Monday, April 30, 2018

Magana v. Superior Court (Cal. Ct. App. - April 27, 2018)

This is about as damning an indictment of a criminal defense attorney as I've seen from the Court of Appeal.

San Francisco attorney (and Hastings Law graduate) Daniel Everett represented a criminal defendant charged with two counts of rape.  I'll not attempt to summarize his preliminary efforts on behalf of his client.  I'll just mention that Mr. Everett repeatedly told the Court that he was not ready for trial, was almost invariably late to court, and even left the courtroom one afternoon and promptly disappeared, "leaving his client, the prosecutor, and the judge waiting for nearly an hour for him to return."

You can read the entire opinion if necessary.  Suffice it to say that anyone who reads this opinion will not likely clamor to retain Mr. Everett as counsel.

The trial court entered the extraordinary remedy of removing Mr. Everett as counsel -- something that the trial judge had never done before in his career.  The Court of Appeal is fine with that.  It not only refuses to disturb the trial court's decision, but also refers its opinion to the State Bar.

Which is already quite familiar with Mr. Everett's antics in other criminal cases.

That's a lot of trouble for an attorney.  Particularly given the brief period of time Mr. Everett's been an attorney.  He was admitted only in 2010.

Friday, April 27, 2018

People v. Espinoza (Cal. Ct. App. - April 26, 2018)

You see a lot of different crimes reported in the various appellate decisions.  But here's a relative rarity:  felony cemetery vandalism.

I'm not sure why someone would want to randomly vandalize a cemetery -- kicking over headstones and the like.  It's not like they did anything to you.  Or will do anything to you again.

But perhaps I just don't fully understand the criminal mind.

Wednesday, April 25, 2018

Bozic v. USDC (9th Cir. - April 25, 2018)

I'll occasionally read cases in which a win is actually a loss, or a loss actually a win.  But today I read a case where a loss is a win except it's a loss.  This one.  Unusual for sure.

Plaintiff files a lawsuit in the Southern District of California, and doesn't want to get it transferred to the Eastern District (where a related class action is pending).  But the district court sends it there.  So plaintiff files a writ of mandamus.

The Ninth Circuit denies the writ.  That's a loss.  But the Ninth Circuit also expressly says that it was error for the district court to transfer the case to the Eastern District, since venue was improper there.  That's a win.  Particularly since it's a decision that the relevant district court will practically have to follow upon remand.  The Eastern District will have to transfer the case back and/or the Southern District will have to reconsider the propriety of -- and withdraw -- its transfer order.  Again: Victory.

Yet it's still a loss.  The case is going to be stayed anyway in favor of a related pending state court class action.  So none of this matters.  Nothing's really going to happen anywhere anyway.

Still, a neat little civil procedure issue, with a relevant holding on the merits even though the Ninth Circuit dismisses the writ.

P.S. - Judge Friedland's opinion says that transfer was improper largely by relying on the Supreme Court's decision in Hoffman, and the opinion repeatedly cites the relevant statute (transfers proper only "to any other district or division where it might have been brought.”) as it read back then.  Just a reminder, though, that the statute was amended thereafter -- in a direct (albeit belated) response to Hoffman -- and now ends with ". . . or to any district or division to which all parties have consented."  The effect of that amendment is somewhat disputed in the lower courts, and it's unclear whether that amendment matters in the present case, since the opinion doesn't mention whether all relevant parties (e.g., defendant) consented to have the case transferred to the Eastern District.  (Though it looks like it did, since it filed the motion to transfer.  There may be a lingering question whether "all" in this regard really means "all").  So the relevant statutory amendment might have merited at least brief mention and/or discussion.

Tuesday, April 24, 2018

Arvizu v. City of Pasadena (Cal. Ct. App. - March 23, 2018)

I feel bad for the plaintiff.  He was seriously injured.  That's never a happy event.

But, in a civil lawsuit, anyway, you have to figure out a lot of things.  Whether there's immunity.  Whether there's contributory negligence.  Lots of "law" stuff.  Particularly on appeal.

Moreover, even on a superficial level, you've got to figure out where the "fault" should be placed, if only as a matter of community values.  How reasonable was the conduct of all the relevant parties?

So here are the underlying facts of the case.  With my own editorial comments in brackets:

"On the evening of September 14, 2013, Arvizu [the plaintiff] went to his friend Ben’s house to watch a pay-per-view boxing match on television.  [I believe this was the Floyd Mayweather Jr. vs. Canelo Alvarez fight.  A long one.  Mayweather wins on a majority decision.]  At about 1:00 a.m. on September 15, 2013, he received a call from his friend Lalo to “hang out,” so he and Ben went to Lalo’s house where they met up with Lalo and three other friends, Frijol, Jerry, and Max.

[Mr. Arvizu was 21 years old.  Just in case you're wondering what age we're talking about when people go over to their friend's house and then "hang out" at 1:00 a.m.]

Sometime around 3:00 a.m., the six friends decided it would be fun to go “ghost hunting” . . .  [Yeah.  I thought that was strange too.  What the heck is 'ghost hunting'?!  Some crazy millennial thing?  But it turns out it's just (allegedly) hunting for ghosts.  If that's in fact what these 21-year olds were in fact doing at 3:00 a.m. instead of a story they made up thereafter.]  . . . at the Colorado Street Bridge in Pasadena. Built in 1913, the bridge is known for its distinctive Beaux Arts arches, and is sometimes referred to as “Suicide Bridge.” The young men had heard ghost stories about it. . . .

[Okay.  So they were "ghost hunting".]

Lalo drove the six young men (in his five-passenger car) to the Park. [Crowded!] The Park is closed from dusk to dawn. At the first place the group tried to enter the Park, they found locked gates and fencing too high to jump over.  [Maybe that's a sign about whether you should enter, no?] . . . .

Sometime in the early hours around 3-4:00 a.m. (the exact time is disputed but immaterial), Lalo parked his car in an unmarked paved area at the intersection of Arroyo Boulevard and Arroyo Drive, across the street from the Park. The young men got out of the car, crossed Arroyo Boulevard, and entered the Park. Pasadena Municipal Code section 3.24.110 (A)(23) makes it illegal to be in the Lower Arroyo section of the Park, where the young men entered, and where the accident occurred, from dusk to dawn.  [Law, schmaw, as 21-year old men are apt to say/feel.]

Ben testified that he had been there before and knew about a trailhead that provided access to the portion of the Trail under the bridge, but “didn’t want to walk the whole thing. I just wanted to get to that part of the trail” under the bridge. So they took a shortcut to the Trail.  [You can probably figure out that the word "shortcut" should be in quotes, and is not going to turn out all that well.]

Ben and the others started to walk down a natural slope, into the Arroyo Seco (except Jerry, who remained behind). There was no pathway where they walked down the slope, although the Trail ran below them, roughly parallel to the stream. They were heading toward the Trail, traveling in a direction roughly perpendicular to its path.

It was dark. None of them had a flashlight. There may have been some light from a streetlamp on Arroyo Boulevard. But there was no moonlight.  [Foreboding, no?  If Court of Appeal opinions had soundtracks, you'd start hearing the exciting, creepy music about now.] . . . .

Arvizu headed down the slope. [Bad]  He did not know where they were going; he merely followed his friends. [Worse] He does not recall if he was wearing his prescription glasses. [Even worse] Arvizu, who was wearing 1-2 year-old athletic shoes, [more bad stuff] started to slide in the loose dirt. [Here it comes . . .] He grabbed a pipeline that was above ground, and used it to assist in his descent. [Saved!] But the pipeline ended before he was all the way downslope. [Not saved!]

He could see his friends standing below him, on or near the Trail. Letting go of the pipe, he continued down the slope, which became steeper as he neared the bottom. He tried to slow himself down, but was unable to do so. He lost his footing and tumbled head over heels. Unable to slow down as he reached the Trail, he traveled all the way across it. [I've got a very good mental picture of all this.  Well done, Judge Curry (sitting by designation).  A second career writing screenplays is by no means out of the question.]

The Trail, at that location, is relatively level and proceeds along the top of, and just behind, an approximately 10-foot-high concrete retaining wall or embankment. [That's the 10-foot thing he's going to fly off.]  After crossing the Trail, Arvizu sailed over the retaining wall, hit a tree limb, and landed on the dirt and rocks below. [Ouch.  Totally and completely:  Ouch.]

Ben, who was on the Trail as he watched the accident happen, testified he saw Arvizu coming down the slope, “trying to get his body to adapt to the speed that he was going, but he just couldn’t. He was – once he hit the trail, it was already too late.” Because he had been there before in daylight, Ben knew there was a drop-off at the retaining wall, but didn’t think to mention it to the others because he thought they would see it. Arvizu testified he didn’t see the drop-off that night."

Yep.  All bad stuff.

So there are the particular details of the evening.  Or, as the Court of Appeal aptly summarizes it, the participants "were someplace they weren’t supposed to be, breaking the law, taking a shortcut in the dark, doing something they were unprepared for."

Given that description, you can probably guess where the panel ends up.  The grant of summary judgment in favor of the City of Pasadena is affirmed.  If only because the "trail immunity" statute applies.

With costs on appeal to the City.

Monday, April 23, 2018

Naruto v. Slater (9th Cir. - April 23, 2018)

The monkey who took the selfie -- this one -- loses in the Ninth Circuit today.

More accurately, PETA -- which sued as the monkey's "best friend" -- loses.  As well as is on the receiving end of some harsh language from the panel.  For example, Judge Bea drops the following text and accompanying footnote in the majority opinion:

"First, “[i]n order to establish next-friend standing, the putative next friend must show: (1) that the petitioner is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner.” Coalition of Clergy v. Bush, 310 F.3d 1153, 1159–60 (9th Cir. 2002) (quoting Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th Cir. 2001)). Here, we are concerned with the second requirement. PETA does not claim to have a relationship with Naruto that is any more significant than its relationship with any other animal. Thus, PETA fails to meet the “significant relationship” requirement and cannot sue as Naruto’s next friend.  [Footnote]

[Footnote] -  We feel compelled to note that PETA’s deficiencies in this regard go far beyond its failure to plead a significant relationship with Naruto. Indeed, if any such relationship exists, PETA appears to have failed to live up to the title of “friend.” After seeing the proverbial writing on the wall at oral argument, PETA and Appellees filed a motion asking this court to dismiss Naruto’s appeal and to vacate the district court’s adverse judgment, representing that PETA’s claims against Slater had been settled. It remains unclear what claims PETA purported to be “settling,” since the court was under the impression this lawsuit was about Naruto’s claims, and per PETA’s motion, Naruto was “not a party to the settlement,” nor were Naruto’s claims settled therein. Nevertheless, PETA apparently obtained something fromthe settlement with Slater, although not anything that would necessarily go to Naruto: As “part of the arrangement,” Slater agreed to pay a quarter of his earnings from the monkey selfie book “to charities that protect the habitat of Naruto and other crested macaques in Indonesia.” See Settlement Reached: ‘Monkey Selfie’ Case Broke New GroundForAnimal Rights, PETA, selfie-case-broke-new-ground-animal-rights/ (last visited Apr. 5, 2018). But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed “friend” having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own. Puzzlingly, while representing to the world that “animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,” see PETA, (last visited Apr. 5, 2018), PETA seems to employ Naruto as an unwitting pawn in its ideological goals. Yet this is precisely what is to be avoided by requiring next friends to have a significant relationship with, rather than an institutional interest in, the incompetent party—a point made by Chief Justice Rehnquist in Lenhard v. Wolff, 443 U.S. 1306, 1312 (1979)."

I doubt that PETA will invite Judge Bea to dinner anytime soon.  Or vice-versa.

Heckart v. A-1 Self Storage (Cal. Supreme Ct. - April 23, 2018)

Sometimes the California Supreme Court grants review in a case that appears to involve purely error-correction.  Nothing huge at stake (except to the parties).  No real split in the lower courts.

This seems one of those cases.

Do we really care whether it counts as "insurance" for A-1 Self Storage to offer to charge $10/month so that the first $2500 in damages to stored items are covered?  Sort of.  But probably not sufficiently to justify the time-constrained involvement of the California Supreme Court.

Yet the case is presumably an easy one.  It's unanimous. 

So I'd guess it didn't take up all that much of the Court's time.

Wednesday, April 18, 2018

Shapira v. Lifetech Resources (Cal. Ct. App. - April 17, 2018)

Plaintiff has a contract with Defendant, and goes to trial.  The trial lasts four full days.  Right before the parties make their closing statements, Plaintiff voluntarily dismisses the lawsuit with prejudice.  Defendant moves for its attorney's fees, claiming that it's the prevailing party.  The trial court agrees and gives 'em a six-figure fee award.

The Court of Appeal rightly reverses.  It may well be a silly rule.  But it's nonetheless the law.  CCP 581(e) says that the plaintiff can voluntarily dismiss, with prejudice, at any point during the trial, as long as it's not over.  And when that happens, there's no "prevailing party."  Hence no fee award.

Were I to have the power to rewrite the statute, I would.  Sure, it encourages "settlement" (e.g., the abandonment of meritless cases), which enhances efficiency.  But at too great a cost.  Defendants should be the prevailing party when that stuff happens.

But I have no such power.  Nor does the Court of Appeal.  The statute says what it says.  So the right result is clear.

Which is exactly what the Court of Appeal holds.

Tuesday, April 17, 2018

U.S. v. Arpaio (9th Cir. - April 17, 2018)

We're all familiar -- certainly in this day and age -- with a special prosecutor.  But one appointed by the Ninth Circuit?!  That's certainly a rarity.

Yet it happens today.

No word yet on the identity of the special prosecutor selected by the Ninth Circuit.  But I'm keenly interested.  As is, I imagine, Joe Arpaio.

Stay tuned.

All Green Electric, Inc. v. Security Nt'l Ins. Co. (Cal. Ct. App. - April 17, 2017)

It's just a tiny little loose bolt in an electric cabinet.  But it created a magnetic field, which in turn stopped an entire mammography room (including an MRI and an x-ray machine) from working.

All from a loose bolt, and when the bolt was tightened, the magnetic field suddenly disappeared.

Which leaves the resulting lawsuit.  And then the tender to the insurance company.  Which refused to defend based upon a particular exclusion clause.

So a tiny little bolt and a tiny little one-paragraph exclusion.  Both of which had major impacts far beyond their size.

Monday, April 16, 2018

Powell v. Bear Valley Community Hospital (Cal. Ct. App. - April 16, 2018)

"Dr. Powell practiced medicine in both Texas and California as a general surgeon. In 2000, the medical executive committee of Brownwood Regional Medical Center (Brownwood), in Texas, found that Dr. Powell failed to advise a young boy's parents that he severed the boy's vas deferens during a hernia procedure or of the ensuing implications. Further, the committee found that Dr. Powell falsely represented to Brownwood's medical staff, on at least two occasions, that he fully disclosed the circumstances to the parents—behavior which the committee considered to be dishonest, obstructive, and which prevented appropriate follow-up care. Based on the committee's findings, Brownwood terminated Dr. Powell's staff membership and clinical privileges."

First of all:  Ouch.  Second:  Seems to me like the termination makes sense.

Though Texas had a different view.  "The Texas State Board of Medical Examiners (Texas Board) completed an investigation of Dr. Powell's revocation of staff privileges at Brownwood. In a letter dated September 12, 2001 (2001 letter), the Texas Board advised Dr. Powell that its investigation, file No. "00-1243," was being "CLOSED with no action recommended because the evidence does not indicate a violation of the Texas Medical Practice Act.""

What follows -- to the surprise of no one -- is a series of lawsuits, Dr. Powell's attempt to obtain privileges at different hospitals, etc.  Dr. Powell loses his (Texas) lawsuit against Brownwood on summary judgment, says various things to Bear Valley Community Hospital and obtains privileges, gets into a subsequent fight with Bear Valley as well, etc. etc.

You can read all about it here.

All this ends unhappily for Dr. Powell.  Here's how the Court of Appeal concludes its opinion:

"The Texas court opinion and a report by Brownwood's fair hearing committee were relevant to whether Dr. Powell misrepresented the reasons for his termination of privileges. The Brownwood patient's case illustrated how Dr. Powell's lack of candor and/or integrity could result in adverse patient outcomes. There is no evidence in the record that the Board acted irrationally. In summary, Bear Valley provided Dr. Powell a fair procedure in denying his request for active staff privileges and reappointment to the medical staff. . . . The judgment denying Dr. Powell's petition for writ of mandate is affirmed. Costs on appeal are awarded to Bear Valley."


Though small solace, I imagine, to the boy whose vas deferens was severed.

Friday, April 13, 2018

People v. Tom (Cal. Ct. App. - April 13, 2018)

I know, I know, I know.  It's a Friday.  A sunny, warm, glorious Friday in April, no less.  At least here in Southern California.  Spring Break, even, for some of those lucky enough to still be in school.

And even for the indoor-bound, working adults amongst us, there are so many other distractions.  Stormy Daniels.  Then the other Playboy model, Karen McDougal.  And now a third Playboy model, currently unnamed.  That's a lot of scintillating news, political and otherwise, to keep one entralled.

These are surely exciting times.

Plus, on a less fun note, tax returns are due next week.

So there's a lot of competition for our entertainment value.  Who has time for the mere California appellate courts?!

The best I can do in this regard is today's opinion from the Court of Appeal.  Which at least attempts to compete with the other scintillating (titillating?) content currently in the news.

Here's the one-paragraph version of the facts:

"While watching a small dog that belonged to his girlfriend’s parents, defendant Jesse Cody Tom beat, stabbed, and strangled the dog. Defendant then covered the dead dog with oil and placed it inside a barbeque. Before he could light the deceased dog on fire, however, officers arrived on scene and apprehended defendant after he fled."

Dude!!  Not good.  Not okay.  No bueno.  In no way, shape, or form.

Read the whole opinion for more details.  Plus learn Mr. Tom's fate.  To foreshadow:  He's a prior felon, and part of his sentence for this whole affair includes a conviction for attempted arson.  Since he didn't even keep the attempted dog-burning confined to the outdoor Weber grill.

The world's a crazy place, my friends.

Enjoy the weekend.

Wednesday, April 11, 2018

Francheschi v. Yee (9th Cir. - April 11, 2018)

I've seen plenty of unsympathetic plaintiffs asserting unsympathetic claims in my day.  I'm definitely adding this one to the list.

Plaintiff claims that it's unconstitutional to publish a list of the 500 most delinquent taxpayers in California that owe over $100,000 in back taxes and to suspend their driver's license.  Call me crazy when I say that I'm not totally itching to strike down the law and protect people who don't pay their massive tax debts.  Boo-hoo.

And the plaintiff himself only obviates any lingering sense of sympathy I might otherwise have.  He failed to file any California income tax returns from 1995 and 2012.  That's seventeen years of taxes.  And owes a boatload of money.

Oh, one more thing.  Lest any lingering sympathy exist.

He's an attorney.

Yep, the plaintiff is Ernest Joseph Franchesci, Jr.  A Los Angeles attorney and Southwestern Law graduate.  He litigates his Ninth Circuit appeal pro se.  And gets crushed.

For good reason.  In my view, Mr. Franchesci is lucky he's not in prison and/or disbarred.  The lack of a driver's license should, in my opinion, by the least of his worries.

His legal claims are also completely meritless.  He says the suspension of his license doesn't give him sufficient procedural due process.  Ignore for the moment the controlling Supreme Court precedent to the contrary that the Ninth Circuit says Franchesci ignores.  There's no doubt whatsoever that there are sufficient pre-deprivation procedures to challenge the relevant tax liability.  As the Ninth Circuit explaines:  "Franceschi’s arguments overlook the fact that he had a readily available, constitutionally valid, pre-deprivation opportunity to prevent the suspension of his license. After receipt of the notice of revocation and before his license was suspended, Franceschi could have challenged his threatened suspension by paying his taxes and filing a refund claim with the FTB. See Cal. Rev. & Tax Code § 19382. The payment of his tax liability would have allowed him to retain his driver’s license. He would then have the opportunity to file a refund claim and challenge the original tax assessment. In the event the FTB denied his refund claim, he could still obtain relief by suing for a refund in California Superior Court."  Spot on.

And then Franceschi makes the even sillier claim that the statute violates substantive due process because . . . get this . . . it makes it harder for him to be an attorney.  Because the most important thing in the universe is to make sure that Mr. Franceschi gets to continue to practice law without having to pay his massive tax liabilities.

The Ninth Circuit's response should warm the heart of any Los Angeles-based attorney facing the daily prospect of navigating through rush hour traffic:  "No doubt an inability to drive oneself around Los Angeles could make the practice of law more difficult. However, Franceschi still has access to public transit, taxis, or services such as Lyft or Uber. Accordingly, whatever burden may exist does not amount to a “complete prohibition” on Franceschi’s ability to practice law, and thus, does not rise to a violation of substantive due process."

In case I've been unclear, let me say it again:

This isn't a sympathetic plaintiff with a sympathetic claim.

Tuesday, April 10, 2018

Vilutis v. NRG Solar Alpine (Cal. Ct. App. - April 10, 2018)

It's worth the occasional reminder to mention that the volume of the unpublished work by the Court of Appeal massively swamps the published component.  For example, today, at least as of 2:20 p.m., there's absolutely nothing at all published by the California Supreme Court, the Court of Appeal, or the Ninth Circuit.  Nothing.  Yet there are no less than twenty unpublished dispositions from the Court of Appeal.

Not bad for a single workday.

So, if only for entertainment (or shock) value, I thought I'd mention one of those cases -- one that involves an anti-SLAPP motion and a raucous public meeting.  At which there's indisputably a "kerfuffle" that ends when one of the participants allegedly tells another "You fucking faggot. Get the fuck out of my store! . . . . Get the fuck out of the store, you faggot, or I am going to call the Sheriff.”

Which is not something you typically hear at your usual Town Council meeting.

That said, it's a public forum, and there's no probability of success on the merits.  So the lawsuit gets dismissed, and the Court of Appeal affirms.

With costs and fees to the defendant.

Monday, April 09, 2018

Rizo v. Yovino (9th Cir. - April 9, 2018)

You'll probably hear about today's Ninth Circuit en banc opinion in various media.  The court holds that it violates the Equal Pay Act to pay a woman less for the same work a man does when the only justification for that differential is because the woman made a lower salary in a prior job.  To allow such a pay difference, the court holds, would perpetuate salary discrimination.

You may also hear today's opinion described (as it has been repeatedly) as "unanimous," but it only sort of satisfies this definition.  Yes, all 11 members of the panel agreed on the result.  But to say that the thing's unanimous overlooks key differences between the panel members -- differences that may well suggest that the Supreme Court might well take a different view of the subject.

The lead opinion -- for a bare majority of 6 of the 11 judges -- says that an employer can never be considered as a justification for paying women less than men.  That's the holding.

But five of the judges in this "unanimous" opinion disagree.  Judges McKeown and Murguia -- two left-leaning women on the panel -- join a concurrence that says that the majority goes to far, and that in their view, prior low salary is okay to consider if it's combined with other factors that justify the contemporary salary differential.

Judges Callahan and Tallman, not surprisingly, are even less sympathetic to the majority opinion, and agree that the current case was improperly resolved (since the only basis for the pay differential was prior salary), but think that this is basically an exception to the general rule, and believe that there may be a plethora of situations in which prior salary can validly be used to pay women a lower salary than men.

And then Judge Watford concurs as well, holding that, again, here, the employer should lose, but only because it failed to demonstrate that its use of prior salary wasn't itself tainted by discrimination that resulted in the prior pay differential as well.

So, yes, everyone agrees on the result.  But it's a rare case when the only reason that an employer can come up with a basis for its pay disparity is the woman's prior salary.  There are generally legions of alleged reasons that can instead be advanced.  And, in those more routine cases, the panel is split on even the appropriate law to be applied, much less does it make it easy for a plaintiff (or jury) to prove as a factual matter that the pay differential was indeed discriminatory.

And the fact that even Judges McKeown and Murguia aren't on board for the majority's holding suggests incredibly strongly that the Supreme Court wouldn't exactly lovingly embrace the Ninth Circuit's ruling either.  If only because it's an exceptional understatement to say that most of the justices on that tribunal are far less sympathetic to the objectives of the Equal Pay Act than these two Ninth Circuit judges.

One final point.  The majority opinion is by Judge Reinhardt.  Who, as most of you know, died on March 29th.  The en banc court allows the opinion to go forward because "the majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death."  I'm confident that's correct.  I'm also confident that if this is indeed the final opinion of Judge Reinhardt's long and incredibly productive judicial career, he'd be content with the happenstance.  It's a good way to go out.  A last opinion that's a fairly representative testament to how the man lived and the values he expressed.

And if this opinion is subsequently reversed by the Supreme Court; well, he'd be very much used to that as well.

Fighting to the very end.

People v. Barboza (Cal. Ct. App. - April 9, 2018)

It's somewhat not surprising that Mr. Barboza elected not to appeal his criminal conviction and sentence, as he (1) pled guilty, and (2) was sentenced to probation (with his six-year prison sentence suspended).  Not a bad result at all for someone who pled guilty to robbery as well as a felon-in-possession enhancement.

But Mr. Barboza was a minor whose case was direct charged in adult court, and Prop. 57 was about to be voted on by the electorate later that year.  If Mr. Barboza's attorney had filed an appeal, he'd have been entitled to retroactive application of the statute, and might have gotten some relief.

But no appeal was filed.  Which meant that Mr. Barboza's conviction was final once Prop. 57 was passed.

Which means he can't request a remedy under the statute.

Thursday, April 05, 2018

U.S. v. Gilmore (9th Cir. - April 5, 2018)

If you're going to grow medical marijuana in compliance with state law, don't do it on federal BLM land.

Yeah, I know.  Private property is more expensive.  But it's probably worth it.

If only so the feds don't prosecute you.  (Whereas, if you'd grown the stuff somewhere else, you could have gotten an injunction against federal enforcement.)

Wednesday, April 04, 2018

In Re White (Cal. Ct. App. - March 6, 2018)

It's a slow news day in the appellate courts.  Nothing at all from the California Supreme Court or Court of Appeal.  And only an amendment to an opinion from the Ninth Circuit.  Zzzzzzz.

Though it does give me a chance to go back a tiny bit.

See what you think about this opinion from last month.  The question is whether the defendant is such a threat to public safety that he should be denied bail entirely.  (The California Constitution says that you can only deny bail in this setting if  "the court finds based on clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others.")

You could see strong feelings being raised on both sides.  Do you think there's "clear and convincing" evidence that there's a "substantial likelihood" that this guy will reoffend while on bail?

"Fifteen-year-old J.D. lived with her family near the beach in Encinitas, California. On July 26, 2017, she was staying with friends because her family had been on vacation. In the afternoon, she rode her bicycle to her family's house to get her surfboard and go surfing. Across from her house she saw two men standing near a blue truck. They were playing loud music and looked out of place. J.D. felt like they were watching her.

A woman loading her car nearby saw the two men and thought they looked "creepy." The men were staring at her as well. She was concerned that they might burglarize her vacation rental after she left. The woman's son thought they were being "creepy" also, so he took a Snapchat video of them. He told police he was worried about the men wanting to kidnap his younger brothers.

J.D. had a bad feeling about the men, so she went through a gate into her neighbor's yard, hopped over the fence, and went into her garage. She later said she was trying to prevent the men from seeing where she lived. J.D. retrieved her surfboard from the garage, went out front, and left the surfboard in her driveway. The men were still staring at her, which made her feel uncomfortable.

J.D. went inside, but she became concerned that someone would try to steal her surfboard. She grabbed some surfboard wax, went back outside, and started to wax the surfboard. The men were still standing by their truck. J.D. noticed a few people walk by, and a surfer came up from the beach and asked to borrow some wax. This request was normal, so J.D. agreed.

J.D. continued to wax her surfboard in the driveway. At some point, when she had her back to the road, one of the men from the truck came up behind her and grabbed her neck "like a pressure lock." The man—later identified as White's roommate Jeremiah Owens—shoved J.D.'s face toward the driveway, but J.D. managed to catch herself with her hands. Owens said, "All right. Let's do this." He tried to pull her upright and toward the truck. J.D. repeatedly told him "no" and "stop."

J.D. managed to fight Owens off and step away from him. She saw the other man—later identified as White—still standing by the truck, looking up and down the street. She told Owens and White, "That's not cool. You can't do that." White said, "We're sorry" or "Sorry," and J.D. backed away toward her house. But then, while J.D. was watching them, White looked at Owens and said, "Go in the house." J.D. thought Owens would try and attack her again.

J.D. went through the gate, locked it "as fast as [she] could," and ran into the house. Her neighbor's dog was barking near the gate. J.D. was "really scared" and locked both doors into the house. She thought Owens and White were going to follow her inside. She thought they might break the lock on the gate or hop over the fence. She was going to hide, but she heard the truck's engine start. She looked outside and saw White in the driver's seat. Owens ran around to the passenger side. J.D. thought they looked scared, and they drove quickly away. She started hyperventilating and crying. She tried and eventually succeeded in calling her parents, who told her to call the police. She called 911, and police responded.

The police began an investigation and detained White. In two interviews with police, White denied knowing that Owens intended to attack J.D. White said Owens told him he thought J.D. was pretty. White admitted he "might have said go and get her" to Owens, but he said he meant go "talk to her." Owens then told him "hey watch out" or "watch this" and walked over to J.D. White said he thought Owens was just going to talk to her. White claimed that, when the attack began, he yelled at Owens to stop and told J.D. he was sorry. White said Owens told him afterwards that a "primal instinct" came over him. White was concerned that Owens had mental health issues. Forensic examination of White's mobile phone revealed an internet search history in the days after the attack that included the questions, "Why would someone act on their primal instinct?," "How can you tell if someone you know is being brain washed?," and "What to do if someone you know is being brainwashed?" Owens was later arrested as well. . . .

The court then heard White's request for bail. White's counsel argued that White was a high school graduate, was gainfully employed as a cable installer, and had the support of family and friends. He requested that bail be set at $50,000. Owens requested bail as well. The prosecution opposed. As to White, it argued, "I will submit to the Court that Mr. White did, in fact, aid and abet, encouraged this very violent crime. And I believe the Court is on sound legal ground to deny bail to him. I'll submit to the Court as to whether you would like to set bail, given the fact that he is not as culpable perhaps as Mr. Owens in being the direct perpetrator.""

I live in a beach community -- and have a sixteen-year old daughter -- so the facts of this case (from San Diego, no less) definitely strike home.  Yet, at the same time, the facts involving the defendant (and his subsequent Internet search) are definitely not the stuff of your usual attempted rape case.

What do you think?  A case to deny bail entirely, or not?

Tuesday, April 03, 2018

R.E.B. v. State of Hawaii DOE (9th Cir. - April 3, 2018)

I imagine that, sometimes, litigants hope that adverse things happen to one or more of the judges that rule against them.  Mostly out of spite.  But sometimes, perhaps, out of more practical desires.

If that's what indeed went down here, perhaps the litigant's prayers were answered.

The panel decides in September to partially reverse the district court.  Judge Bea dissents.  The losing party then files a petition for rehearing.  As well as makes whatever supplications to higher powers that may or may not have transpired.

Then, in December, one of the members of the majority, Judge Kozinski, leaves the Ninth Circuit.  Judge Nguyen is promptly drawn to replace him.

And today, the reconstituted panel grants the petition for rehearing and withdraws the original opinion.

Perhaps the new panel will only tinker with the original opinion.  But I suspect that more than mere tinkering will in fact go down.

People v. Buza (Cal. Supreme Ct. - April 2, 2018)

It's sometimes helpful when a dissent begins by quoting at some length -- and then responds to -- the majority opinion.  Because that's a pretty concise summary of the justices' respective opinions.

For example, Justice Liu's dissent in this case begins by saying:

"According to today’s opinion, “[t]he sole question before us is whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, to require the defendant in this case to swab his cheek as part of a routine jail booking procedure following a valid arrest for felony arson.” (Maj. opn., ante, at p. 41, italics added.) This statement of the issue is misleading.

The . . . (DNA Act) requires collection of DNA from all adult felony arrestees “immediately following arrest” and requires samples to be “forwarded immediately” to the laboratory for analysis. Buza was arrested on January 21, 2009. At booking a few hours later, a police officer requested a cheek swab from Buza under penalty of law. Buza refused. It was not until the next day, January 22, 2009, that a judge found probable cause to believe Buza committed arson. On January 23, 2009, the district attorney filed a complaint charging Buza with arson and related offenses as well as unlawful refusal to provide a DNA specimen on January 21, 2009. The question is whether Buza can be convicted of refusing to provide his DNA at booking prior to any judicial determination of whether he was validly arrested. Today’s opinion does not explain why the fact that Buza was found “validly arrested on probable cause to believe he had committed felony arson, and . . . was promptly charged with (and ultimately convicted of) that offense” (maj. opn., ante, at p. 15) has any bearing on whether it was lawful to require him to provide his DNA before any of those determinations were made.

The court says that a “valid arrest” in this context does not require “a judicial determination of its validity.” (Maj. opn., ante, at p. 23.) But this assertion, even if true, does not disturb the main premise of the question presented: For purposes of constitutional analysis, Buza is no different than any felony arrestee who has not been charged, convicted, or found by a neutral magistrate to be lawfully detained. This point is critical because it brings into focus the startling breadth of DNA collection and retention authorized by the statute. This is not a scheme carefully calibrated to identify felony offenders. Instead, it can be fairly described as a biological dragnet. As explained below, and for the reasons stated in Justice CuĂ©llar’s dissent, the DNA Act violates the prohibition on unreasonable searches and seizures in the California Constitution."

It's a 4-3 opinion.  The majority upholds the statute.  Which means that, in California, you're going to have your DNA taken upon any felony arrest.  Regardless of what happens to you thereafter (and, as Justice  Liu notes, one-third of people arrested for a felony don't ultimately get convicted of one).