Wednesday, December 30, 2020

People v. Martinez (Cal. Ct. App. - Dec. 30, 2020)

I wonder if the Attorney General's office took this appeal seriously enough.

The defendant, Monica Martinez, is a bail agent who was convicted of violating Section 1814 of the Insurance Code.  That statute -- pursuant to various regulations -- prevents bail licensees from, inter alia, entering into arrangements with people currently incarcerated to refer other individuals (i.e., other people in the jail) to a particular bail agent.

You can see why those rules exist.  You don't want particular bail agents paying off people in jail to refer people to that particular agent.  You'd rather have the marketplace decide; on price, on quality of service, etc.  This might be an especially important concern since people in jail might have limited access to high-quality information about particular bail agents, so you don't want them making their decision simply based upon which bail agents can afford to pay off enough fellow inmates to refer 'em.

Understandably, the defendant insists that these regulations violate her free speech rights (and the free speech rights of other inmates).  To be clear:  Inmates are still allowed to sua sponte tell other inmates that their bail agent was awesome or terrible or whatever.  Bail agents just can't pay 'em to do so; i.e., can't "make arrangements" with them for such referrals.

Does that limit free speech?  Sure.  To a degree.  Is there a sufficiently legitimate state interest for the thing?

The Court of Appeal says:  No.  Holding that the limitation is unconstitutional and violates the First Amendment.

There's a dissent that argues otherwise.  But the majority goes the other way.  It admits that there's a state interest in regulating in-custody bail arrangements.  Which is not surprising, since there's fairly extensive precedent on this point.  As the legislative history surrounding one of the relevant statutory enactments -- and cited by the majority -- accurately reflects:  "Unfortunately, the industry reports that the State Department of Insurance has a difficult time enforcing laws and regulations designed to prevent the unfair and anti-competitive practice of providing compensation to inmates for soliciting the business of detained individuals. The practice of providing compensation to inmates for such activities has, in effect, permitted inmates unlicensed by the department to solicit bail services. Inmates do not know, nor should they be expected to know the laws pertaining to bail bonds services[,] and [they] can intimidate detained individuals into calling a particular agent because of the monetary benefit which creates an unfair and anti-competitive business atmosphere. [¶] The anticompetitive situation [arises] when one bail company compensates inmates to solicit business and detained individuals are not free to call other bail companies. Essentially, bail companies abiding by the department’s regulations lose business while those ignoring existing regulations obtain all the business. In fact, the bail industry reports that situations arise where one bail company has written nearly every bond at a jail.”

Okay, then why is the prohibition at issue unconstitutional?  Because, according to the majority, the Attorney General "failed to demonstrate that section 2076 provides more than 'only ineffective or remote support for the government’s purpose'” under the relevant Central Hudson test.  The Court of Appeal says:  "[I]n this case, the People have made no attempt to show that section 2076 directly and materially advances the state’s substantial interests. . . . Although they articulate substantial state interests, the People merely make the conclusory statements that section 2076 advances those interests and is 'narrowly tailored.' But they utterly fail to tie section 2076 to the direct and material advancement of those interests."

The Court of Appeal thus concludes:  "Since the state has failed to carry its burden, we conclude that section 2076 is invalid as a facially overbroad regulation of speech that does not survive even the intermediate level of review that applies to commercial speech."

One might perceive two alternative (or potentially reinforcing) problems here.  First, maybe the Attorney General's office didn't take the appeal seriously enough to marshall sufficient evidence or argument to justify the statute.  After all, it's just a penny-ante criminal conviction; maybe the AG thought there was no way the Court of Appeal was going to through out such a common-sense statute.  If so, well, that was definitely the wrong call.

Or maybe the majority demanded too much "proof" of what seems a straightforward principle.  In a footnote, the majority opinion faults the dissent for not providing actual "evidence" of the need for the statute, saying:  "The dissent does not point to any empirical data, history, or evidence, even anecdotal, to establish the efficacy of the regulation. Its unsupported reasoning sounds more like less-demanding 'rational basis' review than the heightened scrutiny applicable to commercial speech."  Perhaps.  But I definitely see the contrary viewpoint as well.  Letting bail agents make "arrangements" with inmates to refer clients to 'em clearly, in my view, distorts the marketplace, and punishing such conduct will lead to a marketplace more closely (albeit admittedly still imperfectly) competes on relevant criteria -- price, quality, service, etc.  So maybe the majority's asking for too much.

Or maybe the Attorney General should have provided more than he did. 

Tuesday, December 29, 2020

E.P. v. Superior Court (Cal. Ct. App. - Dec. 28, 2020)

A statute says a juvenile has a right "to be present" at his deliquency hearing.  Does that statute prevent a court (absent a countervailing statute) from ordering -- as many county courthouses have done -- that all delinquency hearings are to be held remotely during the COVID-19 pandemic?

The Court of Appeal says:  Yes.

It's definitely an exercise in plain language.  The statute at issue was passed in 1961.  Justice Robie is surely right that, at that time, the Legislature didn't contemplate remote hearings.  Of course, they also probably didn't anticipate a global pandemic sixty years hence, but there you have it.  The Court of Appeal says that if you want to get rid of that statute, you've got to pass another one that supersedes it -- not just pass superior court rules or executive orders like the one here.

Okay.  I can see that argument.  One might take a different view about what "present" means, or think that the factual realities of the modern era augur in favor of a more expansive interpretation of that word, but I don't find at all implausible the result reached by the Court of Appeal.

But I did want to ask a follow-up question.

Okay, so the statute says that the minor has the right to be "(physically) present" at the hearing.  Does that mean that everyone else has to be there too?

So say the juvenile does indeed have a right to show up in court, and that's where the hearing is.  But the judge, the lawyers, the prosecutor, the court reporter, and everyone else is on video.  Is that okay?  After all, the statutory language definitely only applies to the juvenile being there.  Surely there's no bar to the prosecutor, court reporter, and the like being on video.  And while I can see an argument that if the judge isn't physically there then the "hearing" isn't there, I think the counterargument probably has more strength:  we do plenty of hearings (Ninth Circuit, etc.) with one or more judges on video -- even in pre-COVID times -- and we still think the "hearing" transpires in the courtroom even when the judge isn't there.

So I wonder if one way around this opinion is for the relevant courts to say:  "Sure, go ahead, show up.  You'll be the only one there.  Everyone else will be on video, so enjoy your empty courtroom.  And then go ahead and worry that we'll (potentially sub rosa) take it out on you by viewing you and your counsel harshly for trying to make us personally appear during a panedemic.  Enjoy."

Monday, December 28, 2020

Ashe v. Saul (9th Cir. - Dec. 28, 2020)

Thank goodness for decisions like this one.

You'd think they'd be routine.  A regulation says that when a notice is mailed it's "presumed" to have been received by the recipient.  Which totally makes sense.  So here, according to an electronic entry in the file, the Social Security Administration Appeals Council apparently did mail notice to a particular claimant and her counsel.  Okay so far.

But both the claimant and her counsel swear, under penalty of perjury, that they never received the thing.  Which is eminently possible.  Maybe the electronic entry was wrong.  Maybe the post office lost the mail.  So the Ninth Circuit says -- entirely reasonably -- that these sworn declarations rebut the presumption.  A presumption that's not conclusive or anything; it's just that, a presumption.  Presumptions can be rebutted, and if the multiple sworn declarations here aren't good enough to rebut the presumption of delivery, it's at least difficult (if not impossible) to think of anything that could rebut the presumption.

So great.  Awesome.  Seems exactly right.

Yet, as the opinion mentions, there are all these other cases that hold that declarations like these don't rebut the presumption.  Opinions that are clearly motivated by a need for finality and, probably implicitly, an underlying belief that the declarants are lying (but without a willingness to expressly say so or to require the lower court to so find).

I get the need for finality.  I get the (entirely well-founded) belief that people may lie, and that their lies may be difficult to definitively disprove.

But we deal with things like this all the time.  People sometimes lie.  In criminal cases, in civil cases, in everything.  We deal with that by deciding credibility.  If we think that someone's telling the truth when they say they didn't receive a document that an electronic notification says was sent, then so be it; the presumption of delivery is rebutted.  If we think they're lying -- for example, if it was sent certified mail, or there's a signature, or simply if we don't find their story credible -- then the presumption isn't, and (for good reason) we don't bar people from challenging decisions of which they have no notice.

Totally fair.  Totally right.  And unfortunate that all courts can't agree on at least this simple, basic principle

Tuesday, December 22, 2020

Capra v. Capra (Cal. Ct. App. - Dec. 22, 2020)

When I first saw the caption to this case -- Capra v. Capra -- I thought:  "How ironic; it's the holiday season and there's a fight between the Capras in the Court of Appeal.  How funny would it be if it was Frank Capra."  (He was, obviously, the director of the holiday classic It's a Wonderful Life.)

But clearly it's going to be a divorce case between two people who coincidentally have the last name Capra.  If only because Frank Capra's been dead for nearly 30 years; plus, the first names on the caption are "Thomas" and "Lucille."  So just a random coincidence.

But when I start reading the opinion, I realize:  "Wait.  This isn't a divorce case.  It's a family fight about the ownership of a cabin on June Lake."  And then I realize:  It's indeed Frank Capra's cabin.  The Frank Capra.  Justice Hull never mentions that the "Frank Capra" discussed in the opinion was famous, but the dates and other details match.  It's a fight between his children and grandchildren about who owns and gets to use the cabin.  A fight that's absurd in its (1) existence, and (2) length and breadth.  (It's been going on for years and years, with multiple trips to the Court of Appeal, and shows no sign of abating; the latest decision largely addresses jurisdiction and remands the case for litigation on the merits.)

Given that Frank gave the cabin equally to his children, you'd think his grandkids could figure out a way to resolve things amicably (or at least reasonably).  I'm quite confident Frank wanted the cabin to result in family togetherness rather than extended and bitter litigation.

Yet here we are.

You'd think that in the holiday season, and given the providence of the cabin, the parties could resolve their differences.

Apparently not.

Still:  It's a great movie. 

Monday, December 21, 2020

Trenk v. Soheili (Cal. Ct. App. - Dec. 21, 2020)

This is an otherwise routine story about a guy who owes $100,000, signs a promissory note secured by his house, stops paying the monthly installments required by the note, and then has the owner of the note start to foreclose on his house.

With a twist.  The guy's a lawyer.  The $100,000 note was the settlement of a legal malpractice lawsuit filed against him.  And even though he only paid $25,000 of the amount due, he successfully avoided the attempt to enforce the note against his home.  His wife didn't sign the note, and since the home was presumptively community property, it can't be enforced.

Sweet deal for Mr. Malpractice.

The attorney's name is Joseph Trenk, a Southwestern law school graduate who practices in Van Nuys.  Check out his extensive disciplinary history.  Take a gander at the plethora of negative reviews on Yelp.  All that, plus the underlying malpractice judgment, probably means that Mr. Trenk should not be your go-to guy for legal representation.

But, hey, he successfully defends himself from having to pay promises he made to former clients.  So he's got that going for him.

Which is nice.

Friday, December 18, 2020

11 Lagunita LLC v. California Coastal Commission (Cal. Ct. App. - Dec. 18, 2020)

That's a pretty big administrative penalty.  A million dollars.  That's a pretty big spanking for violating various conditions of a coastal development permit.  Or at least that was my first thought.

At the same time, however, the homeowners -- Jeffrey and Tracy Katz of Laguna Beach -- did strip the house down to its studs, completely remodel it, and then label that work a "minor remodel" in an attempt to circumvent the coastal development permit that governed the property.  They then refused to stop work after the Coastal Commission expressly told 'em to do so.  That's fairly bold.

Plus, it's not like Mr. and Mrs. Katz are poor -- and, in the scheme of things, the $1 million penalty is almost a drop in the bucket.  Laguna Beach is a pretty ritzy place, after all.  And this property is literally on the sand on the beach.  Jeff and Tracy not only own the beach house at issue, but also the beach house next door.  And the remodel increased the value of the property from $14 million (!) to $25 million.

Given this background, what's another million or so amongst friends, eh?

Thursday, December 17, 2020

Malek Media Group LLC v. AXQG Corp. (Cal. Ct. App. - Dec. 17, 2020)

What a smackdown.

It's always bad to lose an appeal.  You've wasted time, money and effort.

But it can be worse.  As it is here.  When both the client and the lawyer get sanctioned for a frivolous appeal.

Not for a token $5,000 or something like that, either.  The Court of Appeal imposes a sanction of $46,000 in attorney's fees, payable to the prevailing party.  Plus, for good measure, another $10,000 payable to the clerk of the court.

Oh, yeah.  And the Court of Appeal orders the sanctions reported to the State Bar.

Yet even that's not all.

Justice Dhanidina also goes out of his way to slam the arguments on appeal.  And not with just your ordinary slams on their merits, either.

Check out, for example, these choice quotes:

"MMG and its counsel are equally culpable for pursuing this frivolous and bigotry-infused appeal. MMG’s counsel had numerous opportunities to dismiss the appeal and to withdraw its baseless claims, but chose not to. Instead, MMG’s counsel persisted in its efforts without any legal or factual support, filing wholly deficient briefs and nonsensical requests for judicial notice, supported by declarations from Malek and his counsel. As stated above, this court is not the forum for MMG or its counsel to rant about conspiracies or their politics. This court has wasted its time and resources considering MMG’s appeal, which has only served as a drain on the judicial system and the taxpayers of this state."

"The Court of Appeal is not an appropriate forum to peddle far-fetched conspiracy theories, laced with sexism and homophobia, disguised as a legitimate appeal."

Los Angeles attorney Jeffrey Konvitz is the recipient of these choice words.  Not his best appeal, I'm sure.

Wednesday, December 16, 2020

Attia v. Google (9th Cir. - Dec. 16, 2020)I

I generally try not to use my professional title ("Professor") outside of academia.  I may have "earned" the appellation -- at least using that term loosely -- but still.  Seems pretentious at times.

I say that appropos the listing of counsel in this Ninth Circuit appeal from earlier today, which includes the following entry:  "Professor G. Robert Blakey Emeritus, Notre Dame Law School, Paradise Valley, Arizona."  I was struck by the inclusion of that listing in part because I was fairly certain that Notre Dame Law School was not located in Paradise Valley, Arizona, and wondered if there was another Notre Dame of which I was not aware.  (After all, London Bridge is in Arizona too.)

Of course, the listing is simply the address of a retired law professor.  Fair enough.  Arizona's the new Florida.

Though they all seem to come to San Diego during the summer.

Anyway, the professor emeritus (and his co-counsel) lose, and Google wins.

Tuesday, December 15, 2020

In re A.G. (Cal. Ct. App. - Dec. 15, 2020)

Justice Currey begins this opinion in an obviously dramatic (and effective) fashion, saying:  "Columbine. Sandy Hook. Virginia Tech. Marjory Stoneman Douglas. These are but a few of a staggering number of American schools where fatal mass shootings have occurred. [These events are] [s]eared into the national consciousness . . . ."

Fair enough.  All that's true.  And given the facts of this case, you can see why he might elect to begin the opinion that way.

Though after reading the whole thing, one could have started the opinion a different way as well.  With something like: 

"Kids are stupid.  Remarkably stupid.  Stunningly, inexplicably, undeniably stupid.  Their frontal lobes aren't yet fully developed.  They lack impulse control.  Their ability to understand and/or evaluate future consequences is, at times, amazing.  Even intellectually 'smart' kids.  Here, a kid posts a Snapchat story that gets posted and potentially viewed by 60 or so random 'friends' with a caption that says 'Everybody go to school tomorrow. I'm taking gum' attached to a picture of a fake gun owned by one of his friends. A short while later, after a couple of people freak out, the kid realizes what he's done and posts a follow-up that says 'Everyone, it wasn’t real. I was xanned out.'  Even though he wasn't, in fact, taking Xanaz; that's just another idiotic thing he said.  After people report this to the police, the kid gets in trouble because everyone's freaking out about another potential Columbine.  The moron kid tries to explain that it's all just fake, stupid, unreal kid stuff that sometimes inexplicably happens, but no one cares at this point because it's a big-ticket item, and the kid gets sentenced to six months of probation in juvenile court on the grounds that his Snapchat story was a 'threat' to one of the teachers at the school (who wasn't actually on his story but who got sent the thing by a different freaked-out kid).  So that's what we have to deal with here."

Am I fine with getting this kid some therapy or education or something like that so he can more fully understand why people went crazy given what he said?  Sure.  For that reason, the fact that the kid gets put on probation for six months doesn't make me inordinately sad or angry or depressed.  Not a massive sentence and, in any event, maybe it'll do him some good.

But I simultaneously have a sense that things like this are sometimes much ado about nothing; or, more accurately, much ado about regular old adolescent stupidity that, sure, we gotta take seriously given the incredibly small probability of a high-consequence event, but which nonetheless (as here) usually just entails an absurd teenager concretely demonstrating the relative absence of myelin in their fat little heads.

Friday, December 11, 2020

People v. Edgerrin J. (Cal. Ct. App. - Dec. 10, 2020)

I'll add this one thought to the cogent and insightful comments expressed by Justice Dato:

This case doesn't get reversed on Fourth Amendment grounds in the era before police officers started wearing body-worn cameras.  Absent the cameras, the officers' testimony would have been believed and the detention of the minors here approved.  It's only because the officers are wearing cameras -- plus the heightened attention currently displayed towards the racial impact of overpolicing -- that results in both the tone and content of this opinion.

One (much less significant) final thought.  The minor's name here is "Edgerrin J."  We don't know his last name, but his first name (and initials) are somewhat unusual, and I couldn't stop myself from thinking of this guy.

Wednesday, December 09, 2020

Alfaro v. Superior Court (Cal. Ct. App. - Dec. 9, 2020)

 Here's how this afternoon's Court of Appeal opinion begins:

"Petitioner Edenilson Misael Alfaro (Defendant), a defendant in a capital murder case filed in Marin County (the County), sought discovery in connection with his claim that juries in the County were not selected from a fair cross-section of the community. The records he sought included the County’s master list of prospective jurors. Defendant relied on Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258 (Pantos), which held a court’s “master list of qualified jurors . . . is a judicial record subject to public inspection and copying.” (Id. at pp. 260–261.) The trial court denied the request, finding that Pantos was no longer good law in light of subsequent statutory developments, and that Defendant failed to make the showing required for discovery related to a fair cross-section challenge. 

We consider subsequent statutory developments and countervailing privacy interests, and conclude Pantos is still good law, at least as to the names and zip codes appearing on master jury lists. Accordingly, we will issue a writ directing the trial court to reverse its order denying Defendant’s request for these records."

The only thing defendant wants is names and zip codes -- things that hardly invade anyone's privacy, and that defendant thinks will show that certain racial groups are radically underrepresented on juries, perhaps due to how the county's juror selection system purges "duplicate" names from the system.

It'd be one thing if the County resisted the subpoena because it was massively expensive or revealed confidential information about particular people.  But that's totally not the case here.  You're instead left with the distinct impression that the County doesn't want the defendant to know how jurors are selected precisely because it's worried that they'll discover that the process does not, in fact, work the way it should.

The whole "sunlight is the best disinfectant" principle seems quite applicable here.

(Though perhaps, in these COVID times, it bears mention that sunlight is not, in fact, the best disinfectant for actual diseases.)

Tuesday, December 08, 2020

Clare v. Clare (9th Cir. - Dec. 8, 2020)

You're used to seeing former spouses on opposite sides of the caption in state court, which deals with a fair number of family law cases.  But it's fairly uncommon in federal court.  So when I saw that this opinion was captioned "Clare v. Clare" -- and was indeed about former spouses suing each other -- it piqued my interest.

The lesson I learned was this:  Don't spy on even your current spouse's email and other electronic data.  Because they may well sue you.

Especially if, as here, your spouse (here, the wife) is a lawyer.

The former spouse appears to be represented on appeal by her law partner in a two-attorney firm.  In a litigation that -- perhaps not surprisingly -- seems especially nasty.

Regardless, even if your spouse isn't an attorney, let their private stuff stay private.  Or else.

Monday, December 07, 2020

Sandoval-Ryan v. Oleander Holdings LLC (Cal. Ct. App. - Dec. 7, 2020)

It's a Monday during the Fall, so that means Monday Night Football.  But since it's 2020, MNF starts today at . . . 2:00 p.m.  Classic.

Meanwhile, you read a fair number of cases where an elderly person dies at a nursing home.  Yet today, we see the same thing, but with a twist.  Today's opinion begins:

"Plaintiff was the conservator and caretaker of her younger brother Sandoval. On September 2, 2014, Sandoval was admitted to Post-Acute, a skilled nursing facility owned and operated by Oleander and Plum Healthcare, for purposes of rehabilitating him from surgery and returning him to a lower level of care. While undergoing care at PostAcute, Sandoval developed multiple serious health complications. Sandoval was transferred to the hospital on November 5, where he was found to have multiple pressure ulcers, infection, distended bowel, and fecal impaction. He died on December 24."

Someone younger than usual.  Someone who dies on Christmas Eve.

Even sadder than usual.

Friday, December 04, 2020

McGee v. S-L Snacks National (9th Cir. - Dec. 4, 2020)

I could see a panel being hostile to this putative class action -- especially a panel that might personally like to snack on Pop Secret popcorn.  Personally, I don't think that the lawsuit has much of a chance of success.

But the panel's seemingly relentless desire to immediately dismiss the suit on constitutional standing grounds strikes me as a bit overly aggressive.

Plaintiff says that Pop Secret contains trans fat and that, as a result, it's physically harmful and worth nothing, so she lost the benefit of her bargain (and was physically injured) when she bought it.  The manufacturer of Pop Secret expressly concedes before oral argument that plaintiff has standing to sue.

But the panel refuses to accept this concession, and dismisses the case for lack of constitutioanl standing.

Judge Tashima's principal argument is that the plaintiff has not "plausibly alleged" that she suffered various harms -- a phrase that he repeats around a dozen times in the opinion.  In particular, Judge Tashima examines at the studies that plaintiff cites and says that they don't "really" establish that eating Pop Secret's trans fat every month or two causes any physical harm.

But, first, I'm not certain that's true.  It might well cause harm.  That seems to me a factual issue, and one that can't be decided on the pleadings -- especially when plaintiff expressly alleges that such a trans-fat intake does indeed cause harm.  That's a factual dispute; and one that seems especially inappropriate to decide at the pleading stage given that the defendant CONCEDES standing on the basis of these alleged harms.

Second, doctrinally, I'm not at all sure that the Twiqbal "plausible allegation" standard actually applies to the factual existence of constitutional standing in any event.  I've always thought of constitutional standing as a factual issue -- one that you decide on the factual merits -- not one of pure pleading.  The "plausibility" standard of Twiqbal surely applies to the factual allegations underlying the causes of action, but I never recall seeing the Supreme Court previously apply it to the existence or nonexistence of constitutional standing.  And I'd think it wouldn't apply; whether the Constitution authorizes federal adjudication relies on the fact of standing, not any particular pleading (pro or con).  Just like the federal court can raise constitutional standing sua sponte -- as, indeed, the panel does here -- and find it (in an appropriate case) lacking notwithstanding the consent of the parties, so too does this issue seem one of actual fact and not sufficient (or allegedly insufficient) pleading.

So get rid of the case if you don't like it; on the merits, on summary judgment, on class certification, or whatever.  But I'm a little bit dubious about the "no constitutional standing because it's implausibly pled because we read your studies to say something different than you claim" point.  That seems perhaps a bit overly strong.

Thursday, December 03, 2020

U.S. v. Lozoya (9th Cir. - Dec. 3, 2020)

It's hard for me to care deeply about this case.

Is it intellectually interesting?  Definitely.  It's about the proper venue for a criminal prosecution for events that transpired during an airplane flight -- miles above any particular state.  The Constitution says that in criminal actions, venue is proper only "in the State where the said Crimes shall have been committed," but that if the crime was “not committed within any State . . . the Trial shall be at such Place or Places as the Congress may by Law have directed.”

So, here, one passenger slapped another during a flight from Minneapolis to Los Angeles.  It's unclear where exactly the plane was when the slap took place.  Federal law says that you're allowed to prosecute these actions in the place where the plane landed; here, in the Central District of California.

Is that consistent with the Constitution?

Obviously, the Framers didn't have any preconception about this issue.  After all, plane flights weren't exactly common in 1787.  But let's just read the words.  Is a slap five miles above a particular state an offense "in" that state?  What about 10 miles?  100 miles?  1000?  If so, then, no, a criminal prosecution in California doesn't work, and it's got to be in whatever (random) state the plane happened to be in at the particular time of the slap.  Otherwise, it's okay to follow the federal statute and prosecute the action in California.

The en banc court decides today, in a 8-3 decision, that a prosecution in California is permitted.

As I said, it's an interesting intellectual issue -- yet another one of those "How do you interpret the Constitution to account for events that indisputably the Framers did not imagine" issues.  So the fight between the majority and the dissent is indeed engaging.

But that's a little bit swamped by the practicalities of the whole thing.

It's a fight about a tiny little slap on an airplane.  A misdemeanor.  An offense for which the defendant, Ms. Lozoya, gets sentenced to a $750 fine.  As the result of a prosecution in her home state, as opposed to being prosecuted in federal court in, say, Utah or Nebraska or wherever else the plane happened to fly.

She argues that those are the only places a prosecution's allowed.  But it's undeniably more convenient to her for the prosecution to take place here.  She'd have a legitimate complaint, in my view, were the offense instead tried in one of these far-flung, temporally random places.

Moreover, as a reminder, it's petty little a misdemeanor.  For which she's simply sentenced to a $750 fine.  For that, she gets a public defender and (1) goes to trial, (2) files an appeal, and (3) has the case taken en banc.  We're wasting way over $750 on this thing.  All for a crime that she did, in fact, totally commit.

So there's part of me that just says:  Take your lumps.  Pay the fine.  Stop whining and wasting the time and money of everyone else just because you can't control yourself on a plane.

Yes, yes, of course, everyone's entitled to a robust defense.  Totally true.  And, again, it's an interesting issue, and one that might well be important for other -- more serious -- offenses; e.g., people who may sexually assault other passengers on a plane.

But it's nonetheless hard for me to get too worked up for Ms. Lozoya.  It's a $750 misdemeanor for a slap she should never have done.  My brain is indeed interested in the doctrinal complexity of her case, but perhaps unsurprisingly, my heart is nonetheless not all that into it.

Wednesday, December 02, 2020

U.S. v. Collazo (9th Cir. - Dec. 2, 2020)

Losing the lottery results in these five people getting their federal convictions affirmed.

It's a criminal case that gets taken en banc and that results in a starkly partisan split.  The Clinton and Obama appointees go one way and the Bush and Trump appointees go the other.

It's a 16-13 split in favor of the Democratic appointees right now amongst the active judges in the Ninth Circuit (with no vacancies), so it's more likely than not (around 55%) that a random draw of judges would result in an 11-person panel with a Democratic majority.  (It's actually slightly higher than that since Chief Judge Thomas is on every en banc panel.)

But these five defendants are on the losing side of the lottery.  They get six Republican appointees -- including all three remaining Bush appointees -- and only five Democratic appointees. 

And hence lose in a 6-5 opinion written by Judge Ikuta.

Sometimes being on the wrong side of the lottery only makes you down $2.  Sometimes the stakes are quite a bit higher.

Tuesday, December 01, 2020

Wright v. Beck (9th Cir. - Dec. 1, 2020)

We're heading into the end of an era.  One that began, coincidentally enough, shortly after I was born -- and that, my friends, was a long time ago.

Yet, today, we see what may perhaps be the final straw in a process that's been routine for over a half-century now in American appellate jurisprudence.  So it's a watershed moment; as a result, I think it merits both mention and reflection.  It's something we've seen for a long, long time, but now, is something that we may perhaps never witness again.

I speak, of course, of the Ninth Circuit's reversal of a decision by Judge Manuel Real.

It happens today.  As it has happened so, so many times since Judge Real was appointed to the bench by President Johnson.  Particularly as Judge Real got older, watching the Ninth Circuit reverse his decisions became routine.  Virtually a sport.

It's not that Judge Real was simply out of step with contemporary politics.  He was instead reversed by appellate judges of all stripes and political persuasions.

Today's decision is perhaps emblematic.  In this case, the LAPD seizes a ton of guns from someone; the owner applies to have them returned to him; written LAPD policy provides that seized guns should be returned to the owner "unless there is articulable probable cause to disbelieve a sworn declaration from the claimant/owner" that he owns them; the owner provides precisely such a sworn declaration; the LAPD then spends years allegedly "reviewing" the declaration and other proof of ownership submitted by the owner; and then, while negotiations over returning the guns are continuing, the LAPD secretly applies ex parte (without notice to the owner) for an order destroying the guns, obtains it, and melts 'em down.

The owner files a Section 1983 suit, claiming -- entirely correctly -- that the Due Process Clause doesn't allow that.  Judge Real grants summary judgment to the defendants.  The Ninth Circuit reverses.

We're not likely to see many more of these types of cases at this point, since Judge Real died, at the age of 93, in June of last year.  So while there may perhaps still be some of his decisions working their way through the Ninth Circuit, there's probably not many.

The final words of Judge Paez's opinion, expressed in a footnote, are perhaps a fitting conclusion to the history of Judge Real's interactions with the Ninth Circuit:  "In light of Judge Real’s passing, we need not address Wright’s request to reassign the case on remand."

True that.

Monday, November 30, 2020

People v. Turner (Cal. Supreme Ct. - Nov. 30, 2020)

Most (or at least many) people took a well-deserved break last week.  Including myself.  (Thank you, Park City.)

But now it's Monday.  Start of a new week.  Time to get back to business.

And there are people to kill.

(At least theoretically.)

It's not really surprising how this one comes out.  Chester Turner is convicted of killing not one person, not two people, not three people, but ten people.  Plus a viable fetus.

Over a dozen or so years, sure.  But still:  Double digits.  You're going to get sentenced to death for that.  And don't be surprised when your convictions and sentence are unanimously affirmed by the California Supreme Court.

The "Figueroa Corridor" of Los Angeles -- where each of the murders took place -- has changed a ton between the period in which the murders took place (between 1987 and 1996) and today.  As I can personally attest, that area has gotten a ton more upscale since that time.  But during the relevant period, it was definitely "an area beset by crime, including prostitution and narcotics activity."  A place in which a serial killer could indeed prey on vulnerable prostitutes, homeless women and drug addicts.

There's still Skid Row in Los Angeles, where Mr. Turner lived at the time.  Which continues to be a not-nice place.

In the meantime, Mr. Turner gets sentenced to death, so the California Supreme Court has to do its work.  Even though it's pretty much a certainty that he'll die in prison of natural causes.  (He's currently 54 years old.)

And on the Monday after Thanksgiving, that court rendered the precise judgment that everyone would expect.

Tuesday, November 24, 2020

People v. Schultz (Cal. Supreme Court - Nov. 23, 2020)

Sometimes you put yourself in a pickle.  This one's definitely a pickle.

Michael Schultz gets sentenced to prison in 1996.  He serves most of his sentence and, in 1999, gets transferred to a low security fire camp, and is about to get out.

The problem (for Mr. Schultz) is that he killed someone during a residential burglary six years ago -- a murder that had never been solved.  But in 1999, Mr. Schultz started to hear that they were trying to pull some DNA from the victim (who had been raped), and he thought they'd shortly ask to pull DNA from him in prison in order to see if it was a match.

So he's like to escape from prison before that transpired.

He'd been dating someone from around the time of the murder, the couple had continued their relationship (of a sort) while he was in prison for the unrelated offense, and the two were now engaged to be married.  So Mr. Schultz thinks -- not irrationally -- that his fiance might potentially be willing to help him escape.  Which shouldn't be all that hard since he's in a low security environment at this point anyway.

But, not surprisingly, when he asks his fiance to help him escape, she's incredulous.  Why does he want to escape when he's about to be released (and the parties married) in six months anyway?!  That sounds crazy.  Doesn't make any sense at all, so without more information, no way she's willing to help.

So the pickle is:  Does he tell her about the murder?

On the one hand, it might make her more willing to help him escape.  On the other hand, she's likely to be more than a little bit miffed about the murder and rape, especially since it transpired when the parties were dating.  Plus it's a murder.  Not exactly what you want to hear about your fiance.

That's a toughie.

He ultimately decides to tell her.  Which leads to her telling other people.  Which leads to him being turned in to the police.  Which leads to his conviction and death sentence.  Which the California Supreme Court promptly affirms.

Wrong call (for him), apparently.

Thursday, November 19, 2020

Reuter v. Macal (Cal. Ct. App. - Nov. 18, 2020)

So many things about this relationship just seem . . . strange.

Part of it I understand.  Mr. Reuter is around 65 years old (at this point) and Ms. Macal is around 45.  They began a "romantic relationship" in 2004, so that would have made him roughly 50 and her roughly 30.  So an older guy and a (relatively) younger woman.  Not uncommon.

They go out for less than a year when the parties begin to "discuss[] marriage."  By this point, not only is she living in his condominium, but so is her younger daughter.  "Plaintiff told defendant that he wanted to marry her, and she agreed, but on the condition that her name be placed on title to his condominium. Defendant continued 'pushing for' her name to be on title until plaintiff agreed."

Okay, I guess.  Agreeing to marry someone only if he gives you money (or property) isn't exactly a great sign, IMHO.  But whatever.  Different strokes for different folks.

So in 2005, they go to a notary and put her name on the condo.  So now she owns half.  So now they get married, right?

No.  Here's where I begin to get confused.  There's no mention in the opinion about what goes down for the next six years.  The core dispute between the parties in the case is whether the condo was a gift in contemplation of marriage, which Mr. Reuter wants back because (spoiler alert) the parties never, in fact, got married.  But Ms. Macal says, nope, it was just a gift, not in contemplation of marriage.  So what was the scoop between when (1) the condo was signed over in 2005, and (2) the parties ultimately broke up in 2011?  The opinion says she kept living there.  Why didn't they get married?  Were there continuing fights about more money, or more property, or other conditions before marriage?  What went down?  Inquiring minds want to know.  What happened during this period also seems relevant to whether putting the name on the condo was in fact in return for marriage.  If the parties just sit there, living together, for six years after the transfer, happy with the status quo, then I take that as a fair sign that the proposed marriage was not, in fact, the consideration for the condo, and it was instead (as Ms. Macal says) just a gift.  But if, instead, Mr. Reuter continued to insist on marriage, whereas Ms. Macal refused (or put things off), okay, I get that.  But I'm definitely left wanting to know which of these (or a combination thereof) it was.

Eventually, in 2011, they break up.  Did Mr. Reuter simply get tired of waiting?  Nope, that's not it.

They break up in 2011 when Ms. Macal "disclosed to plaintiff that she was pregnant by another man and intended to keep the child."


But at least it's a clean break.  Now the parties break up and lead their separate lives, only to fight in the future about the joint ownership of the condo, right?

Wrong again.

Upon learning of the upcoming kid fathered by someone else, Mr. Reuter says:  "'Okay, if that’s your decision, then you have to leave.’ Defendant agreed to move out, but asked plaintiff to ‘give [her] some time, about a year.’ Although plaintiff acquiesced, he understood that the relationship was over because the parties 'had separate bedrooms, and [they] didn’t really talk [that] much to each [other] . . . .' By that time, it was clear to him that defendant would not be able to carry out her promise of marriage.

During the following year, defendant’s son was born, and despite defendant’s promise to move out, she continued to live in the condominium through and including the time of trial. Plaintiff did not take any legal action against defendant because she “always asked for more time” to move out. Defendant explained that she needed more time to find a new “boyfriend,” and left her children with plaintiff while she went out on weekends “looking for boyfriends.”"

Not what I would have expected.  But crazy things can indeed happen in the modern relationship world, I guess.

But, yes, as you might suspect, he eventually ends up kicking her out of the condo and suing her for a declaration that he alone owns the condo since putting her on the deed was a gift in contemplation of marriage.  When does that happen?


Oh, yeah, and in the meantime, after she's told him he's having a kid by another guy, "[f]ollowing the breakup in 2011, plaintiff continued to give defendant between $6,000 and $7,000 a month, totaling over $250,000."


I get that love -- and sometimes generosity -- makes people do silly things.  But, I mean:  Wow.  Not a relationship that seems to work here.  And there's an undercurrent of commodification that isn't at all attractive.  To me, at least.

Ultimately, as a result of this opinion, Mr. Reuter gets half of his condo back.

Albeit after years of litigation and who knows how many tens of thousands of dollars in legal fees.

The ultimate result is presumably some solace to Mr. Reuter.  But, particularly in the scheme of things, perhaps small solace indeed.

Wednesday, November 18, 2020

Sanchez-Rosalez v. Barr (9th Cir. - Nov. 18, 2020)

Want to see a Ninth Circuit judge absolutely tee off on a prior Ninth Circuit opinion?  Check out Judge VanDyke's separate opinion in this case.

I won't attempt to do it justice, and will instead simply quote some of its most memorable phrases and note that Judge VanDyke himself includes in his opinion a large number of the most inflammatory quotations from previous Ninth Circuit immigration opinions (and dissents).  For example:

"I write separately because that precedent is silly and well illustrates our court’s nasty habit of muddying immigration law and holding the BIA—an appellate body—to stilted standards to which we would never subject ourselves."

"As the majority opinion observes, the entire rationale for the footnote-born rule that controls here rested on the premise that “[t]he BIA … does not normally require a showing of prejudice when a motion for rescission of an in absentia removal order is grounded on ineffective assistance of counsel.” Id. For support, Lo cited three BIA decisions— the most recent of which did require a petitioner to demonstrate prejudice when seeking to reopen an in absentia removal caused by ineffective assistance. [Cite] I suppose one might argue that two out of three ain’t bad. But even Meatloaf would find fault with our Lo rule. The other two BIA decisions that declined to require a showing of prejudice did so based on their reading of statutory text that was repealed seven years before we decided Lo."

"If you are wondering how precedent purportedly based on deference to the BIA could repeatedly require us to effectively reverse the BIA’s decisions, you would be in good company. This type of absurdity is regular fare in our immigration cases. Our circuit’s immigration jurisprudence is a hot mess."

"So once again our jurisprudence betrays the nasty habit of acknowledging only those precedents that support the needs (and desired result) of the moment—that being to overturn the BIA."

"To sum up, a dubious and incomplete picture of BIA precedents was ratcheted into a rule supposedly meant to replicate exactly what the BIA was doing. Now, we’re applying that rule to reverse the BIA for not doing the thing they apparently did so often we decided to do it, too. And we have to apply it even though this court in Singh-Bhathal rejected an ineffective assistance claim indistinguishable from the one in this case. As my colleague remarked about another anomalous rule in a different corner of our immigration law, the rule our panel is forced to apply in this case—like so many of our court’s immigration precedents— is “dumb, dumb, dumb.” Orellana v. Barr, 967 F.3d 927 (9th Cir. 2020) (Owens, J., concurring)."

I'll also briefly mention that the key case that Judge VanDyke critiques (Lo) was authored by Judge Thompson, who departed this Earth around a decade ago and so isn't around to defend himself.  So on his behalf, perhaps, I'll mention that Judge Thompson was a Reagan appointee and, as you may perhaps know, was not one who was (at all) "liberal" in immigration cases.  And his opinion in that regard was joined by Judge Hall, another Reagan appointee (who died the same year as Judge Thompson) and whose conservative, anti-immigration credentials are quite well-established.  (The third member of the panel was Judge Berzon, who is, of course, alive, kicking, and still on the Ninth Circuit.)

I mention this only because Judge VanDyke's opinion definitely slams the alleged pro-immigrant, anti-BIA focus of existing Ninth Circuit precedent.  But it's too easy to conflate the latter with the former and to assume cause-and-effect when the reality may involve a lot more complexity.  Since I'm quite certain that Lo -- the central opinion savaged by Judge VanDyke -- was most definitely not the result of the pro-immigrant, anti-BIA bias of either its author or other Ninth Circuit judges who joined it.  (To take another example, the footnote that Judge VanDyke centrally critiques -- the "two out of three ain't bad" line -- relies in part on another Ninth Circuit opinion that went the exact same way as Lo was written by . . . Judge Hall.  Joined by . . . Judge Thompson.)

So definitely read Judge VanDyke's opinion.  It's super entertaining.

Though I suspect that even if the structure of the world is as he describes, the reasons for its existence are perhaps less conspiratorial in nature than the opinion may perhaps suggest.

Castillo v. Bank of America (9th Cir. - Nov. 18, 2020)

Rather than talk about the merits of this appeal, I simply wanted to propose a tiny change in the way in which the opinion discusses its procedural posture.

It's a class action.  Here are the two paragraphs in which Judge Gould describes how the case got to the Ninth Circuit:

"In response to Castillo’s Motion for Class Certification, the district court found that Castillo had satisfied the requirements of commonality and typicality under FRCP 23(a)(2)–(3), but not predominance under FRCP 23(b)(3). This appeal followed. . . .

Challenging only the denial of the second claim—the overtime-wage claim—and any claims derivative of it, Castillo timely appealed. FRCP 23(f)."

True.  Sort of. 

That'd indeed be the complete process in California state court, in which the denial of certification is the "death knell" of the litigation and hence allows an immediate appeal.  But not in federal court.  In the present case, the party that loses the certification motion (here, the plaintiff) first has to file a request for permission to appeal.  Only if the Court of Appeals grants permission may the appeal permissibly be heard.

A request for permission to appeal was necessarily made (and granted) here.  An important step.  One that probably merits at least brief inclusion.  

Tuesday, November 17, 2020

Moore v. Superior Court (Cal. Ct. App. - Nov. 16, 2020)

I wonder what the backstory -- if any -- is behind this opinion.

Pasadena attorney Kevin Moore represents a client in a mandatory settlement conference in Orange County.  The MSC is operated by a temporary judge, Roy Zukerman; basically, an attorney volunteering his time to help settle cases.  Mr. Zuckerman's done this for a fair piece; as the opinion mentions, he was admitted to the California bar in 1965, so he's been around for a while.

The settlement conference does not go smoothly.  To say the least.  Mr. Moore is agitated, zealous, and strident in his refusal to settle the matter.  He speaks loudly ("yells"), interrupts others, and in a variety of ways is basically a total jerk.  Not someone you want to be around.  So after 15 minutes of this, the MSC gets terminated -- unsuccessfully, of course -- and everyone goes home.

Ninety-nine times out of a hundred, that'd be the end of the matter.  We've all been around attorneys who are unprofessional and rude.  It happens.  We deal.  Perhaps hoping that karma, in the end, prevails.

Not here.

Instead, the trial court hears about these events and issues an OSC re: contempt for attorney Moore.  At the contempt hearing -- which takes place during three different months in 2019 -- the trial judge finds Mr. Moore in contempt, and imposes various fines.  Moore appeals, but although the Court of Appeal narrows (in part) the trial court's findings, it affirms a finding of contempt and reports the matter to the State Bar.

Given that attorney Moore is from Pasadena, you'd doubt that the Orange County Superior Court had sufficient experience with the guy to simply get sick of dealing with his consistent attitude and hence escalate the thing to contempt.  At the same time. does the OC Superior Court really only have one or two attorneys who are jerks in MSCs?  Seems unlikely.

Maybe the uncivility here was just really beyond the pale.  Or maybe it just especially got under someone's skin.

Whatever the reason, the lesson is clear:  Cool your jets when you're in front of a judge.

Even a temporary judge.

They've got connections.

Monday, November 16, 2020

People v. Bankers Ins. Co. (Cal. Ct. App. - Nov. 16, 2020)

Sometimes even good bets don't pay off.

Rami Al-Zetawi gets arrested for animal cruelty when his neighbors allegedly see him beat and injure his white husky dog in the front yard of his home.  When he's arraigned, All Pro Bail Bonds agrees to post his $50,000 bond.  Seems like a good deal for the bond company; they'll get their $5,000 fee (ten percent) and the odds are super high that Al-Zetawi will show up for trial.  Who flees the country just to beat an animal cruelty charge?

Apparently:  Mr. Al-Zetawi.  Who flies to Jordan instead of showing up for his trial.

We'd say that was a "bad beat" in poker.  Or any other form of gambling.

An unfortunate component of the bail bond business, however.

Brennon B. v. Superior Court (Cal. Ct. App. - Nov. 13, 2020)

This is definitely a comprehensive opinion.

It's essentially about a single issue:  Whether a public school district is a "business establishment" under the Unruh Civil Rights Act.  The Court of Appeal says:  No.

Justice Banke's opinion is sixty pages long.  And deep.  It explores -- at extraordinary length -- the history of both the underlying statute as well as the various cases that have gone one way or the other on the issue.

I'm always impressed with in-depth analyses like this.  As a practical matter, they're hard to write.  What justice has enough time to write 60-page opinions, even in unusual cases?  Usually you're just trying to keep up with your various cases and get things out of the door.  Of course, you've got law clerks, and they definitely help.  But they're trying to do the same thing:  keep up with volume.  Writing an exegesis on a particular topic isn't something that you can generally afford.

There's a split in the cases on this issue, and I'm not totally positive that Justice Banke is totally right on the merits.  But I'm also not sure she's wrong, either.  Regardless, she does an admirable job advocating for her conclusion.  And, again, it's a very comprehensive opinion.

Thursday, November 12, 2020

U.S. v. Robertson (9th Cir. - Nov. 12, 2020)

This seems right.

Defendant gets convicted, but dies during the pendency of his petition for certiorari to the Supreme Court.  As a legal matter, that means his conviction is void ab initio.  Fair enough.  (Whether that's the right rule or not is a different matter; regardless, it's definitely the rule.)

But what about the order that said that Defendant had to repay the government for some of his public defender expenses since Defendant actually had more money than he said?

The Ninth Circuit examines a variety of controlling and non-controlling precedents and comes to what seems to me the right result.  Yes, the conviction, sentence, restitution order, and the like may need to be vacated since they all rely upon the existence of a valid conviction -- which (after his death) no longer exists.  But the order about paying the costs of his public defender doesn't require a conviction.  It applies even if the guy's found not guilty.  So it's ancillary, and those sorts of things aren't void.


Parenthetically, I thought it interesting how the Pacific Legal Foundation -- which represented Defendant in this case -- pitched it's alleged "win" in this litigation.  Check out the story it tells here.  It crafts a sympathetic story of an old man criminally charged with trying to protect his property from potential forest fires.  Okay.  I'm fine with that.  It's definitely a one-sided version of the facts, but that's what you would expect from an advocacy group.

After arguing the merits of Defendant's position, the PLF then notes that his conviction was affirmed by the Ninth Circuit, and then Defendant died.  All true.  But then the PLF says that it then stepped in and asked the Supreme Court to let Defendant's wife to "stand in his shoes to finish the effort to clear his name, overturn his unconstitutional conviction, and reverse the impoverishing fine."  As a result of these efforts, the PLF says, "the Supreme Court granted Joe's petition, vacated the Ninth Circuit's ruling, and ordered the Ninth Circuit confirm whether Joe's estate can still contest the fine," and then "on July 10, the Ninth Circuit vacated the conviction and fine, plus returned $1,250 in restitution."

That's definitely written to make the reader think that the PLF was successful on the merits.  There's zero mention of the fact that the only reason that the things got vacated was because Defendant died; that there was absolutely no determination that Defendant was right on any of his substantive claims or defenses.  That part's carefully omitted.  In a deceptive manner that I think crosses the line.  Even for advocates.

If I get convicted for income tax fraud, challenge the conviction on the grounds that income taxes are unconstitutional, lose, die while my certiorari petition is pending, and accordingly get my conviction and sentence vacated on mootness grounds (since I'm dead), it'd be fantastically uncool for my lawyer to write a version of this history that makes is sound like my lawyer convinced the appellate tribunals that the income tax laws were unconstitutional and hence vacated my conviction.  What the PLF does here is little different than that.

Hopefully they'll change it.

Tuesday, November 10, 2020

Cruz v. Fusion Buffet (Cal. Ct. App. - Nov. 10, 2020)

I think that when there's a split of authority in the Court of Appeal and your opinion come out on one side of the split, you should usually publish the opinion.  So I agree with the (belated) decision to publish this one.  The Court of Appeal says that the cost-shifting provisions of CCP 998 don't apply to the one-way fee and cost-shifting provisions of the Labor Code.  I'm agnostic (for the moment) on whether that's right or wrong, but since there's a split in the Court of Appeal on that point, the opinion merits publication.

I was, however, somewhat disappointed at a particular omission (on a different point) in the Court of Appeal's opinion.  Appellant's main argument was that the award of over $47,000 in attorney's fees was improper given that the plaintiff obtained a result at trial that was less than the jurisdictional minimum of unlimited jurisdiction cases in superior court ($25,000).  Yet despite giving a plethora of numbers in the opinion, Justice Aaron never reveals how much the plaintiff actually received at trial.  Was it $24,000?  $5,000?  3?  I would think that'd matter in deciding whether an award of $47,000 in fees was an abuse of discretion?  I had to go back to the briefs to look it up:  a little over $10,500.  (I get why that number may not have been important when the opinion was unpublished, since all the parties knew it already, but it's fairly important once the opinion is published:  it adds substantial color -- and additional merit -- to the bases for the Court of Appeal's holding.)

One more (admittedly tangential) point.  The opinion is written by Justice Aaron, and Justice O'Rourke (Acting P.J) is on the panel.  Yet the decision to publish is signed not by the author of the opinion, but rather by Justice O'Rourke.  Is that really the way things work in the Court of Appeal?  Maybe so.  It's not the way it works in the Ninth Circuit, in which any author gets to decide whether to publish the thing.  (I know that CRC 8.1105(b) says that the "majority of the court" gets to decide whether or not to publish, but I had always thought it was the author who signed the publication order, rather than the P.J.  Guess not.)

Monday, November 09, 2020

People v. Falcon (Cal. Ct. App. - Nov. 9, 2020)

You read all these Senate Bill 1437 opinions these days; it's a fair amount of work for both trial courts and the Courts of Appeal.  But such is life.  Most of the opinions are unpublished, and even the ones that are published typically don't involve complicated legal doctrine or merit substantial comment.

But I'm legitimately confused about this one.

Christopher Falcon was charged with first degree murder, but pleaded no context to second degree murder.  After Senate Bill 1437 was passed, he filed a petition for resentencing, and included a claim under penalty of perjury that "an information was filed against him which permitted the prosecution to proceed under a theory of felony murder or under the natural and probable consequences doctrine."

The rule is that he's typically entitled to a hearing to see if, indeed, he might have been found guilty under such a theory.  But there's a limited exception that says that a trial court doesn't have to hold a hearing if the underlying documents prove "as a matter of law" that petitioner is ineligible for relief.

There's no trial here, so we can't look at a trial transcript.  So the trial court and Court of Appeal look to the charging document and his preliminary hearing to see if "as a matter of law" he's ineligible for relief.

As for the charging document, it indeed charges him with first-degree murder, having allegedly committed the crime "unlawfully, and with malice aforethought."  But that doesn't prove that he actually engaged in the complained-of conduct.  The Court of Appeal says that this document does not "suggest" that Mr. Falcon "was being prosecuted under the natural and probable consequences doctrine or the felony murder rule" and that, instead, it "suggests he was being prosecuted as a principal."  I agree.  But it doesn't preclude the prosecution from proving his guilt under the felony murder doctrine.  We routinely charge people with first-degree murder in cases in which we in fact end up getting a conviction under the felony murder doctrine.  I don't see how the charging document proves anything close to the fact that "as a matter of law" Mr. Falcon couldn't have been convicted of felony murder.  Any reliance on the charging document is further undercut by the fact that it charged him with first degree murder but that's not what the offense for which he was found guilty; he pleaded no contest only to second degree murder.  So concluding that his being charged with first-degree murder proves as a matter of law that his conviction for a different crime must not have been pursuant the felony murder rule seems a super stretch.

That leaves the preliminary hearing transcript, and at that hearing, a witness testified that about five seconds after approaching the victim, Mr. Falcon told an associate to get his gun out, the associate shot the victim, and then Mr. Falcon said "That's how we do it" (an alleged reference to a gang shooting in response to disrespect).  To me, the meat of that testimony actually supports Mr. Falcon's claim that he was not, in fact, the actual shooter, which is the precise basis for 1437 relief.  Now, it may well be that if Mr. Falcon in fact told the shooter to commit the offense, then he may not be eligible for relief under Senate Bill 1437, since he's more of an "active" participant at that point.  But that there's testimony at a preliminary hearing doesn't necessarily mean that such testimony is true.  Presumably Mr. Falcon will say -- consistent with his declaration in his petition -- that it's not true, and that his associate instead shot the victim on his own.  If that's what a factfinder will conclude actually happened, then I suspect that Mr. Falcon would indeed be eligible for resentencing; the whole point of the hearing would be to figure out whether Mr. Falcon in fact was an active participant or was instead, as he claims, guilty of murder because he was admitted engaged in a felony (e.g., approaching the victim in an attempt to assault and/or intimidate him) and did not in fact direct his associate to shoot the guy.

So I'm confused how the Court of Appeal can conclude as a matter of law that Mr. Falcon's ineligible for relief.  It's a factual dispute.  That's the antithesis of a categorical legal conclusion.  So it would seem to me we have to have a hearing as to what, in fact, went down.  If the witness was right, then Mr. Falcon's original sentence stands.  If the witness was wrong, then Mr. Falcon potentially is entitled to get resentenced.

For someone who teaches Civil Procedure, it just seems strange to me that a genuine factual dispute -- Mr. Falcon's sworn testimony, on the one hand, and the witnesses' contrary sworn testimony on the other -- somehow gets labelled by the Court of Appeal as a factual conflict that proves "as a matter of law" that one of these factual claims is right and the other is wrong.  I definitely did not (and do not) think that's the way it works.

Friday, November 06, 2020

Levy v. Only Cremations for Pets, Inc. (Cal. Ct. App. - Nov. 6, 2020)

This opinion by Justice Ikola certainly seems right.

You want your pet cremated in a "private" cremation -- that way, they're cremated separately, and you get their (and only their) ashes back, rather than being cremated with a ton of other animals and having their ashes scattered at sea.  It costs more, but you think it's worth it.

You tell your veterinarian to make it happen, and they contract with a crematorium.  The latter then does not do what they agreed to do -- instead, they (allegedly) give you ashes that aren't even those of your pet.  So you sue.

The trial court says you can't, since you didn't have a direct contract with the crematorium.  But Justice Ikola says that you may well be a third party beneficiary, which seems spot on.  And, yes, you can perhaps get emotional distress damages.  After all, the only reason you did this thing was to get "emotional peace" from the cremation, and that's what the defendant deprived you of.

That's all persuasive to me.

Thursday, November 05, 2020

People v. Lamoureaux (Cal. Ct. App. - Nov. 5, 2020)

Here's someone who definitely ended up in a much better condition than her original status.

In 2013, a jury convicted Patty Lamoureux of conspiracy to commit robbery and felony murder.  She's not the actual killer, but, again, felony murder, so she receives a hefty sentence.  Long.

As in:  LWOP.  Life without the possibility of parole.

Can't get much longer.

In 2015, the Court of Appeal concluded the evidence was insufficient to support the jury’s finding that Ms. Lamoreaux had an intent to kill or acted with reckless indifference to human life, which meant that LWOP wasn't an option.  So it remanded for resentencing, at which point Ms. Lamoreaux gets 25 to life.

Still long, but better than LWOP.

Then the Legislature passes Senate Bill 1437, which allows people sentenced to murder who weren't the "actual killer" to apply for resentencing.  So Ms. Lamoreaux files the relevant petition in 2019.  The trial court held that the statute was unconstitutional, but a divided panel of the Court of Appeal reversed and remanded.

And on remand, Ms. Lamoreaux gets resentenced to . . . six years.

Which in turn meant she immediately got released from prison, since with good conduct credits, she'd already served her full sentence.  (Indeed, she was already out on bail at this point, since that's what it was looking like after the Court of Appeal's opinion.)

So initially sentenced to LWOP, in the end, Ms. Lamoreaux only serves six years or so.

A pretty big turnaround.

Wednesday, November 04, 2020

McCluskey v. Henry (Cal. Ct. App. - Nov. 2, 2020)

I readily admit that prosaic appellate opinions in California are probably not the highest priority for pretty much anyone in the post-election too-close-to-call-refreshing-my-screen-every-five-minutes era.  Still, we have some opinions coming out -- albeit not all that many.  So read them we shall.  There's (pretty much) always something interesting.

Like this one.  (Though it came out on Monday!)

It's pretty rare to get an attorney successfully sanctioned under CCP 128.7 who's competently trying to avoid sanctions.  There are a fair number procedural rules you've got to follow, and then there's the key substantive component of having to prove that what the other side's done is affirmatively frivolous.

Yet not only did the attorney get sanctioned, but for a fairly hefty amount:  over $22,000.

The sanctioned lawyer is Los Angeles attorney Michael Mogan.  Now he not only has to pay the tens of thousands of dollars in sanctions, but also has a published opinion that publicizes them to the world.  With the additional note that his appeal of the sanctions order against him "comes right up to the line of sanctionable conduct" as well.  ("Close to all of arguments offered by Mogan – 19 issues presented in question form – 'are not supported by a careful reading of the record or the law nor could these arguments be reasonably characterized as presenting unique issues or arguing for extension, modification, or reversal of existing law.' [Cites] By forcing us to examine those myriad arguments before rejecting them as having no factual or relevant legal support, Mogan has caused a 'useless diversion of this court’s attention' from '[o]ther appellate parties, many of whom wait years for a resolution of bona fide disputes.'”)

Plus Mr. Mogan has to report the sanctions to the State Bar.

All in all, not a great result for him.

Tuesday, November 03, 2020

People v. Stockman (Cal. Ct. App. - Nov. 3, 2020)

Christopher Stockman is driving while intoxicated and hits a bicyclist from behind, killing him.  Mr. Stockman blows a .18 and .19 when he's tested, and has a BAC of .14 in a blood sample taken two hours after the accident.  So the guy's fairly clearly driving drunk when he hits and kills someone.  (Not that it matters, but FWIW, the person he killed was Gerald Weiss, a 52-year old neurosurgeon.)

I was surprised by the sentence he received.  What do you normally think it would be?

I would not have thought that it would be . . . probation.  Five years of probation and a five year suspended sentence.  So no jail time.

Not what I expected to see.

Y.A. v. S.A. (Cal. Ct. App. - Nov. 3, 2020)

For some reason, I have a different reaction to this case than I typically have to cases arising out of our adversary system.

Normally, I'm pretty much fine with mandatory appeals, appointed counsel, vigorous argument, and the like.  Take criminal cases, for example.  The state's taking away someone's liberty, so we want to make sure we're doing the right thing.  We're not entirely confident that a single judge will necessarily get all facets of the decision right, so we make sure we file an appeal on the defendant's behalf.  Maybe we can't find any colorable arguments so we file an Anders brief.  But if there are tolerable arguments to make on appeal, we make 'em.

I've got not substantial problem with that.  Yes, it costs society some time and money, and isn't necessarily very productive on a practical level.  But the defendant typically wants to at least try, and that seems to me a reasonable request.  So if appointed counsel gives it a shot, fine.  That's the way the system works.

Yet, notwithstanding those general beliefs, when I read this opinion, I thought to myself:  I would not want to be the appointed lawyer for the appellant in this case.

It's a guardianship case.  S.A. (I'll call her "Sarah") is 33 years old, and has some issues.  So the court has appointed her mother, Y.A. ("Yvonne"), as her guardian.  The question is whether that guardianship should continue.

The trial court found that it should.  So Sarah appeals, and her appointed counsel argues on Sarah's behalf.

Of course, Sarah's got a right to counsel, and her liberty's being taken away, so on a systemic level, I've got no problem with the way that system works.

Yet the more I read the opinion, the more I thought:  "I really wouldn't want to be Sarah's lawyer in that case.  I'd feel like I wasn't doing anyone any good."

It's not just that Sarah's not going to win.  That's the usual outcome on appeal, after all.

It's instead that, in truth, Sarah totally needs a guardianship.  So to argue that she shouldn't have one just seems to me to be arguing for something that you know full well is affirmatively bad.

Sarah's essentially has schizophrenia.  She's got an exceptionally distorted version of reality -- all that despite being (involuntarily) medicated.  She believes that Yvonne is not, in fact, her mother, but is instead an illegal alien from India who kidnapped her as a child and needs to be reported to Homeland Security.  Who's Sarah's real parents?  According to Sarah:  Michael Keeton and Michelle Pfeiffer.

One of several problems with this belief is that Sarah has Indian heritage, so doesn't necessarily look like the biological child of Ms. Pfeiffer and Mr. Keeton.  But Sarah believes that she, in fact, "has American features," and further believes that the antipsychotic drugs that she's been forced to take have "darkened her skin" -- which (among other reasons) is why she plans to stop taking them once she no longer has a guardian.  She denies that she has schizophrenia or any other mental illness; instead, she insists it's Yvonne, her kidnapper, who allegedly is the schizophrenic one.

What are Sarah's plans if her guardian is removed and she's released from the hospital.  She plans on "getting a degree in fashion" and "looking for her real parents" to take care of her and reconnect with them.  To say that these plans are, in reality, less than realistic is an understatement.  I feel confident it would not work out well were Sarah to show up unannounced (or otherwise) at Keeton's or Pfeiffer's home.

The point is this:  I feel bad for Yvonne.  As well as Sarah.  It's gotta be extremely tough to deal with a child who's in this situation and who has such a distorted vision of reality.  And, yes, I'm sure it's clearly confusing and frustrating for Sarah, who (by all accounts) sincerely feels like she's been kidnapped and kept from her movie star parents.

But I'm exceptionally confident that the best thing for Sarah is to retain the guardianship, stay in the hospital, and keep trying to get better.  Not because the status quo is awesome.  But rather because the available alternatives are far, far worse.

And I wouldn't really be all that into arguing otherwise.

Not surprisingly, the Court of Appeal agrees with the trial court, and so Y.A. remains her daughter's guardian.  Great.  Everything "works out" in the end as it should.

I just wouldn't personally want to be the person arguing for a different result.

Monday, November 02, 2020

Coleman v. Saul (9th Cir. - Nov. 2, 2020)

There's only one published opinion from the Ninth Circuit and California appellate courts thus far today.  And when I first saw it, I thought it wouldn't likely be something worth writing about.  It's a Social Security disability case.  You see those published from time to time.  They're almost always fact-specific to the particular plaintiff involved and his or her specific complaints.  Not doctrinally complicated, at least usually.

Which is indeed true for today's opinion.  It's basically just about whether Travis Coleman is in fact a person who's disabled from working.

But what makes the case interesting -- at least for me -- is that I suspect that Mr. Coleman's problem is one shared by a nontrivial number of people in America these days.

Mr. Coleman says he suffers an immense amount of pain.  Pain that's so severe to be debilitating, and that prevents him from doing his usual IT job.  (Because, in essence, "all he can think about is the pain he's in," not his actual occupation.)  Of course, pain is inherently subjective; you can often see its objective cause, but sometimes you can't.  And, obviously, sometimes people can say they're in pain (perhaps in an attempt to get disability benefits) when they're actually not.  So it's necessarily hard to figure out whether someone's actually in pain.  The issue relies a lot on credibility calls.

Mr. Coleman's various doctors and nurses are split on whether they can find an objective cause for his subjective complaints of pain.  Some say there's nothing there -- or at least nothing they can find.  But others say that, yep, there's a spinal problem that may well explain why he says he's in severe pain.

But the ALJ thinks there's an alternative explanation for what's going on here.  One that isn't as simple as just "he's lying about pain just to get money."

The ALJ concludes that Mr. Coleman says he's in pain not particularly to get money, but rather to get drugs.  Painkillers.  Opioids.  What's the evidence for that?  Well, there's the fact that he went to his first doctor for multiple years, but then stopped going to that doctor "after the doctor declined to prescribe additional pain medication."  Then there are the facts about just how many pain pills Mr. Coleman has received:

"Between the end of May and early June 2015, the record shows that Coleman visited the emergency room on three separate occasions with reports of severe neck pain. When he arrived at the ER on June 5, the ER doctor declined his request for pain medication, noting that an Emergency Department Information Exchange alert showed multiple prescriptions for pain medication being filled by multiple providers, with approximately 380 pills in the last 30 days and 800 pills in the last five months. When Coleman returned the next day with reports of even more severe pain, he was again denied pain medication."

Multiple providers and lots of pills.  380 pills in 30 days is approximately a dozen pain pills a day.  That is a fair amount, no?

So the ALJ says that this is indicative of classic drug-seeking behavior.  Though you see what the underlying problem is, right?  Sure, he's (probably) got a drug problem.  But is the drug problem a result of constantly being in pain (in which case, yeah, he's likely disabled), or is it instead a drug problem masquerading as a pain issue?  Or, perhaps, something in between; he's got an opioid problem, and since he takes too many drugs, his synapses and the like are now all messed up, and he's now in constant pain as a result?

It's a toughie to be sure.  And I'm quite confident that Mr. Coleman -- whatever the truth -- is not alone in his status.

The Ninth Circuit ultimately affirms the lower tribunals.  There was a credibility call made that Mr. Coleman was engaged in drug-seeking behavior and that his stories weren't credible.  The Ninth Circuit defers to that determination.  So no disability benefits for him.

Which is why it makes sense to publish this opinion.  Because I'm sure this is neither the first nor the last case about alleged drug-seeking patients and subjective complaints of pain.

Far from it. 

Thursday, October 29, 2020

Olson v. Lyft (Cal. Ct. App. - Oct. 29, 2020)

Here's an interesting way to write an opinion.  You typically don't see the identities of the appellate counsel getting so much play, particularly so early in the opinion.

The style you're used to seeing in a case like this would go something like:  "Lyft claims that Brandon Olson must bring his Private Attorney General Act ("PAGA") claims in arbitration, but we agree with the California Supreme Court and a recent opinion from the Court of Appeal that arbitration for PAGA claims cannot be required."  Maybe you name the cases; whatever.

Instead, here's how Justice Richman begins his opinion:

"Brandon Olson is a driver for Lyft, Inc. (Lyft), whose terms of service include an agreement he could not bring a Private Attorney General Act (PAGA) claim in court and that disputes with Lyft must be resolved by individual arbitration. Olson sued Lyft alleging six PAGA claims, which Lyft petitioned to compel to arbitration. The petition acknowledged that Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) precluded enforcement of PAGA waivers, but asserted that Iskanian was wrongly decided and in any event was no longer good law in light of the 2018 opinion of the United States Supreme Court in Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612 (Epic Systems). The trial court denied the petition in a comprehensive order rejecting Lyft’s arguments.

Lyft appeals and, represented by two prominent law firms, provides us with 96 pages of briefing, beginning with an argument as to what we “must follow” from United States Supreme Court opinions, going on to reassert its unsuccessful arguments below. Lyft’s opening brief cites 12 United States Supreme Court cases, two cases from the Fifth Circuit Court of Appeals, and, indeed, a 2013 case from an Ohio District Court. Olson, represented by a well-known appellate boutique, provides 54 pages of his own, included within which is a scholarly exposition of California jurisprudence dealing with arbitration.

We need not engage in any similar discussion, as we reject Lyft’s position based on Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 602 (Correia), an opinion that thoughtfully analyzed—and rejected—the identical argument Lyft makes here. Other post-Epic Systems cases have agreed, including the only two other published Court of Appeal decisions and numerous California federal cases. Accordingly, we affirm the order denying arbitration."

That second paragraph is unusual.  Lots of focus on the identity of the lawyers.  One side is represented by "two prominent law firms."  (If you're interested, he's talking about Horvitz & Levy and Van Nest & Peters.)  The other side's represented by "a well-known appellate boutique."  (That's itself an interesting claim.  There's actually two firms that represent Olson: Olivier Schreiber & Chao and Outten & Golden. The former bills itself as a "civil rights" firm and the latter as an employment law firm.  You can likely guess as to which firm Justice Richman was thinking as the "appellate boutique," but still, it's unusual to focus on the lawyers, and even more unusual to mention one of the two listed counsel.)  Then there's the references to the briefs, including a detailed list of just how many cases were cited and from where. ("12 United States Supreme Court cases, two cases from the Fifth Circuit Court of Appeals, and, indeed, a 2013 case from an Ohio District Court.")

I'm not saying that's an absurd way to begin an opinion.

It's just not the usual approach.

Wednesday, October 28, 2020

U.S. v. Singh (9th Cir. - Oct. 28, 2020)

You can tell that the opinion is going to be a fairly lengthy one when the summary prepared by the staff of the Ninth Circuit is, as here, six pages long (and replete with innumerable bullet points).

Among other things, the opinion resolves whether legally admitted foreign citizens have a constitutional right to (1) possess guns, and (2) make political contributions in U.S. elections.  (The defendant here was admitted on a tourist visa, but came to the United States pretty much weekly.)  The Ninth Circuit says that, no, no such rights exist.  They're civic and political rights.  You can limit their exercise to citizens.

The case arises from a high-profile criminal prosecution in San Diego.  Ravneet Singh made lots and lots of (illegal) political contributions to various San Diego officials in an attempt to ensure that city officials allowed him to develop the Chula Vista waterfront.  There was an era in which San Diego was a hotbed of corruption and other official misconduct.  The more things change, the more things stay the same.

Monday, October 26, 2020

Dix v. Live Nation (Cal. Ct. App. - Oct. 26, 2020)

Someone who puts on an electronic music festival -- here, Live Nation -- owes a duty to protect its patrons from overdosing on MDMA.

Friday, October 23, 2020

People v. Foley (Cal. Ct. App. - Oct. 23, 2020)

Jeffrey Foley is the grandfather of identical twins.  He molests one of them, who immediately reports it, and he's tried and convicted and sentenced to three years in prison.

After that conviction, approximately two years later, the other identical twin reported that she too had been molested by her grandfather.  He's tried and convicted again and is sentenced to 60 years in prison.

It seems at least a bit anomalous that you get 3 years in prison if you've molested one person but 60 years if you've molested two.  In the normal circumstance, you'd generally think that such sentences would meet somewhere in the middle; either a longer sentence for the one molestation or a shorter sentence for two molestations.

I get that you want to punish repeated molesters more.  And, for good reason, criminal sentences aren't necessarily linear:  two offenses don't get you exactly twice the sentence.

Still, 3 and 60 is quite a gap.

Thursday, October 22, 2020

U.S. v. Alhaggagi (9th Cir. - Oct. 22, 2020)

Both the majority and the dissent agree that Amer Alhaggagi is a messed-up kid.  They just disagree over the nature of the mess.

Judge Smith thinks he's a braggart 21-year old online troll.  He was born in Lodi, California to Yemeni immigrants, but after 9/11 his mother moved him and his five siblings to Yemen, while his father stayed in the United States.  Leaving Alhaggagi shuttled between Yemen and California.  "In both places, Alhaggagi had a strained relationship with his parents, who raised their children in an observant Muslim household. In 2009, Alhaggagi and his mother and siblings returned to California to live with his father. Although he was raised in a Muslim home, Alhaggagi was not religious and adhered to few religious traditions. As an escape from his home life, Alhaggagi began spending a lot of time on the Internet, where his father had no insight into his activities. He developed a sarcastic and antagonistic persona online, provoking people by comments he made on YouTube videos. . . . He chatted both in Sunni group chats sympathetic to ISIS and Shia group chats that were anti-ISIS. He trolled users in both groups, attempting to start fights by claiming certain users were Shia if he was in a Sunni chatroom, or Sunni if he was in a Shia chatroom, to try to get other users to block them. He was expelled from chatrooms for inviting female users to chat."

Eventually, Alhaggagi gets noticed by the FBI.  The big difference between the majority's conception and the dissent's characterization of his conduct is an underlying dispute about whether what Alhaggagi was serious when he said and did what he did.  Judge Smith essentially thinks that Alhaggagi was "all talk" and was just continuing to be the online jerk he usually was -- just out to outrage people and play the "big man."  Whereas Judge Hurwitz thinks, no, that's not really what he was doing, he was serious and genuinely interested in terrorism and terrorist attacks.

Maybe the most obvious -- and interesting -- difference between the majority and dissent is in how they treat how Alhaggagi eventually ends up.  Here's how Judge Smith describes what happened:

"On a third occasion, the UCE [undercover informant] met again with Alhaggagi at the storage locker, where the FBI had left several barrels of mock explosives. In the moment, Alhaggagi expressed excitement upon seeing the explosives, and on the drive back, he pointed out places he believed would be good targets for bombs. After that meeting, however, Alhaggagi began distancing himself from the CHS on Telegram and the UCE. He told the district court that upon seeing the explosives, “it only hit me at that moment that I’ve been talking to these people for far too long and had no idea what I’ve gotten myself into and now I’m kinda freaked out . . . I never took it seriously and I never realized how serious he was until he was ready to make a bomb (so I believed at the time) which I wanted no part of!"

From late August to September 2016, Alhaggagi skipped meetings intended to practice the attacks with the UCE, and ignored many attempts by the UCE to contact him. On September 23, 2016, the UCE approached Alhaggagi on the street and asked if they could share a meal. Alhaggagi agreed, but said he needed to get something from his house first. He never returned to meet the UCE, and they never communicated with each other again."

This is consistent with Judge Smith's perception of the situation:  Alhaggagi was a braggart and troll, but when he actually realized that things were serious and real, he predictably slinked away.

Whereas Judge Hurwitz's view is starkly different.  His description of what happened is contained in a single sentence, which says:  "Alhaggagi broke off contact with the undercover agent and the FBI source in mid-August 2016 after concluding that the undercover agent worked for the government."

That's a very different conception of what went down.  Consistent with their competing views about Alhaggagi's personality and intent.

The district court sentenced Alhaggagi to over 15 years in prison.  Most of that comes from a "terrorism enhancement."  Judge Hurwitz thinks that's fine.  The majority remands to have the district court give it another shot.

Parenthetically, I did not realize that one of the biggest-impact ways in which the Sentencing Guidelines treat terrorism offenses is by manipulating the defendant's criminal history (an issue that's relegated to a brief footnote of the opinion).  Here, Alhaggagi in fact has no real criminal history, so is at Category I.  But Section 3A1.4 of the Guidelines says that for any terrorism offenses, you not only increase the base level of the offense to 32 (which is often a huge increase), but also artificially increase the defendant's criminal history to the worst possible level (Category VI).

That seems weird to me.  Seems to me like we should care about someone's actual criminal history, not one that's deliberately fake.  If you want to increase the punishment, fine, go ahead and increase the base offense level for the offense (which the Guidelines already do), and if that's still not good enough for you, increase it some more.  Pretending that the person has had a lifelong series of serious criminal convictions when he is, in fact, a 21-year old kid with no prior criminal history just seems to me very much the wrong way to go about it.