Wednesday, June 30, 2021

Medina v. Superior Court (Cal. Ct. App. - June 29, 2021)

Kafka couldn't have written anything better than this conundrum from the Court of Appeal:

"Petitioner Jose Adan Medina was placed in custody in November 2016 on charges of second degree robbery and misdemeanor sexual battery. In June 2017, the respondent court found that Medina was mentally incompetent to stand trial and had a developmental disability under Penal Code section 1370.1 (undesignated code references are to the Penal Code).

Since the time Medina was adjudicated to be mentally incompetent, he has received neither treatment nor a trial. The regional center and the California Department of Developmental Services (DDS), which have the responsibility for providing services for people with developmental disabilities, disagreed with the court’s adjudication and concluded that Medina did not have a developmental disability. Although the incompetency order was legal and binding on the regional center and the DDS, they declined to offer Medina services or recommend placement.

A long standoff ensued. Medina did not receive the treatment to which he was legally entitled but, as he had been adjudicated incompetent, his case was not tried."

Sometimes governmental efforts to ensure liberty do not work.  To say the least.

Tuesday, June 29, 2021

Belen v. Ryan Seacrest Productions (Cal. Ct. App. - June 29, 2021)

Ryan Seacrest takes it on the chin in today's opinion by the Court of Appeal.

Not that he's found liable for anything.  But his production company loses its attempt to get a lawsuit against it dismissed on an anti-SLAPP motion.

The lesson to be learned is:  Make sure you get releases from anyone you put on television.

Particularly when, as here, the person you film is essentially naked.

Monday, June 28, 2021

Public Guardian v. K.P. (Cal. Supreme Court - June 28, 2021)

The week begins with another cogent, unanimous opinion from the California Supreme Court.  Actually, two of 'em -- this one too (a habeas case).

But I wanted to mention only the former, and even then, only briefly.  The holding is an unremarkable one: that when deciding whether someone's "gravely disabled" and hence can be involuntarily institutionalized, whether they refuse to take medication is simply a factor -- not a prerequisite -- to such a determination.  That seems entirely right.

The thing that struck me about the opinion, however, were the facts of this particular case.  You read a lot of Lanterman-Petris-Short Act (LPS) opinions in the Court of Appeal, and in nearly all of them, you walk away from the fact section by saying:  "Oh my goodness, this person is totally crazy, and definitely needs help."  The stuff they do is ordinarily beyond bizarre (and scary).

But in today's opinion, the "evidence" recited by the California Supreme Court for K.P. needing to be institutionalized -- for nine-plus years, no less -- is quite underwhelming.  And, sure, I realize that the case isn't about his particular facts (it's more about the underlying legal standard), but still, it was a little surprising that the opinion thought that all we needed to know about the evidence of K.P.'s disorder was what was mentioned.

Here's what Justice Corrigan says about K.P.:

"The Los Angeles County Superior Court established a conservatorship for 23-year-old K.P. in May 2008 and renewed it annually over the next nine years. In April 2018, the county’s public guardian (Public Guardian) filed another renewal petition, alleging K.P. remained gravely disabled. This time, K.P. demanded a jury trial.

A psychologist from K.P.’s residential facility testified that he suffered from schizophrenia, with auditory hallucinations and paranoid delusions. For example, on the morning of trial he asked to enter a witness protection program because he believed a fellow resident was planning to attack him. In another incident, K.P. chased and threatened someone he believed had intentionally hit him with a basketball. He could not be redirected and was hospitalized. K.P. also displayed “grossly disorganized behaviors,” lack of motivation, and difficulty speaking and socializing. The psychologist concluded K.P. lacked significant insight into his disorder. He minimized his symptoms and believed they were caused by medications. His mother had expressed the same belief. K.P. resisted taking his prescriptions or participating in therapy and other services. The psychologist concluded K.P. could not provide for his basic needs without medication and did not believe he would take them consistently or correctly without a conservator’s supervision. The day before trial, K.P. almost gave himself a double dose of one potentially toxic pharmaceutical. The psychologist believed K.P. needed round-the-clock supervision and lacked the initiative and insight necessary to obtain treatment himself. Although he had opportunities to do so, K.P. had never left the facility without his therapist or mother."

That stuff isn't really on the "totally crazy" side of the "crazy" to "incredibly sane" spectrum, is it?  The first thing the opinion mentions is that he wanted protection from a fellow detainee who he thought was planning to attack him.  But, like, maybe the detainee was planning to attack him, right?  The guy's in a mental institution, after all.  Maybe some crazy guy there was out to get him.  To paraphrase Joseph Heller, it's not paranoia if they're in fact after you.  Second, the Court says that in another "incident" K.P. chased and threatened someone who "he believed had intentionally hit him with a basketball."  But I've seen totally sane people do that tons of times on the basketball court.  Maybe the guy did throw a basketball at him on purpose.  That'd hack me off too.  The opinion just seems to assume that all these things were "hallucinations and paranoid delusions" -- without any evidence at all that they weren't real.

Then there's K.P.'s alleged "lack of motivation, and difficulty speaking and socializing."  Maybe it's just San Diego, but the number of perfectly sane people here whom I could accurately describe as less than motivated and/or subpar at conversation and socialization is fairly high.  Doesn't make 'em crazy.  And, yeah, K.P. didn't want to take medication -- like a ton of sane people (and need I compare K.P. in this regard to the millions of people who don't want to get vaccinated for COVID?) -- and almost took a double dose of medication accidentally once, but again, I think that can describe a ton of people, both young and old.

I'm not saying that K.P. doesn't need help.  Probably he does.  I just thought there'd be a lot more in the opinion about his particular problems taking care of himself.  Because, trust me, in most of these cases, the person really is gravely disabled.  So I was surprised that the facts the California Supreme Court recited as the background for why this particular person gets hospitalized for nine-plus years were so seemingly slim.

Friday, June 25, 2021

In re A.C. (Cal. Ct. App. - June 25, 2021)

I'm persuaded by Justice Ramirez's opinion this afternoon.

At the same time, I'm totally persuaded by Justice Menetrez's dissent.

Yet I readily concede that they can't both be right.

Justice Ramirez's analysis seems spot on.  The federal Indian Child Welfare Act (ICWA) requires that the court inquire into whether either parent has Native American ancestry before we terminate parental rights; it's motivated by a shameful history of wrongfully taking away children from Native American parents.  Here, the father appeals, saying that the court terminated his parental rights without finding out whether he had Indian ancestry.  As Justice Ramirez cogently explains:

"The issue arose because the mother plainly did have Indian ancestry — she was an enrolled member of a federally recognized Indian tribe; an older daughter had been removed from her custody and transferred to the jurisdiction of the tribe. Apparently no one thought it was worth asking whether the father, too, might have Indian ancestry. When the mother’s tribe surprised everyone by reporting that the child was not a member and not eligible for membership, the juvenile court found — without any further inquiry regarding the father — that ICWA did not apply."

Well, that clearly shouldn't have happened.  As everyone rightly concedes.

The only question that remains is:  What should we do at this point?

To which Justice Ramirez responds:  Nothing.  He says:  "San Bernardino County Children and Family Services (CFS) does not dispute that there was an erroneous failure to inquire. It contends only that the father has not shown that the error was prejudicial. We agree. The father has not claimed — in the juvenile court, in his opening brief, in his reply brief, or at oral argument — that he has any Indian ancestry. Because he has not managed to clear this rather low hurdle, there is no reason to suppose that, absent the error, the outcome would have been any different. And, more to the point, there is no reason to reverse and remand for a further inquiry, which would not only entail effort and expense, but would also delay permanency for A.C."

That sounds right to me.  Don't forget the factual backdrop:  It's a tiny little kid, and the allegations are that "the mother used methamphetamine, physically abused the child, failed to feed the child, and failed to obtain medical care for the child."  As for Dad, "[t]here was some initial uncertainty as to whether D.M. or one E.R. was the child’s father," but eventually mother says it's D.M., who's in prison, and even when he gets out, "the father [] failed to participate in his reunification services plan and had made only 'minimal' progress."

So we've got a tiny kid who's desperately in need of care, parents who are by no means the greatest, and a caring foster parent who wants to adopt the child.

With the only barrier being that everyone below we so focused on the mother than they forgot to ask the father about potential Indian ancestry.

But Justice Ramirez says:  So what?  When the appellate briefing doesn't even hint that the father might, in fact, have Indian ancestry, let's just cut to the chase.  We all know how this case is going to come out:  that Father doesn't have Indian ancestry, and the kid should be adopted, so let's do it.  The error was harmless since there's not even the tiniest reason to think that the father in fact has Indian ancestry such that the result below would even be the slightest bit different.  Get the kid to loving parents now.

Strong stuff.  Persuasive.

But Justice Menetrez's dissent is equally persuasive.

He says:  "Uh, sorry, but that's not the way things work.  Of course there's no evidence that Father has Indian ancestry.  Because no one ever asked him.  And, critically, this case is on appeal.  On appeal, we are generally limited to the record below.  You don't say:  'Oh, on appeal, if you want to win, you are required to introduce new evidence that you didn't introduce below -- here, the fact that Father in fact has Indian ancestry.'  That's not how it works.  So, doctrinally, it's simply flat wrong to affirm and the basis that the appellate briefs don't insist (or introduce evidence) on a particular factual point that we all admit is outside record.  Instead, you remand.  Period."

Plus, wholly apart from doctrine (and precedent), Justice Menetrez has a profoundly practical point to make as well:

"Rebecca R. and the majority opinion put parents’ appellate counsel in a strange and untenable position. Appellate attorneys ordinarily do not, need not, and are not paid to conduct any investigation of facts outside the record. (Cf. Josiah Z., supra, 36 Cal.4th at pp. 671-672 [minor’s appellate counsel may seek but need not be granted funds necessary to investigate facts outside the record].) But in a case like this one, Rebecca R. and the majority opinion require Father’s counsel to interview Father about his Native American ancestry and then, in defiance of Zeth S., provide the information to the Court of Appeal as a basis for reversal. And what if counsel is unable to interview Father in time? Parents in dependency cases are sometimes homeless or otherwise hard to find. If counsel cannot reach Father, must counsel interview paternal relatives? Moreover, a parent appealing from the termination of parental rights can assert ICWA error as to a nonappealing parent. (See, e.g., N.G., supra, 27 Cal.App.5th at pp. 477-478.) Must counsel for the appealing parent interview the nonappealing parent? Just how much of the trial court’s and CFS’s jobs does the majority opinion reassign to appellate counsel?"

That's totally right too.  Persuasive, even.  That's just simply not the way things work in the Court of Appeal.

So both opinions are, to me, pretty darn compelling.  Yet only one of them can be right.

Which one?

It's a toughie.  Rarely do I read majority and dissenting opinions that, IMHO, both make incredibly compelling arguments that equally resonate with me.

So where do I come out?  Where do you?

In the end, I decided that Justice Menetrez was right on the law.  That's not the way the Court of Appeal works.

But I also decided that I nonetheless agree with Justice Ramirez.

It's not the way the appellate courts normally work.  But, in the end, I decided that an exception in the present circumstances makes sense.

We've got two choices.  One option is to make it the trial court and CFS's responsibility to inquire -- which, of course, it totally is -- and to remand the case back down if they don't do their jobs.  That's normally the right way to go.

But, to be honest, in the scheme of things, it's a SUPER TINY BURDEN to tell the parent (here, the father) to provide at least a smidgeon of evidence on appeal that the error at all mattered.  That the guy has, in fact, some shred of Indian ancestry that matters.  If the guy can't even (truthfully) say that, then what's the point of remanding?  Just get the kid to loving and competent parents now.  No need to waste another year or two with a remand and (potentially) another appeal.

Now, Justice Menetrez has a response, of course.  He says (rightly) that that's not the way appeals work, but we're talking about little kids here, so I'm willing to make it the way appellate courts work in this particular (somewhat unusual) context.  He also says -- again, rightly -- that it puts appellate counsel in a difficult position, because now they (1) have to investigate actual facts that aren't part of the record below (rather than merely writing briefs in their office), and (2) might practically have a hard time doing so because some parents are homeless, can't be located, etc.  Again:  All true.

But that's in part a consequence of how we structure these types of appeal with appointed counsel.  It's worth remembering that the appellant in this case is the fatherHe's the one filing the appeal, not his lawyer.  He's the one in charge.  So, yes, sometimes it's hard to find parents like this, perhaps even to ask them the most fundamental and simple of questions:  "Is there any reason whatsoever to think that you might in fact have any Indian ancestry?"

But if the lawyer can't find his client to ask such a simple -- and important - question, then that's a whole different problem, right?  That's a problem that arises with lawyer-driven appeals.  Once one remembers that it's the father who's prosecuting the appeal, it doesn't seem at all overly burdensome (to me, anyway) to say that you've got a very limited and easily satisfied obligation if you want to win on appeal:  (1) stay in at least basic contact with your lawyer, and (2) answer a totally simple question on the merits.  You don't have to introduce tons of evidence or anything.  But you gotta at least be able to say (truthfully, of course) that you think you might have Indian ancestry because of Reasons X and Y.  If you can't even say that, well, then, sorry, but there's no reason to keep your child in limbo.  A place that no one should want.  Time to end the dispute now and get the child to a loving, caring home -- like here, with an adoptive parent who's yearning to have the daughter in her life forever.

So that's how, to me, the balance plays out.  I'm motivated by what's practically at stake:  The actual and very real welfare of a child.  As well as the practical reality:  My sense is that, 99% of the time, these ICWA remands from the appellate courts are totally useless, and don't change the result in the slightest.  To be clear:  I'm fine with that if the parent(s) can say, on appeal, that maybe the result would be different, and give even the slimmest of reasons why.  But if they can't even do that, then I'd go with what Justice Ramirez says here.

I get that Justice Menetrez -- and other reasonable people as well -- might strongly disagree.  As well as argue (perhaps appropriately) that if an exception like this is to be made, it should be made by the California Supreme Court, not the Court of Appeal.

And I wouldn't object at all if the California Supreme Court granted review of this case in order to do precisely that.  Indeed, I might recommend it.

But I think, in the end, the result reached by today's opinion is the right one.

Even though the dissent makes incredibly, incredibly strong arguments to the contrary.

Well done all.  Cases like this one are hard, but they also reflect incredibly positively (IMHO) on the state of contemporary appellate jurisprudence in California.  Good arguments.  Reasonable positions.  Persuasive contentions on all sides.

But, in the end, you make a call, and I think this one gets it right.

Even if doing so requires, admittedly, a bit of a stretch in the way we view appellate jurisprudence.

Tuesday, June 22, 2021

Gonzalez v. Google (9th Cir. - June 22, 2021)

Are Google, Twitter and Facebook responsible for ISIS-led terrorist attacks?  Can plaintiffs sue on the theory that these social media companies can and should do more to "screen out" motivational videos and other speech by terrorists?

That's the question raised by today's Ninth Circuit opinion.

You'll have to be dedicated -- very dedicated -- to read the entirety of the Ninth Circuit panel's response.  There's not one page, or a dozen pages, or even a dozen dozen pages.  The whole thing takes up 167 pages of single-spaced text.  Wow.  We're talking about setting aside several hours if you want to read the entire opinion, including but not limited to the separate views of each of the three members of the panel.

There's obviously a lot at play here.  Including but not limited to the doctrinal scope of the immunity granted to Internet providers under Section 230 of the Communications Decency Act.  Plus, unspoken but underlying the entire debate are contemporary politics, including the recent attacks on "Big Tech" (and Section 230 immunity) as well as the overarching political discourse about whether we're too solicitous of free speech these days.

I won't try to summarize the entire 167; nor could I, even were I sufficiently motivated to do so.  But I will nonetheless highlight this little tidbit from Judge Gould, found on page 128 (!) of the opinion:

"A variation on this view culminated in Brandenburg v. Ohio, 395 U.S. 444 (1969), where the Supreme Court suggested that imminent lawless action was necessary before speech should be constrained. But perhaps given the current state of society, and the catastrophic dangers to the public that can be posed by terrorist activities, public safety may require that speech be limited when it poses a clear and increasing or gathering danger, rather than only “imminent” danger as reflected in Brandenburg, which I consider the Supreme Court’s last word on this subject."

I know I'm an "old-school" First Amendment guy.  But my reaction to this passage was:  "Yep.  That's how it starts."

And I don't particularly like how I think that process ends.

Monday, June 21, 2021

In re Ontiveras (Cal. Ct. App. - June 21, 2021)

What do you do if you're a court and the voters pass an initiative in which the text says one thing but the voters fairly clearly didn't mean what that text says?

That's a classic law school discussion question, and it's also the underlying issue in today's opinion by the Court of Appeal.

There's no doubt that when voters passed Proposition 57, they wanted to give parole consideration for defendants convicted of nonviolent offenses.  Here's what the text says:  “Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.”

If you're convicted only of a violent offense, Prop. 57 clearly doesn't apply, so no early parole eligibility.  By contrast, if you're convicted only of a nonviolent offense, indisputably, Prop. 57 applies.

But what if you're convicted of both a violent offense (or more of 'em) and also a nonviolent offense (or several)?  Does Prop. 57 apply then?

The following seem almost undeniably true:

(1) The text of Prop. 57 dictates that, yes, you get parole eligibility, because you've in fact been "convicted of a nonviolent felony offense," yet

(2)  Having Prop. 57 work that way would be completely silly, because it would mean that someone who committed and was convicted of more crimes (e.g., a violent offense PLUS a nonviolent one) would be treated better than someone who was convicted of only the violent offense -- the latter would clearly be ineligible for early parole consideration, whereas the former would be eligible.

So what do you do?

A late 2019 opinion from the Court of Appeal says, well, sorry, we follow the text.  The California Supreme Court then granted review of that opinion.  Today's opinion from the Court of Appeal says, nope, I'm not going to do something that the voters obviously didn't intend, so I'm not going to follow the text.

Today's opinion will also be granted review by the California Supreme Court.  Which will then decide who's right.

It's a tough case for textualists.  On the one hand, they like to follow "unambiguous" text.  On the other hand, they're generally "tough on crime" and don't want "windfalls" for criminals.

These two things are in fairly stark conflict here.

We'll see how the California Supreme Court comes out.  But Justice Guerrero makes clear in today's opinion that the result she doesn't think that there should be much of a fight at all about the merits there.  "[W]e disagree that any reasonable person could have intended such a result. Its absurdity is clear even without considering the specific context of Proposition 57. Our society abhors crime and seeks to deter and punish it. We do not reward it. It, indeed, “cannot be . . . that voters intended a defendant who is convicted of more crimes, i.e., both violent and nonviolent felonies, to be eligible for early parole consideration while a defendant convicted of fewer crimes, i.e., the same violent felony but no nonviolent felonies, is not.” (See Mohammad, supra, 42 Cal.App.5th at p. 727, review granted, italics added.) This result is so absurd and unreasonable that the electorate could not have intended it."

Thursday, June 17, 2021

People v. Esquivel (Cal. Supreme Court - June 17, 2021)

While I was reading this opinion this morning from the California Supreme Court -- the only published appellate opinion today from the California courts -- it struck me how fortunate I was to be living in our great state.  The typical upsides and downsides of living in California are well-known; for the former, awesome weather, great beaches, cool citizenry (for the most part), etc., and high housing costs and tax rates (inter alia) for the latter.

But what I really felt strongly when I read today's opinion -- which is by no means an exceptional or unusual one, I might add -- was just how much I like living in a state that has a supreme court like ours.  It's really, really quite good.  The opinions are almost always extremely well-written.  They make sense.  They demonstrate common sense.  And, a huge number of times, they're unanimous.

That's not easy.  At all.  The truth of the matter is that we have a darn good California Supreme Court.  With respect to matters both critical and high-profile as well as in more pedestrian cases.

That's super nice.  It's comforting -- truly comforting -- to know that, at the highest level, your state judiciary is really quite talented and good.  Not only the individual justices, but the institution as a whole.

It's not like I think that other state supreme courts, or the U.S. Supreme Court, are horrible tribunals run by incompetents.  There's nonetheless a difference.  The Supreme Court, for example, has plenty of incredibly bright justices, and often renders well-crafted opinions with which I agree.  But there's a partisanship and vitriol and results-orientedness there that's palpably less present in the California Supreme Court.

Today's opinion, written by Chief Justice Cantil-Sakauye, is yet another example of the mold. Well-reasoned.  Easy to read.  Makes good argument.  Reaches an equitable result.  Unanimous.

Everything you'd hope for.

It's easy to take stuff like that for granted.  I certainly do (at times).  So it bears at least occasional mention.  It's nice to live in a place governed like that -- and with people/justices like that.

I wrote almost all the above before I had a morning that I can definitely describe as . . . interesting, and that itself reaffirmed (albeit on a different level) the many reasons that California is a great place -- and the California Supreme Court's role in keeping it so.  Sometimes I think I might be guilty of what my daughter calls "TMI" on this blog, so I'll keep the details limited, but this morning I was the personal beneficiary of one of the rules created by a prior Supreme Court decision (Tarasoff), and was definitely grateful therefor.  Nature has made California great in a variety of ways, but the people -- as well as the California Supreme Court -- have played, and continue to play, a huge part as well.  My experiences this morning, both in reading today's opinion and otherwise, highlighted for me just how great it is to be surrounded by the place in which I reside as well as the people who share my residence in this great state.

On a more pedestrian note, I also liked today's opinion because Chief Justice Cantil-Sakauye taught me a new word.  Page nine, second paragraph:  "Defendant had not exhausted direct review of the order causing his carceral punishment to take effect."  Had to look that one up.  Made sense after I did, but definitely hadn't seen that word before.  Totally fits the holding of the case, which involves when an opinion is final if a custodial sentence is imposed but suspended, probation follows, and then the guy is violated and the sentence takes effect).  The fancy word wasn't just used to impress people; it fits perfectly.  Well done.

Oh, and I also liked the following two sentences in that paragraph as well, which read:  "The time for him to seek that review had not expired. And he had not successfully completed probation."  As you may know from reading this blog, I occasionally begin sentences with "And" as well -- something that I didn't do a couple of decades ago, but eventually picked up, much to the chagrin of certain people who are convinced it's totally improper grammar.  Good to see that at least I've got the Chief Justice on my side.  (Or at least with whom to share the scorn.)

Wednesday, June 16, 2021

People v. Kasrawi (Cal. Ct. App. - June 16, 2021)

I'm sure that things like this happen literally a thousand times a day, but since the facts were recited in a published opinion, and since the events at issue happened down here in San Diego, my interest in them was particularly piqued.

Officer John Pardue was driving around in an "affluent neighborhood" of Del Mar at 4:00 a.m. when he sees a guy cross a street in the residential neighborhood and begin to enter his Toyota Prius.  There's no particular reason to think that this guy's doing anything wrong, but (like any other neighborhood) there have been some occasional car break-ins in the area, and Officer Pardue has a "hunch" that the guy might be up to no good.  So Officer Pardue pulls up behind the Prius, shines his spotlight on the guy, hops out of his car, and starts asking the guy questions.  When the guy says he's simply resting on a drive down from L.A. -- an answer the officer finds suspicious because "the residential street was several turns away from Interstate 5" -- the officer puts the guys into cuffs and sits him on his patrol car.  It only takes around 15 seconds between the time the officer pulls up behind the Prius until the time the guy's in cuffs.

Now, as it happens, in turns out that Officer Pardue's "hunch" that the guy was up to no good was spot on.  The guy ends up having a ton of loose change, gift cards and other stuff that he's been stealing from cars in the area, plus he's got an outstanding warrant and tries to ditch a bindle of methamphetamine outside view of the cops (but gets caught).  So the guy gets charged.

The question at issue in the case is whether Officer Pardue had a reasonable basis to stop the guy.  Justice Dato writes the majority opinion and says that, everything considered, pulling up to the guy, shining the spotlight on him, hopping out of the car and immediately questioning him constituted a "seizure" and that there wasn't (at that point) a reasonable basis for it.  But Justice Dato also concludes that the evidence need not be suppressed nor the convictions reversed because the guy ending up having an outstanding warrant so the exclusionary rule doesn't require suppression.  Justice Benke files a "concurring and dissenting" opinion saying that there was a reasonable basis for the stop given the underlying suspicious circumstances.  (This is, to me, simply a concurring opinion, since everyone agrees that the judgment below gets affirmed on the merits, but whatever.)

Okay.  All interesting.  Nicely articulated perspectives on all sides.

I just thought that it was somewhat surprising -- particularly in the modern era -- that there wasn't at least some comment made about who it was here that got stopped.  And why.

Let me say this with extraordinary confidence:  If it was me (Shaun) getting into my Prius at 4:00 a.m. in Del Mar -- which it well could be -- there's zero chance that Officer Pardue shines a spotlight on me and hops out of his car, much less that he promptly puts me in cuffs once I tell him that I'm resting on my way down from L.A.  I'm 54.  I'm White.  I look like the "usual" guy in Del Mar.

I strongly suspect that the guy here does not look like me.  His name is Omar Kasrawi.  I can't tell for sure his age or what he looks like, but I did notice that there's a guy with that name who lives a couple miles away from me who's 32 years old and works as a server at a Red Lobster.  I suspect that one big difference between Mr. Kasrawi and me, quite frankly, is that he's more brown than I am -- which I suspect might play some role in why Officer Pardue had a "hunch" that Mr. Kasrawi was a criminal visiting Del Mar rather than someone living (or visiting someone) there.

Now, look, I suspect there might be other things as well.  There's zero evidence from the opinion that Mr. Kasrawi was "nervous" or anything like that, but the fact that he was younger probably played a role in why someone like him gets stopped (and cuffed) by the police whereas someone my age doesn't even merit inquiry.  Plus, if he's ditching methamphetamine, there's a nonzero chance that he's perhaps got the "look" of a meth addict; probably stealing from cars to support the thing.  Fair enough.

But there's a lot of contemporary discussion and debate about the role of race and ethnicity in police interactions these days.  So I was a little surprised that there wasn't at least a tangential mention of those realities in either of the two opinions in the case.  If only as a recognition that the take one has on Fourth Amendment jurisprudence -- e.g., whether getting a spotlight shined on you at 4:00 a.m. and interrogated by the police simply because you're getting into your Prius on a public street -- might have very differential effects on different groups of people.  For people like me, whether that's okay or not probably won't have much of a practical effect at all; it's extremely unlikely to happen.  By contrast, for people who perhaps look differently than I do, it might make a very big difference indeed, and affect in a very nontrivial way how they experience their daily lives.

Not that any opinion by the California Court of Appeal is going to solve the underlying problem, of course.  But maybe at least a little recognition could be worthwhile.

'Cause reading the opinion just brought home in a very concrete way to me that my experience in Del Mar at 4:00 a.m. might well be very different from the experience of someone else.  Even if we're doing the exact same things in the exact same way, and the only difference between us is how we "look" to the police and whether they have a "hunch" about us or not.  They may end up in cuffs after 15 seconds -- guilty or not -- whereas I get in my Prius unmolested and drive away untouched and unquestioned.

I know, I know:  Not a huge revelation.  This is nothing that no one's said a thousand times before.

But perhaps worthy of at least brief note regardless.

Monday, June 14, 2021

In re Paul Mahoney (Cal. Ct. App. - June 11, 2021)

I've been sick for a bit, so backed up on reading opinions for a while.  Fortunately, I recovered to read this one, written jointly by Justices Bedsworth, Aronson and Goethals.

It's super unique.  It holds an attorney in direct contempt for making silly -- and baseless -- accusations that the trial court was politically biased and that otherwise impugned its integrity.  The consequences imposed were slight (a $2,000 fine), but the opinion goes on at length to explain just how unusual it is for an appellate attorney to be so off the rails and how bizarre it was that, instead of being contrite, the lawyer continued the craziness in response to the OSC re: contempt.  The opinion says a lot about what it means to be a professional and how to act civilly yet forcefully.  There's nothing new in that concept, of course, and most lawyers understand it implicitly.  Sometimes, however, it's good to write that stuff down, and the panel does so here incredibly well.

So I've got zero problem with the opinion, whether its tone, content or result.

Though I can I add just one thing?

I get it.  The attorney here -- Paul M. Mahoney from Claremont -- definitely went way overboard.  He wrote a (crappy) petition for rehearing that didn't cite a single statute or opinion and instead waxed poetic about how "[o]ur society has been going down the tubes for a long time, but when you see it in so black and white as in the opinion in this case, it makes you wonder whether or not we have a fair and/or equitable legal system or whether the system is mirrored by [sic] ignored by the actions of people like Tom Girardi."  So basically, a rant, and a baseless and silly one at that.  For that, yeah, you should get sanctioned.  As well as probably publicly shamed a little bit.  Because, geeze, if you don't know by now not to do stuff like that, that's really quite incredible, and you're doing a terrible job for not only your current client, but probably for all (or almost all) of your other clients as well.

So, again, I've got no problem with what happens here.

But the thing that nonetheless just wants me to push back just a tiny bit here from the overall message of the opinion is the fact that the attorney here, Mr. Mahoney, is pretty clearly reasonably old.  As the opinion itself mentions, Mr. Mahoney has "52 years of practice," and was admitted to the bar in 1969.  Which in turn means he's at least around 75 years or so old.  Now, I get it, that's not an excuse; indeed, after a half-century of practice, presumably one knows -- or at least should know -- how not to write a crazy, off-the-rails petition for rehearing.  I suspect that Mr. Mahoney has written plenty of non-crazy motions and petitions in the past.  The fact that you eventually get a little long in the tooth doesn't exempt you from your responsibility to do your job well if you elect to continue to do it.  Indeed, it means you should know better than to do otherwise.

At the same time, though, the guy's old.  Reasonably old.  Not crazy, 110-and-counting old.  But older for sure.  And maybe, as I creep up in age myself, I'm just increasingly empathetic with the trials and tribulations that sometimes accompany not being "young" any long.  Or, more likely, I've just seen more often how advancing age sometimes causes people -- great people, wonderful people -- to slowly lose a bit over time.  Including, sometimes, a bit -- or even more than a bit -- of their judgment and discretion.

When a 30-year old authors a petition like Mr. Mahoney's, the only excuse is perhaps youthful exuberance and inexperience.  When a 40-year old writes the same thing, there's not much excuse at all.  But when a 75-year old writes the same thing, unless that's the type of thing he's for which he's known, there's part of me that wants to treat him (relatively) kindly.  To understand that, maybe, just maybe, he wasn't always like that what he's become (and done) isn't necessarily entirely the product of who he is internally.  It's perhaps a consequence, in part, of where he is in life.

Now, I get it; a nontrivial number of the justices on the Court of Appeal -- including on the panel -- are 70+ themselves, and in great mental shape.  So I can definitely see why one might take a fairy hardcore position on this thing notwithstanding Mr. Mahoney's age.  And, again, being 75 or so isn't an excuse; it's simply an explanation.  The best that I think it'd do for the guy is simply to perhaps make it more understandable (and thus less categorically culpable) how someone who's otherwise an entirely reasonable and competent fellow might end up where Mr. Mahoney unfortunately finds himself.

So maybe the guy's age just merits some sympathy, or at least understanding.

Which maybe even, in truth, the panel had.  They called the guy up for a hearing.  It sounds from the opinion like they were at least trying to get the guy to understand what he did wrong.  The opinion says: "Nor did Attorney Mahoney recant at the hearing. We tried to nudge him toward a more temperate position but were unsuccessful. Every time he seemed ready to moderate his stance, he would change direction and return to it."

Which sort of happens sometimes, right?  You get a crotchety old guy up there, and try to explain what he's done wrong, and there's part of him that gets it, but he's ultimately just incapable of making the transition to actual understanding.  That's not inconsistent at all with the dynamic that I think might be at least at part in play here.

As a society, we're aging.  People live longer (thankfully).  People work longer -- thankfully (for the most part).  With that, you get both the upsides as well as accompanying downsides.  The downsides may in part include confronting petitions, on very rare occasions, like this one.

I'm sure that age isn't a complete explanation.  The increasingly partisan nature of social discourse certainly probably contributes as well.  Nor does any of this justify Mr. Mahoney's conduct; indeed, if age and hyperpartisanship are partially to blame, then the need for opinions like this one might be even greater than usual, since we might expect additional instances of things like this in the future.  Good to try to cut it off at the outset.  Or at least try.

I say all this only because I might have included a line or two in the opinion that tried to temper the tone of the thing with just a tiny bit of sympathy.  'Cause sometimes people simply aren't at their best.  Through circumstances that aren't an excuse, but that are nonetheless understandable.

In the end, I just hope that Mr. Mahoney retires.  I'm sure it's been a great run.  But sometimes, it's time to move on.  Maybe the opinion helps out with that.  Though I'm sure Mr. Mahoney and his family (if any) would have infinitely preferred a more graceful conclusion to his half-century-plus legal career.

An opinion definitely worth reading.  As well as circumstances definitely worth pondering.

Monday, June 07, 2021

People v. Brewer (Cal. Ct. App. - June 7, 2021)

This is a case about a 28-year old defendant who was sentenced to 63 years in prison for a string of robberies.  Defendant argues this is a "functional life sentence" and unconstitutional in light of his mental disabilities, asserting that he has the functioning intellect of a 10-year old.  The Court of Appeal disagrees.

It's a bad case for the arguments defendant makes.  He was personally armed.  There were a plethora of robberies.  He had a prior criminal record.  You're going to be hard pressed to persuade someone that, at this point, taking a 28-year old off the street until he's 60 or so (assuming time off for good behavior) is unconstitutionally excessive.

On an only tangentially related note, I had to reflect on my own mental competence when I stumbled over a portion of Justice Murray's opinion.  On page four, the opinion reads:

"On November 24 at approximately 6:15 p.m., J.K., the store manager at the ampm on Marconi Avenue, saw two men enter the store."

When I read this, I asked myself:  "Wait.  What's an ampm?  Is that a typo?  An abbreviation for amphitheater?  What?!"

It took me a couple of seconds before I finally figured out what an ampm was.

Too much good stuff.

POSTSCRIPT - An informer reader reminds me that as a "striker" the defendant here actually has to serve a minimum 80 percent of his sentence, rather than half, so the earliest he can get out is age 78, rather than in his 60s). I doubt that fact would sway most readers to a different conclusion, but agree that 78 is super old -- as well as likely exceeds the probable (but by no means certain) life expectancy for a male who's spending 50 years in prison. 

Perry v. City of San Diego (Cal. Ct. App. - June 7, 2021)

One of the great things about living in San Diego is that the City picks up your trash for free.  Well, not  totally "free" -- taxes pay for it, of course.  But it's part of the goods and services that the City provides.

But like most municipal services, this inevitably creates fights about who's entitled to these services and who's not.  So in today's opinion, you've got owners in a condominium complex in Hillcrest -- a hip part of the City -- arguing that the City should have to pick up their trash rather than the condo owners paying someone to do it.

Which in turn means that the condo owners are represented by a lawyer.  I'll call his specialty:  Trash Law.

Unfortunately for them, the condo owners and their lawyers lose, both on summary judgment and in the Court of Appeal.  Here in San Diego, we don't pick up trash (for free) from gated communities like this one.  Only from regular old residences that directly abut public streets.

So the condo owners lose.  You need not feel massively bad for them, however.  It looks like the average condo in this complex is worth around a cool million.  So it's not like the owners don't have the scratch to pay for private trash service.

Wednesday, June 02, 2021

People v. Lund (Cal. Ct. App. - June 1, 2021)

It's another child pornography case; there are a lot of these.  That whole "looking for kiddie porn" thing is -- to put it mildly -- super fraught with danger, wholly apart from its many other unsavory aspects.

Lest anyone believe that these things aren't super easy to discover, Justice Brown's opinion goes into detail about the automated system that apparently thousands of police officers are using every single day to find people sharing kiddie porn:

"In August 2014, Vacaville police detective Jeffrey Datzman was investigating child pornography cases over peer-to-peer networks. One of the tools Datzman used was privately developed software called the Child Protection System (CPS). CPS is the web interface for viewing results from a suite of several software tools that each search for child pornography on a specific peer-to-peer network. It is used around the world in 84 countries by over 10,000 users, all of whom are law enforcement personnel.

The CPS software suite automates the process of searching peer to peer networks. Previously, law enforcement officers would have to manually input keyword search terms to discover computers that were hosting suspected child pornography and then further investigate those GUIDs. By contrast, CPS sends out search terms continuously. CPS also compares the files listed in response to the keyword searches against CPS’s database of hash values, which contains the hash values of files that law enforcement officers somewhere in the world have previously tagged as being child pornography. If there is a match between the hash values for the files listed in response to the search and the hash values in the CPS database, CPS logs the details of the event in a CPS database for police officers to follow up on later. CPS logs the filenames and hash numbers of the suspected child pornography files being offered; the GUIDs, IP addresses, port number, and, in most cases, software used to offer the files; and the dates and times CPS detected the GUID with the files. Police officers obtain records from internet service providers to determine the physical location of the computer associated with the GUIDs, IP addresses, and port numbers logged by CPS."

So unless you're sharing child pornography (or have it on your computer) that's totally unique and not seen by any officers before, it looks like it's probably going to have a "hash value" and be discovered.

Not a risk I'd take -- at all -- even for things that aren't immoral, harmful and incredibly sleazy.

The other fascinating thing about this opinion is how it begins.  I'm very familiar with the kinds of sentences that are routinely handed out in these types of cases.  The opinion begins by describing the offense:  "A jury convicted Eric Lund of one count of possession of more than 600 images of child pornography, at least 10 of which involved a prepubescent minor or a minor under 12 years old, in violation of Penal Code section 311.11, subdivision (c)(1)."  I totally expected the next sentence to read something like:  "The trial court sentenced Lund to 60 years to life in prison."  But, in reality, the next sentence read:

"The trial court sentenced Lund to five years in prison."

Dude!  Mr. Lund should thank his lucky stars that he only got five years.  Plus it's in state court, which means he likely gets out in two and a half.  In federal court, dollars to doughnuts says he's in prison for more like 15 to 20, minimum.

Why only 5 years, I thought?  Maybe because he's otherwise a "good guy"?  (Apart from the interest in viewing the sexual exploitation of children, I guess.)

Perhaps.  Though once one reads further in the actual opinion, one discovers yet another interesting fact about Mr. Lund.

He's a cop.  Who was viewing the kiddie porn for the most part while on duty.

The guy's not a total idiot.  He'd go to publicly available wifi addresses -- e.g., the Yogurt Beach Shack -- and download the stuff there.  That way it's not linked to his home address.

But you can still totally get caught.  For example, with Mr. Lund, here's how they first caught onto him:

"During the surveillance, Datzman connected to the Yogurt Beach Shack’s router so that he could observe whether any devices connected to the router and see such devices’ “mac ID,” which is a unique specific identifier for a device. On one night, at around 1:00 a.m., Datzman saw a device connect to the router, and he recorded the mac ID. Datzman then drove around the outside of the building to see who was nearby that could be using the device. Datzman noticed a California Highway Patrol (CHP) vehicle parked near the business. Lund was the sole occupant of the vehicle, seated in the driver’s seat and looking down and to his right at a lighted object. Datzman then contacted Sergeant Jason Johnson in the Vacaville Police Department. Johnson agreed to contact Lund using a ruse to determine his name. The ruse succeeded and Lund told Johnson his name. After Johnson spoke to Lund, Lund drove away, and Datzman noticed that the mac ID of the device that was using the Yogurt Beach Shack router dropped off at the same time. No other devices connected to the router that night."

So they get warrants, find flash drives and the like, find more kiddie porn, etc.  For example:  "The external hard drives together contained over 10,000 files that Datzman suspected to be child pornography, based on their hash values’ matches to the CPS database. Datzman reviewed a sample of 73 videos from the hard drives and confirmed that they were child pornography, with almost all of them containing at least one prepubescent minor."

But, still, despite all this evidence, Mr. Lund's first trial ends up in a mistrial, and even after he's convicted at the second trial, he still gets only 5 years.

Not the way these cases usually come out.  At all.

In any event, you wouldn't expect most police officers to be into kiddie porn, right?  Much less to take the risk.

But there you have it.  At least here.