. v. Henderson (9th Cir. - Oct. 23, 2018)

The FBI is no slouch.

People use the Internet for a variety of things.  Those things include, inter alia, child pornography.  But the people into such things are generally aware that this is a crime.  So they typically go to great lengths to hide what they do.

So here, for example, there's a particular website that's only available on Tor.  The website address is the utterly nonmemorable upf45jv3bziuctml.onion.  Tor makes sure that your IP can't be traced.  And the website's presence on the "dark web" means you can do whatever you'd like on the thing.  Those things including viewing and sharing child pornography.

But, again, the FBI is no slouch.  They get wind of all this, so they (1) get a warrant to seize the servers of this particular website, and then (2) run the website themselves (!).  While doing the latter, the FBI then inserts a malicious code into the website that causes the computer of anyone who visits the thing to transmit its IP address (among other things) to the government.  No more anonymity, notwithstanding the whole "Tor" thing.  Then the FBI follows up on that by getting a warrant and searching the home of all the visitors to the "hidden" website.  Thus getting legions of evidence to prosecute the relevant visitors.


The short lesson is never to assume, no matter how many precautions you take, that what you send over the Internet is secure.  The FBI has a long reach.

And are pretty darn sophisticated.

Monday, October 22, 2018

People v. Bedolla (Cal. Ct. App. - Oct. 22, 2018)

The typical opinion has some terrible, tragic facts and is depressing.  Yet today's opinion actually contains some degree of happiness.  It could have been a terrible thing.  But ends up being just a frightening event that hopefully the kid gets over.

Here are the facts:

"A.D., who was then 14 years old, rode his bicycle home from school on October 31, 2014, around 12:30 p.m. He entered the house, locked the door, and went upstairs to his room. He and his 11-year-old brother were the only people at home. About 10 minutes later, A.D. heard knocking at the front door. He ignored it but it became louder so he went downstairs and looked through the front door peephole. He saw a man, later identified as Bedolla, wearing a white t-shirt. A.D. did not know the man, so he returned upstairs and looked out the window for a better view. Another man, wearing a black hoodie, was pacing between the front walkway and the sidewalk. He appeared to be acting as a lookout. Meanwhile, the banging on the front door became louder, like kicking. A.D. heard more than 30 kicks and believed someone was trying to break in. He called his father who told him to call 911.

A City of San Jose police officer arrived at the scene within 30 to 45 seconds of the emergency call. Two men were standing in the driveway of A.D.’s house. They took off running. The officer intercepted them and detained them at gunpoint. One suspect, later identified as Joseph Mariscal, was wearing a black jacket with a gray hoodie. The other, identified as Bedolla, was wearing a white t-shirt. Officers brought Bedolla and Mariscal to the sidewalk in front of A.D.’s house for an in-field identification. A.D. identified them from the upstairs window as the individuals he had seen outside his house.

The front door of A.D.’s house was closed when the officers arrived and was visibly damaged. There was white debris on the door mat and splinters from the door, which was “almost partially open.” The damage was consistent with other burglaries in which the front door had been kicked in. Shoe prints on the door matched the shoes worn by Mariscal."

You gotta love that the San Jose police officer arrived within 30 to 45 seconds after the 911 call.  An event that made all the difference here.

The defendant, Mr. Bedolla, ends up essentially getting sentenced to time served -- the 215 days he was in jail before trial (since he couldn't bond out).  Plus three years of probation.  So not a huge penalty.

Though this is not Mr. Bedolla's first run-in with the criminal justice system.  (Though he's also far from a hardened criminal.  Yet.)  We'll see whether we run into his name again in some future case.

Hopefully not.

In the meantime, let's all be thankful for the 30- to 45-second response time here.

Thursday, October 18, 2018

Pagnini v. Union Bank (Cal. Ct. App. - Nov. 17, 2018)

"In September 2014, appellant filed the present action against respondents, alleging wrongful foreclosure and related causes of action arising from a July 2012 trustee’s sale of appellant’s real property. In May 2016, respondents demurred to all causes of action in appellant’s complaint. On June 10, respondents filed a notice of non-receipt of opposition to the demurrer. On July 13, the trial court sustained the demurrer without leave to amend and entered judgment in favor of respondents.

On January 12, 2017, almost six months after entry of the judgment, appellant moved for relief from the judgment under Section 473(b). He submitted a sworn declaration from his counsel in which counsel averred he attempted to file an amended complaint on June 14, 2016, shortly before the June 16 hearing on the demurrer. The court clerk declined to file the amended complaint because the statute allowing the filing of an amended complaint pending a hearing on a demurrer (§ 472) had been amended effective January 1, 2016, to require that an amended complaint be filed within the time provided for filing opposition to the demurrer (Stats. 2015, ch. 418, § 2). Appellant’s counsel averred that he was not aware of the amendment to the statute, which previously permitted the filing of an amended complaint at any point before the hearing."

Whoops.  That's, inter alia, why it's a good idea to keep up with recent legislation and cases.

Ultimately the Court of Appeal grants the plaintiff mandatory Section 473 relief.  But you've still got all the work, hassle, and embarrassment of having to file all that stuff.

Better not to make the mistake in the first place.  Obviously.

Wednesday, October 17, 2018

E.V. v. Robinson (9th Cir. - Oct. 17, 2018)

Victim says that she was sexually assaulted by Defendant, but Defendant says it's not true.  Victim has some mental health records that Defendant wants to inspect in order to establish his defense. These records are generally privileged, but Victim waived this privilege with respect to at least two pages by including them as part of a request to her employer to be transferred.  Plus Defendant says that disclosure is constitutionally compelled anyway (since he has a right to a defense) and, also, that the crime-fraud exception to the privilege applies because Victim went to the doctor to advance a fraudulent claim against Defendant in order to help her transfer request.

Judge reviews the documents in camera and decides to produce two pages.  Judge subsequently orders other pages produced on, inter alia, crime-fraud grounds.  Victim files an appeal, but the appellate court doesn't provide any relief.

Defendant is subsequently acquitted at trial.

You'd think that what's described above is all a description of a regular old federal criminal appeal.  But it's not.  It's instead prelude to a civil lawsuit by Victim against Judge.

The Ninth Circuit's opinion (by Judge Paez) contains 32 single-spaced pages of exhaustive -- and exhausting -- detail about the intricacies of sovereign immunity.  Made even more complex by the fact that the judge here isn't an Article III judge, but is instead a military judge.  All of what went down here transpired overseas, at a military base in Japan.

It's nonetheless fairly accurate to summarize the opinion fairly succinctly.  You can't sue a judge.  They're generally immune.  They surely make mistakes sometimes.  But unless there's something truly extraordinary, if they make a wrong evidentiary call, that's the subject of an appeal.  Not a separate civil lawsuit like the one here.

Judge Paez says basically the same thing, albeit with 32 single-spaced pages of additional detail.

Tuesday, October 16, 2018

People v. Yushchuk (Cal. Ct. App. - Oct. 12, 2018)

Nothing published in the Ninth Circuit or the California Court of Appeal today, so we're on our own vis-a-vis reading material.

So I thought I'd at least mention this opinion from Friday.  It's a worthwhile life lesson.

Because, yes, you can come up with an argument that you weren't actually drunk when the car you were driving hit and killed someone else, and that instead, you pounded that bottle of vodka after the collision while you were trapped in the car and in pain.  Maybe someone might believe that.

But when, as here you've got five prior drunk driving convictions, don't at all be surprised if the jury doesn't buy your story.  And instead, as here, convicts you of second degree murder.  Which in turn sends you away to prison for a long, long time.

Maybe think about that before you get in your car drunk.

Monday, October 15, 2018

Smith v. Superior Court (Cal. Superior Ct. App. Div. - Oct. 15, 2018)

You can summarize this opinion fairly easily:

Give the guy back his weed.

It's not illegal under state law, so the state can't keep (or destroy) it if he's not charged with a crime.  The fact that it's still illegal under federal law doesn't matter.

So that's 21 grams back to Mr. Smith.

P.S. - Fun fact:  You could always tell the law students with misspent youths because they were able to convert grams into ounces in their head.  I'm thinking of a former roommate in particular.  Whereas most of us have to look it up to discover that 21 grams is around three quarters of an ounce.  (Though knowing just how much an ounce of marijuana entails may itself demonstrate some prior knowledge of the subject matter.)

U.S. v. Sellers (9th Cir. - Oct. 15, 2018)

Interesting lineup in this case.  Which is the only one published by the Ninth Circuit today.

Everyone's skeptical of reverse sting stash house cases.  Everyone.  Those cases are ones in which the government recruits someone (typically, a criminal) to convince a group of other criminals (the future defendants) to raid a fake stash house and steal some drugs from some other fake criminals.  There's no real stash house, no real drugs, and no other real criminals.  But the theory is that it makes people less hesitant -- in other circumstances -- to steal from actual stash houses since there's at least some chance that they're simply being set up by the government.

No one on the panel especially likes those cases.  They disproportionately target minorities.  They "set up" crimes that wouldn't otherwise happen.  Lots of other reasons as well.  All of which are explored at length in the various opinions.

But the different panel members nonetheless have different takes.

Judge Reinhardt was originally on the panel, but died three weeks after the oral argument.  Just from knowing the guy, you've got a pretty good sense of where he almost certainly stood on this stuff.  To the left, for sure.  No doubt.

Judge Nguyen writes the majority opinion.  Plus she writes a lengthy concurrence to her own opinion.  She's crystal clear on where she stands as well.  Doesn't like these kinds of cases.  For a plethora of reasons.  Her majority opinion makes it clear that it's hard to bring selective enforcement claims in these types of cases -- claims that argue that minorities are unfairly targeted -- but follows opinions from the Third and Seventh Circuits that says that the correct standard for permissible discovery over such claims is different from the Ninth Circuit's standard for bringing selective prosecution claims, so remands for application of the correct test.  Sounds right to me.

Judge Graber dissents.  She was drawn to replace Judge Reinhardt.  She doesn't say that Judge Nguyen's necessarily wrong that a different standard applies -- though she doesn't say she's right, either.  Judge Graber simply doesn't want to decide the issue one way or another, arguing that the defendant's evidence in the present case indisputably doesn't satisfy any standard since it only consists of statistics, which Judge Graber believes are categorically "irrelevant" under controlling Supreme Court precedent.

Personally, I'm not sure what harm it does to reverse and remand for application of the correct legal standard.  Even if, on remand, the defendant's statistics may not be sufficient to meet the new test.

But Judge Graber thinks we're deciding something that we don't need to decide.  Ergo the dissent.

The subtext of Judge Graber's argument is essentially that there's no way that a defendant will ever be able to prove selective enforcement/prosecution.  Which, as a practical matter, may be correct.  If you take the view that statistics are entirely irrelevant, short of the government putting pen to paper and saying "Make sure you target minorities for these sorts of things" -- which ain't gonna happen -- you are pretty much always going to come up short.  No proof, and probably no discovery even either.

But Judge Nguyen thinks it still makes sense to articulate the correct standard, and let the district court decide whether that standard is met here.  That is how we usually -- but by no means always -- do things in the Court of Appeals.

Just a little fight here about which type of adjudication is most appropriate in the present case. 

Thursday, October 11, 2018

U.S. v. Gonzalez (9th Cir. - Oct. 10, 2018)

Things you never thought you'd have to actually say:

Don't beat a shackled prisoner.

Wednesday, October 10, 2018

Doe v. Regents (Cal. Ct. App. - Oct. 9, 2018)

I know we're still fresh off the Judge (now Justice) Kavanaugh stuff, and nerves of some on this issue may well still be raw.

But ponder for a moment what you thought of the allegations in that matter.  Then read this opinion.  About sexual assault allegations against a particular UCSB student.

Foreshadowing:  The Court of Appeal says that there was not "even a semblance of due process" in UCSB's decision to suspend the student for two years.


People v. Guiterrez (Cal. Ct. App. - Oct. 10, 2018)

I initially thought that this was a case the California Supreme Court might want to take up, but as I get older -- it's now a couple hours since I read it -- I'm starting to think otherwise.  Maybe this is instead one of those rare cases where the Court of Appeal refuses to follow what a higher tribunal has said and yet we should actually let the thing stand.

Justice Ramirez explains at length why the defendant here was permissibly impeached by the facts of his prior felony conviction; namely, the fact that he had previously been convicted of driving a stolen vehicle.  That was relevant to impeach his testimony, in his present trial for carjacking, that the only thing he did was "ask" the purported victim to borrow his car.  You can be impeached by a prior felony conviction, after all.

But there's one big problem with this holding:  a California Supreme Court case that's not even two years old that squarely says:  "Under California law, the right to cross-examine or impeach the credibility of a witness concerning a felony conviction does not extend to the facts underlying the offense. [Citations.]”  People v. Casares (2016) 62 Cal.4th 808, 830.  Under that principle, you're not allowed to adduce the facts; only the conviction itself.  Directly contrary to the Court of Appeal's holding here.

Justice Ramirez says that statement in Casares was dicta.  And that's perhaps right.  Nonetheless, we regularly follow dicta from the Supreme Court.  Because when the Supreme Court says that the law is X, rarely does the Court of Appeal properly hold that that law is actually Y, not X.  So it's a bold move to say that the California Supreme Court said something that was (1) wrong, that (2) we're going to refuse to follow it because it's dicta.  To be clear:  The Court of Appeal has the power to do that, if it's indeed dicta.  But my general view in such cases is that the California Supreme Court will likely want to grant review in such cases.  And either (1) make it clear that the law is indeed X, not Y, and that the Court of Appeal was wrong -- and the California Supreme Court right -- in a new holding that is unambiguously not dicta, or (2) admit that it made a mistake and in fact change the law.  That way, other lower court tribunals won't be led astray by the relevant dicta, which the Supreme Court will (upon granting review) now have an opportunity to clarify.

That was my initial thought about this case.  That Judge Ramirez may well be right.  But that the California Supreme Court should nonetheless grant review.  Because it's for that tribunal to say that the Supreme Court got it wrong, not the Court of Appeal.

I still somewhat hold to that view.  Somewhat.

But upon reflection, maybe it might also be fine just to leave things be.

The prior California Supreme Court case did indeed say what it said.  And Judge Ramirez does a good job explaining why that statement is purportedly wrong.  At least these days.  Maybe back in the old days you couldn't adduce the underlying facts of the conviction, and maybe in that case the facts were irrelevant, but the law changed over time, and in this case, arguably, the underlying facts of the conviction are indeed relevant.  Also, although Justice Ramirez doesn't have the heart to say so, the stark reality is that the statement from Casares at issue was not only probably dicta, but it was also buried deep in a hugely lengthy death penalty case -- a tiny little subissue of a larger whole.  If the author of that opinion (Justice Werdegar)