Friday, December 31, 2021

Elmore v. Gordon (Cal. Ct. App. - Dec. 30, 2021)

Maybe I'm crazy, but if I'm driving a vehicle with a blood alcohol content of approximately double the legal limit, I'm probably not going to cruise to within 15 yards of the Mexican border and then do a U-turn while peeling out once I spot the inevitable border patrol vehicle.

Especially if I'm so drunk that I've peed myself.

Also, I probably wouldn't appeal the ultimate suspension of my license, either.  Because not only would I lose, but it might also result -- like here -- in a published opinion that mentions my full name.

A series of unfortunate decisions.

Thursday, December 30, 2021

Sellers v. JustAnswer LLC (Cal. Ct. App. - Dec. 30, 2021)

If you're looking for a California case that refuses to enforce a "browsewrap" arbitration and class action waiver clause, this is the opinion for you.

Not only is the holding what you're looking for, but it's 50+ pages of history and precedent and everything you ever wanted to know about the validity of arbitration agreements in analogous situations.

Comprehensive, to say the least.

Tuesday, December 28, 2021

Kalbers v. DOJ (9th Cir. - Dec 28, 2021)

I'm not sure where all this is coming from.

It's a fairly routine-ish case.  A professor from LMU -- Lawrence Kalbers -- is interested in the VW "Dieselgate" scandal, so submits a FOIA request for various documents; in particular, the reports submitted to the DOJ by the Monitor after VW's guilty plea, as well as the evidence that VW told investors in its annual report that it showed the DOJ at the time.  Seems fairly relevant to me.

But the DOJ doesn't want to disclose the documents, so Professor Kalbers sues.

The DOJ drags its feet in the litigation, but after a year or so, the case starts picking up a bit, and the parties are going to file summary judgment motions.  At which point Volkswagen moves to intervene in the litigation.  The district court denies the motion to intervene on the grounds, inter alia, that VW waited way too long to file its motion, particularly since it knew about the litigation for around a year before even looking to get involved.

The Ninth Circuit reverses, in an opinion by Judge Owens.  He says the motion was timely.

You can make arguments for and against the Ninth Circuit's resolution.  Reasonable minds can differ on the various points.

What surprised me the most, however, was the occasional tone of Judge Owens' opinion.

The opinion is fairly hostile to the district court's decision.  Now, some of this is just being aggressive on the merits.  Simply a matter of style.

But take a gander at footnote five, for example.  That footnote's about the fact that when it filed its motion to intervene, VW never told the district court that it knew about the litigation way before the DOJ sent it a formal letter notifying it of the case; instead, VW's timeliness motion pretended as if it only knew about the case once it received the letter.  When the district court found out about this, not surprisingly, it was . . . miffed.  And said so.

The Ninth Circuit opinion accurately noted in the footnote that "the district court severely criticized VW's counsel for 'misrepresentation of the record' and a 'lack of candor'" regarding when it first knew about the lawsuit.  And the opinion agreed in that same footnote that "[t]o be clear, VW's motion to intervene should have disclosed the initial 2018 notice and argued for its irrelevance from the get-go," rather than simply hiding that fact.  But then the footnote ends with:  "However, the record does not support the district court's overheated accusations of unethical conduct towards VW's counsel."

I was more than a little surprised by the inclusion of the word "overheated" there.  You usually don't refer to a district court's reasoning or rhetoric in such a fashion.  It's a bit . . . personal.

Are there some judges who are notoriously subpar and for whom the Ninth Circuit occasionally goes out of its way to make sure everyone knows it?  Sure.  But Judge Olguin isn't one of them.  Indeed, the tenor of the opinion was sufficiently surprising that I spent a little time trying to figure out if there was a discernable reason why Judge Owens would be so snippy here.  Did he have a run-in with Judge Olguin when they were both in Los Angeles; e.g., when Judge Olguin was a magistrate/judge and Judge Owens was a lawyer?  Not as far as I can tell.  Did Judge Owens personally know any of the various Sullivan & Cromwell lawyers who were slammed in Judge Olguin's opinion?  Ditto; couldn't see any obvious connections.

Maybe Judge Owens had merely gotten up on the wrong side of the bed that morning.  Or maybe he simply didn't like what he thought was an unjustified attack on counsel -- though, I gotta say, since it seems actually true that VW "neglected" to mention a super important fact in its motion to intervene, my personal view is that it's not super crazy for the district court to say that might show a "lack of candor" on the part of those lawyers.

For whatever reason, Judge Owens thought it important to fairly aggressively stomp down the district court in the process of reversing its decision.  So that's what he did.

Volkswagen gets to intervene.

Monday, December 27, 2021

People v. Zgurski (Cal. Ct. App. - Dec. 27, 2021)

It's the last Monday in 2021.  Thank goodness.

The lesson that I get from today's Court of Appeal opinion is the following:  Don't buy stuff online unless it's from a well-known seller (e.g., amazon).  Even if you're using an escrow service or whatever, the ways that you can get scammed out of your money are essentially infinite.

Otherwise, as here, your money may well end up in Russia.

I'm actually stunned they ended up catching any of the people here.  And the main wrongdoers seem to have gotten away with it anyway.

But at least they catch the guy who picked up an "easy" $1000 by being a strawman who opened a bank account.  Though he's such a minor player he only gets a misdemeanor and probation.

Meanwhile, Russia keeps the money.

Wednesday, December 22, 2021

People v. Howard (Cal. Ct. App. - Dec. 22, 2021)

Just last night, at a holiday gathering, someone -- a non-lawyer -- asked me to explain what a "Franklin hearings" was.  (I know, I know; that's super geeky, but in my defense, I was sitting next to a guy who does 'em.)  Lo and behold, today, Justice Moore does a better job than I did.  She says:

"Broadly speaking, a Franklin proceeding allows youth offenders sentenced to long prison terms an opportunity to introduce into the record mitigating evidence relating to their youth. As explained in the case for which it is named, People v. Franklin (2016) 63 Cal.4th 261 (Franklin), the purpose of this proceeding is to preserve such evidence for consideration at future parole hearings. . . . . Franklin processes are more properly called ‘proceedings’ rather than ‘hearings.’ A hearing generally involves definitive issues of law or fact to be determined with a decision rendered based on that determination. [Citations.] A proceeding is a broader term describing the form or manner of conducting judicial business before a court. [Citations.] While a judicial officer presides over a Franklin proceeding and regulates its conduct, the officer is not called upon to make findings of fact or render any final determination at the proceeding’s conclusion. Parole determination [sic] are left to the Board.” (In re Cook (2019) 7 Cal.5th 439, 449 fn. 3 (Cook).)"

There you go.

In re Emily L. (Cal. Ct. App. - Dec. 21, 2021)

Family is (obviously) important during the holiday season.  For some of us, the college kids come home; for others, older children (and perhaps grandchildren) sometimes visit, and those with younger kids have them home from school a bit more.  There's an obvious upside to all that contact, and maybe, on occasion, some downsides as well.

But whatever negative interactions you might -- or might not -- have with your relatives hopefully won't be as bad as this.

Here's the mother's story of her relationship with her 15-/16-year old daughter Emily:

"Mother said Emily’s behavior was “uncontrollable.” Emily has a “strong character” and does not want to follow any of the house rules or hear any type of redirection or advice from her parents. She came home from school around 8:00 or 9:00 p.m. When Mother would call to find out where she was, Emily did not answer the phone calls or turned off her phone, which worried Mother. Emily was currently failing her classes. Both parents were trying to motivate and help Emily with school. Both parents had tried to discipline her by taking way her phone and WiFi privileges. Mother suggested they do things together in an effort to build a better bond, but Emily refused. Emily appeared to Mother to prefer spending time with her friends than with her family.

Mother described the start of the altercation. She found photos of Emily posed in a bikini lying down on a bed. She believed Emily’s boyfriend took the photos. Mother ripped them up so they could not be used to bully Emily. When Mother told Emily she had destroyed the photos, Emily began throwing things around the bedroom they were in. She then began to advance toward Mother. Laughing, Emily started to rip up photos of her younger self. These included photos of Emily with her best friend, which Mother knew had sentimental value to Emily because her best friend had just moved away. Emily tried to hit Mother, who grabbed Emily’s wrist to keep from being hit. Emily grabbed the bunk bed ladder and began to push it in Mother’s direction. Mother had never seen Emily like this and was scared by her behavior. Emily pushed Mother, Mother pushed back, and Emily punched her. Mother tried to hold Emily’s wrists to stop the punching. Emily kicked Mother in the stomach and they grabbed each other’s hair. They fell to the floor; Emily climbed on top of Mother and began to hit her with a closed fist. Mother still had Emily by the hair. They stopped fighting and Emily went into the living room where she began kicking a glass table. She overturned the living room loveseat.

Mother decided to call 911 because she did not know what else to do. Emily moved to the kitchen and began kicking the refrigerator and opening cabinets, throwing everything to the floor. Emily then charged Mother and began kicking her torso. At that point, they grabbed each other by the hair and fell to the floor again. Emily again began punching Mother with a closed fist. Mother flipped over and choked Emily with one hand to get her to stop."

Makes those "uncomfortable holiday dinner conversations with relatives" look fairly minor, eh?

Monday, December 20, 2021

People v. Lange (Cal. Ct. App. - Dec. 20, 2021)

I'm trying to figure out the incentive effects here.

Obviously, with an increasingly conservative Court, the exclusionary rule has been cut back during the past couple of decades.  Not overruled, not (entirely) gutted, but definitely cut back.  We don't like to exclude evidence, so we come up with a zillion different exceptions.

The one that the Court of Appeal applies today is the "good faith precedent" exception.  Basically, if the police officer did something wrong -- here, entered a house without a warrant -- but the wrong was okay under then-existing precedent, we're cool with it.  No exclusion.  Even if, as here, the officer didn't rely upon, or even know about, that precedent.  It's an objective inquiry.

The theory is that the officer didn't do anything "wrong" in such a setting -- apart from violating the Fourth Amendment.  More accurately, she didn't do anything "wrong" that we feel like deterring.  Since precedent at the time allowed the search, we don't feel like excluding the resulting evidence even if the Supreme Court ultimately holds that, yep, actually, searches like that are illegal and unreasonable.

But here's my question:  if that's the rule, doesn't that negate any rational incentive to change the law; e.g., to argue that an existing policy violates the Constitution?

Today's opinion is a perfect example.  Defendant drives past the police -- allegedly under the influence -- as he's literally four seconds away from his home; noise blaring, honking his horn, etc.  The officer turns on her lights and follows him, but, again, he's 100 feet from his home anyway, so rather than pulling right over, he pulls into his garage, and the officer follows him into the residence and starts questioning him.  He says that violates the Fourth Amendment since it's a warrantless intrusion.

The trial court disagrees.  It's a misdemeanor offense, so it goes to the Appellate Division, and then the Court of Appeal, which holds -- in an unpublished opinion -- that it's categorically okay for police to follow people into their homes when they're "fleeing', even for minor misdemeanors.  The California Supreme Court doesn't feel that issue's sufficiently important to grant review.

But the United States Supreme Court does.  It accepts the case, and rules that, nope, there's no categorical rule that allows warrantless entries into a home for "fleeing" suspects; rather, it's a case-by-case inquiry.  There's a lot of fight between the various justices on what things we should take into account on a case-by-case approach, but that's all left for another day; for now, the Court of Appeal was wrong to apply a categorical rule, so the case gets remanded back for consideration under the Court's new case-by-case approach.

But, today, on remand, the Court of Appeal doesn't do that.  Instead, it reinstates its prior holding.  Not by seeing whether the entry was warranted under the Court's new case-by-case holding.  But rather on the theory that because its erroneous categorical rule was the law at the time, the exclusionary rule does not apply, regardless of the fact that the Supreme Court granted certiorari and reversed the judgment below in this very case.

Here's the rub, though.  If today's opinion is right, what's the incentive for litigants like the defendant here (Lange) to argue for a violation of the Fourth Amendment.  Even if they're right, they won't get a victory in their particular case -- just like Lange, here, wins in the Supreme Court, but still ends up a loser, since the victory he won (the case-by-case approach) doesn't get to apply to his own case.  That's true not only for Lange, but for everyone else as well.  Winners get prospective relief -- for others -- but that doesn't help them at all.  They still get convicted under the old, erroneous view given the exception for "reliance on precedent."

So it's essentially a one-way rachet.  Once an intermediate appellate court first decides that something doesn't count as a Fourth Amendment violation, the defendant has an incentive to appeal and get that reversed.  But thereafter, once there's a precedent, for all practical purposes, that holding is locked in; no defendant has any incentive to challenge it, since even if successful, that change won't benefit him.  By contrast, if an intermediate court decides that something does violate the Fourth Amendment, there's no lock-in; in future cases, the government has every incentive to ask that the precedent be changed, because if it changes, there's no exclusion in the present (and future) cases, all of which is to the state's benefit.

That just seems how the law works here.  Which is different than in pretty much every other area.  We generally -- and purposefully -- give legal changes retrospective (rather than merely prospective) effect in order to incentivize litigants to challenge existing precedent.  That system works.

Yet we don't use it here.

Friday, December 17, 2021

Russell v. Dep't of Corrections (Cal. Ct. App. - Dec. 16, 2021)

Stockton attorney Kenneth Meleyco had a very bad day.

The Court of Appeal affirmed the award of $1500 in sanctions against him based on repeated violations of a court order regarding his argumentative opening statement in a civil case.  Sucks, eh?

But at least the result of that trial was super good.  He got a $2.7 million verdict against the defendant for his client, so that's a fat contingency fee, right?

Except the Court of Appeal reversed that as well, and entered judgment for the defendant notwithstanding the verdict.

Some days it sucks to be you.

P.S. - Someone should eventually think -- or write about -- the provision under which Mr. Meleyco got sanctioned, CPP 177.5.  That statute provides: "A judicial officer shall have the power to impose reasonable monetary sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification  This power shall not apply to advocacy of counsel before the court."  Just based on the statutory text contained in that last paragraph, you'd think that you couldn't be sanctioned under that provision for oral arguments, whether in front a judge or jury, right?  After all, that's at least textually "advocacy" by counsel "before the court."  But I looked up the relevant precedent on this point -- Mr. Meleyco didn't raise this argument, nor did the Court of Appeal address it -- and it seems like the California courts pretty much routinely hold that this exception doesn't apply when an attorney violates a court order, on the theory that once the judge hears your objection and then rules against you and tells you not to do it again, that's no longer "advocacy" since the court's already ruled against you.  But not only is that, to me, not the common meaning of the word "advocacy," but it also seems to make the exception meaningless/superfluous, since the first sentence already says that you can be sanctioned only if you violate a lawful court order.  So if violating a court order doesn't count as advocacy, then the exception for advocacy by definition never applies, since you can only be sanctioned in the first place if you've violated a court order.  No?

Thursday, December 16, 2021

Wheeler v. Appellate Div. (Cal. Ct. App. - Dec. 16, 2021)

It's final examination time, so that means tons of students in my office, and not much time to catch up on appellate opinions.

Nonetheless, I wanted to take time out to help the trial court on remand in this one.  As well as to make some substantive points.

It's a misdemeanor case in Los Angeles against Emily Wheeler.  She's an 85-year old woman who owns a commercial storefront in LA that she rents out.  It seems like the actual business is run by her son, but she is the record owner of the property, so her name's on the title.  Unbeknownst to Ms. Wheeler, apparently one of the tenants ran a cannabis business out of her storefront without the proper license.  So the LA City Attorney files criminal charges against Ms. Wheeler and her son, alleging violation of an LA ordinance that purportedly makes owners criminally strictly liable when their property is used for illegal marijuana operations.

Okay, so that's what the law says.  So they drag this 85-year old woman into court for something about which she has absolutely no idea.

The trial judge (actually, a commissioner, since it's a misdemeanor) isn't particularly psyched about that.  Understandably.  On her own motion, the commissioner dismisses the charges pursuant to Section 1385 of the Penal Code, which provides: "The judge or magistrate may, either of his or her motion or upon application of the prosecuting attorney, and in the interests of justice, order an action to be dismissed." She concludes that it's manifestly "in the interests of justice" to dismiss this criminal prosecution, saying:

“You have a woman born in 1934 who has no prior criminal history. There is nothing to suggest that she knows anything about this, other than the fact that she owns the property, and the Code says, ‘in the interest of justice;’ and I think justice can only be served if a person who has lived an exemplary life for 80 plus years, and finds herself, because she owns property, and that property is leased to another individual, and that individual is operating a dispensary, that says to this court that justice would properly be served by dismissing the case in its entirety against Ms. Emily Wheeler. . . . I don’t see where justice requires that she be subjected to prosecution on a situation where there’s no showing that she even knew anything about it.”

So there you have it.  The actual dispensing of justice.

The Appellate Division reversed, and the Court of Appeal agrees with 'em.

The panel recognized that "interests of justice" is a pretty darn broad standard, but held that since the underlying statute was a strict liability offense, the trial court couldn't simply dismiss the charges due to absence of mens rea.  That'd be somewhat akin to just disagreeing with the underlying statute in the first place.  Can't do that.  Gotta be for a different reason, if at all.

So the Court of Appeal reverses the dismissal, and remands the case back down.  The Court of Appeal concludes the opinion by saying: "Upon remand, the trial court may, upon its own motion, reconsider whether to dismiss the charges in the interests of justice, on the basis of factors other than Wheeler’s lack of knowledge."

Great.  Got it.  I totally understand the basis for the holding.

So let me help the trial court out on remand.  Here's exactly what I'd say:

"The Court of Appeal has concluded that lack of knowledge is not a basis for dismissal of the present suit in the interests of justice.  Wonderful.  I hereby dismiss the present action against Ms. Wheeler on the following bases:

First, I find that the interests of justice are best served by imposing no further adverse consequences upon Ms. Wheeler beyond those that have already been imposed.  She is an 85-year old woman with zero criminal history.  Based upon her mere record ownership of a piece of property, she has now, for the first time in her life, been arrested and charged with a criminal offense.  She has had to obtain and work with an attorney to attempt to defend her liberty and reputation.  She has had to defend an appeal to the Appellate Division and the Court of Appeal.  The life and comfort of this 85-year old woman has been substantially disrupted already.  I conclude that the interests of justice would not be advanced by the imposition of any further criminal liability, nor the imposition of any criminal penalty nor additional criminal proceedings, against this 85-year old woman based upon her record ownership of property.  I do not negate the wisdom of the underlying ordinance, but in the unique circumstances of this case, I find that additional criminal prosecution of this action against this particular defendant would not be in the interests of justice.

Second, and independently, I find that the further expenditure of additional private and public resources on the prosecution of this action would not be in the interests of justice.  The present case involves a misdemeanor, and a nonviolent one at that.  The defendant is of advanced years and imposes zero threat to the public.  She has no criminal history.  Without prejudicing the merits of the case, it is extremely unlikely that, even if convicted, Ms. Wheeler would be subjected to anything other than informal probation, if that.  Her continued prosecution will require the devotion of a nontrivial amount of public, private and judicial resources.  The City Attorney will have to be paid.  A public defender will have to be paid.  Court reporters, clerks, judges, and associated staff will all be involved.  Meanwhile, criminal courts are already overburdened with cases, including ones far more serious than the one involving Ms. Wheeler.  Every dollar and second devoted to Ms. Wheeler constitutes resources that could, and should, be better devoted to more pressing matters.  Particularly in an era in which misdemeanor retail theft is (at least perceptionally) exploding in scope, the continued expenditure of additional resources to the prosecution of Ms. Wheeler would not be in the interests of justice, nor society as a whole.

Finally, I conclude that the interests of justice compel dismissal of the present action due to the risks to Ms. Wheeler engendered by continued prosecution.  It bears repetition:  Ms. Wheeler is an 85-year old woman.  Lest anyone fail to notice: she is also an 85-year old woman living in the midst of a global pandemic, and one that is particularly dangerous (and deadly) to our elderly residents.  Prosecution of Ms. Wheeler requires her to consult with lawyers, interact with judicial staff, and potentially enter into public spaces (including, perhaps, a public courtroom).  Even if Ms. Wheeler takes every available precaution possible -- full vaccination, masks, video conferencing when available, etc. -- the continued prosecution of this action is very likely to non-trivially increase her risk of becoming infected with a deadly virus.  Even beyond COVID, her continued prosecution undoubtedly will cause her worry, concern and stress, all to her detriment and none of which will be beneficial to her continuing health.  I hereby conclude that the risk to Ms. Wheeler and others of her continued prosecution outweighs the social interest in her continued prosecution for the present misdemeanor offense.

Ms. Wheeler lived through the Great Depression.  Her early years were spent during the horrors and deprivations of World War II.  Her late teens and twenties were spent during the purportedly halcyon years of the 1950s, which -- despite contemporary nostalgia by some -- was not an era of expansive freedom for women, particularly those (like Ms. Wheeler) who were just then coming into their own.  She is now 85 years old, and confronts a global pandemic with a material risk to her continued freedom, safely and (even) life.  She does not need the present misdemeanor criminal prosecution added on top of that.  It would not be in the interests of justice for it to persist.

The present charges are dismissed.  Ms. Wheeler:  Thank you for your contributions to society.  May your remaining years be filled with comfort, joy and security.  God speed."

Monday, December 13, 2021

U.S. v. Lozoya (9th Cir. - Dec. 13, 2021)

You usually don't see someone outvoted 10-1 in an en banc opinion.  That said, you also don't usually see a petition to recall the mandate get even a single vote.  Both of those things happen here.

Judge Collins is the single vote.

Wednesday, December 08, 2021

Brach v. Newsom (9th Cir. - Dec. 8, 2021)

I put the odds of the panel's opinion getting reversed en banc as roughly 4:1 in favor.  There's a chance the en banc court will come to the same conclusion as the panel, but only if the draw is heavy on active judges appointed by President Trump.

It's a high-profile case; one of the many about the constitutionality of various governmental responses to the global COVID pandemic.  This one's about the closure of in-person instruction at schools.  Plaintiffs say that this violates their right to educate their children.  California disagrees.

The panel opinion by Judge Collins holds that (1) the case isn't moot -- even though schools are no longer closed -- due to the "voluntary cessation" doctrine and the fact that schools might perhaps be closed again were COVID to flare back up; (2) the cessation of in-person instruction at public schools was fine, but (3) the order stopping in-person instruction at private schools was unconstitutional.  The dissent by Judge Hurwitz agrees with (2) but disagrees with both (1) and (3); moreover, he argues that the substantive due process argument about private schools upon which the majority relies was forfeited because it was never raised by plaintiffs in their complaint or briefing in the district court.

Today, the Ninth Circuit votes to take the case en banc.

Judge Hurwitz has some pretty darn good arguments, including ones (like mootness and forfeiture) that judicial conservatives are sympathetic to in most cases -- though, here, they'd stand in the way of taking a stand on a high-profile, hotly contested political dispute.  If the en banc panel draw is representative of the Ninth Circuit as a whole, I think that you'll see a majority agree with one or more of the points that Judge Hurwitz makes -- and, potentially, one of the smarter and/or more principled conservative judges might sign on to one of the procedural points that he makes.  But that's by no means assured; I could easily see a draw of six Ninth Circuit judges who would go Judge Collins' way, and that's all it'd take.

Still, overall, 4-1 in favor of reversing the panel's decision.  That's the line.

Monday, December 06, 2021

Duncan v. Bonta (9th Cir. - Nov. 30, 2021)

Lest it go without mention -- or be overlooked, since it's on page 101 of the 169 (single-spaced) pages generated by the opinion -- I wanted to just repeat what Judge Hurwitz said:

"I join Judge Graber’s opinion for the Court unreservedly. I ordinarily would not say more, but I am reluctantly compelled to respond to the dissent of my brother Judge VanDyke, who contends that the “majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution.” That language is no more appropriate (and no more founded in fact) than would be a statement by the majority that today’s dissenters are willing to rewrite the Constitution because of their personal infatuation with firearms. Our colleagues on both sides of the issue deserve better.

I recognize that colorful language captures the attention of pundits and partisans, and there is nothing wrong with using hyperbole to make a point. But my colleague has no basis for attacking the personal motives of his sisters and brothers on this Court. His contention that prior decisions of this Circuit—involving different laws and decided by different panels—somehow demonstrate the personal motives of today’s majority fails to withstand even cursory analysis. By such reasoning, one also would have to conclude that my friends in today’s minority who, like me, are deciding a Second Amendment case for the first time, are also driven by personal motives.

Judge VanDyke has no way of knowing the personal views of other members of the Court about firearms. Indeed, members of the Court not among today’s dissenters have firearms in their homes. Members of this Court not among today’s dissenters have volunteered for service in the active military or the National Guard (the modern “well regulated Militia”) and bore arms during that service. But those personal experiences—or the lack of them—do not drive the decision on the important issue at hand."

Hear, hear.

Wednesday, December 01, 2021

People v. Lewis (Cal. Ct. App. - Nov. 29, 2021)

We know that when you have sex with a clearly intoxicated and incapacitated person, you can be found guilty of rape, because they can't actually consent.  What the majority and dissent disagree about in this opinion is whether, on that same theory, you can also be found guilty of kidnapping, on the theory that spiking their drink and getting them drunk means they also couldn't consent to being "moved" to your vehicle.

Justice O'Leary writes the majority opinion and says "No, they're two different crimes; for kidnapping, you need some level of force, not just deception."  Justice Bedsworth authors the dissent and says:  "Yep, in such a case, you didn't consent, so just like when you transport a sleeping person you can be guilty of kidnapping, ditto here."

Two starkly different views.  Though nice to see that both are presented without rancor or animosity towards the competing position/author.