Tuesday, November 26, 2019

People v. Lopez (Cal. Supreme Ct. - Nov. 25, 2019)

Justice Kruger writes a pretty good introduction to this opinion, which overrules precedent and explains why.  She writes:

"Acting on an anonymous tip about a motorist’s erratic driving, a police officer approached defendant Maria Elena Lopez after she parked and exited her car. When the officer asked if she had a driver’s license, she said she did not. Police then detained her for unlicensed driving and, without asking her name, searched the car for Lopez’s personal identification. They found methamphetamine in a purse sitting on the front passenger’s seat.

The trial court held the search was invalid under Arizona v. Gant (2009) 556 U.S. 332 (Gant), which narrowed the scope of permissible warrantless vehicle searches incident to a driver’s arrest. The Court of Appeal reversed. It held that the search was authorized under this court’s pre-Gant decision in In re Arturo D. (2002) 27 Cal.4th 60 (Arturo D.), which allowed police to conduct warrantless vehicle searches for personal identification documents at traffic stops when the driver failed to provide a license or other personal identification upon request.

We granted review to consider the application and continuing validity of the Arturo D. rule in light of subsequent legal developments. At the time Arturo D. was decided, no other state or federal court had recognized an exception to the Fourth Amendment’s warrant requirement for suspicionless traffic-stop vehicle searches. The same holds true today; California remains the only state to have recognized such an exception. Considering the issue in light of more recent decisions from both the United States Supreme Court and our sister states, we now conclude that the desire to obtain a driver’s identification following a traffic stop does not constitute an independent, categorical exception to the Fourth Amendment’s warrant requirement. To the extent Arturo D. held otherwise, we conclude that rule should no longer be followed. We reverse the judgment of the Court of Appeal and remand for further proceedings."

Not surprisingly, the decision is not unanimous.  It's instead a 4-3.  The dissent is authored by Justice Chin, which isn't surprising, since he was in the majority in Arturo D.  Alongside Justice Chin in the dissent are Chief Justice Cantil-Sakauye and Justice Corrigan; again, about what you'd expect.

But it's a new California Supreme Court.  It's not just that Gant came along in 2009; a case that itself departed from precedent.  It's also that the composition of the California Supreme Court is different -- more left-leaning -- than it was 17 years ago.  Which in part explains this opinion.

Though not entirely.  This is how the dissent ended in Arturo D. back in 2002.  Bear with me, as it's a little long:

"Who among us can ever forget the horrendous events of September 11, 2001, when our nation suffered the most destructive terrorist assault in our history? As this opinion is being written, our nation is undergoing a painful recovery from the devastating physical and psychological effects of that day. One part of this recovery process has been an effort to devise and implement more effective methods of law enforcement to protect the security of our citizens and our institutions. Another and equally important part of this process must be a rediscovery of and rededication to the principles upon which our nation was founded and which have made it a true beacon of liberty throughout the world.

One principle, so basic to our personal liberty, is the prohibition that the Fourth Amendment to the United States Constitution places on unreasonable searches and seizures. In determining whether a search is "unreasonable," a court must adhere to the decisions of the United States Supreme Court articulating the meaning of that word in a similar case. Virtually identical to the two cases here is the high court's unanimous decision in Knowles v. Iowa. [Cite] There, the court held that when a police officer has stopped a motorist for a routine traffic violation, and the officer has not arrested the motorist, the officer may not rummage through the vehicle.

Today's majority decision does nothing to enhance our security and does much to erode our Fourth Amendment rights. Under California law, an officer making a routine stop for a traffic violation may arrest a motorist who fails to produce proof of identity and, within the limitations of the Fourth Amendment, may search the vehicle incident to the arrest. Given this ability, there is no justification for the warrantless, nonconsensual search of a car's interior when the officer has made no arrest and the officer lacks probable cause to believe that the car contains contraband. In announcing a blanket rule authorizing such searches, the majority disregards the high court's decision in Knowles and chips away at one of the fundamental freedoms guaranteed by our federal Constitution."

Sure, that dissent was written by Justice Kennard.  But it was also joined by Justice Brown.  So it's not completely a left-right issue.  There's definite room for concern on both sides of the aisle.

Friday, November 22, 2019

People v. Wilson (Cal. Ct. App. - Nov. 20, 2019)

I'm usually pretty confident that what I say is right.  At least in my own mind.  (Others, obviously, may disagree.)  But when I'm not confident, I'm happy to say so.

So when I read this opinion, I definitely had a thought.  A thought that I think is right.  But I'm not a hundred percent sure.  Hence the caveat.

But if I am right, the Court of Appeal gets this one wrong.

Here's the deal:

The defendant in a criminal case makes a request to represent himself.  The trial court denies it on the ground that the request was equivocal (e.g., uncertain/conditional).  Defendant appeals.

On review, the Court of Appeal concludes that the trial court was wrong, holding that the request was squarely unequivocal.  So reversal, right?

Wrong.  Because the Court of Appeal thereafter holds that the request was nonetheless untimely, so the trial court properly denied the request -- albeit on the wrong basis.

Okay, we know that the Court of Appeal reviews judgments, not decisions, and thus may affirm on alternative grounds.  That part's clear.  So if, for example, the untimeliness of the request precluded the trial court (jurisdictionally or otherwise) from granting it, it makes total sense to affirm on the alternative timeliness ground.

But, here, the Court of Appeal recognizes (correctly) two different things, both of which to me seem to preclude a decision to affirm on these alternative grounds.

First, the Court of Appeal flatly says that the request here "was not timely," but its support for that proposition is merely citations that the Court of Appeal describes as holding that "a Faretta motion made on the day of trial may be found to be untimely (People v. Frierson (1991) 53 Cal.3d 730, 740, 742), as may one made four days before trial is to begin (People v. Scott (2001) 91 Cal.App.4th 1197, 1205)." (emphasis added).  "May" does not mean "Is".  "May" implies discretion.  As, I imagine, do the holdings referred to by the Court of Appeal.  So, yes, the trial court perhaps could have found the motion untimely.  But it didn't.  Nor, I strongly suspect, was it required to so find.  To put it another way, the trial court could have found the motion timely, even though it was made only a day before the trial.  That's for the trial court to decide.

If something's subject to the discretion of the trial court, and the trial court doesn't exercise that discretion (e.g., because it erroneously fails to do so because it bounces the motion on a different, erroneous, basis), isn't the proper remedy to reverse and remand for the exercise of that discretion?  Not to simply affirm because the trial court could -- but didn't, and was not required to -- exercise its discretion in a particular way?  I would think that's the necessary, and valuable, structure of appellate review.  Otherwise you're depriving the trial court (as well as the parties) of its discretion.  As well as getting it wrong.  Since, for example, the trial court here might well have been thinking:  "I will deny the motion because it's equivocal, but had it been unequivocal, I'd have found it totally timely and would have granted it, holding (correctly) that a day before trial is enough time."  Something that a straightforward decision to affirm (like here) precludes.

The second problem is related to the first, though I think it's independent as well.  The Court of Appeal notes that even had the request been untimely (and, as noted above, a trial court may have perhaps properly concluded otherwise), even "an untimely Faretta request requires consideration of the quality of counsel’s representation, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion" -- things that (again) the trial court does, in the exercise of its discretion, not the Court of Appeal.  The Court of Appeal decides, again, that the trial court could have evaluated these factors to support the denial of the Faretta request, and (persuasively) explains why.  But I have no doubt that the trial court could also have evaluated these same factors and (properly and persuasively) come to the conclusion that they support the grant of the untimely Faretta request instead.

That's what we mean by -- and is often the case with -- "discretion".  One can go either way.

And if the trial court can go either way, then it's for the trial court to decide which way to go.  Not for the Court of Appeal to decide to take that option away -- to obviate this discretion -- by affirming on a basis that the trial court may well have rejected.

So, yeah, we review judgments, not reasons.  But I think we routinely reverse and remand for the exercise of the trial court's discretion, especially when (as here) the trial court never exercised that discretion because it erroneously decided the case on other grounds.  Seems to me that we should obviously (and correctly) do that here as well, rather than -- as the Court of Appeal does -- simply affirm the decision below.

Now, ultimately, do I think the trial court will come out the same way as the Court of Appeal?  Absolutely.  I have little doubt that the trial court, upon remand, would say "Yeah, I didn't like the request, and had I thought it unequivocal, I would have denied it as untimely anyway."  At which point the ultimate result would be the same.

But being confident -- based on human psychology and intuition -- about a result is one thing, and actually having it be done legally is another.  There's a chance (albeit not a big one) that the trial court would honestly and forthrightly say upon a remand, "You know, had it been unequivocal, in the exercise of my discretion, I'd have granted it."  And if that's the case, then I think we all agree the guy should get a new trial.

So I'm on board for occasionally affirming on alternative grounds.  It sometimes expedites things.

But not when, as here, the trial court's discretion on those alternative, unaddressed grounds can go either way.

And I think that's the right result not only normatively, but even under existing precedent.

Thursday, November 21, 2019

Patterson v. Padilla (Cal. Supreme Ct. - Nov. 21, 2019)

I don't think it's very surprising that the California Supreme Court struck down today the challenged provisions of the Presidential Tax Transparency and Accountability Act (Elec. Code, § 6880 et seq.), which prohibit the Secretary of State from printing on a primary election ballot the name of a candidate for President of the United States who has not filed with the Secretary of State the candidate’s federal income tax returns for the five most recent taxable years.  The language of the California Constitution in that regard (article II, section 5(c)) are nontrivially to the contrary.  So you've got a unanimous decision today that largely reads as one would expect.  Nor is it surprising that the opinion's author is Chief Justice Cantil-Sakauye.  That too is as it should be.

But it is interesting to see Judge Cuellar's concurrence.  He's the only person who writes separately.  And he does so to highlight why, in his view, it makes eminent sense to have presidential candidates reveal their tax returns -- and for the electorate to require as much.  All of this notwithstanding the holding in which he joins.

All good stuff.

Wednesday, November 20, 2019

People v. Lopez (Cal. Ct. App. - Nov. 20, 2019)

A guy is a heroin user, and to support his habit, a relatively low-level seller of the stuff.  He's high on heroin himself when he gets caught with 35.9 grams of the stuff -- around 0.08 of a pound.  That stuff is contained in 24 separate bindles.  He's also got some money on him: three $20 bills, three $10 bills, and 11 $1 bills.  That'll give you a sense of what type of heroin dealer he is.

He's sentenced to 17 years, 8 months in prison.

Clearly, people should not sell (or use) heroin.  Of that I have little doubt.

Though I wonder what history will say about locking people up for nearly twenty years for this type of stuff.  Or even, after the Court of Appeal's partial reversal, a decade-plus.  There's some solace, to be sure, that one (potentially) gets time off for good behavior, at least on the state side.  But there's an underlying problem here.  One for which we're not even approaching a solution.

So we use potentially lengthy periods of incarceration.  Someone less lengthy than we imposed in the recent past.  But still lengthy.  Without, I suspect, much of a resulting dint in the underlying trade.  As a plethora of heroin users are going to sell the stuff, if necessary, to pay for their habit.  As sure as the sun rises in the morning and sets in the evening.  Regardless of the length of their potential imprisonment.

And there are always others to take their place after any particular user/dealer is put on ice.

The nature of the trade.

Tuesday, November 19, 2019

Vega-Anguiano v. Barr (9th Cir. - Nov. 19, 2019)

I'm on the sixth page of the Ninth Circuit's only published opinion today, reading along with dense text.  Yet I'm not even past the official "Summary" yet.  The actual opinion hasn't even started.

It's a super tiny caption.  But the "Summary" is incredibly long.

In part, that's a result of there being (1) a majority opinion, (2) a concurrence, and (3) a dissent.  You want to summarize all of these.  I get it.

But still.  The actual (three) opinions are less than 20 pages.  total.  A "summary" that takes up 5 pages could probably be a bit more concise.

Thursday, November 14, 2019

Silbaugh v. Chao (9th Cir. - Nov. 14, 2019)

Now here's a neat little case.  Especially if you're (like me) a professor who teaches civil procedure.

It's a relation back case under Rule 15; in particular, against the United States.  You get relation back (for statute of limitations purposes) against the government under Rule 15(c) under if you've made a mistake in naming the correct party -- e.g., here, you named your supervisor as the defendant instead of the formal head of the relevant executive agency (here, the Secretary of Transportation) -- but then later correct that mistake and the U.S. knew within 90 days that you made that mistake because you delivered "process" on the Attorney General or relevant U.S. agency.

The question in this case is:  What does the Rule mean by "process?"

Truthfully, it's got a totally straightforward meaning.  By "process" we mean the summons and complaint.  The documents that you use to commence a lawsuit.

Which is precisely what the plaintiff here did.  She served a copy of the summons and complaint on both the U.S. Attorney as well as on the Attorney General.  End of story, right?

Not quite.

Because the copy of the summons here was not signed by the court clerk.  Which it normally has to be in order to constitute proper service; e.g., to require the defendant to respond to the complaint under penalty of default.

So does an unsigned copy of the summons (plus the complaint) count as "process?"

Under the normal service of process rules, the answer would clearly be "no."  It doesn't count as "process" -- or, more accurately, it doesn't count as valid process.  It wouldn't be sufficient to permit the court to exercise jurisdiction or to award a default judgment.

Which is why, intuitively, you might think that "process" is defined in the rule as a summons that's signed by the clerk plus a complete copy of the complaint.  And, if the rule was defined that way, the U.S. would be right, and there'd be no relation back here.

But you'll look at the FRCP in vain for such a definition.  It just uses the word process.  Repeatedly, to be sure.  But it doesn't define it.

Which leaves it open for Judge Watford to hold as he does here.  The U.S. was indeed served with "process," he says, because it definitely received a summons and the complaint.  Which means that the purpose of Rule 15 was satisfied; it knew full well that it had been served, albeit that a mistake had been made in the formal naming of the defendant.  Hence there's relation back.  Since Rule 15(c) does not say there has to be service of "valid" process to get relation back, the point of relation back is to ensure notice (which there was), and we strongly prefer adjudications on the merits rather than hypertechnical procedural dismissals.  So held.

All of which seems right to me.

I'll add one other point in this regard that Judge Watford's opinion doesn't mention.  Not only do I not see a formal definition of process as including a signed summons, but there are other provisions in the FRCP that suggest that the rules are fully capable of requiring process to be "valid" when they so require.  For example, in Rule B (governing attachment), paragraph (2)(a) says that a court may not order garnishment or attachment unless "the complaint, summons, and process of attachment or garnishment have been served on the defendant in a manner authorized by Rule 4."  So if process wasn't served in this manner (e.g., the summons wasn't signed), it'd be invalid, because the rule says so.  Yet Rule 15(c) doesn't do the same thing.

In any event, I think that Judge Watford rightly interprets the rule here to be consistent with its obvious (and salutary) purpose.  We give relation back when there was notice.  Here, there was notice.  Yes, we're a bit nit-picky when the United States is concerned, and, yes, the United States has promulgated rules that are very much in favor of . . . surprise, surprise . . . the United States.  But the rule here just says process, and that means and summons and complaint, and that's indeed what the U.S. got.  That it wasn't signed isn't part of the rule.  Even though that's what you might ordinarily think "process" means as applied to other rules with slightly different purposes.

Fair enough.

Tuesday, November 12, 2019

Altera Corp. v. CIR (9th Cir. - Nov. 12, 2019)

Today's an unusual day indeed.

The Ninth Circuit publishes this today.  It's a dissent from the refusal to take a case en banc.  Nothing totally unusual about that, right?

Except it's a tax case.  Not the usual subject of an en banc call.  And not even a tax case that affects a huge number of "regular" people:  It's about a Ninth Circuit opinion last year that upheld a Tax Court ruling that related entities must share the cost of their employee stock compensation.  Yet that opinion sees a huge volume of amici and a spirited dissent for the refusal to hear the case en banc.  Not your usual degree of attention to a tax opinion.

The opinion is unusual is one other way as well:  the huge number of recusals.  How many?  Not one.  Not two.  Not three.

Ten different Ninth Circuit judges recuse themselves from the en banc call:  Judges McKeown, Wardlaw, Bybee, Bea, Watford, Owens, Friedland, Miller, Collins, and Lee.

So it's an opinion that may affect at least a nontrivial number of people in a particular socioeconomic group.  Including but not limited to Ninth Circuit judges.

People v. Chubbuck (Cal. Ct. App. - Nov. 12, 2019)

Defendant was convicted of unlawfully taking a motor vehicle, but it's not your usual stolen car case. Indeed, I'm not even sure what the defendant was trying to do.  He breaks into a storage yard at 4 a.m. and then starts driving -- inside the storage yard -- a vehicle that's typically used to move storage containers, and does so for 15 minutes or so.  The owner of the storage yard and the police then arrive and arrest him.

What was he trying to do?  Steal a storage container?  If so, he was remarkably bad at it, and didn't even seem to try.  Just joyride in the storage facility?  Weird.  And hardly worth the seven years in prison he received.

And not your usual name, either.  The defendant's first name is "Jhyy."  Last name:  Chubbuck.  The opinion even contains a footnote (the first one) about the defendant's name, which was apparently erroneously entered on the abstract of judgment.  Definitely a unique first name, and one I have not seen before.

Thursday, November 07, 2019

Board of Trustees v. Chambers (9th Cir. - Nov. 7, 2019)

The Ninth Circuit has only published a couple of opinions in all of November, but the opinion today is a memorable one, if only for its brevity.  The split panel opinion (a year ago) was 64 single-spaced pages, and waxed poetically about whether the voluntary cessation doctrine of mootness applied to cases in which the government lost a lawsuit, repealed the relevant statute, and refused to promise that it wouldn't reenact the thing.

But you'll be hard-pressed to find a shorter en banc opinion than the one issued today, which resolves the dispute (1) unanimously, and (2) in well under a dozen pages.  (Indeed, a full half of the opinion consists entirety of the caption and list of lawyers and amici.)  The en banc court says, basically, that other circuits have found that mootness applies in situations like these, so we're going to join them. Notwithstanding the contrary view of the majority in the panel decision we're reversing.

So short.  And (relatively) speedy.  Though I'll note that it still took the en banc court nearly five months two write its five-and-a-half pages of text.

Tuesday, November 05, 2019

People v. Martin (Cal. Ct. App. - Nov. 5, 2019)

There's nothing published by the Ninth Circuit or the California appellate courts today.  So I took a brief look at this opinion.  If only because the defendant's name (like mine) was "Martin."

And it's a somewhat weird one.  At least for a relatively unsophisticated reader like myself.  The defendant is a 22-year old who stole a car in Florida, drove it to California, and then led police on a high-speed chase before ditching the vehicle and being caught.  He's got a bit of a criminal history in Florida, but it seems like he's not totally irredeemable.  And does some fairly strange things when he's caught by the police.  (For example, from the opinion:  "Another officer subsequently located defendant walking on Needles Highway, waving his arms as cars passed by, as if he was trying to flag one down. As the officer approached him, defendant lay down on the ground. The officer pulled his patrol car over and got out. Defendant yelled to him, 'Please place me in handcuffs before your partners get here.' He was breathing heavily and asked if he could sit in the patrol car."  Not exactly how most police chases end.)

But okay.  He's convicted of felony evading the police, and it's time for him to be sentenced.  The court thinks that the chase wasn't all that long (two minutes), and Mr. Martin's criminal history isn't all that egregious, so it says that it's going to sentence Mr. Martin to probation.  But the court also says it's a little bit concerned for Mr. Martin's welfare since he doesn't have any family or friends in California (having just gotten here in his stolen car), so orders a recess for Mr. Martin to talk with his counsel to figure out what the most beneficial probation arrangements would be.  Maybe transfer the case (or probation) to Florida?  Something like that.

Here's the part I don't totally understand.  After the recess, Mr. Martin and his counsel come back, and they say that Mr. Martin would just rather be sentenced to prison than receive probation.  The trial court says (essentially), "Really?"  But, yeah, that's what Mr. Martin wants.  To the trial court sentences him to the low end of the imprisonment range.  Which is still 16 months in prison.

Why would someone want to be incarcerated rather than go on probation?  Seems like a no-brainer that the former is worse than the latter.  Strange, eh?

Though I can think of two possible explanations for Mr. Martin's choice.

First, he might think that he'll violate probation anyway.  In which case, yeah, get it over with.

Second, he might think (perhaps combined with the prior explanation) that given his time already served, the ultimate prison sentence won't matter much anyway.  The opinion mentions as an aside that Martin got credit for 256 days of prior jail time.  With a sentence of 16 months, with time off for good behavior, maybe those 256 days of credits means he's not looking at much additional time in actual prison anyway.  Better that, one might perhaps think, than an extended period of probation.

So an interesting choice.  By an interesting guy, Mr. Martin.

Monday, November 04, 2019

U.S. v. Norris (9th Cir. - Nov. 4, 2019)

This seems right to me.  As well as pretty darn good police work.

Someone's sharing child pornography.  The police look up the IP address and discover that it's coming from a router in Apartment 242, and the police obtain a search warrant for that address.

Except that when they execute the warrant, they discover that there's not child porn on the computer there.  So where's the child porn coming from?  They download the access data from the router in that apartment and discover that someone else's computer has been access this router -- notwithstanding the fact that the router is password-protected.  Surprise!

Which is a pretty good move by the child pornographer at issue.  You're worried that the police might figure out it's you if you use peer-to-peer sharing over your own internet connection.  So you use the connection of someone else.  Someone innocent to cover your tracks.

So the police are stymied, but not for long.  They subsequently start using an open-source software program that's aptly named "Moocherhunter" to find out who's been using the router in Apartment 242.  They use a directional antenna and find out that the signal of the computer that's accessing the router in Apartment 242 is much stronger when it's pointed at . . . Apartment 243.

So the police then obtain a search warrant for Apartment 243.  And, lo and behold, they find two computers there that have indeed accessed the router in Apartment 242 and that contain kiddie porn.

Hence the arrest and conviction.

The defendant appeals, saying that the "search" using the Moocherhunter software violated the Fourth Amendment.  But the Ninth Circuit disagrees.  Which seems right.  If you're pumping out electronic transmissions from your computer to pimp your neighbor's password-protected internet connection without his consent, it's not impermissible for the police (or anyone else) to investigate where those transmissions are coming from.  You shouldn't be grabbing their internet in the first place, and your transmissions are in any event public and it's okay for someone else (including but not limited to the police) to point software in your direction to figure out where those transmissions are coming from.

Makes sense to me.  As well as to Judge Rawlinson and the rest of the panel.

AAAJ-LA v. Padilla (Cal. Ct. App. - Nov. 4, 2019)

There's a fight about the degree to which Section 14201 of the Elections Code requires the California Secretary of State to post facsimile ballot materials in languages other than English.  The Court of Appeal resolves that fight.  A resolution in which both sides in a little bit.

What was most interesting to me was to see the list of what languages we're fighting about; in particular, what languages have "minority language groups" that constitute three percent or more of a precinct's population.

Some of the candidates are obvious:  Spanish, Chinese, Mandarin, Korean, Vietnamese, etc.  Some are much less so.

Which of the following language(s) do you think do not have a precinct in California in which three percent or more of the population primarily speaks the relevant language:

(A) Tagalog;
(B)  Formosan;
(C)  Ilocano;
(D)  Khmer.

Answer:  We've got precincts for all of these.  To be honest, I had never even heard of (C), and had to look it up.  More proof that you can learn something new every day.