Rodriguez v. Garland (9th Cir. - Dec. 28, 2023)

This opinion isn't at all about delay. But the factual background of the case struck me as similar to what you typically see in death penalty cases; e.g., tons of delay, even though the government theoretically has a strong interest in getting these cases resolved expeditiously. (For death penalty cases, in having the death sentence carried out promptly rather than 30 or 40 years later; for removal cases, in having the individual deported swiftly rather than a decade-plus later.)

Here's how the Ninth Circuit recounts the facts:

"On October 17, 2014, the Department of Homeland Security (DHS) served Rodriguez with a putative Notice to Appear (NTA) that did not specify the date or time of any subsequent removal hearings. The NTA alleged that Rodriguez (1) was not a citizen or national of the United States, (2) was a native and citizen of Mexico, (3) had entered the United States near Otay Mesa, California, on approximately September 27, 2010, and (4) had not been admitted or paroled after inspection by an immigration officer. . . . DHS did not file the NTA with the immigration court until March 13, 2015, approximately five months after the NTA was served on Rodriguez.

On March 27, 2015, the immigration court issued a notice stating that Rodriguez’s first master calendar hearing was to take place two months later, on June 9, 2015. Rodriguez appeared at the hearing and, through counsel, admitted the first two factual allegations stated in the NTA. She denied, however, the remaining allegations and contested the removability charge. . . . 

The IJ then scheduled another master calendar hearing for eight months later, on February 3, 2016, and gave Rodriguez a deadline of November 3, 2015 to submit a written change to her initial pleading if she wished to do so. Rodriguez complied with the IJ’s directions and, on November 3, 2015, she filed an amended pleading in which she conceded her removability.

At the February 3, 2016 hearing, the IJ scheduled yet another master calendar hearing for sixth months later, on August 17, 2016. Rodriguez’s application for asylum, withholding of removal, and CAT protection was to be filed with the immigration court at that hearing.

But the August 2016 hearing never materialized. On July 8, 2016, the immigration court sua sponte rescheduled the hearing for March 1, 2017. The immigration court sua sponte rescheduled the hearing yet again on November 28, 2016, this time for May 24, 2017. And on May 4, 2017— three weeks before the already twice-rescheduled hearing was to take place—the immigration court sua sponte rescheduled Rodriguez’s proceedings a third time, for December 13, 2017.

At the December 13, 2017 hearing, the IJ asked Rodriguez’s counsel whether counsel had prepared an application for relief. Counsel responded by requesting additional time to review Rodriguez’s medical records. The IJ agreed to provide more time and also scheduled a hearing on the merits of Rodriguez’s forthcoming applications for relief for November 6, 2018. Because Rodriguez’s merits hearing would not take place for another 11 months, the deadline for her application for relief was set for September 6, 2018."

I'll leave out the rest, though will note that (1) Rodriguez allegedly entered the US in 2010, (2) the Department sought her removal in 2014, and (3) it's now 2023 -- and about to be 2024. (Oh, and the Ninth Circuit remands the case, so there's still a lot left to do.)

I would think that if one (or both) sides of the political spectrum wanted to get serious about removal -- as opposed to just perceptually "getting tough" (or doing nothing) -- one fairly achievable (maybe even bipartisan?) solution would be to hire more immigration judges to reduce the backlog. A ton of 'em. The Congressional Research Service recently said that we'd need to at least double the number of judges -- i.e., add 700 more IJs to the 649 currently on staff -- to clear the existing backlog by 2032. Admittedly, I don't practice immigration law (except for isolated pro bono matters), but the kind of delay I get to see from the outside seems fairly intolerable. You'd think that people could agree on doing something about it. Maybe even people whose political interests or desires normally compete with each other.

Or maybe not.

U.S. v. Galecki (9th Cir. - Dec. 26, 2023)

You've probably read about "spice" in news reports, or (perhaps) seen it in head shops. (Have I just dated myself by saying "head" shops instead of "smoke" shops? Probably.) At some level, I knew that the stuff was illegal, and that the fake "Not for Human Consumption" labels don't really work to immunize the manufacturers from legal liability. Yeah, you can say it's just "potpourri" for "making the house smell nice," but you sell it in smoke shops, not Target. Oh, yeah, and it's like a hundred times more expensive than actually potpourri. Everyone knows full well that people exclusively buy it to smoke it and get high.

So, yeah, I knew all that, and at some level, I knew that the manufacturers of the stuff might perhaps face some criminal liability at some point.

But I definitely didn't know that getting convicted earns you twenty years in federal prison.

All that money you made selling the stuff not really worth it at that point, eh? (Not to mention the moral cost.)

People v. Ramirez (Cal. Ct. App. - Dec. 22, 2023)

Before today, the police were generally only authorized to do those things that were actually spelled out in the court's warrant. So if the warrant said, for example, "The police are hereby authorized and instructed to search the house," the police could only search . . . the house.

But, today, the Court of Appeal holds that that's no longer the case. Rather, as long as the warrant says (as they all do) that the "facts in support of this warrant are contained in the Statement of Probable Cause and any exhibits, which are attached hereto and incorporated by reference," and the probable cause statement asks for something additional -- something that's NOT actually ordered by the warrant -- that's fine too.

So, here, the police asked the court to allow them to use the suspect's finger to unlock the computer, but the warrant didn't actually say "Yes" or "No" to that. No bother. It was in the probable cause part, so it's allowed.

That's not how we traditionally view warrants. They're technically orders from a court, and you're only ordered to do what they actually order you to do.

No longer, I guess.

Elden v. Nirvana LLC (9th Cir. - Dec. 21, 2023)

Spencer Elden gets photographed as a four-month old baby as he's swimming naked in a pool. Nirvana uses that photo in its iconic album cover, which depicts the baby -- including its penis -- swimming towards a hundred dollar bill on a fish hook. 

Mr. Elden has been trying to cash in on that cover through litigation for years. His present lawsuit says that the cover is child pornography, so he sues under a federal statute. The district court dismisses the lawsuit on statute of limitations grounds, but the Ninth Circuit reverses, and Judge Ikuta seems right when she says that every republication of the cover (some of which occurred within the current ten-year SOL period) creates a new accrual.

So Mr. Elden gets a remand.

Though it seems to me that he's going to lose on the merits, likely on a Rule 12(c) or MSJ (or, perhaps, at trial), because that album cover isn't "child pornography" under the relevant federal statute, which is defined as "the use of a minor engaging in sexually explicit conduct." Since, in my view, a photo of a naked baby swimming in a pool isn't a photo of a minor engaging in sexually explicit conduct. 

Particularly in the context of that baby allegedly swimming towards money on a fish hook.

I get that that's the next stage of the litigation, and not at issue in the present appeal.

But it's next.

Miller v. PG&E (Cal. Ct. App. - Dec. 19, 2023)

I'm seriously thinking that Justice Petrou might have a future career as a short story author. Check out the third paragraph of today's opinion:

"It was a typical Saturday evening in the neighborhood. It had drizzled earlier in the evening and the night sky was dark, foggy, and misty. The sidewalk was wet and crowded with people."

I'm so excited to hear what happened next!

(Actually, the only thing that transpired was that a woman tripped on a metal plate that was covering one of PG&E's underground utility vaults. Not that thrilling. But I'm confident that Justice Petrou's next short story will be exponentially more exciting.)

The prior opinion was unpublished, but today, she published the thing. Which, of course, makes her a . . . published author.

Congratulations.

People v. Diaz (Cal. Ct. App. - Dec. 18, 2023)

Justice Wiley authors a lengthy opinion (for him) that discusses and applies 22 pages of legal doctrine. But I can summarize the key practical lesson that I garnered from the thing in a single sentence:

Don't commit a cold-blooded murder in broad daylight with witnesses if you have a very distinctive neck tattoo.

Otherwise they'll pretty much almost certainly catch you and throw you in prison for life.

As here.

People v. Rojas (Cal. Supreme Ct. - Dec. 18, 2023)

To be honest, when I first read the question presented, I thought I was going to come out the other way in this one.

Proposition 21, adopted in 2000, increased the penalty for gang-related murders and mandated the death penalty or LWOP for anyone convicted of murder while "an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22" (if committed to further the gang). Prop. 21 also says that it can't be amended except by the voters or by a two-thirds vote of the Legislature.

So here's the question: Can the Legislature narrow the definition of a criminal street gang in Section 186.22 for purposes of Prop. 21 without a two-thirds vote? (Which is what the Legislature indeed purported to do, by majority vote, in 2021.)

The typical rule here is that if a statutory reference to another statutory provision is specific, then the definition embodied in that second provision is "locked in" as of the date of the second statute's passage for purposes of that subsequent statute. Whereas if a reference is "general" -- for example, to the entire body of common law, or something like that -- then the reference isn't locked in, and can change over time.

When first presented, I thought the Attorney General would have the better of the argument here. The reference in Prop. 21 seems awfully specific to me. Indeed, I can't think of anything much more specific. So it seemed to me like the voters wanted that definition locked in.

Which is how I would have probably come out in this one. Which in turn would have meant that I'd have written a solo dissent, since the California Supreme Court unanimously comes out the other way.

Except for one thing. Something that, for me, is dispositive. Something that, for better or worse, I learned only more than halfway through Justice Liu's opinion.

Here's the thing that changed my mind.

In a couple of places in Proposition 21, it expressly locks in existing law. For example, Section 14 of the proposition, which involved a change in the "three strikes" law, reads: "Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act." Similarly, Section 16 of the thing says: "Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994 General Election, for all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act."

That makes a huge difference to me. The people who wrote Prop. 21 knew full well how to lock in the existing statutory definitions when that's what they intended. They did so in multiple places, but not here. That's pretty damn good evidence of their intent, in my view.

So if that's their intent, as evidenced by the statutory text itself, I'm cool with that. That's the right way to view the statute, and that's the way I'd interpret it.

Which is why, in the end, I'm on board for the California Supreme Court's opinion.

Mind you, it's still somewhat tough to square that decision with precedent, which has found statutes "specific" (and hence locked in) in a wide variety of settings that look pretty darn similar to the case here. Similarly, I'm not really sure that Justice Liu's opinion really ever persuasively responds to what seems to me the obvious policy argument, which is that if the Legislature can narrow the scope of the gang definition, then the two-thirds requirement is essentially meaningless, since the Legislature could essentially repeal Prop. 21 entirely by changing Section 186.22 to define a gang in such exceptionally narrow terms that it never applies -- thus making Proposition 21 entirely moot.

Those are still problems for me, and serious ones.

But, hey, the people who write propositions are typically super smart. If they write the thing so that various definitions are expressly locked in, whereas others aren't, well, I'm going to operate under the assumption -- an entirely reasonable one, IMHO -- that this decision was deliberate, and interpret the statute accordingly.

Makes sense to me.

People v. Lagunas (Cal. Ct. App. - Dec. 12, 2023)

Defendant is driving drunk, fails to negotiate a turn, and runs over and kills a six-year old girl. Pretty egregious. He's charged with second degree murder. He wants the jury to be instructed on gross vehicular manslaughter while intoxicated, which is a lesser offense, and of which he's pretty clearly guilty. But the California Supreme Court has said that even though you generally have a right to have the jury instructed on lesser included offenses, gross vehicular manslaughter while intoxicated isn't a lesser included offense of second degree murder because the former requires that you be driving whereas, in other types of cases, you can be convicted of the latter without driving a vehicle. Never mind the fact that, here, there's zero doubt (or dispute) that the defendant was driving, and that's the only way he can be convicted.

Defendant gets convicted at trial, and sentenced to 15 years to life. He reiterates his challenge to the failure to instruct on lesser included offenses, and the Court of Appeal -- not surprisingly -- follows the California's Supreme Court precedent. But adds the following:

"Lagunas argues: “Criminal courts are not supposed to be gambling halls where juries are faced with all or nothing verdicts.” Lagunas claims the prosecution “engineered an all or nothing case by only charging second degree murder, betting that no jury would let appellant walk free after causing the death of an innocent little girl.” We are not taking a position on this oft-raised argument, but we are publishing this opinion to make clear that this argument is more properly directed to the Legislature."

Which is, I guess, theoretically true -- once the California Supreme Court decides something, barring its reconsideration of this issue, the only thing left is to ask the Legislature to change the law.

But I'm fairly sure that the class of people who drive drunk and kill people don't exactly have awesome lobbyists in the California Legislature. Even if they did, I strongly doubt that, regardless of the merits of the argument, many elected officials would be super interested in legislation that might perhaps benefit individuals who drunkenly killed little girls. Which is not exactly what you want as your campaign slogan, and what you're probably hugely worried might be your electoral opponent's campaign slogan against you.

But as a "Talk to the hand" argument, sure, it doctrinally works.

Stanard v. Dy (9th Cir. - Dec. 12, 2023)

It's slim pickings in the California appellate judiciary lately, with a single opinion in the last several days from the Court of Appeal and only a couple from the Ninth Circuit. This one nonetheless struck my eye not because of any complicated doctrinal discussion, but rather from the caption. It lists the plaintiff's name as "ROBERT A. STANARD, AKA Robert Allen Stanard." Which I guess I understand; sometimes he's known as Robert A. Stanard, and sometimes as Robert Allen Stanard.

But I'm not sure why there's an AKA. I mean, sure, I'm confident he's "also known" as Robert Allen Stanard, because that's (presumably) his full name. Sometimes he uses Robert A. Stanard, and sometimes he uses Robert Allen Stanard. Moreover, on occasion, I imagine he just goes by Robert Stanard. Maybe even just "Bob". (Bobby?)

I get AKAs when the guy uses a different name entirely ("Ron Johnson"), or perhaps a moniker ("Slash"). But if I file suit, it just seems strange to say "Shaun P. Martin, AKA Shaun Martin, AKA Shaun Patrick Martin." Unless we're adding AKAs to every single lawsuit, which just seems weird.

Anyway. Robert Stanard. A man, apparently, of many names.

People v. Ehmer (9th Cir. - Dec. 7, 2023)

Would you like to spend your entire afternoon reading a book-length opinion about a particular criminal prosecution?

If so, well, you're in luck. Here's 160 -- yes, you read that correctly, 160 -- pages of single-spaced text that affirms the convictions of four defendants for forcefully occupying the Malheur National Wildlife Refuge in eastern Oregon in early 2016.

This particular missive was over three years in the making. The case was argued in June of 2020 and here we are with an opinion in December 2023.

You can read the whole thing if you're keenly interested in what it's about. I can nonetheless give you a hint by letting you know the identity of one of the amicus submissions filed on behalf of the defendants, which was filed by: "Amicus Curiae Idaho Political Prisoner Foundation and The Real 3%ers of Idaho."

That's a clue.

People ex rel Schlesinger v. Sachs (Cal. Ct. App. - Dec. 4, 2023)

When I first read this opinion, I thought: "Duh. That's so obviously right." Which is a testament to how articulate Justice Sanchez was in writing the thing.

But, now, upon reflection, I'm not so sure he's right. (Even though there's do dissent.)

It's an election dispute: Are these three particular members of the Mission Viejo City Council still part of the City Council or not? The part about Judge Sanchez's opinion that seems so obviously and clearly right is that (1) these three members were elected in November in 20218, (2) they were expressly elected to two-year terms, and (3) they didn't run for reelection in November 2020. 

So, after November 2020, they are obviously no longer members of the City Council. Right?

Duh.

So when the trial court said, in 2022, that these three were no longer entitled to hold that office, it seems clear that the trial court's right. Which is precisely what the Court of Appeal's opinion says as well.

But the truth, I think, is a bit more complicated than that.

Because, yes, these three were elected in 2018 for two year terms, and didn't get reelected in 2020. But here's the wrinkle: that's because (for complicated reasons) there was no election in 2020.

Justice Sanchez says that doesn't matter. And he's got a point. They were elected to two-year terms. They were on the City Council when the City Council voted to cancel/postpone the 2020 election. Indeed, all three of them voted in favor of that decision. Yes, the normal rule -- set forth by statute -- is that if there's a vacancy in an office, the prior officeholder gets to stay on until the successor is elected. But the most persuasive part of Justice Sanchez's opinion is when he says that it can't possibly be the rule that this statute allows members of the City Council to extend their own terms by cancelling the subsequent election. That'd be crazy in a democracy, right? It'd seem almost Trumpian. (My words, not Justice Sanchez's.)

So, when I read all that, my reaction -- again -- was: "Yep. Clearly right."

But then I thought some more. Which is generally a good thing.

'Cause here's the thing. There wasn't an election in 2020. So after the two-year terms expired (in 2018), under the Court of Appeal's rule, there (1) wasn't anyone elected to these positions on the City Council, and (2) the old officeholders were automatically booted out.

At one point, Justice Sanchez's opinion tries to make hay out of the fact that these three officeholders didn't run in 2020, saying "Mission Viejo did hold a municipal election in 2020 but Sachs, Bucknum, and Raths did not run for reelection." Well, yeah, kinda, but mostly not -- though I have to be honest, Justice Sanchez's opinion on this point takes multiple re-readings (at least for me) to understand the underlying facts. There were five seats on the City Council. Two of these seats were indeed up for reelection in 2020, but not the ones held by the three people at issue. So, yeah, there was an election for the two seats whose four-year term was up in 2020, but not for the seats held by Sachs, Bucknum, and Raths. Those three seats didn't get an election at all. Which is why the three (understandably) didn't run for 'em. They already held those seats, there was no election for them, and state and city law said that vacancies (if any) would be held by the incumbants until a successor was elected.

Viewed in that light, it's hard to see why the failure to run for these three seats should somehow be held against the three.

That still leaves Justice Sanchez's (very good) point that you shouldn't be allowed to hold on to your two-year seat by the mere expedient of cancelling the election for your replacement at the end of your term. Now, in this particular case, there was probably a good(-ish) reason for cancelling the election, so it wasn't just a case of three officeholders scamming the system. But I still take the general point, which is that the "vacancy" trick would be a gaping loophole if it indeed worked like these three say.

But, upon reflection, I'm not sure that the flip side isn't equally (or even more) pernicious.

As I see it, under Justice Sanchez's rule, you can effectively vote your opponents off their seats. Say, for example, that your party has 222 seats on a particular legislative body that has a total of 435 seats. The other party -- with 213 members -- is being a pain in your behind. Everyone has two year terms. After this opinion, no problem, right? Just cancel the upcoming election for those 213 seats. Now, all those 213 people don't have an election to run in, and their terms automatically expire. Boom! Now you have all the remaining seats, right? You've just taken over 100% of the legislative body.

That's not just a hypothetical: the same sort of thing seems like the net effect in Mission Viejo, too. As I read the opinion, after the 2020 election, once the three were gone, there were now only TWO members of the City Council. Last ones standing. One hundred percent control.

That seems as dangerous -- or certainly close to it -- as people voting themselves in office by cancelling an election.

Plus, I'm unclear on one of the last things that Justice Sanchez says about the whole "vacancy" thing (the statute). He says at the end of Section B:

"In the present case, the holdover provisions in section 57377 and the Mission Viejo Municipal Code would have permitted Sachs, Bucknum, and Raths to stay in office temporarily past the expiration of their two-year terms in November 2020 until their positions could be filled. Under Government Code section 36512, subdivision (b), a city council shall fill vacancies in an elected municipal office within 60 days of the commencement of vacancy either by appointment or by calling as special election. Thus, Sachs, Bucknum, and Raths would have been permitted to holdover in office only for so long as it would take to call and hold a special election or to have the city council meet and appoint their replacements. Mission Viejo did hold a municipal election in 2020 but Sachs, Bucknum, and Raths did not run for reelection. Under the circumstances, the holdover provisions did not extend their two-year terms of office to four years."

I get the concept, but not the application here. The Court of Appeal says that the statute does let the three councilmembers stay in office, temporarily. Okay. For how long? The answer (according to the opinion): "until their positions could be filled." Normally, that'd be 60 days after the vacancy, either through appointment or by special election. So I get that the Court of Appeal is saying that they could stay in office for a maximum of 60 days -- more accurately, 60 days if by appointment, or 60 days to call for an election then some additional months to actually have the election -- and at that point, their successors would be elected (or appointed).

But here's the thing: That didn't happen here.

The City Council, as far as I can tell from the opinion, didn't appoint anyone new. (Or at least the opinion doesn't mention it.) Plus, it didn't call a special election: the opinion says that the next election was in November 2022. 

If that's the case, then these three positions could not, in fact, be filled until November 2022. Not under what the City Council actually did, anyway. So even under the Court of Appeal's own caveat, doesn't that mean these three got to stay in until at least then -- directly contrary to it's conclusion that they weren't, in fact, entitled to hold office until November 2022?

Maybe I'm missing something. That's distinctly possible. Should there have been a special election or appointment? Seems so (at least to me). But as far as I can tell, there wasn't. If there was a special election (or appointment), sure, these three should definitely be bounced once there successor was selected.

But if, in fact, there were no successors (at least until November 2022), then it seems to me like the statutory "vacancy" provisions in fact apply. Perhaps for super good reasons, lest there be an ability to kick out (at least potentially) your opponents on the legislative board.

Those are my thoughts.

Even though, again, at the outset, I thought that Justice Sanchez was definitely right, and that there's no way that someone expressly elected for a two-year term could possibly be allowed to stay on for a full four years.

Gutierrez v. Todasto (Cal. Ct. App. - Dec. 1, 2023)

You're driving along the I-5 (or whatever) and all of the sudden an ambulance negligently sideswipes your vehicle. How long do you have to sue?

The normal rule is that you have two years. But the Court of Appeal holds that since it's an ambulance, it's providing "medical care" so you're subject to MICRA, and only have one year to sue. Same as any other "medical malpractice" case.

Justice Bromberg disagrees, and his dissent is fairly persuasive to me. 'Cause I was having the same sort of thoughts that he articulated when I was reading the majority opinion myself.

Full disclosure, though: Twenty or so years ago, I did a little work alongside then-not-a-Justice Bromberg. He was absurdly smart then, and although this is the first dissent I've seen him write since being appointed to the Court of Appeal earlier this year, he clearly hasn't lost his touch in the meantime.

Rattary v. Favro (Cal. Ct. App. - Nov. 29, 2023)

I actually think that the core problem here (if any) were the jury instructions, not the counsel's closing argument. If the instructions were right, then the trial court's admonition that counsel's arguments aren't the law (and to follow the instructions instead) would have solved the problem. By contrast, if the instructions were wrong, then reversal is probably required anyway -- regardless whether counsel for defendant made an argument based on those instructions during closing.

It's also somewhat weird to have an opinion that esoterically talks about the underlying legal issue that went to trial -- here, whether the risks to the plaintiff firefighters were something other than the inherent dangers of their job -- without any recitation of the actual facts of the case. Those are generally relevant, no? There was a whole trial, after all. Maybe a paragraph or two (or more) about what actually happened that gave rise to the lawsuit would be a nice background -- or introduction -- to the underlying legal issue, rather than a purely esoteric discussion of the doctrine untethered to any actual facts.

But, yeah, I could see how one might find the instructions here confusing (or inaccurate). Potentially, anyway. (Whether the jury was, in fact, likely confused by them would require me to know a lot more about the actual facts of the case and/or evidence at trial than is available here.)

In re Banks (Cal. Ct. App. - Nov. 27, 2023)

There's a lot to be said for this opinion. But, to be honest, there's probably a lot to be said for the other side as well.

It's a prison drug smuggling case. There are lots of those. Moreover, the facts here probably happen a dozen or more times a day.

Someone send a package to a California inmate using a fake return address. Why the fake return address? Because the package contains drugs. (In this case, Suboxone.) Prison packages all get inspected (duh), and the person sending it clearly knows that, so the drugs are concealed. But prison officials discover the drugs notwithstanding the attempted concealment.

They can't prosecute the person who sent the package because they don't know who it is and really have no way to find out (as long as they, smartly, left no fingerprints or DNA).

So they charge the inmate. Not criminally, but with a rules violation. The guy -- Mr. Banks -- loses 180 days of custody credits, plus loses some privileges.

He files a habeas corpus petition. His position is a fairly straightforward one: I didn't do it.

There you pretty much have it. There's no direct evidence that Banks asked for the narcotics to be sent to him. Pretty much obviously, because (1) we don't know who sent 'em, and (2) Banks says (duh) he didn't do it.

But is the circumstantial evidence enough? 

Most people don't unilaterally send drugs to inmates. That's just not really a thing, honestly. It's pretty much honestly a two-way street the overwhelming majority of the time.

But, hey, maybe some people do. At least sometimes. Maybe it's a birthday thing. Maybe they're just being nice. Just because you get something in the mail doesn't necessarily mean you asked for it.

Or, conversely, maybe the sender hates the recipient. Is trying to actively get 'em into trouble. I'm sure that happens at least sometimes.

So what do you think? Is the circumstantial evidence enough?

The Court of Appeal says: Nope. You gotta have more. Just getting drugs addressed to you in prison doesn't mean you were involved.

Which, as I said, in some ways, I understand. It could definitely be the unilateral act of someone who likes (or dislikes) you. That's a definite possibility, so I can see why the Court of Appeal comes out the way it does.

But, in truth, if this is indeed, the law, then man, people are definitely going to start sending a ton more drugs to prison. Because why not? It's easy to use a fake address, and at least sometimes, the officers will not discover the stuff. So you'll 100% get away with it. And if the inmate can't be charged either, it's a total no-brainer. Give it a shot.

Sure, don't be a moron. Don't use your own name. Use a fake return address. Hide the stuff as best you can. Wear gloves. Don't lick the stamp -- use water. And don't be an idiot and talk to the inmate about this on the (recorded) jail house phone. Just do it.

And, presto, the inmate has an immensely valuable jailhouse commodity. Or an easy-ish high himself.

Personally, if the drugs were concealed -- as they were here -- I'd normally find that fairly powerful (albeit circumstantial) evidence that the inmate was in on it. Because if they were successfully hidden from the officers, then unless the inmate was in on it, they'd likely be hidden from the inmate and well, which sort of defeats the purpose of the whole endeavor.

That said, I totally get the flip side as well. If this counts as sufficient evidence, then people should definitely send "hidden" drugs to inmates they hate. Because then the officers will (hopefully) discover them and, boom, add another half-year to the guy's sentence.

It seems to me like both options here have really big downsides. But you're pretty much forced to select one or the other as your controlling legal principle.

Because this kind of thing likely happens, I suspect, a lot. I have little doubt that, most of the time, it's the product of an express or implied agreement involving the inmate.

But not all the time.

So what solution?

It's a toughie.

For now, at least, the answer is: No punishment.

So ship away. Largely with impunity.

Z.V. v. Cheryl W. (Cal. Ct. App. - Nov. 22, 2023)

I procrastinate as much as anyone. Nonetheless, a notice of appeal is super easy to prepare and file. I don't understand why people wait until the last minute to file one.

Like here.

People v. Banks (Cal. Ct. App. - Nov. 20, 2023)

"Doe was born in 2003. She lived with her mother in Oakland. Doe’s mother was abusive toward her and when Doe was 10 years old, her mother “kicked her out of the house.” When Doe was 11 years old, she became a prostitute. The Sacramento Sheriff’s Department arrested Doe and returned her to her mother. She was not welcome there and Doe returned to a life on the streets.

Doe continued to work as a prostitute. She worked for her first pimp at the age of 12. She left him when he became violent. She worked for a second pimp but left him after he too, became violent.

In September 2018, Doe met appellant. At that time, she had been working by herself as a “renegade,” that is, a prostitute who works without a pimp. Doe was 14 years old. Appellant was 35 years old. Doe trusted appellant and gave him her telephone number. Later that same day, appellant picked Doe up in his Jaguar and took her shopping for boots. As they were driving, Doe received a telephone call from a police officer. Appellant immediately changed Doe’s phone number without her consent. 

Doe began working as a prostitute for appellant that same day. Appellant set the rules that Doe was required to follow. He expected her to hold a door open for him. When she did not, appellant got mad and raised his hand like he was going to hit her. He also had rules regarding how Doe was to dress and wear her hair. He told Doe to wear different colored wigs every night, as well as revealing clothing, and high heel shoes. He told her to call him “Daddy.” He controlled what she could and could not do, who she could speak to, when she worked, when she slept, and when she ate. He physically battered her on three occasions."

An 11-year old prostitute. Just: Wow. 

Tak Chun Gaming Promotion Co. v. Long (Cal. Ct. App. - Nov. 17, 2023)

The Court of Appeal makes only one edit to this published opinion, and it softens it. A tiny bit.

"It is ordered that the opinion filed herein on October 26, 2023, be modified as follows:

On page 11, in lines 5 and 6 of footnote 4, delete the phrase “Tak Chun distastefully implies” and replace it with the phrase “Tak Chun’s comparison could be read to distastefully imply” so the full footnote reads as follows:

Tak Chun’s comparison to our Supreme Court’s decision in In re Marriage Cases (2008) 43 Cal.4th 757 is ill conceived, for this decision was an acknowledgment that persons of different sexual orientations are entitled to the equal protection of the law authorizing marriage rather than, as Tak Chun’s comparison could be read to distastefully imply, an illustration of a “substantial shift of public acceptance or morality” in California." 

Escamilla v. Vannucci (Cal. Ct. App. - Nov. 16, 2023)

My general rule is this: Don't sue lawyers for malicious prosecution. Pretty much ever. You're much more likely to get SLAPPed than you are to actually prevail.

Like here.

People v. Villegas (Cal. Ct. App. - Nov. 15, 2023)

Imagine making the following call to your client after today's opinion by the Court of Appeal:

"Good news! We won part of our appeal. We reduced your molestation sentence by 30 years!

Now your sentence is only 172 years to life."

Nicoletti v. Kest (Cal. Ct. App. - Nov. 14, 2023)

When it rains in Los Angeles, there are sometimes (often?) places in which there's a visible current of water. Maybe on the street, maybe on the sidewalk, maybe in a driveway.

Here's two things you should know:

(1) Don't walk there. Currents are often surprisingly powerful. They can knock you down and/or push you downstream. You can potentially be severely injured, or even killed. Walk around it.

(2) If you ignore (1), you can't sue the property owner. It's an open and obvious danger.

Act accordingly.

California Const. & Indust. Minerals Ass'n v. County of Ventura (Cal. Ct. App. - Nov. 13, 2023)

It's been a lazy series of days for the Ninth Circuit and California appellate courts lately. Before today, the Ninth Circuit published a grand total of two opinions in the last ten days. And on Thursday and Friday, the Court of Appeal published . . . nothing. Tough to talk about published opinions that don't exist.

Today, at least, sees one published opinion from the Ninth Circuit, and (thus far) another one from the Court of Appeal. The latter is slightly interesting. Usually, environmental challenges are brought by anti-development or wildlife advocates; for example, to stop a housing or commercial development.

But this opinion involves the exact opposite.

Ventura County passed an ordinance that set aside 163,000 acres of less developed land so that wild animals can roam around without being disturbed by human activities. A pro-business entity -- the California Construction and Industrial Minerals Association -- sued, claiming that the ordinance was, among other things, inconsistent with the California Environmental Quality Act (CEQA), which, as you likely know, is a pro-environmental statute. According to the plaintiff, the County had to do an extensive study before setting aside the land to protect wildlife.

The trial court dismissed the lawsuit, and the Court of Appeal affirms. Setting aside land for wildlife does not harm wildlife. That's basically the point of two categorical exemptions from CEQA. (Exemption No. 7: "Actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment." Exemption No. 8: "Actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment.") Plus the "common sense" exception, which seems equally applicable here.

Sometimes people file CEQA actions merely to delay things, even when there's not a high likelihood of success. Perhaps that was the goal here. Or perhaps the plaintiffs radically poorly assessed the probability that they would win this one.

In re Marriage of Motiska & Ford (Cal. Ct. App. - Nov. 8, 2023)

Even from just reading the opinion -- which forcefully argues in one particular direction -- I can definitely see both sides of this dispute, and why each might well be reasonable. But, on the whole, I probably think that Justice Streeter is right.

It's a family law dispute, so a tiny bit of background is probably helpful. In California, community property gets split 50/50 on divorce, whereas separate property goes 100% to the owner. But sometimes, separate property (say, an inheritance) gets used to fund a community asset (for example, as a down payment for a house). In that event, the amount of the separate property "gifted" to the martial estate gets refunded upon divorce to the separate ownership of the contributing spouse.

There are lots of reasons for that rule, and it's fairly well-established.

Today's opinion, however, involves a slight twist on the typical factual setting.

One spouse owns a company -- call it Company A -- before marriage. So that's his separate property. During the marriage, Company A becomes Company B. Basically the same business, but a different name. (He's probably doing this for asset protection reasons, because Company A is a sole proprietorship, which has individual liability concerns, but his motive isn't really all that important to our analysis.)

Now, if the spouse gifted Company A to Company B, he'd be entitled to a refund (upon divorce) of the value of the separate property (A) he contributed to the marital asset (B). But, here, he didn't do that. It wasn't a gift. Rather, he sold Company A to Company B.

Well, then, you don't get a refund. It was a sale. You already got as your separate property whatever the marital asset (B) paid for A.

But here's the rub: Company B paid exactly $1 for Company A.

We all know why they did it that way. It's nominal consideration. They want it to be a sale (rather than a gift or merger) for liability and other reasons, but they also want the sale price to be meaningful in order to avoid transfer taxes or other complexities. So it's essentially a gift, but it's nonetheless legally a sale.

There's zero doubt that Company A was in fact worth tons more than $1. But that's nonetheless what the sale price was. Do you get a refund of separate upon divorce, or not?

The Court of Appeal says: No, you don't. It was a sale. You set the price. So that's what it was worth. Period. It was a sale, so no contribution right upon divorce.

As I said, I get that. It's an overly formalist answer, because I'm sure that there was, in fact, value to A, and the nominal purchase price essentially was a gift -- in anything but name. Hence the argument that the usual contribution rules should apply.

But, in the end, I'm persuaded by the old aphorism -- which, to be clear, is found nowhere in the Court of Appeal's opinion -- that "you pays your money and you takes your chances." The spouse here called it a sale and set the price at $1. That was his call. When you call it a sale and say that the value of A is $1, well, okay then, that's what we'll find. The fact that the truth is probably otherwise doesn't really matter at this point. You thought, and said, otherwise at the time. Your call. Sorry it didn't turn out so well for you in the end, but that's life.

Maybe next time, call it what it actually is, and the result would be different.

Or, perhaps, see a lawyer before selling your business to yourself. One who knows a little bit about family law, maybe. Because it might well matter. As it did here.

Coronavirus Reporter v. Apple (9th Cir. - Nov. 3, 2023)

I'm not really sure why this opinion meets the standard for publication.

Plaintiffs want to sell apps called the "Coronavirus Reporter" and "Bitcoin Lottery" on Apple's App Store. But Apple doesn't allow bitcoin apps at all, and does allow COVID apps unless they're from a recognized health entity.

So plaintiffs sue. They (and their counsel) file a slapshot complaint that alleges antitrust violations with fifteen different alleged "relevant markets" and breach of contract even though they can't identify any part of the contract that Apple (which wrote the thing) allegedly violated. The district court dismisses the suit, and in a dozen pages, the Ninth Circuit affirms.

It's a pretty straightforward case, and it loses for fairly straightforward, easily-applied reasons.

No harm in publishing the thing, I guess. No real benefit -- that I can see, anyway -- either.

Hanagami v. Epic Games (9th Cir. - Nov. 2, 2023)

You can't copyright a musical tone, but you can copyright a musical composition -- or even a particular set of a dozen or so musical tones put together in a particular way.

Similarly, you can't copyright a particular human pose -- e.g., hands on your hips -- but you can copyright a particular set of human poses choreographed together in a particular way.

So holds the Ninth Circuit, which reversed the district court's dismissal of a complaint alleging that the makers of Fortnite had illegally copied one of his copyrighted dance moves for an "emote" available in the game.

You can read Judge Paez's 28-page, single-spaced opinion if you'd like. It's well-crafted and smart.

Or, if you have less time, just look at the following YouTube video, a link to which is contained in one of the footnotes of the opinion and which was created by counsel for the plaintiff. The video compares the Fortnite emote at issue to portions of the copyrighted dance moves.

https://www.youtube.com/watch?v=vXYDr9o_FJY

Pretty darn similar, eh?

The old saying is that a picture is sometimes worth a thousand words. To me, the video here is worth the 7341 words in Judge Paez's opinion.

Maybe even more.

Zachary H. v. Teri A. (Cal. Ct. App. - Nov. 1, 2023)

It saddens me to know that there are cases, like this one, in which a son obtains a restraining order against his mother. I've read a ton of DVRO cases over the years, obviously, but don't recall seeing a situation like that before today.

Not that children can't potentially fear -- or be harassed -- by their parents. Still. It's depressing to know that things sometimes come to that.

To make things worse, after I read a tiny line on page 12 of the opinion, I learn that the mom also has an out-of-state restraining order entered against her by her daughter. Ugh.

What's also a little unusual is that both of the parties here have lawyers. Lots of these cases (and appeals) are filed pro per. Yet another downside of the whole situation: money flushed down the drain.

Camenzind v. California Exposition & State Fair (9th Cir. - Oct. 31, 2023)

 Judge VanDyke has a point here.

The question is whether the Cal Expo fairgrounds in Sacramento are a public forum sufficient to allow people to distribute First Amendment literature therein. In this particular case, the plaintiff bought a ticket to the Hmong New Year Festival, started distributing literature, got ejected, and then sued.

Right or wrong, it's fairly clear that there's no right under federal law to distribute literature in a privately owned forum. Here, the fairgrounds were rented by a private party for the festival, so the federal claim doesn't succeed.

But as you may know, California has the Pruneyard doctrine, which is broader than federal law and allows access to private properties (e.g., shopping malls) under California's Free Speech Clause. That's plaintiff's much better argument.

The majority nonetheless rejects it, holding that, as a matter of California constitutional law, the Free Speech Clause doesn't apply to properties in which paid admission is required (unlike, say, a shopping mall).

Judge VanDyke dissents, saying that the majority's test doesn't actually derive from any California cases. He'd remand for more factual development.

As I said, Judge VanDyke has a point. I'm not at all confident that the California Supreme Court would come out the same way here. I might well have certified this one, particularly if the alternative was to create a fairly novel test that might perhaps be supported by some discussions in dicta from lower courts but nonetheless has never been articulated by the state supreme court.

As a tactical matter, I probably would have filed this lawsuit in state court, ditching the federal claim, rather than federal court. The lawyers from the Pacific Justice Institute adopted the opposite strategy, and it didn't work out, either in the trial court (which granted summary judgment to the defendant) or on appeal. Given Pruneyard -- which, I get, was rendered in an era in which California courts were perhaps more strongly free speech oriented than today -- I think that the state court might well have been more solicitous of the state law constitutional claim than federal judges.

Plaintiff can still take its shot in the United States Supreme Court, but I don't think that'll go anywhere.

Tedesco v. White (Cal. Ct. App. - Oct. 30, 2023)

Here's a fairly good primer on how to file (1) a poorly written brief on appeal, (2) that not only loses, but results in the Court of Appeal slamming you in a published opinion.

Here's how Justice Goethals' opinion begins:

"A bulldozer can move piles of dirt from one place to another. But when the goal is to move minds rather than dirt, employing a bulldozer may be counterproductive. The bulldozer in this case is appellant Debra Wear’s counsel. In our prior nonpublished opinion, Tedesco v. White (June 15, 2022, G059883) (Tedesco 1), we made clear to these lawyers that “[w]e do not confuse aggressive argument with persuasive advocacy.” Although the aggression has not abated, our view of it remains unchanged."

That's not a good sign if you're the appellant (or her counsel).

In truth, the Court of Appeal is actually fairly nice to appellant's counsel given the underlying briefs and their content. For  example, here are some of the section headings contained in appellants' opening brief, and some of the statements therein:

H. The Court of Appeal and Riverside Court Violate Due Process to Assure Loss of Tedesco's Rights. . . . The Opinion in 4th Civil No. E070316 rested on systematic misrepresentation of the record and absurd misstatements of law. . . . I. Division Two Misrepresents its Own Opinion, Violates Due Process and Statutory Rights, and Denies Hearing on Constitutional Violations and Conservator's Breach of Duty. . . . In an order of June 5, 2020, Justices Ramirez, McKinster and Slough dismissed the appeal on indisputably false grounds. "Our opinion [in Case No. E070316] ruled that non-appointed counsel, Stephen Carpenter, Gloria Tedesco and Debra Wear have no standing; therefore, none of the documents they filed on behalf of Thomas S. Tedesco were properly filed. Our ruling became law of the case and binding on the parties and probate court. Those same orders cannot be appealed to this court again. [2App. 3223]" This was nonsense."

No, those are not the words of a pro se litigant. They're the words of a lawyer: appellant's counsel, Ian Herzog and Evan D. Marshall, of Herzog, Yuhas, Ehrlich & Ardell in L.A.

Not exactly the way to persuade the Court of Appeal. Given that content, Justice Goethals' rebuke of appellants' counsel -- hidden in a footnote -- is actually fairly mild. "In appellant’s opening brief, counsel once again explicitly disparages the integrity of our colleagues in the Fourth District, Division 2. We caution counsel about such tactics."

The Court of Appeal affirms the $6,000 sanction, awards costs to appellees, and moves on.

Fair enough.

Tak Chun Gaming Promotion Co. v. Long (Cal. Ct. App. - Oct. 26, 2023)

This opinion by Justice Hoffstadt has a ton going for it, and I really like the way he goes about it. I also think it's a fascinating topic, both on the particular issue it addresses as well as a matter of the overarching question of how the common law evolves in California.

It's a topic near and dear to the hearts of many people: gambling debts. Can you sue for them in California courts?

The defendant here, Kevin Long, took a large number of trips to Macau and spent -- and lost -- a ton of money in casinos. He took out $11 million in casino chips and only paid back $1.7 million. So he owes a massive amount of money, so plaintiff sues him in California, which is where he lives.

Will California courts hear that lawsuit?

The Court of Appeal says: No.

Traditionally, California courts didn't enforce gambling debts because gambling was illegal. Obviously, the latter is no longer the case, at least in a ton of areas. Moreover, the gambling at issue here was not illegal. Plaintiff accordingly argues that it makes no sense not to enforce gambling debts incurred in legal gambling, and so the traditional common law rule should change.

Justice Hoffstadt disagrees. He starts the opinion by noting that California generally follows the common law of England (Civil Code sect. 22.2), which has refused to enforce gambling debts since the Statute of Anne. So that's the default rule of decision. Moreover, he holds that there's no reason to change that rule now. Just because California has allowed some gambling doesn't mean we necessarily allow enforcement of gambling debts generally, so lawsuit dismissed.

As I said, there's a lot going for the opinion's analysis. I particularly liked -- and agree with -- the fact that the opinion distinguished between gambling, on the one hand, and gambling debts on the other. The two are not synonymous. It's entirely rational, in my view, to allow gambling, but nonetheless refuse to enforce gambling debts. It's one thing to say that a gambler who has the money to burn in front of him is allowed to gamble. It's quite another, in my view, to say that gambling no more pernicious when the gambler does not have the money and instead is taking out (often ever-increasing) loans to chase his losses. It doesn't take a rocket scientist to know that "gambler's ruin" -- and its effect on both individuals and society as a whole -- is substantially more likely when you're permitted to take out loan after loan after loan from the casino than when you're limited to the cash you brought with you. It makes eminent sense to me to legally distinguish between the two. The fact that we allow one does not necessarily equate to allowing the other. Similarly, the fact that we allow lotteries and the like hardly establishes that we'll enforce gambling debts writ large.

So all that I like, and I think today's opinion makes eminent sense on that front.

I do think, however, that there are a couple of areas in which the opinion could be a fair piece stronger.

First, I think that the argument raised in footnote five is perhaps stronger than Justice Hoffstadt gives it credit. Plaintiff notes, correctly, that California regulations currently allow legal card rooms to extend credit to their customers, with specific limitations. Justice Hoffstadt responds that that doesn't prove that the resulting debts are enforceable. But why allow an extension of credit -- and, even then, in only limited and particularized settings -- if the enforcement of any of those debts is impermissible? To me, that would make no sense. Why not either prohibit loans entirely (or, conversely, allow all of 'em) if none of them can be enforced anyway?

A similar problem exists in footnote six. California precedent currently allows California courts to enforce judgments of other tribunals (e.g., other states) even when those judgments enforce gambling debts. That's not, California courts have held, contrary to our public policy. But if we're going to enforce those debts, why aren't we willing to enforce the debts directly ourselves? Justice Hoffstadt responds that we have more deference (under the Full Faith and Credit Clause) to judgments, and that's true. But there's a public policy exception to that deference -- one that we don't apply with respect to gambling debts. If there's not a public policy reason not to enforce gambling debts in that context, why is there nonetheless a public policy reason to not enforce gambling debts in our own forum? That does not make facial sense: either gambling debts are sufficiently wrong to enforce or not. Justice Hoffsadt doesn't really give a reason, in my view, why direct enforcement in our own courts would be inferior to blanket enforcement by other courts; indeed, having those suits heard in our own courts would allow us to potentially weed out the abusive gambling debts from nonabusive ones, as opposed to simply rubber stamping whatever judgment was rendered by the other jurisdiction.

More fundamentally, what's the point of California's nonenforcement of gambling debts if all the plaintiff has to do is simply sue in a different court (e.g., in Macau, or Nevada, or what have you) and then bring the judgment here, at which point we enforce it? That seems to exalt form over substance.

One final thought. Justice Hoffstadt begins the opinion by stressing that he's following the English common law on this score, which is the default rule under the California Civil Code. Fair enough, and that common law has indeed prohibited enforcement of gambling debts for some time. He also notes on page six of the opinion that our incorporation of English common law includes incorporation of English statutes passed by Parliament. Fair enough. So California generally does what England does.

But here's the thing. Although none of the briefs of the parties seem to mention it, I believe that English law currently does enforce gambling debts, at least since the passage of the Gambling Act of 2005. Yes, before that, contracts related to gambling (including but not limited to debts arising therefrom) were not enforced. But Section 335 of the Act seems to fairly clearly repeal that law and allow their enforcement; moreover, the government of England expressly says that gambling debts can now be legally enforced in English courts.

Given the structure of today's opinion, and its reliance upon English law and California Civil Code 22.2, that seems like a pretty important fact, no? So I'd love to hear how Justice Hoffstadt would deal with it. (Sure, he can say that the parties waived that argument by not raising it, but that just means that the opinion's holding is "good for this case only" and doesn't really answer the broader question.)

Regardless, it's definitely an opinion worth reading, and one with which I have a ton of sympathy. I just still have some questions after reading it -- ones that make me wonder whether I'd be compelled to go the other way notwithstanding my strong personal preferences in this regard.

Snoeck v. ExakTime (Cal. Ct. App. - Oct. 25, 2023)

This is a definite "I've got some good news and some bad news for you" type of case, at least for the underlying lawyer, Perry Smith.

The good news is that he represents the plaintiff and wins the underlying lawsuit, as well as gets awarded attorney's fees. No small win, either. It's a FEHA case, and plaintiff obtains a judgment at trial for a little over $130,000. The attorney fee award is even bigger: over $680,000 in fees, at a relatively hefty hourly rate (for Smith) of $750/hour. That's definitely good news.

The bad news, however, is that Smith wanted even more in attorney's fees: over $2 million, including a 1.75 multiplier. But not only did the trial court refuse to give the requested multiplier, but it also reduced the fee award on a variety of grounds. The largest of which was a 40% reduction based on Smith's alleged repeated "incivility" to both opposing counsel as well as the court.

Not only does the Court of Appeal affirm, but it publishes an opinion that quotes in excruciating detail various instances of incivility by Smith. So not only does the attorney get hit (fairly substantially) in the pocketbook, but is hit reputationally as well.

The opinion is 40 pages. It recounts stuff that, in my experience, is not unprecedented, but nonetheless clearly reflects an attorney who's way overly aggressive in both tone and content. Not only with opposing counsel in emails, but -- particularly cringeworthy -- to both the trial court and the Court of Appeal, orally as well as in writing.

I get that you sometimes hate opposing counsel. Sometimes perhaps understandably so.

But you have to tamp that stuff down. Or at least not go way overboard.

Otherwise you risk something like this.

Plaintiff's counsel now appears to have his own firm, rather than the firm listed on the caption, and the new firm's website lists a lot of positive things that people have allegedly said about Mr. Smith. I suspect, though, that nothing from today's opinion will be included on that same website anytime soon.

People v. Hampton (Cal. Ct. App. - Oct. 25, 2023)

Check out the facts of this armed robbery:

"In July 2014, Hampton began working as a manager at the Rainforest Cafe, a restaurant in the Fisherman’s Wharf area that occupied several floors of a large building. . . . In 2015, about a year into his employment, Hampton asked for time off over the July 4 holiday weekend. After the general manager denied the request, Hampton stopped going to work. Hampton came to the restaurant later in July to pick up his final check, but he did not return his set of keys to the restaurant . . .

Around 1:00 a.m. on Friday, August 28, 2015, another manager, E.S., was in the manager’s office. As was usual, the door to the manager’s office was open. E.S. was sitting in a rolling chair, finishing paperwork, when someone wearing a red motorcycle helmet came up behind him and put their arm around his throat.

The person wheeled E.S. to the safe where the cash was kept, and “made a hand gesture” indicating E.S. should open it. E.S. responded that the safe was time-locked and could not be opened, which was untrue. The person then produced “a silver pistol,” cocked it, and “tapped the safe to . . . indicate that they knew the safe opened.” E.S., who was not familiar with guns, testified that he could not be sure whether the pistol was real or operable. Nonetheless, he was frightened, and he opened the safe, which contained almost $9,000.

The person then rolled E.S. to a corner of the manager’s office, bound his arms, and placed a shirt over his head. It seemed to E.S. that the person was “really slow” and “took their time when they tied [him] up,” which was not done “aggressive[ly].” After several minutes during which E.S. could hear “rummaging,” the person left, having “never said a word.” E.S. was eventually able to free himself and call 911. After doing so, he realized that the cash was missing from the safe.

The Rainforest Cafe had a surveillance system covering much of the restaurant, including hallways and the manager’s office. Recordings from the night of the robbery, which the general manager reviewed with the police, showed a “very stocky, mus[cl]y” person “[w]earing dark clothing, in a motorcycle helmet with a dark shield, so you could not see the face,” enter the building through the Mason Street door. The person proceeded to the third floor and into the manager’s office, where the robbery occurred. 

The general manager testified that it struck him “[h]ow calmly and slowly the person . . . came in the building and how familiar it appeared to be to them,” as they “kn[ew] exactly where to go to commit the armed robbery, where the money would be and on what floor.” The general manager also observed that the person’s “walk and body style” were similar to those of Hampton, whom the general manager described as a “very clean, crisp, very mus[cl]y man, very, very strong powerful man.” Similarly, E.S., who was friends with Hampton, testified that Hampton was “in good shape” and “definitely of muscular build.” 

A nearby business’s surveillance footage showed the suspect, wearing a red motorcycle helmet, enter a white four-door sedan soon after the robbery. At the time, Hampton and his wife had a similar car, a white Nissan Altima. 

Based on the robber’s appearance and familiarity with the building, the general manager suspected the robber was Hampton. After forming this suspicion, the general manager watched surveillance footage from the previous Monday morning, August 24, 2015, at the end of the last night shift before pickup of the weekend receipts later that day. The footage showed a person enter the building through the Mason Street door, check the hallway doors and, finding them locked, turn around and leave. A Rainforest Cafe cook testified that around 1:00 a.m. on that morning, he was outside the restaurant with friends and saw Hampton walking back and forth. The cook then saw Hampton leave in a white four-door sedan. 

The prosecution also presented evidence obtained from Hampton’s cell phone. Hampton sent incriminating text messages to another man leading up to and immediately after the robbery. In addition, other text messages indicated that Hampton paid two significant debts shortly after the robbery occurred."

The jury ultimately convicts Hampton of the robbery. What do you think his sentence was?

Answer: Three years of probation. 

I would have thought the guy would have gotten a much longer sentence. Even in San Francisco.

People v. Shah (Cal. Ct. App. - Oct. 24, 2023)

It's extremely difficult -- but not impossible -- to get a restitution order satisfied even when the convicted criminal defendant owns real property.

Here's proof.

Ross v. Seyfarth Shaw LLP (Cal. Ct. App. - Oct. 20, 2023)

I always read carefully cases in which someone sues a law firm, if only for the "There but for the grace of God" aspect of the thing. Particularly when the lawsuit involves, as here, a relatively well-known firm, I'm particularly interested in both the underlying facts as well as the result.

Here, Seyfarth Shaw prevails, both in the trial court (in which the plaintiffs voluntarily dismissed their lawsuit after receiving the trial court's tentative) as well as in the Court of Appeal (where they get their anti-SLAPP fees increased from the 80% that the trial court granted to the full 100%). So victory for the law firm.

But I also thought it was interesting just how aggressive the plaintiffs were below. Defendants filed an anti-SLAPP motion, and the Court of Appeal's opinion says that "Plaintiffs opposed the motion and submitted declarations and evidence of their own totaling nearly 3,000 pages. Defendants filed a reply and plaintiffs filed a 70-page surreply." That's a ton of pages, particularly the 70-page surreply!

Then there are the briefs on appeal. "Plaintiffs’ opening brief contained approximately 124 headings over 58 pages and their reply brief contained approximately 320 headings over 130 pages. In a few instances, the headings introduce so little as, “[t]he title of this section is incorporated herein by reference,” or even nothing at all. In many others, they are followed by declaratory statements unsupported by legal authority, record citations, or analysis. Further, some factual citations plaintiffs did provide led to material bearing no apparent relation to the propositions cited."

Yeah, that's . . . not good. Aggressive, but not the way to win the hearts and minds of the justices.

So I looked to see who the attorneys were for the plaintiffs.

Ah. Now I get it. They were pro per on appeal. A former linguistics professor at Cal State Fullerton who the university attempted to fire and her spouse. Who are suing the law firm that conducted CSUF's investigation into their harassment allegations and concluded that they were unfounded.

Litigants who represent themselves often get overly wound up in that context. To their detriment.

One last thing. On page 10, Justice Grimes' opinion says: "Plaintiffs argue that fee and cost awards are not mandatory where a plaintiff has dismissed the special motion to strike before it was heard." I'm pretty sure that sentence means to say something like "Plaintiffs argue that fee and cost awards are not mandatory where a plaintiff has dismissed her lawsuit before Defendants' special motion to strike was heard." As Plaintiffs generally don't file (or dismiss) anti-SLAPP motions (and instead dismiss, as here, lawsuits); defendants do.

Acosta v. Mas Realty (Cal. Ct. App. - Oct. 20, 2023)

Imagine how bummed you would be if you were the client (or the lawyer on a contingency fee) and you had a personal injury case in which you went all the way to trial, got a judgment for over $12.6 million, and then . . . saw it entirely disappear in the Court of Appeal, which reverses and directs the entry of a judgment in favor of the defendants.

Ouch.

Martin v. Gladstone (Cal. Ct. App. - Oct. 19, 2023)

Read this opinion by Justice Dato and you'll be able to impress your friends with your knowledge of an obscure 19th century principle called the Barton doctrine and its contemporary breadth.

Or, perhaps, such a task would be an hour of your life that you could nthen ever get back. In that case, maybe just read the first footnote:

"Originating from United States Supreme Court precedent in Barton v. Barbour (1881) 104 U.S. 126 (Barton) and its progeny, the Barton doctrine “requires, before filing a lawsuit against officers appointed or approved by the court, obtaining leave from the bankruptcy court that appointed or approved them.” (Akhlaghpour v. Orantes (2022) 86 Cal.App.5th 232, 238–239 (Akhlaghpour).) We discuss the contours of the Barton doctrine, and its significant statutory exception, later in this opinion."

Yeah. That's probably good enough for now.

Sabbe v. Washington County Bd. of Comm'rs (9th Cir. - Oct. 18, 2023)

You could read the Ninth Circuit's 70-page, single spaced opinion as to whether or not there should be qualified immunity for the police shooting at issue here, and decide whether the majority or dissenting opinion seems more persuasive.

Or you could watch the video of the shooting itself and see what you think.

Of course, to be fully informed, you'd probably do both. But that would surely take more time.

The underlying facts involve a confrontation between a police vehicle that's essentially a tank, on one side, and a pickup truck on the other. After a long standoff, involving a guy who's probably drunk but who has not committed any serious crime yet, the police tank rams the pickup, an officer in the tank says that he heard a shot from the pickup truck, so the officers in the tank open up on the guy in the pickup and shoot him 18 times, killing him.

Judge Berzon, in dissent, calls this "a case study in disproportionate law enforcement response." See what you think.

One of the tough things about cases like this one, in my view, is how you resolve factual conflicts on (as here) a motion for summary judgment. The police officer says that he heard a shot from the pickup truck, which is why the police killed the guy. But the video and bodycam footage doesn't show a shot, nor do you hear one. Presumably the guy in the pickup would have testified that there was no shot, but he's very dead at this point. When only one guy's still alive, does that mean you get the benefit of the assumption that whatever the police office said is true?

The traditional answer is: Yes. Though you can see the potential injustice there. As well as an incentive, perhaps, to make sure that you're the only surviving witness.

The other somewhat interesting thing is the video itself. It's cited in a footnote to the majority opinion, and retained on the Ninth Circuit's website. So when I clicked on it, I expected it to be raw footage.

But it's not. It's instead a news report. "Live from Fox 12 Oregon!" (as the video's opening banner declares). There were reporters circling overhead in helicopters at the time, hence the video. Which is actually of really good quality. So I expected (and appreciated) the video; I just didn't necessarily expect to see all the ancillary reporter details as well when I watched the thing.

FCM Investments v. Grove Pham LLC (Cal. Ct. App. - Oct. 17, 2023)

Wow. The Court of Appeal reverses the arbitration award here based upon a reasonable belief of the arbitrator's bias. The basis of the Court of Appeal's reversal was the arbitrator's belief that one of the parties was not credible in part because he used an interpreter even though the arbitrator felt he could speak English with ease. So there's somewhat of an undercurrent of racism there; no small thing with which to accuse someone.

Moreover, the opinion mentions the arbitrator by name: the Honorable Judith C. Chirlin (retired).

Fortunately or not, Judge Chirlin died last year, so she doesn't see her name in print in this regard. Mind you: she was previously publicly reproved for something she did in a different case, so maybe she would not have been all that concerned about the opinion's effect on her reputation.

Still. I strongly suspect that no one would like getting reversed for this particular reason.

U.S. v. Draper (9th Cir. - Oct. 17, 2023)

I realize it's a decade-old television show, but it was a good one, so I couldn't help but notice the striking coincidence between today's Ninth Circuit opinion and Mad Men.

The defendant's name is Dan Draper. Which is virtually identical to the protagonist's name in the show, Don Draper. What's (the real) Draper in prison for? Killing Linford Dick. Who was the (fictional) Draper? A guy named Dick Whitman who (accidentally) killed Draper and then took his identity.

Quite the coincidence.

Though I admit: Maybe you gotta be a fan.

Lake v. Fontes (9th Cir. - Oct. 16, 2023)

There was little doubt that this opinion would come out any other way.

Kari Lake and Mark Finchem brought suit claiming that Arizona's method of tabulating election results was unconstitutional. They say that the use of electronic tabulation systems is way too vulnerable to hacking. Here's the process they challenge (citations omitted):

"Under the Arizona election system, voters mark their choices on paper ballots, which are then fed into electronic machines for tabulation. Before being certified for use in elections, the tabulation machines are tested by an accredited laboratory and the Secretary of State’s Certification Committee. The certified machines are then subjected to pre-election logic and accuracy tests by the Secretary of State and the election officials of each county. 

After tabulation by machines, the paper ballots cast by each voter are retained for post-election audits and possible recounts. After an election, political party representatives conduct a sample hand count of the paper ballots under the oversight of county elections departments. The counties then perform additional logic and accuracy testing. Arizona law mandates a recount whenever the margin between the top two candidates “is less than or equal to one-half of one percent of the number of votes cast for both such candidates or on such measures or proposals.”

When not in use, the hardware components of electronic tabulation systems are inventoried, stored in secure locations, and sealed with tamper-resistant seals. An electronic tabulation system may not be connected to the internet, wireless communications devices, or external networks and may “not contain remote access software or any capability to remotely-access the system.”"

So what do you think? Do plaintiffs win?

Of course not.

The panel holds that the plaintiffs lack Article III standing. Among other things: "Plaintiffs simply have not plausibly alleged a “real and immediate threat of” future injury. City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983). Rather, as the district court noted, they posit only “conjectural allegations of potential injuries.” Lake, 623 F. Supp. 3d at 1032. Their operative complaint relies on a “long chain of hypothetical contingencies” that have never occurred in Arizona and “must take place for any harm to occur—(1) the specific voting equipment used in Arizona must have ‘security failures’ that allow a malicious actor to manipulate vote totals; (2) such an actor must actually manipulate an election; (3) Arizona’s specific procedural safeguards must fail to detect the manipulation; and (4) the manipulation must change the outcome of the election.” Id. at 1028. This is the kind of speculation that stretches the concept of imminence “beyond its purpose.” Lujan, 504 U.S. at 564 n.2. Plaintiffs’ “conjectural allegations of potential injuries,” Lake, 623 F. Supp. 3d at 1032, are insufficient to plead a plausible “real and immediate threat of” election manipulation, Lyons, 461 U.S. at 103."

Not a surprising result. At all.

Vargas v. Gallizzi (Cal. Ct. App. - Oct. 13, 2023)

You don't see many appellate cases that actually award fees for a party's refusal to admit RFAs. In part that's because very few cases go to trial, and in part that's because trial courts have lots of discretion to find that the denial was 'substantially justified'.

But if you want a case with which to credibly threaten the other side if they say "Deny" to one of your requests for admission, here you go.

Courtesy of Justice Perluss.

Meyers v. Birdsong (9th Cir. - Oct. 11, 2023)

Anything less than the result here would seem completely unfair, no?

Leon Meyers is incarcerated and files a federal Section 1983 lawsuit against the Salinas Valley Medical staff and officials. He loses, and files an appeal with the Ninth Circuit, but doesn't have money to pay the $505 filing fee. So he requests and receives in forma pauperis status.

But later, the government moves to revoke Meyers' IFP status and dismiss his appeal because multiple prior lawsuits of his had been dismissed on the pleadings or as frivolous. The Ninth Circuit agrees, and orders Meyers to pay the filing fee or have his appeal dismissed. Meyers doesn't pay, so his appeal is dismissed.

Which is fine. That's what the law requires, and is the way these things work.

But here's the rub:

There's a law that says prisoners who get IFP status will have the filing fee taken out of their prison trust account through tiny monthly withdrawals. Which the government starts doing, even though the appeal has been dismissed. After several years, the prison has withdrawn the whole $505, at which point Meyers says: "Dude! I've now paid the entire filing fee. Either reinstate my appeal or give me my money back!"

At which point the government says: "No. We're not reinstating your appeal. Or giving you your money back, either."

Which seems profoundly unrighteous to me.

The Ninth Circuit adopts a similar view. It refuses to reinstate Meyers' appeal -- after all, the mandate has issued long ago -- but orders the prison to refund his $505. He didn't get to appeal. So he doesn't have to pay the filing fee. Makes sense.

P.S. - Can I also just quickly point out that California opposed Meyer's briefed and argued this appeal -- with five different lawyers from the California Solicitor General's office and the Attorney General's office -- over the whopping sum of $505. I'm not sure that was the most rational expenditure of public resources in the history of mankind. Maybe just give the guy his money back in the first place, and let the guy buy some Ramen noodles in the prison commissary?

 

U.S. v. Idaho (9th Cir. - Oct. 10, 2023)

This should surprise no one.

Idaho passed a law that criminalizes most abortions and said it would take effect if and when Roe v. Wade was overruled. Dobbs gets decided in 2022, so the statute takes effect 30 days later. The United States sues Idaho, claiming that its statute is preempted by federal law; in particular, 42 U.S.C. § 1395dd, which is the Emergency Medical Treatment and Labor Act.

The district court enters a preliminary injunction blocking the law, Idaho appeals, and the case goes to the Ninth Circuit. Idaho moves to stay the district court's order -- basically, asking to let the state law go into effect -- and that motion gets decided by a panel consisting of Judges Bade, Lee and VanDyke, all of whom (as you may know) are Trump appointees.

Two weeks ago, the panel granted the stay, holding in a published opinion that the Idaho statute banning abortions is not preempted and that the state would be irreparably harmed by putting a hold on the law.

Today, the Ninth Circuit takes that opinion en banc. Which in turn vacates the panel's order.

Perhaps there has been a faster en banc vote in the Ninth Circuit's history, but if there is, I don't recall it.

Which side ultimately prevails en banc will depend a lot upon the draw. But the en banc panel will most definitely have a more mixed draw than the original panel.

In re Jose C (Cal. Ct. App. - Oct. 9, 2023)

I'm not uniformly successfully, but I try to post every single day about an opinion that came out earlier that day. Unfortunately, there are days like today, in which (1) the Ninth Circuit published nothing, and (2) even as of 5:20 p.m., the only thing that the Court of Appeal has published is this opinion: a seven-page opus by Justice Perluss about mootness that's 100% correct.

So if you want to read a very brief opinion that's clearly right about a topic that's not especially interesting, go crazy with the thing. Otherwise, tomorrow's a new day, and here's hoping that something controversial - or at least worthy of comment -- gets published.

Historic Architecture Alliance v. City of Laguna Beach (Cal. Ct. App. - Oct. 6, 2023)

Would I love the ability to live in a century-old home in Laguna Beach that is, by all accounts, absolutely gorgeous? Yes. Yes I would. 

Would I enjoy having to go through all the many steps required to remodel that house -- including getting City approval, dealing with a CEQA appeal, etc.? No. I would not.

Nonetheless, is it worth it? Especially when, as here, the homeowner wins, and gets to remodel the place?

Absolutely.

P.S. - The opinion doesn't contain the address of the relevant property, but it's in the brief, and here's the home. Amazing. (Oh, and worth over $4.4 million. Even before the remodel and additional 1,000 square feet of living space now authorized by the Court of Appeal. It's nice to be rich, eh?)

U.S. v. Scott & Scheu (9th Cir. - Oct. 6, 2023)

The Ninth Circuit issued two published opinions today: this one and this one. Coincidentally, both of them involve federal prosecutions of individuals for sexually abusing minors on an Indian reservation, and in both of them, the defendant received a lengthy sentence (17+ years in the case from Arizona and 10+ years in the Montana case).

I'm not someone who's particularly sympathetic towards someone who sexually abuses children. That's doubly true when, as here, there's violence involved. It's hard to really care about the defendant -- pretty much at all -- when one's sympathy (like mine) is so strongly on the side of the victims.

That said, I had a thought today as I read these two opinions that I had never had before, notwithstanding the horrible nature of the crimes here. The thought was this:

Amongst the (many) downsides of living on an Indian reservation is the fact that any major crimes for which you're charged get prosecuted in federal court, which is substantially -- substantially -- tougher than state court. The AUSAs are so much better funded, the prosecutors are so vigorous, the sentences are so long, and (critically) in federal court you've got to actually serve at least 85% of your sentence whereas in state court you generally only serve half (with good behavior).

It almost seems like piling on; just adding to the indignities and practical harms that arise from relegating Native Americans to isolated reservations.

Now, again, in these particular cases, I get it, it's hard (even for me) to care that much, given the nature of the crimes.

But I nonetheless had the thought: "Man, I'm glad I don't live on a reservation."

(Though, of course, none of this whole sentencing stuff matters if you don't commit any crimes. That said, there's the whole "there but for the grace of God" stuff . . . .)

Hansen v. Volkov (Cal. Ct. App. - Oct. 4, 2023)

I'm glad that Justice Perluss decided to publish this opinion. I knew even before reading it that lawyers sometimes get testy with each other, and that (perhaps) family law cases are sometimes even worse than others in that regard given the underlying emotions of the parties.

But I didn't realize that one strategy for dealing with an abusive and/or "creepy" opposing counsel was to get a civil harassment restraining order against him. Or that, as here, a trial court would actually grant one for conduct that, while undeniably uncivil (and wrong), wasn't massively qualitatively different than what many attorneys (unfortunately) deal with from the other side every day.

So (1) I appreciate the guidance to trial courts to (essentially) think twice before granting harassment orders involving opposing counsel who don't get along, and (2) making public the conduct here. Because everyone involved should have chilled out. A ton.

Nash v. Aprea (Cal. Ct. App. - Oct. 3, 2023)

Its a big deal not to respond to a complaint.

Tenant rents a house from Landlord for six months for $8,000/month. Tenant thereafter alleged finds some mold in the place, so Landlord gives 'em a $8,000 credit. When Tenant moves out, Landlord doesn't give back their security deposit, or the $8,000 credit, so Tenant sues.

Now, most likely, Landlord's maybe going to be liable for the security deposit and the $8,000 credit, but probably not the mold. Regardless, it's a tiny lawsuit; maybe $20,000 or so.

But the Landlord does not appear, even after being personally served. So Tenant gets a default judgment for $59,000. Which is a lot, and probably a fair piece more than Landlord was going to get spanked with were she to have responded to the lawsuit.

But it doesn't end there.

The $59,000 default judgment included $1,000 in attorney's fees. Which is the cap on attorney fee awards under the contract, and probably about what you'd get for a default judgment -- which doesn't involve much attorney work -- anyway.

But Tenant doesn't pay the judgment, and affirmatively fights it, which results in Tenant running up more attorney's fees to enforce the thing. Because the contract allows the prevailing party attorney's fees, those enforcement efforts also allow the prevailing party to get those fees as well. Tenant says such fees are also capped at $1,000, but both the trial court and the Court of Appeal disagree.

So now, in addition to the initial $59,000, the trial court adds on an additional $27,000 in fees to enforce the initial judgment.

But it doesn't end there.

Because Landlord appealed the additional $27,000, and lost, at the end of the Court of Appeal's opinion, it says: "[Tenants] are to recover their costs on appeal."

So that's more money. A fair piece, I'd expect.

Virtually all of which, I suspect, could have been avoided had Landlord adopted an alternative strategy at the outset to the one she did.

U.S. v. Cabrera (9th Cir. - Oct. 2, 2023)

I understand and appreciate that illegal entry in the United States is a crime, and that the defendant here is not extraordinarily sympathetic because he's previously been deported.

But here, everyone agrees that this is what he did: "In 2019, Cabrera went to Tijuana and climbed one of two fences separating Mexico from the United States. Cabrera did not attempt to climb the second fence. Instead, he simply sat down. After about seven minutes, Border Patrol Agent Joseph Cisneros drove up to Cabrera." At which point Mr. Cabrera answers his questions, and at trial, tries to introduce a witness to say that the reason that Mr. Cabrera did what he did -- jump over the first wall and then wait to be caught -- was simply because of "the 'enormous backlog of Central American migrants seeking asylum' due to the 'metering' and 'Remain in Mexico' policies in place at the time" and that “the word [on the street] was that you could climb over the fence and try to get your asylum application that way.” Basically, that all Mr. Cabrera was trying to do was to apply for asylum, not actually sneak into the U.S. -- which is why he sat down after climbing the first wall, waiting for Border Patrol agents to talk to him.

Now, I can see why one might want to potentially punish even that: that it's unfair (arguably) to let someone "jump the line" and apply for asylum by hopping over the first fence and waiting to be caught.

But is it really "over 4 years in prison" unfair? Which is what Mr. Cabrera here gets sentenced to.

Seems pretty darn harsh, no?

Again, Mr. Cabrera has been deported previously, so you see why the guidelines might treat him the way they do. Moreover, the district court judge that he draws here -- Judge Burns -- is not exactly what you would call a "soft on border crimes" type of judge. So perhaps the sentence isn't that surprising.

But four years in prison for hopping over a wall and deliberately waiting to be caught so you can apply for asylum? Facially, that seems like a lot.

In re Casey (Cal. Ct. App. - Sept. 28, 2023)

The same time-worn story gets played out in many of these "potentially paroled murderers" opinions. There's a murder, Defendant gets convicted, Defendant spends a ton of time (e.g., decades) in prison, Defendant performs super well in prison, and -- for some people -- the Parole Board, after several denials, finally grants parole.

But then, pretty much invariably, whoever the Governor is then overturns the parole grant. Why? Because pretty much every single one of them, of whatever political stripe, doesn't want to be blamed for it if the person granted parole subsequently does anything wrong. That wouldn't look good in a later election, so why risk it? Thank you, Willie Horton.

Then the standard process continues, with the would-be-paroled inmate filing a writ petition, claiming that there's no substantial evidence that supports the Governor's decision, and the subsequent resolution of that issue in the Court of Appeal (regardless of which way the trial court decided). All the while, we pretend that the Governor's decision is "neutral" even though we all know full well that we're really just engaging in Kabuki theatre.

But whatever. That's the play. So everyone does their part.

Today's opinion is yet another iteration. There's a majority opinion and a dissent, so reasonable people could (and do) come out on both sides.

The hard thing for the defendant here, however, is the nature of the underlying offense. Yes, defendant was super young when he committed the crime, which is heavily in his favor, as is the fact that he's now served multiple decades in prison, with a fairly impressive record therein.

But the facts of the murder are sufficiently chilling that you can probably figure out what result ends up being adopted by the majority notwithstanding the dissent. Here they are:

"Royce Casey is serving a life term for the brutal murder of a 15-year-old girl. After Casey served 23 years three months, the parole board granted him parole. The Governor reversed the parole board’s decision and denied Casey parole on the ground that Casey lacks insight into his crime. The superior court granted Casey’s petition for a writ of habeas corpus. The People appeal from the court’s order granting the petition. . . .

In 1995, when Casey was 17 years old, he was infatuated with “death metal” music. He started using drugs. He discussed with Jacob Delashmutt, 17 years old, and Joe Fiorella, 15 years old, sacrificing a virgin as part of a devil-worshipping ritual. The three crime partners planned the murder for several months.

Elyse Pahler, 15 years old, attended the same high school as the three partners. On the evening of July 22, 1995, Delashmutt and Fiorella told Casey that they had lured Pahler into joining them at a remote location in Arroyo Grande. They told her they were going to use drugs with her. Later that evening, Pahler joined them at the remote location to smoke marijuana.

After 15 to 20 minutes, Delashmutt pulled off his belt and began to strangle Pahler. Fiorella pulled out a hunting knife and stabbed her four to six times in her neck. Delashmutt took the knife next and stabbed her four or five more times in her neck. Finally, Casey took the knife and stabbed her four times in her back. As Pahler moaned on the ground, Casey stomped on the back of her neck.

After it was clear Pahler was dead, Delashmutt started to pull off her pants. The boys had discussed having sex with her after she was dead. Instead, Casey said that they should leave. They buried Pahler in a shallow grave and left the area.

About eight months later, with the crime still unsolved, Casey confessed his commission of the crime to a clergyman. The clergyman contacted law enforcement. Casey described the murder to the authorities and led them to Pahler’s body."

You can probably see why the Parole Board eventually voted to grant Casey parole. He was 17. He served 23 years in prison. He confessed and turned himself in to a clergyman. He performed admirably in prison.

The majority nonetheless reverses the habeas grant. In part, I suspect, because the underlying facts of the offense are undeniably chilling.