People v. Contreras (Cal. Ct. App. - Oct. 13, 2021)

I'm glad I wasn't on this jury.

The victim (J.) testified to a classic rape situation.  Here's the basic statement of facts from the opinion:

"On October 11, 2014, J., a woman, went to a wedding and drank alcohol. After the wedding, she asked her best friend, Kacie, to pick her up and go to a bar. Kacie instead invited J. to Kacie’s friend Brittany’s house in the Madera Ranchos. J. accepted the invitation and Kacie picked her up.

Brittany lived with Contreras, her fiancé. When J. and Kacie arrived, they began taking shots of liquor with Brittany and Contreras. Contreras, Brittany, and Kacie had about four or five shots and J. had about two. About 30 to 45 minutes later, J. went to the bathroom and vomited, and Brittany and Kacie went into the bathroom to help her. Brittany went to her and Contreras’s bedroom and got a shirt and sweatpants for J. to change into, J. changed into the new clothes, and J. got into Brittany and Contreras’s bed.

Brittany, Kacie, and Contreras sat on the back patio and Brittany fell asleep. Contreras told Kacie something like, “I’m going to get that bitch out of my bed,” and went into the house. 

J. testified at trial that the next thing she remembered after falling asleep was someone getting into bed with her. She rolled away from the person onto her side, but then felt someone grab her hand and place it on an exposed penis. J. opened her eyes and saw it was Contreras. J. said “no” and tried pulling her hand away. Contreras placed his free hand on the front of J.’s neck. J. described the pressure on her throat as a light clasping that nevertheless felt “awful” and made her freeze from fear. With one hand on her throat, Contreras placed his other hand on her abdomen and pulled her body toward him. J. again said “no.” With his body on top of hers, Contreras inserted his penis into J.’s vagina. J. told him to stop. After several minutes of thrusting, Contreras removed his penis and forced J.’s head down toward his penis and inserted it into her mouth. J.  was crying as Contreras pushed her head toward his penis. She did not remember how long his penis was in her mouth, but said she was scared. Contreras took his penis out of her mouth when Kacie entered the room and yelled, “What the fuck?” Contreras did not ejaculate. . . .

J. eventually got out of the bed and ran out of the house wearing only the t-shirt Brittany had given her; she was not wearing pants. Kacie followed her into the street. J. was crying and saying, “He made me. He made me. I didn’t want to. He made me.” Kacie put J. in a bush and went in the house to get J.’s things and to call them a ride. J. was gone when Kacie returned. J. walked to her mother’s house two miles away. She told her mother what happened and her mother took her to the emergency room, and law enforcement was contacted."

Well, that seems fairly straightforward, no?  Totally rape.

Though there's one paragraph in the middle of there; the one with the ellipsis (in my quote).  Here's that one:

"Kacie testified that after Contreras left the patio and went inside, she remained on the patio waiting for Contreras to return until she started to hear both J. and Contreras moaning; the moaning sounded pleasurable. She went into the house, opened the bedroom door and yelled, “What the fuck are you guys doing?” Contreras said, “Fuck,” and went to the bathroom. J. hid under the covers and would not let them go as Kacie tried to pull them off of her."

The opinion doesn't say it, but you can fairly easily intuit what Mr. Contreras' defense was; that it was consensual (hence the "pleasurable" moaning by J.), that J. was then caught by the friend (Kacie) when she opened the door with J. and Contreras (who was her friend's fiance), and then J. immediately made up the nonconsent claim to avoid exposure for sleeping with the fiance.

At the same time, you can easily imagine J.'s response; no, that's not what happened, J. wasn't moaning, and the friend (Kacie) was either mistaken or covering up for her friend's fiance.

I wasn't there.  Nor was I on the jury.  So what do I know about who's right?

The jury ends up acquitting Contreras on the rape and forcible oral copulation charge.  But it convicts him on simple battery (a lesser included offense of rape).

Was this a compromise verdict?  Again, I wasn't there, I don't know.  What I do know is that it's a tough case, and it's one where there are very serious dangers of doing injustice.  Either way.  Including but not limited to the injustice of a mere compromise.

Anyway, Contreras gets put on probation.  Formal probation (supervised), but no prison.  Plus has to register as a sex offender.

That's what happens.  Right or wrong.

People v. Flores (Cal. Ct. App. - Oct. 8, 2021)

I'm fairly confident that what Justice Robie says in this opinion about both the applicable law and the existence of prejudice accurately states the existing doctrine.

But should it really be this way?

It's a murder case, and the various charges are first degree murder, second degree murder, and voluntary manslaughter.  All the jurors agree it's not first degree murder, but they're split on whether it's second degree or merely voluntary manslaughter.  Eight think it's second degree, but four think it's only voluntary manslaughter.  They deliberate quite a bit, but still can't resolve the split.

So they talk about prospective punishment, which they're definitely not supposed to do.  The murder jurors obviously want the guy to spend a lot of time in prison, whereas the manslaughter jurors don't think that's right.  Regardless, all the jurors don't want the guy to walk; they all think he's committed a serious crime (e.g., wrongfully killing someone).  They're worried that, maybe, if they hang, the guy will go free.

So the eight jurors compromise, and even though they think he's guilty of a more serious crime, they vote to acquit the guy on that count and convict him merely of voluntary manslaughter.  All the jurors agree.

The Court of Appeal reverses the conviction and remands for a new trial on the manslaughter count.

Did the jury do wrong?  Clearly.  They're just supposed to find the facts, not consider punishment.

Did that error affect the verdict?  Of course it did.  Talking about punishment caused some jurors to change their minds.

Hence why Justice Robie reverses the conviction.

But here's the rub:  Is that really prejudice?  Did it really harm the defendant?

Sure, the (improper) consideration of punishment changed some of the juror's minds, but it did so in a way that -- at least facially -- only benefited the defendant:  it got them off of voting to convict the guy of a more serious offense, second degree murder.  That's a benefit, not a harm.

I understand that it simultaneously got them to vote guilty of voluntary manslaughter.  But they were already on board for that.  They already thought he was guilty of at least that offense; their only dispute is that they wanted him convicted of more.  Not a single one of 'em was voting to acquit on voluntary manslaughter; with respect to that charge -- the charge for which he was ultimately convicted -- the discussion of punishment didn't affect their decision one iota.  It simply got 'em to acquit on a different offense.

That's not prejudice.  To the defendant, anyway.

Now, on some level, you might argue there's "prejudice" to the defendant because the compromise meant that the jury didn't hang, and the defendant might arguably prefer a hung jury to a conviction on voluntary manslaughter.  But three things.

First, and least significantly, I'm not even sure the predicate is actually true.  A totally hung jury would mean that the guy could potentially be convicted in a future trial of all of the charges, including but not limited to second degree murder.  Seems like a defendant might well not want to take that risk.

Second, the alternative isn't really a hung jury on everything.  The jury unanimously agrees, after all, that the defendant was guilty of (at least) voluntary manslaughter; they just disagree as to whether it's murder.  So they can definitely, beyond a shadow of doubt, (1) unanimously convict on the voluntary manslaughter charge, and (2) declare themselves hung on the second degree murder count.  That puts the defendant in much worse position than what the jury did here -- i.e., convict on manslaughter but acquit on second degree murder -- because the prosecution can presumably retry the guy on second degree murder if it wants with the manslaughter conviction already in hand.  So what the jury did here doesn't exactly count as "prejudice" at all from that perspective; indeed, it's a fair piece better than the alternative.

Finally, doctrinally, I'm not at all confident that a compromise like this counts as "prejudice" any more than other types of split verdict that we're totally comfortable with.  Take flatly inconsistent verdicts, for example.  Let's say a jury decides that a defendant is guilty of Crime X but acquits on Crime Y, even though Crime Y is a foundational predicate of Crime X; i.e., both can't possibly be true.  Is what the jury did a compromise verdict?  Maybe; indeed, lots of times, we're pretty confident it is.  Can the jury possibly have properly followed the law?  Nope.  They definitely did something wrong, because no way can you acquit on the one but convict on the other.  But do we reverse the resulting conviction?  Nope.  We do not.  We say that, yeah, the jury must have reached a middle ground, but that result benefits the defendant a little bit (the acquittal on Y) while hurting him a little (the conviction on X).  No prejudice, so no reversal.

Same reasoning -- or at least result -- here, right?

Indeed, arguably, there's even less reason to find prejudice in the present case.  Mr. Flores definitely got a benefit since he obtains an acquittal on second degree murder even though eight jurors though he was guilty.  And arguably he didn't even lose anything because he was only convicted of an offense that all twelve jurors thought he had, indeed, committed.

Regardless, even if you count that last thing as prejudice, it's still a balance both ways; some benefit, some loss.  We don't reverse for inconsistent verdicts that do the same thing.  Why here.

(I'm not necessarily saying that what we do with inconsistent verdicts makes sense, or is good law.  But the point is that this is the law, and if we do it there, why not here?)

One final point.  When you look at the underlying impropriety, it's hard to see that the prejudice flows in the direction that Justice Robie assumes.  Sure, they improperly talked about punishment, but they did so in order to convince the second degree murder folks to acquit on that defense -- hardly something about which the defendant could complain.

To prove the point, let's imagine a slightly different fact pattern, in which (as here) eight jurors want to convict of second degree murder, four jurors (as here) want to convict of voluntary manslaighter, and (as here) the jury improperly talks about punishment in its deliberation.  The only variation is that in this hypothetical, the jurors talk about punishment -- again, improperly -- because the four jurors in favor of the lesser offense say that the punishment for second degree murder would be too severe, and on that basis convince the eight to convict only on voluntary manslaughter.

Does that impropriety prejudice the defendant?  Of course not, it got 'em to acquit, not convict, even though the ultimate output is indeed a conviction on a particular charge (voluntary manslaughter).  It seems inconceivable that we'd reverse that conviction by finding prejudice to the defendant.

Same here, no?

It's not that I disagree that prejudice is presumed.  It simply seems like it's rebutted in situations in which, as here, everyone agrees that the impropriety resulted in (1) an acquittal on an offense that lots of jurors thought the guy was guilty of, and (2) a conviction in which all the jurors already thought the guy was guilty (and a portion of whom were merely hoping to convict on a greater offense).

The case that Justice Robie cites for prejudice in this context is People v. Hem, which indeed says that a retrial is better for the defendant than a conviction on a less serious offense.  But in that case, unlike the present one, it was unclear whether all the jurors had already agreed on the lesser offense; there, the Court of Appeal reversed precisely because the trial judge didn't inquire at all into the nature of the deliberations.  Here, by contrast, we know full well what happened; all the jurors already agreed on the lesser, and were only disputing (and compromised) the greater.  That seems profoundly different to me.

The inequity here seems particularly striking due to the practical effects of the Court of Appeal's opinion.  It permits the defendant to obtain the benefit of the jury's compromise -- i.e., its compromise acquittal on the second-degree murder charge (because there's now a Double Jeopardy bar to a retrial on that count) -- whereas not binding defendant to the detriment of that same compromise (i.e., conviction on the lesser count).  With inconsistent verdicts, the law finds that result entirely untenable.  Yet that's precisely what the Court of Appeal's holding here ensconces into law.

It's not that I like compromise verdicts any more than you do, or that I want juries to consider the degree of punishment in deciding whether someone's guilty.  Since that's not the law we currently have, and I get it, so I'm on board for presuming prejudice and thinking carefully about reversing convictions when the jury's done something wrong.

I'm just not sure that these principles really apply in the present case.  Even if that's indeed what the law says.

Forest Lawn Memorial Park v. Ramirez (Cal. Ct. App. - Oct. 7, 2021)

I hope that this opinion gets depublished.

There's an automobile accident and someone's injured, and the injured party sues the other driver and his employer (Forest Lawn).  The question is whether the defendant driver was driving for his employer at the time of the accident; if he was, the employer might be liable, if not, no liability.  The employer moves for summary judgment with declarations that the driver was simply driving to work in his own car and had no job responsibilities that involved driving; if that's true, no vicarious liability.

Plaintiff responds with a declaration of a third party witness that says that's not true; that she saw the driver pick up flowers on multiple occasions for Forest Lawn.  As described by the Court of Appeal, here's what the declaration says:

"Scott stated that she was an employee of “Jensen’s Florists” in Palm Springs, where she had worked for many years. She stated that between February and March 2017, she witnessed “an employee of Forest Lawn, named Joshua Brown[,] that came into Jensen’s Florists on numerous occasions with his car to pick up flowers on behalf of Forest Lawn.” She stated that this was done during work hours. She signed under penalty of perjury."

On that basis, the trial court denies summary judgment.  Disputed issue; genuine issue of material fact.

Right?  Any problem with that?

Nope.  Not with me, anyway.

Are you at all concerned that the declaration of the witness isn't admissible?  Does it show personal knowledge of the witness?

Of course it does.  She says she worked at the florist, had worked there for many years, and personally saw the driver (Joshua Brown) pick up flowers on behalf of Forest Lawn.  You can't get more basic and fundamental than that.  I've filed dozens of declarations over the years that say basically the same thing.  So, I suspect, have you.

But the Court of Appeal holds that the declaration is flatly inadmissible, on the theory that it lacks foundation.  Here's Justice Raphael's reasoning:

"The stated basis for this statement was only that Scott was an “employee of Jensen’s Florists”; the declaration provided no other reason to establish how she might know the information to which she was testifying. In many contexts, a witness’s assertion that she witnessed something readily provides adequate foundation for her testimony. Here, however, for Scott to have personal knowledge of the matter she asserted, she would have to be in a position at a florist to know and remember for three-and-a-half years (a) the name of a person picking up flowers, (b) the company that person worked for, and (c) that the person arrived in a car during work hours. Were Scott testifying at trial, the bare assertion in her declaration would likely be inadequate to overcome an objection for lack of foundation; a court would demand more testimony from a live witness as to how she knew and recalled the information."

These are all good points.  But they're the stuff of impeachment, not foundation.  Sure, it's three and a half years earlier, and one could reasonably wonder how she'd remember a guy's name for so long.  But that's not impossible.  She says she remembers.  That's enough.  Similarly, yeah, I do wonder how she knew (and remembered) the customer's name or the company he worked for.  But in a declaration, I'm not required to spell out in exhaustive detail every background circumstance of the events to which I'm testifying.  The witness said that she personally saw the guy and had personal knowledge of his name and his company.  You can cross-examine the witness to try to show that's not true.  But to say that the declaration lacks foundation just seems way too strong.  If I say "I saw James Kirk commit the murder because I was there and I saw it and it was him," that's fine.  I don't have to spell out how I'm sure that it was James Kirk.  I said it was him.  I said I had personal knowledge of that.  At the evidentiary stage, I think that's sufficient.

The point about "how do you know it was work hours" seems even less persuasive.  How does the witness know that it was during work hours; well, you can ask her that if you want, but here's likely how:  because everyone pretty much knows what that means.  It means he picked up the flowers like between 9 to 5.  Can you ask her to be more specific?  Sure.  Can you ask her if she remembers the exact time?  Yeah, if you want.  Can you says:  "Well, sure, you think those are work hours, but do you know whether or not Joshua Brown is assigned to work the night shift?"  Sure, give it a shot.  But to say that the evidence is flatly inadmissible again seems to require way more rock-solid foundation and demonstrable truth than we usually -- or rightly -- require.

Now, in this particular case, I totally understand why Justice Raphael wants to come out this way.  In the present lawsuit, after the trial court denies summary judgment based on this declaration, defendant deposed this witness, at which point she totally recanted pretty much every single thing she said in the declaration, admitting that she has zero idea whether anything she said was true and essentially saying that she signed a declaration without reading or even understanding it because plaintiff's lawyer was badgering her and she just wanted to get him out of her face (and workplace).

Okay.  That's super good impeachment stuff.  I'm pretty confident that if that's the only evidence on the liability side, a jury will find for the defendant.  I certainly would.  So it seems unjust to waste money on the case and let it go to trial.  Just bounce it now.  (The Court of Appeal also seems deeply concerned about the attorney's conduct, saying in a footnote:  "We, too, are concerned by the behavior Scott described. For present purposes, however, we need not decide whether [attorney] Basseri in fact violated the Rules of Professional Conduct.")

But while perhaps equitable, that's not what we do.  If some evidence says X and some says Y, we let a jury decide.  We don't decide for 'em.  Even if we're super convinced that X is wrong and Y is right.

One final doctrinal point.  If you really want to reach the (equitable) result embraced by the Court of Appeal, I personally think the D’Amico route would be the preferable way to go.  (Or at least would have much fewer untoward consequences than the Court of Appeal's "let's start having trial courts refuse to admit a ton of sworn declarations because we're super restrictive on what possibly counts as 'personal knowledge'" principle.)  The California Supreme Court said in D’Amico that you can't create a genuine issue of material fact by submitting a declaration that contracts your declaration.  That rule makes eminent sense; we have the same principle on the federal side as well.  It seems to me that if you applied that rule here, you'd have a possible basis for rejecting the declaration.  Admittedly, usually, the way these things go is that you have a deposition first and then a subsequent declaration -- which we reject -- that contradicts that sworn testimony, whereas here, the deposition came second.  But I'm not sure the order matters.  The principle is the same.

But today's opinion says that this rule only applies to declarations by a party, not a third-party witness.  The federal courts, though, go the other way, as have several other Court of Appeal opinions (as Justice Raphael admits).  But the panel here says that it "disagrees" with those prior opinions, and instead says that the California Supreme Court's D’Amico rule "in our view, [] applies to deposition and declaration statements by only a party to a case" and "does not apply to third-party witnesses like Scott."  I get the reasoning there.  But creating that appellate split seems yet another downside of an opinion that likely will create a ton of confusion, litigation and inefficiency as lower courts struggle to apply the restrictive "you gotta really, really, establish every detail of personal knowledge in your declarations" principal of today's decision.

Am I okay with the ultimate result?  Sure.  Ramirez definitely deserves to lose.  But as they say, and as a reminder:

Bad cases make bad law.

So keep the result but depublish the case.

in re Ari S. (Cal. Ct. App. - Oct. 6, 2021)

Okay, well, I can certainly tell what today's theme is going to be in the California Court of Appeal.  Here's the first opinion published this afternoon (right after the one I mentioned earlier today):

"The mother has three adoptive children: Serenity (born in 1993), Genesis (born in approximately 2002), and Ari (born in 2013). Ari is the only child at issue in this case. Serenity is Ari’s biological parent. The mother adopted Serenity in Nevada through an adult adoption when Serenity was pregnant with Ari. When Ari was six months old, the mother adopted Ari in Nevada. 

The mother, Ari, and Genesis traveled and lived in a van. The timeline of the family’s whereabouts is indistinct. Most record dates come from the family’s involvement with child protective services agencies in different locations. . . . The family was in Montana in the beginning of 2019 when Montana’s child protective services agency removed Ari and Genesis from the mother’s care. We have few details about this removal. A Montana social worker spoke with a Washington state social worker, who told the Department this removal was because the mother neglected Ari and physically abused Genesis. . . .

In spring 2020, the three stayed in Washington state with Ari’s godmother, Linda K., for a month and a half. During that stay, the mother wanted to board up Linda K.’s windows and turn off the utilities because the mother believed “Christ was going to send fire from heaven in the form of a cross.” The mother predicted this would happen on May 27, 2020. . . .

The mother has had long-standing mental health issues that recently have become more severe. The mother has delusions. She believes King Louis V is her father and Donald Trump, Michelle Obama, and Queen Elizabeth communicate with her through satellites. She thinks the world is going to end and she told this to Ari, which frightened him.

Ari said the mother smokes marijuana “a lot.” She has smoked in the van with Ari inside. “Sometimes, I can’t handle the smoke. I hold my breath.” “Sometimes, I suck that in and breathe it in when my mom breathes it out.”

Genesis said the mother once closed her eyes and drove the van into a ditch with Ari inside. The mother said someone was talking to her through a satellite and was controlling her hands.

Genesis and Ari did not attend school and the mother lied about homeschooling them. The mother physically abused Genesis and sometimes spanked Ari.

On June 4, 2020, Genesis reported the mother to police in Franklin, California because the mother said Ari was “being raped by a Saudi Arabian satellite.”

As of June 17, 2020, the family was in San Bernardino County. Someone referred them to that county’s child protective services agency alleging that the mother punched Genesis, that the mother said someone was controlling the mother’s mind, and that the mother did not feed Ari. The county deemed this referral inconclusive: it could not find the family.

The mother, representing herself, filed a lawsuit in federal district court in California on June 25, 2020. She listed a California address in the filings. The complaint says Donald Trump made the mother the “current elected citizen president” and the mother’s grandmother is Queen Elizabeth. One page is styled as a handwritten declaration from Ari. It says, “Ari 6 years old American Citizen First Military Survivor on Soil” and, “My name is Ari. So um judge okay so the people here are doing bad things to my mommy.”"

Not blithesome, eh?  At all.

Michael G. v. Superior Court (Cal. Ct. App. - Oct. 6, 2021)

There's only one published opinion from the California appellate courts today (thus far, anyway), but it's one that definitely makes you feel sympathetic towards the kid:

"A.G. left home in the fall of 2019 due to Father’s escalating mental health issues. According to A.G., Father heard voices and had delusions of persecution by demons, witches, and the government; he also yelled, threw things, and punched the walls in their home. At the time, A.G. was not in contact with Mother, who lives in North Carolina, and whose background includes mental health issues, psychiatric hospitalization, alcohol abuse, attempted suicide, and a criminal history.

The juvenile court found A.G.’s reports were credible and concluded Father’s mental health issues, coupled with Mother’s mental health issues, criminal history, and failure to maintain a relationship with the child, put the child at risk of suffering serious physical harm. Based on these findings, the court assumed jurisdiction over the child in January 2020, removed her from her parents’ custody, ordered both parents to undergo general counseling and other reunification services, and ordered an Evidence Code section 730 evaluation of Father.

During the six-month review period, Father refused to sign his case plan and the therapy referral, or to participate in the section 730 evaluation. Mother made even less progress and was terminated from counseling due to non-attendance."

Stay tough, A.G. 

People v. North River Ins. Co. (Cal. Ct. App. - Oct. 4, 2021)

Justice Perluss buries the lede in this opinion.  In a footnote, no less.

It's yet another bail forfeiture case.  Most of the analysis in the opinion consists of strings of quotations and citations, which makes it a bit difficult -- or at least off-putting -- to read.  But the basic scoop is that the defendant was charged with a crime, a bail bonding company posted his bail, the defendant skipped town, the guy was ultimately arrested and incarcerated in another state, and the LAPD ultimately went to Nebraska and extradited the guy and brought him back to Los Angeles.  Since the guy was returned in time, the trial court vacated the prior forfeiture of the bond, but charged the bail company the costs of returning the defendant to California, which were over $6,000.  (This amount seems super high to me, but perhaps the officers who went and picked up the offender ate and drove/flew quite well.)

But the Court of Appeal reverses.  The rule is that if the defendant eventually shows up on time, then the trial court has to vacate the bail forfeiture, which left the trial court without jurisdiction to make the order for reimbursement of extradition costs.  There you have it.

The final footnote, however, says that the trial court could have conditioned the vacatur of the forfeiture on payment of the extradition costs.  Which might be something to put in the first paragraph.  If only so everyone relevant makes sure to read it.

But at least we now know the rule.

Assuming you read footnotes.

Missakian v. Amusement Industry (Cal. Ct. App. - Sept. 29, 2021)

You might be an in-house counsel, but if you want to get paid a contingency fee by your employer, just like outside attorneys, you need to get it in writing:  otherwise it's unenforceable.

Justice Rubin isn't entirely with the breadth of the majority opinion, and might allow some in-house counsel to enforce oral contingency fee agreements in certain settings.  But at least after today's opinion, in-house counsel are forewarned:

Get it in writing.

People v. Wise (Cal. Ct. App. - Sept. 28, 2021)

Dating is not easy.  Especially if you're a woman.  Among other things, you might run into someone like Gregory Wise.

It's pretty chilling, even though (thankfully!) the victim wasn't ever physically assaulted.  It started innocently enough, like a million (or more) online dates:  "Defendant met R.F. through a dating website in 2011. After a couple of casual dates involving walking around public parks, she relayed to defendant she was not interested in pursuing the relationship."

Fine.  Didn't work out.  Time to move on.

But Mr. Wise had other plans.

"Defendant still continued to text and call her over 900 times for the following three years, even though R.F. only responded to tell him to stop and attempted to pretend she had changed her number. In 2015, defendant resorted to threatening to kill himself if she did not reciprocate his feelings towards her. Defendant had also changed his profile on the dating website to say, “[R.F.] you are the only one for me,” call R.F. his “soulmate,” and that: “She just confuzzled [sic] and continues to play games with me as she had from the very beginning. . . . I been ‘stalkering’ her lately. Whatever that word means that concept means. She so fraidy [sic] of me she won’t even dare respond so I guesses [sic] I will have to confront her.” Around discovering defendant’s profile changes, R.F. also found a video defendant uploaded showing him shooting guns while running through a forest in a military fashion."

Not good.  You could easily see why the victim might be freaked out.

But it gets worse.

"On June 22, 2015, defendant was arrested after a light rail rider called 911 reporting defendant had a gun in his pocket on the train. Officers found on defendant a map to R.F.’s house and a document titled “Plan Trackering [sic]” that discussed placing a tracking device on a vehicle. Defendant also had a document with R.F.’s license plate number and a description of her vehicle."

This makes it an easy stalking case, right?  There's basically a zero percent chance the jury's going to acquit.  So just introduce the basic evidence, rest, and declare victory.

But what makes the case even weirder (to me) is that the prosecutor goes ahead and introduces other (freaky) evidence as well:

"Before trial, the prosecutor sought admission of the photographs recovered from defendant’s devices. The first set of pictures were nearly 300 screenshots of a computer desktop with various images of R.F. next to other images including those of legs and feet of other women and monster-like cartoons eating women. These screenshots were consistent with vorarephilia, or vore pornography, which is characterized by a neurotic desire to consume or be consumed by another person or creature. Defendant also labeled the screenshots with the description of what he was doing, often sexually, when he took the screenshot, such as “1-1-13 0915 knees right sex stared into her eyes snow white.bmp” and “6-6-12 2404 focusing on her face of her in the costume on kn.bmp.” 

The prosecutor described these photos as getting “to the meat and potatoes of the defendant’s intent and obsession with the victim.” Defense counsel argued the photos were private and not used in any way to harass or annoy. The trial court found these pictures admissible without explaining its reasoning.

The second set were photographs surreptitiously taken of 14 other women totaling over 350 pictures. Most of these pictures were taken in parking lots while the women were getting in or out of their cars, or while they walked down the sidewalk, and many focused on their legs. The prosecutor argued these were admissible under Evidence Code sections 1101, subdivision (b) and 1109. The trial court permitted these photos because they were “relevant to his intent in the stalking charge.”

To me, that just seems wrong.  Maybe they're marginally relevant; and, to be clear, I'm saying "maybe" just to be safe.  But their prejudice clearly outweighs whatever their probative value might be.  The goal is to label Mr. Wise as a freak for loving monsters eating women.  Which, sure, yeah, he definitely is, but that doesn't really go to the whole "crime" part of what we're trying to get at here.

Nonetheless, the Court of Appeal affirms.  Personally, I'd have probably been fine if it had just said "at worst, harmless error, since the evidence was pretty darn clear on the whole stalking thing."  But, nope, the justices conclude that the various photographs were relevant, admissible, and non-prejudicial (or at least that their probative value outweighed any prejudice).  Seems way too aggressive to me, but what do I know?

Anyway, the point is this:  Online dating isn't always perfect.  Or even close.

Kahn v. Price (Cal. Ct. App. - Sept. 22, 2021)

It's a fight between two neighbors, both of whom live in fancy San Francisco homes.  One of 'em has some amazing views of the skyline, the Bay, the Golden Gate bridge, etc.  But then a "voluntary" Monterey pine seedling starts to grow -- rapidly -- on the neighbor's property.  Eventually, the tree starts blocking a ton of the neighbor's great view, so after a lengthy administrative process, the neighbor sues.

The neighbor with the blocked view prevails.  The tree's ordered to come down.  The Court of Appeal affirms.

All that's marginally interesting, but not why I mention the case.

During the litigation, the defendant neighbor (and counsel) discover that the plaintiff took out a big reverse mortgage on their home, and that this mortgage required that the San Francisco place be her primary residence.  It turned out, however, that the plaintiff had filed a declaration in (tax-free) Florida that Florida was her primary residence, and that she moved to Florida in 2008 and had no intention to return to California.

Which is pretty much irrelevant to the lawsuit, but which nonetheless does make the plaintiff look bad.

So defendant files a motion to "dismiss" the lawsuit on an extraordinarily dubious claim that the plaintiff wasn't the "owner" of the property (even though she clearly was) because her fraud might perhaps make the bank foreclose.  And then, just-so-coincidentally, counsel for defendant calls and writes the loan company, gives 'em details, and includes the pleading it files -- which prompts the bank to show up at the hearing and initiate proceedings to terminate the loan.

The trial court ain't having any of that.  Not only does it deny the motion, but it finds that the efforts to queer the mortgage were bad faith litigation tactics, and imposes bad faith sanctions of $47,345.30 jointly and severally on defendant and "their trial counsel William S. Weisberg and the law firm of Weisberg & Miller."  (Parenthetically, Mr. Weisberg's firm website proclaims:  "Prior to cofounding Weisberg & Miller, William Weisberg worked as a senior associate attorney at a major insurance defense law firm in San Francisco. . . . Mr. Weisberg maintains a strong reputation among his clients and adversaries as an aggressive litigator. . . ."  True that, I guess.)

The Court of Appeal not only affirms, but also drops a footnote:  "We assume the trial court and attorney Weisberg have already reported the judicially imposed sanctions to the State Bar of California. (Bus. & Prof. Code, §§ 6068, subd. (o)(3) [attorney self-reporting duties]; 6086.7, subd. (a)(3) [court reporting duties].)"

Ouch.

Li v. Garland (9th Cir. - Sept. 21, 2021)

When I saw this opinion, my first thought was:  "It's an immigration case, and it's authored by Judge Wallace, so I already know how it turns out."  As I read further, yep, I was indeed not surprised by the ultimate result.

But my second thought was, honestly:  "I know I'm old, but Judge Wallace has to be really getting up there, no?  Great for him to be still cranking out opinions."

Judge Wallace was a long-timer even when I was clerking on the Ninth Circuit, way back in the day; indeed, he was the Chief Judge back then.  To give you some sense of how long he's been on the Ninth Circuit, he was appointed by President Nixon.  Whoa.  Blast from the past.

He's 92 years young, and still writing opinions.  Not a plethora, mind you; as far as I can tell, he's only written a half dozen in 2021.  Still.  For me, I'd definitely take that level of production myself at age 92, thank you very much.

So kudos to Judge Wallace.

Who, by the way, is not the oldest judge on the Ninth Circuit.  That award belongs to Judge Goodwin, who's a spry 98.  But I think that Judge Goodwin has only authored two opinions in the past half dozen years; one back in 2016, and another back in 2015 (from a case argued in 2012).  So Judge Wallace likely wins the award for continuing on-the-bench performance.

Though Judge Goodwin still wins first past the post.

 

U.S. v. Wilson (9th Cir. - Sept. 21, 2021)

Today I learned that if you upload a kiddie porn image to your gmail account -- or at least one that Google has seen before -- they immediately report that fact to the police.  (More accurately, as required by federal law, Google reports it to the National Center for Missing and Exploited Children, which in turn promptly reports it to the police.)

That's yet another reason not to email child pornography.  As if anyone should need another.

It's a totally automated process, which means that no one at Google actually looks at the files; they simply compare the "hashtags" of known kiddie porn to files they've already discovered.  Which means, I guess, that if you're sharing newly-created child pornography, you're "safe."  (Though you're still a sick bastard.)

I didn't realize that Google's surveillance system was that strong, but upon learning it, I guess I'm not surprised.  It's Google, after all.

Here was the most surprising thing I learned, however:  According to the opinion, "there were 18.4 million CyberTips in 2018."

Seriously?!  18 million of these things?!  That's . . . a lot.

P.S. - There was a portion of Judge Berzon's opinion that dealt with issue preclusion as applied in criminal proceedings; this issue arose because the defendant here, Mr. Wilson, appears to have also been charged in a state prosecution, in addition to the current federal charge.  Here's how the final paragraph of footnote 5 of Judge Berzon's opinion reads:  

"We need not definitively resolve the preclusion question as it relates to a motion to suppress, here, as the government has not asserted collateral estoppel, so the argument is waived. Harbeson v. Parke Davis, Inc., 746 F.2d 517, 520 (9th Cir. 1984) (“The United States was unaware that Mr. Wilson had raised the same issue in his state appeal until the letter filed in this case by [defense counsel] on October 16, 2020.”)."

I'm pretty sure the quote doesn't belong inside the parenthetical.  Unless, by some method of time travel of which I'm unaware, the Harbeson case in 1984 was able to anticipate a letter that involved a guy not named Harbeson that'd be sent 36 years hence.

Nede Mgmt. v. Aspen Am. Ins. Co. (Cal. Ct. App. - Sept. 20, 2021)

The majority opinion (written by Justice Ohta) holds that when a policyholder brings a claim for declaratory relief, it's error for the trial court to grant a demurrer.  That's because, in essence, the whole point of a declaratory claim is to declare the rights of the parties, and since that's a permissible basis for a claim, it's wrong to say (on a demurrer) that the request is improper, even if -- as a matter of law -- one side or the other should win.  That's a merits determination, not the proper basis for a demurrer.  The majority thinks that's what the California Supreme Court decided in Maguire v. Hibernia Savings & Loan Soc. (1944) 23 Cal.2d 719.

That said, in the present case, the Court of Appeal says that even though the demurrer shouldn't have been granted, on the merits, it's harmless error here, since, yep, as a matter of law, what the insurance company did here was fine.

Justice Wiley concurs in the result, but disagrees on the process.  He thinks that granting a demurrer should be totally fine, and that there's no reason to waste time and money by making the case resolve on the merits at the subsequent summary judgment (or trial) stage.  Bounce the thing now instead.  Justice Wiley thinks that Maguire doesn't set forth the rule that the majority thinks it does, and that, instead, cases like Zeitlin v. Arnebergh (1963) 59 Cal.2d 901 suggest that it's totally fine to resolve declaratory relief cases on the merits on a demurrer.

For me, I'd have to read the underlying California Supreme Court cases in more detail to decide whether the majority or concurring opinion has the better view of precedent.  But here's what I know for sure:  the rule should be that you should resolve these things on a demurrer.  Maybe it was fine in 1944 to wait until summary judgment or what have you to resolve declaratory disputes that the law definitively requires be resolved in favor of the defendant.  But at this point, the process is far too expensive and burdensome -- for both sides -- to needlessly delay things until that point.  The rule now should be that a demurrer is okay.

That said, here's what we can all agree on:  (1) the California Supreme Court precedent on this point is at least partially unclear (hence the disagreement between Justices Ohta and Wiley); (2) there are plenty of older Court of Appeal cases that say the rule is precisely the one described by the majority (e.g., the several "more recent authorities" cases listed in Justice Wiley's concurrence that he says "err"); and (3) after today, there's an on-point 2021 Court of Appeal opinion that definitively says you can't grant a demurrer in these types of disputes.

Which means, as a practical matter, that's the rule.

Which is bad.

In the perfect world, the losing party here (i.e., plaintiffs) would file a petition for review that says that the Court of Appeal got it wrong and that asks the California Supreme Court to establish the right rule.  But that's almost certainly not going to happen here, for multiple reasons.  First, since every single jurist on the case (both in the trial court and on appeal) agrees that plaintiffs are wrong on the merits, it would make zero sense for plaintiffs to seek review -- even if they got it, they'll surely lose on the merits, so it'd be a waste of money.  Second, the underlying factual dispute (whether plaintiffs were entitled to Cumis counsel) definitely isn't review-worthy, so no reason to take the case on that point to begin with.  Finally, here, the plaintiffs won on the issue that is potentially review-worthy (i.e., whether a demurrer is the right way to dismiss these things), so they've got zero reason to ask for review on this point, and the party that lost (the defendants) on this point has zero reason to ask for review since they ended up winning anyway.

The net result being that cases like this remain the rule and establish a totally inefficient procedure.

So here's what should happen in our (imperfect) world:  The California Supreme Court should grant review of this case on its own pursuant to Rule 8.512(b) and make clear -- either by "clarifying" prior precedent or simply by making a new one -- that, yes, a demurrer can properly be granted in cases like this one.

Will that happen?  Doubtful.  The California Supreme Court doesn't grant review of very many cases on its own.  After all, it's not like it's sitting there reading every Court of Appeal decision that comes down on arcane (albeit important) procedural points and just itching to make more work for itself when even the parties don't bother asking for review.  Moreover, there'd potentially be some procedural complexity since, at this point, since the merits of the lawsuit are already resolved, neither plaintiff nor defendant may have any strong reason to care about how the procedural dispute comes out, so maybe there'd be a need to appoint counsel to argue one position or another.

Moreover, while non-parties can potentially request depublication of opinions, they can neither petition for review nor -- as far as I can tell, anyway -- request a sua sponte grant of review by the California Supreme Court itself.

Still, that's what I think should happen.  Reach out an grant review in this one.  It's a simple dispute.  The answer is (IMHO) clear.  It'll matter in a ton of cases.  And unless review's granted, it's an issue that's likely to evade review pretty much forever (since, at this point, trial courts won't be granting demurrers in these types of cases).  The result of which would be massively inefficient for everyone.

My two cents.

In re ICJ (9th Cir. - Sept. 15, 2021)

This is a judicial opinion, so almost by definition, we know that it didn't work out that well in the end.  But even the dry recitation of its beginning -- wholly apart from the fact that it's in an opinion -- would give most people pause as to how it might eventually play out.  Here's the opening statement of facts:

"Jones and Fairfield met online in 2013. At that time, Jones was fifty years old, a British citizen living in France; Fairfield was an eighteen-year-old high school student in the United States."

Yeah, that's probably not the perfect setup for a fairy tale.

They end up marrying and having a kid, and then get divorced (shockingly!) shortly thereafter.  The fight in the Ninth Circuit is about whether the child -- which one parent took (without consent) from France to the United States -- should be returned to France.

How's the marriage go?  Uh, not well:

"According to Fairfield: Soon after Jones began working from home, she discovered him viewing child pornography. On another occasion, she caught Jones watching child pornography while [the child] was in the room. Fairfield further discovered that Jones had downloaded hundreds of files of child pornography."

(I'm shocked -- shocked -- that a 50-year old guy who has online dates with teenagers from another country might have an interest in child pornography.)

Mind you, Fairfield denies all of this.  Though -- and, again, I know this will be a total surprise -- "[h]e does, however, acknowledge his prior Texas conviction for possessing child pornography."

(It's a sad testament that, with respect to this part of the opinion, "Fairfield asserts Jones never told her about this conviction and she only discovered it sometime after the couple separated. Jones contends Fairfield has known all along about his prior conviction.")

Lest the situation be limited to mere kiddie porn:

"According to Fairfield, after she confronted Jones about his child pornography addiction, he “became aggressive” toward her, throwing a glass at her that shattered near Fairfield and their child, tossing the child’s stroller out a window, flipping a table over, holding Fairfield down and screaming that she made him crazy and violent, and on one occasion raping her. Jones acknowledges throwing the glass, but denies that it shattered near either Fairfield or ICJ. He denies Fairfield’s other accusations of abuse and rape.

Between April 24 and May 1, 2020, while the family was still living together, Jones numerous times threatened suicide if Fairfield left him. On May 1, 2020, after Fairfield asked Jones to move to another of their houses, Jones hung himself from a tree outside their home. He survived after Fairfield and several neighbors cut him down."

(Plus this:  "Fairfield asserts that, at this same time, Jones left the family residence and began living in a tent in order to hide from French authorities because Jones feared they had discovered his child pornography. Jones denies this this was the reason he left the residence.")

It's a crazy world out there, folks.

Bolin v. Davis (9th Cir. - Sept. 15, 2021)

I'm seriously, honestly and sincerely confused by a portion of this opinion by Judge Bress.

It's a death penalty habeas case.  Defendant (Bolin) committed a high-profile multiple murder and was caught only after a well-publicized episode of America’s Most Wanted.  The trial's scheduled to be held in the county (Kern) in which the murders occurred, so there's a (quite legitimate) concern that jurors might be tainted by all the preexisting pretrial publicity.

Defendant's lawyer accordingly files a motion (prior to voir dire) to change the venue to a different county.  "In connection with his venue motion, Bolin submitted videotapes of the America’s Most Wanted episodes and newspaper clippings . . . . In particular, Bolin argued that the first episode of America’s Most Wanted included an inflammatory and misleading reenactment of his crimes."  Defendant also submitted a survey that showed that 20 percent of potential jurors had seen this program.

"The trial judge initially said he was 'very, very concerned' about the America’s Most Wanted program."  Understandably.  The trial judge also said that this program (and its allegedly inaccurate reenactment of the crimes) was his central -- indeed, only -- concern.  (He wanted to “make it perfectly clear, but for this reenactment on America’s Most Wanted, I do not think there are grounds to change the venue.”)

But, at that stage (remember, this is right before voir dire), the trial judge said he was at that point "not inclined to grant the motion to change venue,” and instead said that he'd “reserve ruling on” the venue motion, and "wanted to see the responses given by [the actual] potential jurors during voir dire."  Which, to be honest, seems reasonable.

When the actual prospective jurors get questioned, lots of them (consistent with the survey) say they saw the program, but also say (predictably) that they think they can be fair and judge the case on its merits.  At no point does counsel for defendant renew his motion to change venue.

The trial happens, defendant is convicted, and is sentenced to death.  He ultimately files a habeas petition that asserts that his counsel was ineffective for not renewing the motion to change venue.

So the question on federal habeas (after AEDPA) is:  Could a fairminded jurist reasonably conclude that counsel it was a "reasonable trial strategy" not to renew the motion to change venue?

Judge Bress says:  Yes.  Thereby affirming Bolin's conviction and death penalty.

I can see a lot of ways one might get to that result.  But the way that Judge Bress does it just doesn't seem to logically work.  (At least for me.)

Judge Brees makes two arguments for why the decision not to renew the motion wasn't ineffective assistance of counsel.  First, he says that renewing the motion wouldn't have succeeded (because the trial judge would have denied it), and hence the decision not to renew was a "reasonable trial strategy."

As a purely descriptive matter, I think Judge Bress is right that the trial judge was unlikely to grant the motion.  Sure, the trial judge "reserved ruling" on that motion until after voir dire, and said that he was profoundly concerned about the America’s Most Wanted show. But Judge Bress seems right when he says that given the judge's refusal to excuse for cause jurors who had watched this program, plus some other random comments by the judge during voir dire, it seems -- and I'm using Judge Bress' own words here -- that renewing the change of venue motion "stood little chance of success" (or, in other language by Judge Bress, "was unlikely to succeed").

But here's the thing:  "Unlikely" to succeed most assuredly does not mean "would definitely not succeed."  Remember:  We're only talking about a decision not to renew a motion (1) that counsel for Bolin had already made; and (2) that the trial judge had expressly "reserved judgment" on.  I agree that a reasonable jurist might conclude that, you know what, given the judge's comments, after voir dire, there was, say, only a 15% (or maybe even 5%) chance of success.

But the guy's life is at stake.  Even if there's a super limited chance of success, why not take the shot?!  It's not like it costs you anything -- you already made the motion.  The question is simply whether to say "Hey, judge, how 'bout that change of venue motion?  We're still up for it."  Yeah, probably, you'll lose.  But why not try?  Would YOU like your counsel to give it a shot if YOUR life was on the line?

Now, normally, you don't want to waste time, and you want to preserve your credibility with the jury, so you often (tactically) don't make arguments that you think are losers.  But time's not an issue; again, the lawyer's already made the motion, and it takes literally five seconds to just ask the judge to rule on it at this point.  Nor is credibility an issue:  it's an argument to the judge, not the jury, and it's not like the judge is going to go ballistic at you renewing a motion that he's expressly reserved judgment on, or to sentence your client to death simply because he's miffed that you renewed a motion that he said he'd be willing to decide after he took a look at voir dire.

In short:  There's zero downside to renewing the motion, and a possible -- albeit low -- upside.  It makes zero sense not to renew such a motion, particularly in a death penalty case.  It's somewhat akin to the failure to investigate possible mitigating evidence.  Sure, it might be a reasonable tactical strategy not to introduce such evidence at trial, but it's not a reasonable tactical decision to not even try in the first place.  You don't refuse to do things with zero downside.  Particularly when, as here, it costs you (and your client) absolutely nothing.

Now, if Judge Bress wanted to say that since a renewed motion was unlikely to be granted, there's no prejudice, that's be one thing; that might well be right.  But that's not what the opinion says.  It instead says that it was a "tactical decision" that a reasonable lawyer might make, not that there was a lack of prejudice.  That's not right, in my view.  Any reasonable lawyer would have renewed the motion, for there was zero downside in doing so (and real possible upside).  It's not a "tactical" call not to renew a motion that you've already filed, has no downside, has some upside, and a nonzero chance of success. (Judge Bress surely knows the difference between the "no deficient performance" and "no prejudice"  prongs of Strickland; indeed, later in the opinion, on a different point about mitigating evidence, he expressly relies upon a "no prejudice" holding with respect to that -- separate -- issue.)

So that part of the opinion seems just wrong.

Judge Bress then follows this conclusion with what purports to be a separate point -- an effort to argue that, yeah, there'd be a downside to renewing the motion.  (Judge Bress begins this part of the opinion by saying:  "Renewing the change of venue motion also carried considerable risks as well.")  He first says that counsel for Bolin didn't use all his peremptory challenges to excuse everyone who watched the show on America’s Most Wanted, and says (probably correctly) that "[u]nder California law, counsel’s failure to exhaust all their peremptory challenges is at the very least a 'significant' factor supporting the denial of a renewed motion to change venue."  Fair enough; as he's already explained, that reduced the likelihood of success of renewing the motion somewhat, albeit not to zero.  He then using these facts to say:  "But using all of Bolin’s peremptory challenges would have meant striking jurors that counsel thought could be favorable to Bolin, including jurors perceived as less likely to vote for the death penalty. Especially when the venue motion was unlikely to succeed, Bolin’s experienced counsel could have decided that knocking out potentially favorable jurors was not a wise strategy. Under AEDPA, Bolin’s defense lawyers were not required to pursue a change of venue motion at all costs."

That totally doesn't follow.  The core argument is not that Bolin should have used all of his peremptory challenges to strike jurors who might be favorable to him in order to slightly increase the chance of winning a venue motion.  Yeah, a reasonable lawyer -- indeed, most -- wouldn't have done that.  But that's not the argument.  The argument is that even if you kept all the "good" jurors on the panel, you should still have renewed the motion that you already made and that the judge "reserved judgment" on.  The alleged "tactical" decision to not strike the jurors is not the alleged deficiency.  What instead was the error was not renewing the motion.  Period.  For that, there's no reason offered other than "Well, it probably had a low chance of success."  So what?  Give it a shot.  No reason not to.  And the fact that it was reasonable to not strike favorable jurors isn't a refutation of that central point in the slightest.

Could Judge Bress have gotten to the result he wants by arguing the lack of prejudice?  I think so.  But that not what he does, and focusing instead on the deference we (admittedly) give to "tactical" decisions doesn't justify not renewing the motion here.

So, again, on this point, the opinion just doesn't make logical sense.  Better -- or at least understandable and rational -- to get there by arguing the prejudice prong, not as a matter of substantive deficiency.

Finlan v. Chase (Cal. Ct. App. - Sept. 15, 2021)

This seems like a pretty big screw-up.

Plaintiff makes a CCP 998 offer for $1 million, it doesn't get accepted, and at trial plaintiff wins $3.9 million.  Among other things (e.g., expert witness fees), that means plaintiff is entitled to a boatload of prejudgment interest; neither the opinion nor the briefs exactly how much, but it's a fair piece of time at 10%/year on $2.9 million (i.e., $3.9 million minus $1 million).  The trial court awards that amount.

The Court of Appeal reverses, holding that the 998 offer wasn't effective because it didn't have a place where the defendant could sign (or any instructions on how to accept the offer).

It's pretty easy to draft an effective 998 offer; you can even look at samples online.  That simple mistake here costs the plaintiff a ton of money.

Not exactly the best look for plaintiff's counsel.  Or happy news for its malpractice carrier.

P.S. - The web site for plaintiff's counsel is a bit too flashy for my tastes.  It's like something that you'd see on (bad) late night television.

Curcio v. Fontana Teachers Ass'n (Cal. Ct. App. - Sept. 14, 2021)

The Ninth Circuit didn't publish anything today, and the California appellate courts only published this opinion.  So relatively slim pickings.

Still, I thought that today's (sole) opinion helped prove the point that you can sometimes figure out the way a case will come out merely by seeing the manner in which the opinion frames the facts.

For example, here, the first paragraph of the opinion seemed fairly pro-plaintiff, or at least not anti-her.  It reads as follows:

"Sharon Curcio, formerly a teacher with the Fontana Unified School District (the district), learned her personnel file included derogatory statements about her. When the district refused to allow Curcio to obtain or review those statements, she sought assistance from her union, the Fontana Teachers Association (FTA), and from the California Teachers Association (CTA). Such assistance was not forthcoming, so Curcio initiated proceedings before the Public Employees Relations Board (the board), claiming FTA and CTA breached their duties of fair representation and engaged in unfair practices in violation of the Educational Employment Relations Act (the Act). (Gov. Code, § 3540 et seq.). When the board decided not to issue a complaint, Curcio filed this lawsuit."

Okay.  That doesn't sound so bad.  Maybe she's got a claim, maybe she doesn't.  Seems neutral and disinterested.  No way for me to tell which way I think the case will likely come out.

But then I get to the third paragraph of the opinion, which says this:

Curcio filed an unfair practice charge with the board, alleging FTA and its president breached a duty to represent her under the bargaining agreement between the district and FTA, when FTA and CTA declined to provide Curcio with an attorney to pursue her request for complaint letters in her personnel file. She requested the board order FTA to return the dues she had paid for the past 16 years ($22,000) because she had been forced to represent herself (with the assistance of colleagues) in her quest to obtain the complaint letters. In addition, Curcio prayed for $1.5 million in damages for FTA’s breach of contract. In her statement of the conduct that gave rise to her claim, Curcio also alleged CTA breached its duty to represent her. But, she did not name CTA as a party against whom the charge was directed."

Look, I understand that that's an equally "neutral" recitation.  It just sets forth the facts.

Still.  After reading that paragraph, I have a darn good sense of how this one's going to come out.

As indeed it does. 

Bell v. Whilmott Storage Services (9th Cir. - Sept. 9, 2021)

Everyone on the panel wants the plaintiff to lose.  But, sadly, they feel compelled to reverse the grant of summary judgment against him.

I'm not at all confident that the panel's expression of its opinion about the plaintiff's case -- he's what's called a "copyright troll" -- will matter, or that the plaintiff will take it to heart.  The guy seems to like being a troll; maybe he doesn't have anything better to do (he's a retired lawyer).

But at least the panel tried.

Alam v. Garland (9th Cir. - Sept. 8, 2021)

This is an otherwise routine, unanimous en banc opinion from the Ninth Circuit in an immigration case; indeed, one that was sufficiently facile that it didn't even require oral argument.

Judge Bennett makes the unremarkable memorable by writing a concurrence in which he doesn't disagree with the majority in even the slightest, but instead simply wants to identify four other -- totally unrelated -- immigration cases that he also thinks should be taken en banc.

Usually you wait until those cases actually arise and then asked that circuit precedent be overruled.  But Judge Bennett apparently doesn't want to wait.

Okay, then.  Thanks for that.

Woodhill Ventures LLC v. Yang (Cal. Ct. App. - Sept. 3, 2021)

Because I am decidedly un-hip and un-young, I did not know anything about celebrity jeweler Ben "The Baller" Yang before this opinion, which involves a lawsuit concerning a birthday party cake that Mr. Yang ordered but decidedly did not appreciate.

I do not think that Mr. Yang comes off looking very good here.  A reader may well get the impression -- as I did -- that Mr. Yang acted like a bully, using his celebrity as a bludgeon against a small bakery who made a cake that he didn't enjoy.  ("According to Big Sugar’s employees, Yang called and said they had put drugs on a cake for a seven year old and that he had a TV show, a podcast, and over a million followers who would destroy Big Sugar. Then he hung up. [To be clear: the bakery did not, in fact, put drugs on the cake, but some of the decorations on the "mad science" cake Yang ordered may indeed look like pills.] He called back and told a second employee to “put that fucking bitch on the phone,” but he hung up before the first employee could get to the phone. Yang called a third time and again threatened to destroy Big Sugar, mentioning his social media followers and his podcast."  Then Mr. Yang repeatedly "cancelled" the bakery on Twitter and on podcasts, with claims that included:  "This was a 7 year old kid’s party. They put prescription drugs. They put molly. They put Percocets.”

The anti-SLAPP motion that Mr. Yang files loses in both the trial court and in the Court of Appeal.  It's an easy call on that front, IMHO.  Mr. Yang's somewhat lucky not to get sanctioned for a frivolous appeal; to me, again, this is not a close case.

Apparently, Mr. Yang's lawyers are from "The Cochran Firm," a paean to Johnnie Cochran.  Maybe if you're an Internet celebrity, you still get to tell people a version of "I got Johnnie Cochran defending me," even though he's dead. 

Csutoras v. Paradise High School (9th Cir. - Sept. 7, 2021)

Yeah, this lawsuit didn't have much of a shot, even from the outset.

Drawing Judge VanDyke (and having him author the opinion) probably didn't help, either.

Martin v. Sundial Marine Tug & Barge Works (9th Cir. - Sept. 2, 2021)

This is a ton of work for a relatively small sum of money (in the scheme of things).

It's important to the plaintiff, Rick Martin, of course -- and I'm always sympathetic to anyone with the last name of "Martin."  Especially if, as here, he's a hardworking longshoreman whose knees got blown out on the job.

The issue is simply how you calculate Mr. Martin's "weekly wage" for disability benefits.  Everyone agrees that in the 52 weeks before his injury, Martin made $47,498.41 and worked 264 days.  The appeal is about whether his "weekly wage" should be calculated under 33 U.S.C. § 910(a) or § 910(c).  The ALJ did the former, and on appeal, Mr. Martin wants the latter.

Judge Hurwitz writes a 13-page opinion that says that the ALJ got it right, and another memorandum disposition that addresses some other stuff that Mr. Martin wants.  A lot of ink for not that much cash.

Still, it's nice to see that the attention devoted to an issue doesn't always depend on the monetary figure at stake.

in re Nichols (9th Cir. - Sept. 1, 2021)

Here's one of the many ancillary downsides of hard core textualism.

Green v. Healthcare Services (Cal. Ct. App. - Aug. 31, 2021)

"Barbara Green (Barbara) filed this wrongful death action after her son Jeffrey Green (Green) jumped from the roof of drug rehabilitation treatment facility Anaheim Lighthouse (Lighthouse), and ended his life. Lighthouse appeals from the judgment following a jury verdict in Barbara’s favor. Specifically, it asserts the trial court committed reversible error by refusing to instruct the jury Green’s suicide was a superseding cause of harm . . . ."

You can probably figure out if the Court of Appeal reverses or affirms based on that opening sentence alone.  There's already been a jury trial.  The jury found that the rehab facility was negligent.  It's going to be darn hard to argue that someone's suicide is a superseding factor as a matter of law, or that a rehab facility doesn't have a duty of care all.

Net result:  Affirmed.  ("The jury found Casapu not negligent. The jury found Bishara negligent but determined his negligence was not a substantial factor in causing harm. The jury found Lighthouse negligent. It allocated the fault 65 percent to Lighthouse and 35 percent to Green. The jury awarded $1.7 million for past damages and $2.2 million for future damages.")

Jacqueline B. v. Rawls Law Group (Cal. Ct. App. - Aug. 27, 2021)

This is a personal jurisdiction case, something that I know a little bit about, having taught the subject in Civil Procedure for a quarter century or so.

On the merits, Section I of the opinion correctly cites the "Principles of Personal Jurisdiction," though one might have wanted to cite McGee in there as well given its close similarity to the present case.  (Rather than include merely a "cf" cite way later in the opinion.)  Reasonable people could disagree about whether Section II.A. of the opinion is right; namely, whether the defendant law firm here purposefully reached out to California during its legal representation of a California resident.

But Section II.B is definitely wrong.  If there's purposeful availment here, the lawsuit definitely "arises out or relates to" -- or has a "substantial connection with" -- those contacts with California.  The fact that the (allegedly crappy) work was done in Virginia, or that there was no actual lawsuit filed here yet, wouldn't matter.  The fact that the firm (allegedly) reached out to Virginia and solicited a client here definitely has a relation to the malpractice claim -- both causally (but for that relationship, there'd be no malpractice) as well as proximately.  After Bristol-Myers, the "substantial connection" test exists, and clearly is satisfied here.

Sez me, anyway.

People v. McDaniel (Cal. Supreme Court - Aug. 26, 2021)

Justice Liu authors this opinion, in which -- in 77 pages -- the California Supreme Court unanimously affirms Mr. McDaniel's conviction and death sentence.

But then Justice Liu also writes a concurrence to his own opinion -- an additional 30 pages -- in which he explains that he thinks the California's death penalty might have serious Apprendi problems.

That argument wasn't made in the present case.  But Justice Liu's opinion, "the 20-year arc of the high court’s Sixth Amendment jurisprudence raises serious questions about the constitutionality of California’s death penalty scheme."  So "[g]iven the stakes for capital defendants, the prosecution, and the justice system, I urge this court, as well as other responsible officials sworn to uphold the Constitution, to revisit this issue at an appropriate time."

That's a call to "this court" (i.e., his colleagues) to go along with him in a future case.  It's also a call for defendants sentenced to death (and their counsel) to make the argument in future cases; after all, Justice Liu's basically written your brief for you.  And, as a backstop, it's a call to the Governor and Legislature to pick up the baton as well -- just in case the courts feel constrained by precedent and/or the United States Supreme Court.

LeBrun v. CBS Studios (Cal. Ct. App. - Aug. 25, 2021)

Television studios are sophisticated, carefully run entities.  Particularly for popular shows like NCIS New Orleans.  So nothing like this could ever happen:

"LeBrun and Roublow are actors who were living in New Orleans, Louisiana . . . . who were chosen in a casting call . . . . [The producer of the show, Derek Wells] told them . . .  they would be acting in a scene depicting an armed robbery. Wells gave them black costumes, ski masks, and realistic-looking prop weapons that looked like high-powered automatic assault rifles and other firearms. Wells, his crew, and the actors drove in an unmarked van to Virani’s store, which was located on a busy commercial block. At the direction of Wells, LeBrun and Roublow jumped out of the van in their costumes, brandishing the prop weapons, and stormed into Virani’s store shouting lines Wells had instructed them to say . . . . A concealed camera that was located inside the store filmed the scene.

Unbeknownst to plaintiffs, no one from CBS or the show had obtained filming permits to shoot the scene, nor had anyone informed the local authorities or the neighboring businesses that they would be filming an armed robbery scene for a television show. They also failed to station a staff member outside the store to reassure neighbors or passersby that there was no actual robbery taking place. . . .

A neighboring business owner saw the unmarked van pull up and men in ski masks brandishing guns jump out and run into the store. Believing that Virani’s store was being robbed, the neighbor called 911 to report that an armed robbery was taking place. The SWAT team from the Chalmette Police Department responded to the scene within minutes. Officers broke down the door to the store and entered with their weapons drawn. . . ."

It's a wonder no one was killed.  Thank goodness.

As for the lawsuit, plaintiffs should have sued earlier.  The lawsuit's barred by the statute of limitations at this point.

But at least they weren't shot.

P.S. - I'm not sure why plaintiffs decided to be represented by a firm that bills itself as the best "criminal defense" firm available, but for whatever reason, it didn't work out.

Steinle v. United States (9th Cir. - Aug. 24, 2021)

Federal BLM ranger John Woychowski works in El Centro and is on vacation with his family in San Francisco, and (stupidly) parks his car on the Embarcadero at night with his luggage in full view.  To the surprise of no one, someone breaks into his car and steals his stuff.  Including but not limited to his BLM-issued Sig Sauer P239, which was in a backpack in the vehicle.

Four days later, Juan Francisco Lopez-Sanchez was sitting on a bench nearby and found Woychowski’s pistol, wrapped in a shirt or rag, near where he was sitting. He bent over and picked up the wrapped pistol; he fired it; and a bullet ricocheted off the ground, striking and killing Kathryn Steinle.  (You may perhaps recall these events; it was a big deal at the time.)

Ms. Steinle's parents sue, but the Ninth Circuit concludes -- correctly -- that whatever mistakes Mr. Woychowski made (and there were many) weren't the proximate cause of Ms. Steinle's death.  As Judge Graber notes, "[i]t is not known who stole the pistol, how many people possessed it in the four days between June 27 and July 1, who took the pistol out of the holster and wrapped it in a shirt or rag (or why they did so), or how the pistol came to be left near the bench where Lopez-Sanchez found it."  There are simply too many intervening (and potentially unkowable) events between the theft of the gun and Ms. Steinle's death to establish Mr. Woychowski's alleged negligence as its proximate cause.  On the merits, I can find no fault with Judge Graber's opinion.

But I'll add one thing.  It's common to describe events like these as "tragic."  Because they totally are.  But those words are nowhere in the opinion, nor is there any demonstrable sympathy for Ms. Steinle's family in the opinion rejecting their claims.

Maybe it's trite to do so.  Maybe it's totally unnecessary.  But these events were truly tragic.  So I'd have used the word and expressed the sentiment.  Because, yeah, I agree their lawsuit should be dismissed, but I'm nonetheless radically sympathetic to their plight.  So I'd say so.

Trite or not.

People v. Wycoff (Cal. Supreme Court - August 23, 2021)

I honestly don't know what to feel about this one.

It's a death penalty case, and in reality, absolutely none of it matters.  California's not going to execute anyone -- much less this guy -- in the medium- to long-term anyway.  Moreover, I don't really care that Wycoff (and I'm deliberately not using the "Mr.") gets his conviction and death sentence unanimously reversed and remanded.  There's zero doubt -- zero -- that in a retrial, he'd again be convicted and, most likely, sentenced to death.  The guy repeatedly confessed, the evidence against him was overwhelming, and at trial (in which he represented himself) he admitted everything and said he was proud of what he'd done.

So the guy's going to be locked up forever pretty much regardless.  He seems okay with that; in his totally f*ed-up head, he thinks that killing his totally innocent sister and her husband was just fine.  Because they were "evil" because they were liberals.

Okay, so the guy spends the rest of his life in an institution.  And I don't particularly care either whether it's a prison or a mental health facility (though I strongly suspect it'll be the former).  Neither are especially great places, and he'll have plenty of time to reflect on what he's done.  Not that it'll matter; he's so messed up that, even with treatment, he'll probably still think he's done the world a great service by (allegedly) killing the moral equivalents of Adolph Hitler.  (Yes, that was his actual "defense" at trial.)  Okay, so that's how you'll spend the rest of your life.  So be it.

So it's deeply, deeply hard to care for what happens here.  Notwithstanding the fact that it's someone's life at stake.

That's not my usual reaction to these types of cases.  (Though I understand and appreciate that many people have the identical reaction to pretty much any case in which the defendant is sentenced to death; they think the guy got what he deserved, so who cares?)

On the merits, the case just shows what an infinitely fine line there is between crazy, nutty, psycho, incompetent, evil, and just plain weird.  It's a multidimensional spectrum between all of these (related) poles.  This guy's a perfect example.  He's so comprehensively messed up that it's incredibly hard to know what to think of him.  Notwithstanding the fact that he's more than willing to share every portion of his totally whack job thought processes.

Here's an overly long snippet to help you get a sense of the guy (and yet it barely skims the surface of just how absurd this guy is):

"Julie and Paul Rogers were murdered in their home in El Cerrito in the early morning hours of January 31, 2006. Two of their children — Eric (age 17) and Laurel (age 12) — were also home at the time. . . . The children awoke to the sound of a struggle. Eric looked into the hallway and saw a large-framed person, [Defendant is 6' 5" and 300 pounds] dressed in black, wearing a motorcycle helmet. The person was struggling with someone, whom Eric took to be one of his parents. Eric went into Laurel’s room and called the police. When the noise of the struggle subsided, Eric and Laurel found their father, Paul, face down on the floor in the master bedroom, with a knife in his back. Paul told Laurel, “It was your uncle.” When Laurel asked if he meant her Uncle Ted, Paul nodded in agreement. [Defendant is "Uncle Ted"]

About this time, police arrived. In the master bedroom, they found Paul, still alive, lying on his stomach. He had a bump on his forehead and stab wounds in his back. One of the officers asked Paul who had attacked him, and Paul answered: “My brother-in-law Ted.” Paul was not able to give any more details before he died. Another officer followed a trail of blood down the hallway, through the kitchen, and out the sliding glass door. He located Julie near the swimming pool. She was bleeding profusely but breathing. She had a large wound to her abdomen, exposing her intestines. She was transported to the hospital, but efforts to save her life were unsuccessful.

Defendant was arrested a few hours after the murders, at a hospital near his home in Citrus Heights. At the time of arrest, he had a cut on his left hand and a large cut on his right leg. He also had various scratches and abrasions on his chin and hands. Items that matched debris at the murder site were found in his van and home. The next day, February 1, 2006, officers interviewed defendant after advising him of his rights. (See Miranda v. Arizona (1966) 384 U.S. 436.) The interview was recorded and admitted into evidence. In the interview, defendant confessed that he had committed the murders and also that he had planned them in advance. He explained that Julie and Paul “were really bad, rotten people.” Paul was a “communist” and “way over to the left.” Julie and Paul were lax parents who drank in front of their children, maintained a filthy home, and neglected their dogs. . . .

[Defendant told police that he] decided against using a gun for the murders, because he did not want the murders to be “another statistic that liberals could use” to argue in favor of gun control. Therefore, he chose to commit the murders with a knife, although he also bought a wheelbarrow handle. . . . He said: “I set out to make the world a better place. And I set out . . . , you know, to [¶] . . . [¶] fight against evil.” About killing people, he said, “It’s murder. It’s wrong,” but he added: “What I did, I don’t . . . see it as murder, you know. I see it as something, you know, a bunch of moral steps that had to be taken. [¶] . . . [¶] I felt that [Julie’s] life was getting more and more screwed up, and she was screwing up her kids. And she was screwing up everyone else, everything around her. And they had just turned into some really evil people. [¶] . . . [¶] I do believe in self-defense. And I think it’s okay to, you know, do something like this in self-defense.” He further explained: “This is something you do to somebody when they deserve it . . . . [H]e said: “Well, you know, I’m kind of happy because, you know, I guess you could call it leveling. I may have leveled some karma, you know. I stopped an evil person in this world that had too much power. [¶] I mean some people like, you know, Adolf Hitler, you know . . . if you could just kill Adolf Hitler before he did what he did.” . . .

[At trial] Defendant also said about Julie and Paul’s deaths: “I’m proud of that. I accomplished something.” He expressed anger that Julie did not work, though his parents had paid for Julie to go to college, whereas he worked, and he had paid his own way through trucking school. . . . About the poems he had written describing the murders, he argued that “it’s good to write songs and dance about tyrants getting beaten,” and he offered the Star-Spangled Banner as an example. Later in his argument, he said: “I do not deserve punishment for this. I deserve award and reward and to live a beautiful, peaceful life for this. You know, people need to look up at me and appreciate me for this . . . .” He also characterized himself as a heroic vindicator of good over evil. He said: “A favorite saying of mine is, The only thing necessary for the triumph of evil is for good men to do nothing. Well, I am a good man, and I sure as hell did do something.” . . .

[At the sentencing phase] Defendant said: “I’ve got a little bit of that serial killer in me. When something breaks, I enjoy it. I have fun with it. I videotape it.” Defendant also stated more than once that it was his prerogative to decide between what was moral and what was immoral, and that if someone wronged him, he was entitled to get even by stealing from that person or resorting to other forms of self-help . . . . The prosecutor also offered into evidence a video of defendant displaying a dead cat and describing the fact that he shot the cat twice and then beat it to death with a stick. In the video, defendant related that the cat belonged to a neighbor, Curtis, and defendant said it was the second of Curtis’s cats that defendant had killed. Later in the same video, defendant described “cat war one” and “cat war two,” which together included 17 “confirmed cat kills” and many other possible “cat kills.”

In addition, the prosecutor offered a video in which defendant lamented graffiti and garbage behind a strip mall near his house. In the video, defendant explained that he used the private road that accessed the loading docks behind the strip mall, and he was angry that, due to the graffiti and the dumping of garbage, the owner had installed gates at either end of the private road. Defendant expressed an intent to vandalize the gates. In his view, installing the gates punished innocent people who used the private road as a shortcut, and the better solution was for the owner to shoot and kill the immoral people who were vandalizing the area and dumping the garbage. He also said that he hated a particular woman who was feeding cats behind the strip mall, and he said he would kill her.

Finally, the prosecutor elicited from defendant that he saw himself as an executioner, not a murderer. Defendant said: “Should the executioner be executed? No. The executioner is doing a job.” Defendant also explained that he was well qualified to decide who should be punished and who should not be, because his mind was “not cluttered” and “not polluted” by education. The prosecutor closed his cross-examination with this question: “But you might kill somebody if they left trash behind the warehouse or fed cats, correct?” Defendant answered: “Well, I might do that, yes."

Messed up.  Totally.  Right?

The California Supreme Court holds that the trial court should have investigated this guy's competence to stand trial, and given everything in the opinion -- plus a doctor's report that said, yeah, the guy is in fact totally incompetent to stand trial -- you can totally see why.  The guy's a whack job.

At the same time, the guy's got an acute mental clarity about his strategy.  Everything he says about his decision to go to trial and to act like he did, in a lot of ways, makes total sense.  Weirdly.

Here's his thought process:

"Defendant told Dr. Good [the doctor who opined that he was incompetent] that counsel wanted to pursue an insanity defense, but defendant saw that as a “small victory,” one not worth pursuing. . . . Significantly, defendant did not give as much importance as his lawyers did to the goal of avoiding a death sentence. Defendant doubted that a death sentence would ever result in his execution, and if it did, he did not think the execution would occur for a long time. Pointing out that both his parents had died from cancer and that he was overweight, defendant thought he would be much more likely to live out his normal lifespan in prison than to be executed. He also felt that the evidence against him was very strong, and therefore there was not much chance of winning a major victory. Given those circumstances, he thought the dignity of handling his own defense and telling the world his story was more valuable to him than the indignity of submitting to the legal maneuvering of his lawyers, with chances of success uncertain.

Although defendant conceded to Dr. Good that it was “possible” that a jury would accept an insanity defense, he thought it was “very unlikely.” He argued that he was “too competent, too sane” to persuade a jury that he had committed the offenses while insane. In this regard, he pointed out that he had worked in difficult jobs all his life, that a successful insanity defense was statistically rare, and that the jury in his case would be death qualified (see Wainwright v. Witt (1985) 469 U.S. 412, 424), which in his view meant that it would be less likely to accept an insanity defense. Given all that, he thought it was a better strategy “to try to pick a jury that believes in vigilante justice” and then explain to the jury why he had killed Julie and Paul. He also commented that if he took the insanity route, he would be admitting that what he did was wrong and asserting that he was too insane to appreciate its wrongfulness. Defendant felt very strongly that what he did was not wrong."

That is -- bizarrely -- a crazily rational way to look at things, no?

I've already spent too much time thinking about this guy.  He ends up locked up somewhere for the rest of his life notwithstanding whatever happens on remand.  Maybe I hope they eventually medicate him and he figures out that what he did was horribly wrong.  Though maybe he'd just prefer to be a satisfied pig instead of a dissatisfied Socrates.  Who knows?  These types of grand moral questions seem outside of my incredibly limited realm of competence.

People v. Roberts (Cal. Ct. App. - Aug. 20, 2021)

Wow:  This is a long opinion.

After reading 110+ pages, I'm still not totally convinced that Ryan Roberts actually killed 13-year old Jessica Funk-Haslam.  (Justice Murray's opinion doesn't use Jessica's last name, but it should -- as I've said previously in connection with a different very long murder opinion by Justice Murray.  But he apparently continues to believe that murder victims shouldn't be named; so be it.)

Do I believe that Mr. Roberts was in the dugout and smoked cigarettes with the victim that night?  Yes.  I do.  His DNA is on the butts.  He was in the park earlier.  It doesn't matter that he denies it; I agree that he and the victim were together.  (I find it depressing that the 13-year old girl here got into an argument with her mother and "left the apartment . . . . [with] a pack of Camel cigarettes," since kids that age obviously should not be chain-smoking like the victim here did, but in context, that's the least of the sorrows here.)

But there's only a tiny bit of evidence that he actually was the one who killed her; a little of (maybe) his DNA on her belt buckle, and proof that he owned knives (Jessica was killed with one), but that's about it.  Plus plenty of evidence that suggests that someone else might have killed Jessica; allegedly, Jessica was supposed to be initiated into a gang the weekend before her death -- a gang who hung out at the park at which she was killed -- but skipped out on it.  Given all the facts contained in the 113-page opinion, I can see why it took the jury around a week to deliberate; it's super hard to find him guilty beyond a reasonable doubt.

But find him guilty they did.  And, yeah, he might well have done it.

I'm just not sure.

(Nor, perhaps not surprisingly, is his family.)

Ford v. Peery (9th Cir. - Aug. 18, 2021)

Judge VanDyke is unhappy with some dicta contained in a particular panel's habeas opinion, so he writes this dissent from the refusal to hear the case en banc.

Okay, fine.  He's got a point to make, and he makes it.  For twenty-plus single-spaced pages.

Maybe he's right, maybe he's wrong.  But when not even a single judge on the Ninth Circuit is willing to join your dissent, a brief pause might be in order.  Maybe you're the one taking this too hard, no?

At least worth thinking about.

Mendoza v. Fonseca McElroy Grinding Co. (Cal. Supreme Court - Aug. 16, 2021)

 A dissent in the California Supreme Court?!  What's the world coming to?!

Admittedly, it's not the most vitriolic one you'll ever read.  Nor about the biggest-ticket item in the universe.  Everyone agrees that you've got to pay a prevailing wage on public works projects; for example, here, ripping up a public road and replacing it.  The question is simply:  What about transporting the heavy machinery for that job from offsite locations to that work site?  Does that count?

Justice Corrigan's opinion says:  Nope.  Justices Cuéllar and Liu would say:  Yes.

Justice Cuéllar's dissent is only five pages, and is hardly hyperbolic.  It ends with the typical:  "So with respect, I dissent."

That said, its tone is not entirely deferential to the majority opinion.  Take this line, for example:  "[T]he majority narrows this statutory language beyond recognition."  Or this one:  "The majority [] breaks with this established authority without justification. It glosses over section 1772’s language . . . . It papers over this language, and in the process disapproves of long-standing authority providing a workable framework for applying it, on the basis of an implausible reading of the section’s exceedingly spare legislative history."

Not the most vociferous dissent in history, to be sure, but not entirely passive either.

(It's the same lineup in the other "prevailing wage" opinion issued today, BTW.)

People v. Raybon (Cal. Supreme Ct. - Aug. 12, 2021)

I said back in 2019 that I was "near certain" that the California Supreme Court would grant review of the underlying opinion, and grant review they indeed did.  But I didn't expect that this would be the result.

Could one have predicted the basic result that the Court issues today:  that, notwithstanding the passage of Proposition 64 (which generally legalized the possession of marijuana), it remains illegal to smoke weed in prison?  Sure.  The text of the statute is probably broad enough to facially decriminalize the thing, but given that no one probably intended that inmates be allowed to dope up in prison -- and that there's a part of the statute that says (albeit somewhat ambiguously in light of the underlying marijuana statutes) that it does not affect “[l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation" -- it's not surprising that the California Supreme Court holds that marijuana is still illegal in prison.

But what probably is surprising -- or at least what I (for one) didn't anticipate -- is the partial dissent of Justices Kruger and Cuellar.  Here's what they say:

"I agree with the majority that Proposition 64, fairly read, did not legalize cannabis possession in California’s prisons and jails, even as it either overrode or lifted state and local prohibitions on possessing small quantities of cannabis in most other places.

It is, however, a separate question whether, after Proposition 64, prosecutors may continue to charge in-prison cannabis possession exactly as they have been — that is, by choosing at will between two overlapping felony statutes, one of which carries steeper penalties than the other, and whose coverage is expressly tied to the scope of state-law prohibitions applicable outside of prison. The majority concludes that prosecutors are still permitted to choose (though the majority encourages them to make their choices wisely). (Maj. opn., ante, at pp. 30–31, 43–45.) Because I do not think the particular reasons the majority gives for extending this permission can be squared with the statutory text, and because the majority’s conclusions on this subject are unnecessary to resolve this case in any event, I do not join this portion of the majority opinion."

Interesting!

The whole "majority encourages [prosecutors] to make their choices wisely" thing stems from this part of Justice Groban's opinion for the Court:

"We are sympathetic to the view that section 11362.45(d) creates extreme disparity between how our legal system treats the possession of cannabis generally versus the possession of such a substance inside a correctional facility. That is also true of many other substances, including alcohol. (See Pen. Code, § 4573.8 [unauthorized possession of alcohol in prison constitutes a felony].) Some may well view an eight-year prison sentence for the possession of less than one gram of cannabis (one gram is the approximate weight of a single paper clip or a quarter teaspoon of sugar) as unduly harsh. . . . 

Our interpretation notwithstanding, prosecutors of course retain discretion whether a person found in possession of a small quantity of cannabis on prison grounds warrants felony treatment. (See People v. Lucas (1995) 12 Cal.4th 415, 477 [“Prosecutors have broad discretion to decide whom to charge, and for what crime. . . . ‘[A] district attorney’s enforcement authority includes the discretion either to prosecute or to decline to prosecute an individual when there is probable cause to believe he has committed a crime’ ”].) As defendants note, “there are already [prison] regulations in place . . . to punish and deter this conduct.” Cannabis possession in prison remains classified as a serious rules violation that is subject to a custody credit forfeiture of between 121–150 days (see Cal. Code Regs., tit. 15, § 3323, subd. (d)(7)), which effectively translates into an additional four to five month jail sentence. Such conduct can also result in substantial loss of visitation rights, including up to three months of no visitation and three additional months of no contact visitation for a first offense, with increasing loss of visitation rights with each consecutive offense. (See Cal. Code Regs., tit. 15, § 3315, subd. (f).) Moreover, depending on the nature of the defendant’s sentence, a rules violation involving the possession of cannabis could also impact parole eligibility. (See Cal. Code Regs., tit. 15, § 2281, subd. (c)(6) [circumstances tending to show unsuitability for parole for life prisoners include “Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail”].)

In cases where prosecutors do elect to pursue criminal punishment, they may consider a charge under Penal Code section 4573.8, which carries a lower sentence than Penal Code section 4573.6.20 (See ante, at p. 7; see also Whalum, supra, 50 Cal.App.5th at p. 5, rev. granted [“As cannabis is a drug and a controlled substance regulated in division 10 of the Health and Safety Code [citations], both statutes have been used to convict prisoners who possesses cannabis” (italics omitted)].) Alternatively, depending on the defendant’s circumstances, a prosecutor might recommend a disposition that does not require a prison term. (See Pen. Code, § 1170, subd. (h)(4) [“Nothing in this subdivision shall be construed to prevent other dispositions authorized by law, including pretrial diversion, deferred entry of judgment, or an order granting probation pursuant to Section 1203.1”].) Similarly, in cases where a defendant is convicted under Penal Code section 4573.6 and has a prior strike (as most of the defendants here did), the prosecution may move to dismiss the strike allegation, or the trial court may elect to do so on its own motion. (See Pen. Code, § 1170.12, subd. (d)(2), 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529–530.) Finally, in cases where the defendant is already serving a sentence for a prior conviction under Penal Code section 4573.6, the prosecution or prison officials might recommend that the court recall the sentence previously ordered and resentence the defendant in the interests of justice pursuant to Penal Code section 1170, subdivision (d). (See Cal. Code Regs., tit. 15, §§ 3076–3076.2.)"

The majority is satisfied -- from a policy perspective -- that these safety valves are sufficient.  Not so much for Justices Kruger and Cuellar.

Regardless, that's the law now.  In any event, everyone agrees:  No free weed -- nor freedom to ingest it -- in prison.

I did have one additional doctrinal reaction to the majority's opinion that I thought worth sharing.  One of the big reasons that the majority advances for why its interpretation is superior to that of the dissent is framed as an analysis of voter intent.  It's contained on pages 35 to 38 of the majority opinion.  I'll set forth the exact analysis at the end of this post (it's long), but basically, the majority says that although the dissent has a facially plausible reading of the statutory language, there's no way that an uneducated voter would be able to intelligently parse the statute in the legalistic manner advanced by the dissent.

This strikes me as an erroneous way to go about statutory interpretation in initiative and referendum cases.

I totally agree with Justice Groban that lay voters would be hard pressed to be as fancy as Justices Kruger and Cuellar.  But that's equally true, I suspect, for state legislators.  When interpreting a statute, I don't think that it should matter how the statute was enacted; e.g., through initiative or through the Legislature.  The text says what the text says in both cases.  And while I'm of the view (contrary to many in the conservative camp) that intent and purpose matter, I think you should analyze intent and purpose the same way in both cases.  Yes, your average voter is perhaps not as legally sophisticated as your average state senator.  But that shouldn't mean that a statute means one thing if passed through an initiative but another if passed by the Legislature.  Similarly, you can't (or shouldn't) make arguments that because "lay voters" enacted a particular statute, we should dumb down our statutory analysis or find it more implausible that such individuals could intend complicated linguistic analysis.  It shouldn't matter who passed a statute.  It means what it mean.  Do we sometimes reject interpretations that we conclude couldn't possibly have been intended?  Sure.  But we shouldn't say that a particular linguistic analysis is particularly unlikely by focusing -- as the majority opinion does -- on what a "voter" would perceive in light of their relative lack of legal sophistication.  Just say, if necessary, that anyone who drafted, passed or voted for such legislation was unlikely to intend such a result.

(Here's the full text of what I'm talking about from Justice Groban, with footnotes and citations often omitted.  Some of the paragraphs are over a page long; that's Justice Groban's doing, not mine.):

"The dissent disagrees, concluding that the language is, in fact, quite complicated. The dissent concludes that the voters were asked to journey through a phalanx of complex statutory cross-references and legal conclusions and, at the end of the journey, would have concluded that Proposition 64 might actually “amend, repeal, affect, restrict, [and] preempt” some laws prohibiting the possession of cannabis in prisons, but not others. The journey goes something like this: The dissent first contends that when voters were told Proposition 64’s key legalization provision would have no effect on in-prison possession offenses, they would have understood that language to mean the initiative would have no effect on convictions under Penal Code section 4573.8, but might have an effect on convictions under Penal Code section 4573.6. In the dissent’s view, voters would have come to this conclusion because they would have understood that section 11362.45(d)’s “no effect” clause references Proposition 64’s legalization provision (§ 11362.1), but not the amendments made to section 11357. They then would have understood that Proposition 64 removed section 11357’s previous general prohibition on cannabis possession and replaced it with more narrow prohibitions. They then would have realized that section 11357 is part of division 10 of the Health and Safety Code. And they would have noted that Penal Code section 4573.6 cross-references the prohibitions in division 10. (See Pen. Code, § 4573.6, subd. (a) [making it a felony to possess a “controlled substance[], the possession of which is prohibited under Division 10”].) Voters would then realize that because division 10 no longer contains a general prohibition on cannabis possession (it instead conforms to Proposition 64’s legalization provision by prohibiting a more narrow class of cannabis-related crimes involving persons under the age of 21 and quantities in excess of 28.5 grams), and because section 11362.45(d) fails to state that the amendments to section 11357 were not intended to affect prison offenses (it only cross-references section 11362.1’s general legalization prohibitions), cannabis possession might no longer qualify as a violation of Penal Code section 4573.6.

But the work of the voter would still not be done. From that, the voters would then deduce that whether Proposition 64 affects convictions under Penal Code section 4573.6 will ultimately depend on how courts interpret the phrase “the possession of which is prohibited under Division 10” (which the dissent declines to do here). More specifically, they would understand that if the courts ultimately side with the Fenton’s line of analysis (see ante, at pp. 28–29), then criminal convictions under Penal Code section 4573.6 would be prohibited under most circumstances, but if courts side with Taylor’s line of analysis (see ante, at pp. 29–30) criminal convictions under Penal Code section 4573.6 would remain unaffected by Proposition 64.

While the dissent has come up with an intricate interpretation, we do not think it is the most reasonable interpretation of the initiative. (Cite) Simply put, we are dubious that when voters were told Proposition 64’s new legalization provision would have no effect on laws regulating possession of cannabis in prison, they would have understood that language to require the complex series of deductions and statutory cross-references that the dissent’s interpretation is built upon. (See Valencia, supra, 3 Cal.5th at pp. 370, 371 [while voters are presumed to “ ‘study and understand the content of complex initiative measures’ ” “it is unreasonable to presume that the voters had such a ‘degree of thoroughness’ that they . . . analyzed various provisions using the acumen of a legal professional”].) We do not read the language, “Section 11362.1 does not amend, repeal, affect, restrict, or preempt . . . [¶] . . . [¶] . . . [l]aws pertaining to smoking or ingesting cannabis . . .” (§ 11362.45(d)) as meaning, as the dissent seems to read it: “We hereby (might) do away with the more serious criminal sanctions for cannabis possession in a penal setting under Penal Code section 4573.6, but people in prison may continue to be prosecuted and receive shorter sentences pursuant to Penal Code section 4573.8.” If Proposition 64 were truly intended to have no effect on possessory offenses under Penal Code section 4573.8, but potentially preclude possessory offenses under Penal Code section 4573.6, we would expect the text to say so in a less convoluted manner."