Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.
Sorry, USF students. You're not getting a partial refund for the fact that "college" was online during COVID. You lost your class action, and the Court of Appeal affirmed.
You could perhaps see why the generalized statements that USF made here didn't effectively promise that college would be in person.
Though if USF was nice, it might have given a little bit of a voluntary tuition rebate.
Because online college, respectfully, was very -- very -- much not the same as being there in person.
Justice Yegan begins this afternoon's opinion in a fairly dramatic fashion, saying:
"“The fabric of the law will stretch only so far before it will unravel.” (People v. Martin (2018) 26 Cal.App.5th 825, 828.) Appellant seeks to stretch the newly enacted reduced murder penalties to his case. It just will not stretch and the fabric unravels. Leniency for a person who orders his cohorts to murder a 15-year-old child with a machine gun? The child is dead and our answer is, no."
One reason he might write in such a style is due to the nature of the crime, as it's not surprising that the cold-blooded murder of a teenager might get one's blood boiling. Another reason may perhaps be because it's a high profile case, and involves a petition filed by Jesse James Hollywood and the underlying murder subsequently made into the film Alpha Dog. So maybe Justice Yegan thinks -- entirely accurately -- that this opinion will be read (or quoted) more than the run-of-the-mill appellate opinion, so wants to add some spice.
It's not my cup of tea, honestly. Yeah, it's a brutal crime, and we're rightly horrified by it. But I'm fairly confident that the whole "Rule of Law" thing -- a not insignificant principle -- means that you follow the rule of law regardless of your emotional reaction to the underlying offense. So starting off an opinion by saying that you're not going to be "lenient" because a child is dead is not really how I'd frame the legal analysis of a case by the Court of Appeal. It sends a message of retribution rather than a dispassionate application of legal principles.
It's not that Justice Yegan doesn't have a point. He is confident -- from the movie or otherwise -- that the petitioner here doesn't deserve relief under the Legislature's newly-enacted resentencing provisions. And I'm pretty darn confident that he's right (though I haven't seen the movie or read the underlying opinions). It seems like Mr. Hollywood did, in fact, have an intent to kill, which, if true, negates relief under the statute.
Here's the problem, though: Mr. Hollywood says that he didn't have that intent, and files a petition that so avers.
That's probably untrue. We have a way of finding those things out: under the resentencing scheme, it's called an "evidentiary hearing." The issue on appeal is whether he's entitled to one.
Justice Yegan says that Mr. Hollywood's a liar, and we already know the truth, so we don't have to provide him with a hearing. In another colloquial passage at the end of the opinion, he says: "Checking a box on a printed form saying the petitioner could not presently be convicted of murder, given the record of conviction, is ridiculous."
Okay. I bet that's true. I bet the affirmation on the petition is wrong. Because, among other things, the trial judge below was the one who decided the petition for resentencing, and I'm confident that he very distinctly recalls the facts of this extraordinarily high profile case.
Nonetheless, to me, this smacks of "We all know you're guilty, so let's just dispense with the trial." We have procedures for things like this. At stage one, the petitioner says he's eligible for relief. At this stage the only thing we look at is the record of conviction to see if it categorically precludes relief. We don't engage in factfinding. That's for stage two. Kinda the same way we have an indictment and then let the case go to trial if the indictment is sufficient. We don't skip that second part just because the evidence of the crime is overwhelming.
Justice Cody makes some of these points -- more subtly -- in her concurrence. She says, seemingly accurately, that the petition here can be denied in a straightforward fashion, because the record of conviction for aiding and abetting murder requires an intent to kill. Which makes even more unnecessary than usual the holding here that trial judges are allowed to engage in factfinding at the initial petition stage, since you can achieve the same result without recourse to a "special exception" involving dead teenagers in high-profile cases.
It's quite possible I'm old fashioned here. I'm not a big "bloodlust" type, particularly in the Court of Appeal. I'm quite fine with Mr. Hollywood's resentencing petition being denied. But I'm also entirely okay with giving him a hearing if one's required, regardless of his underling offense. That, to me, is what it means to be committed to the rule of law.
Which, again, is No Small Thing.
The opinion in this case is about restitution, and seems right, but that's not what caught my eye. Rather, it's something very briefly mentioned in the opinion -- something easily overlooked but which I thought was both fairly rare and merits at least brief reference.
The underlying offense was the daytime burglary of a home in San Francisco. The burglars stole some cash and jewelry and basically anything else they could find of value.
There was video footage -- probably from a Ring camera. That's pretty damning. Hat tip: Probably wear a mask or something if you're going to burglarize a home with a camera.
Hat tip #2: Don't commit a burglary when you're on parole, like one of the burglars here. Extra time added to your sentence, etc.
Final hat tip. The one that really piqued my interest. Don't commit a burglary when you're on parole and wearing a GPS ankle monitor that proves you were at the burgled residence at the time of the burglary.
I mean, come on. You've got an ankle monitor, dude. Try not to commit crimes while wearing the thing.
That's just common sense.
It's only $150. Go ahead and post jury fees yourself. Even if the other side's already requested a jury.
Yes, it's nonrefundable. But, in the scheme of things, it's a pittance.
Otherwise, this might well happen to you too.
Nothing stops the other side -- the side that demanded a jury and posting the fees -- from withdrawing that demand on the first day of trial. If that happens, you've prepped for months for a jury trial, but at the last moment, you have to retool everything for a bench trial. Exhibits, opening statements, etc. Plus, you've already waived your own right to a jury trial by not posting fees, so you no longer have that right.
Sure, you can ask for a discretionary waiver from the trial court. But don't be surprised if, as here, the trial court denies your request. Bench trials are so much easier. Plus, then the trial judge gets to make sure that the case comes out the way s/he wants.
One more thing. If, perchance, the trial court denies your request for a discretionary waiver, file a writ. Do not, under any circumstances, do what the party did here, which was to elect against filing a writ, wait to see if they win at the bench trial anyway, and if they lose, then file an appeal asserting an erroneous denial of your request for a discretionary waiver.
The California Supreme Court holds that, at that point, you've got to affirmatively show prejudice -- i.e., that the result would have been different if the case was resolved by a jury instead of a judge. A showing that is, quite literally, impossible.
So, to reiterate:
Spend the $150.
I'll potentially save you a world of hurt.
I'm most assuredly not in a position to disagree with Justice Lavin in this one, as literally everything I know about the "Digital Infrastructure and Video Competition Act of 2006 (Pub. Util. Code, § 5810 et seq.)" is contained in today's opinion. Moreover, everything that he said in his opinion sounded entirely plausible, so I can't really say with any confidence that individual cities should have the ability to sue video providers for not getting a state franchise and paying the applicable fees. (The Court of Appeal holds they can't.)
The one thing I can say, however, is that it seems to me like the state Public Utilities Commission should darn sure take a position on this stuff. If cable companies have to pay for using public right of ways for their transmission stuff (e.g., their cables), then it only makes sense (to me) that streaming services like Netflix and the like should have to pay as well. It sounds to me -- again, knowing virtually nothing -- like the streaming services don't pay but cable companies do, despite the fact that both of them use fiber optic cables (or non-fiber optic cables) running under our streets, etc. Doesn't seem fair or equitable. If both use public resources, both should pay.
So it's entirely possible that the Court of Appeal is correct that the statute only says that cities can sue if a franchisee doesn't pay, whereas here, Netflix isn't a franchisee in the first place, so can't be sued even if it doesn't pay.
But the PUC can definitely sue. And if the facts are as they appear to be in the opinion, I'm seriously wondering why the PUC hasn't.
But, again, it's entirely possible I'm missing something here.
Which, on rare occasion, happens.
It just gets worse and worse as you wade through this opinion:
"In July 2021, Garcia sent threatening text messages to a Child Welfare Services worker. Garcia threatened to abduct the worker, “cement” her, and “toss” her into a river for abducting and abusing Garcia’s children. In People v. Garcia, No. SCN426026, the San Diego County District Attorney charged Garcia with one count of making threats to a public officer (§ 71); and two counts of disobeying a court order (§ 273.6)."
Okay, not wise to send those text messages. I know you're upset. Few people are super thrilled to have child welfare officials intrude into their parenting. Still. No threatening messages, okay?
"In August 2021, Garcia brought a large kitchen knife into juvenile court. Video surveillance showed that she had the weapon in her waistband when she walked into a courthouse restroom. The knife was later recovered from the restroom. In People v. Garcia, No. SCD291317, the San Diego County District Attorney charged Garcia with possessing a weapon in a courthouse (§ 171b, subd. (a))."
Yikes. That's quite a bit of escalation, no? Plus, I gotta ask, how did the knife get through the metal detector? Inquiring minds definitely want to know.
Still. Don't bring weapons into court. An even worse idea than the threatening text messages.
"In June 2022, Garcia “stabbed a woman several times in the back, head and neck.” The attack resulted in “several lacerations to the victim” and required “staples and sutures to close” the wounds. In People v. Garcia, No. CD294930, the San Diego County District Attorney charged Garcia with attempted murder (§§ 664, 187, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)). The felony complaint further alleged that Garcia personally used a deadly and dangerous weapon under section 12022, subdivision (b)(1) and personally inflicted great bodily injury under section 12022.7, subdivision (a)."
Now we're really off the deep end. No probation this time. This is attempted murder. You can't get much more of a serious charge than that.
Ms. Garcia is ultimately found incompetent to stand trial, and reading the opinion, you can see why. There's a serious mental health problem ("unspecified schizophrenia spectrum and other psychotic disorder"). Which is something that I'm quite confident is not improved in the slightest by the use of recreational drugs (e.g., the reference to "stimulant use disorder" in the opinion).
I'm not confident that Ms. Garcia will get much better in the state's mental health facility. But I don't think she'll get much worse, either.
Life outside was not going well for anyone. Not Ms. Garcia, and definitely not the people around her.
Judge O'Scannlain's concurrence here has a point. Both about the NLRB's flip-flopping in general as new administrations enter office -- and thus reshape the Board to correspond to their political preferences -- as well as with respect to the potential import of that practical reality on Chevron and general administrative deference.
Worthy of a read.
Putting police officers on the stand in criminal cases as "experts" is always a touchy issue. They constantly give testimony that goes to an ultimate issue. For example, in gang enhancement cases, the prosecutor always gives the officer a "hypothetical" with the facts of the actual case in front of the jury and asks the officer if, on those facts, the conduct of the defendant was for the benefit of the gang --to which the officer always responds "Yes". The Court of Appeal is pretty much fine with that.
At the same time, we don't allow officers to tell the jury that, in their opinion, the defendant is guilty given the evidence against him. That's too much. Everyone knows that too. (Though, as everyone knows, the line between permissible and "impermissible" testimony in this regard is definitely a fine one.)
The Court of Appeal concludes that the officer's testimony in this case (out of San Diego) is more in the second bucket than the first, so reverses the conviction and remands for a new trial. Which makes sense. Can an officer, as an "expert", testify on "expert" things that a jury wouldn't (allegedly) know; e.g., the nature of a gang? Sure. But what s/he can't do is give "expert" testimony outside of their alleged expertise.
So, here, when the police officer testifies that the defendant -- rather than the other guy in the car -- was the actual shooter, based on the testimony of another witness, that's not expert testimony. The jury could hear that other witness. The officer isn't an expert on who shot who. It invades the province of the jury (or, to put it another way, it's way too influential) for an officer to testify to this ultimate fact based upon his own view when that view is no better (or worse) than the jury's.
Do police officers know a lot? Sure. But they're not "experts" on crime generally.
And when the trial judge let's 'em testify too broadly, as here, we gotta throw out the conviction and do the whole thing all over again.
Unfortunately.
I think I've discovered the next crime I'll commit.
"On April 2, 2018, the California Department of Justice filed a felony complaint charging defendant and others with conspiracy to commit grand theft, identity theft, forgery, making a false and fraudulent claim, and preparing false evidence (§ 182, subd. (a)) (count 1); grand theft of personal property (§ 487, subd. (a)) (count 2); and making false and fraudulent claims (§ 550, subd. (a)(5)) (count 5).
The complaint alleged that in 2011 and 2012, Amit Marshall, the owner, president, and director of the Alliance School of Trucking (Alliance) obtained approval from the California State Approving Agency for Veterans Education for Alliance to provide non-college degree trucking programs to veterans eligible for benefits under the “Post-9/11 GI Bill” (38 U.S.C., Pt. III, Ch. 33). That approval authorized Alliance to receive tuition and other payments from the VA. Marshall and Alliance director Robert Waggoner falsely certified to the VA that they would truthfully report veteran students’ enrollment status and attendance records and maintain current knowledge of VA rules and benefits.
Between October 1, 2011, and April 22, 2015, Marshall, Waggoner, and Alliance employee Aaron Solomona recruited and caused others to recruit eligible veterans to enroll in the approved Alliance trucking programs. Solomona told prospective students that together they could defraud the VA—students would not have to attend classes, but Alliance would report to the VA that they did, and each student would receive between $2,000 and $3,000 per month in benefits. . . .
Between September 1, 2011, and April 22, 2015, Marshall, Waggoner, Solomona, and Sandor Greene created and caused to be created fraudulent student files for the purported students that contained false attendance records, false grades, and false certificates of completion. Through the completion of a VA form, Marshall and Waggoner falsely and fraudulently certified that defendant and/or other veteran students had attended classes at Alliance.
Between December 8, 2011, and April 22, 2015, as a direct result of their fraudulent scheme, Marshall, Waggoner, Solomona, Greene, and Ivanova Jimenez caused the VA to pay Alliance approximately $2,351,658.19 in tuition and fees and approximately $1,957,715.89 in education benefits to veteran students, including defendant, who fraudulently claimed to have attended Alliance trucking programs."
That's a lot of money, no? Seems like a pretty good scam. The school gets millions, the "students" get paid -- both by the feds and the school -- and everyone walks away happy. (Sure, no one actually knows how to drive a truck, but no biggie; they've got the cash.)
Defendant's an alleged participant in this scam, ultimately pleads guilty, and gets sentenced to . . .
Two days of probation.
With reduction to a misdemeanor if he doesn't do anything wrong for a while thereafter.
Sounds like a pretty good deal for everyone involved. Even if caught.
(Except for taxpayers, of course.)
I'm confident the ringleaders got longer sentences, but still. Not really a huge deterrent to participate in these scams if all you're getting -- if you're even caught -- is two days of probation.
Though I'm sure he's a nice guy.
Absent the invention of a time machine, there's no way to prove or disprove the following hypothesis. I'd nonetheless bet a fair amount of money that five or ten years ago, this case would have come out the other way.
You could easily see how an opinion could be written to say that Mr. Paul wasn't detained at all when the officers first approached him. Something like this:
"The officers approached Mr. Paul's stopped vehicle on foot. They didn't draw their weapons. They didn't block his vehicle from departing, either with their police cruiser or with their bodies. They engaged him in polite conversation, just like anyone else. They never told him he wasn't free to leave. Sure, they shone their flashlights on him, but that was understandable, since it was 9:00 p.m. and dark. No reasonable person could have believed that they were not free to leave the voluntary conversation with the officers. As a result, there was no detention at all, and hence no illegal search."
What I think has relatively recently changed, however, is a more robust understanding of police/civilian interactions, particularly in poorer, minority communities. I doubt that even I would feel entirely free to leave if the police pulled up to my vehicle, shined their lights on me, and started talking to me. But one's willingness to fire up your car and suddenly pull away as the police approach might be even lower if, say, you're a young black man with dreadlocks in South LA. Amongst other things, that's potentially a pretty good way to get yourself shot.
(Today's opinion doesn't say where the incident here occurred, and the briefs aren't online, but I will note that there's a "Jeremiah Paul" in Compton -- as well as another one who works in East L.A. -- and the defendant apparently had dreadlocks and the incident was in an area "patrolled regularly" by the cops and in which the officer's usual practice was to ask anyone if they were on probation or parole. So there's at least a chance that the dynamics of the encounter might not have been exactly like, say, Elon Musk being pulled over on Rodeo Drive.)
I think that some of this might have influenced how the Court of Appeal comes out here. Here's how Justice Moor ultimately comes out -- a fair piece different than my hypothetical opinion a decade ago:
Considering the totality of the circumstances, we conclude that the initial encounter with the officers was an unlawful detention and that the trial court’s order must be reversed. Several factors lead us to this conclusion. First, although Officer Kumlander did not park the patrol car in a manner that prevented Paul from driving away, the officers’ subsequent positioning of their bodies blocked Paul from either driving away or departing on foot. By Officer Kumlander’s own testimony, he was at most between two to three feet away from the Prius’s driver’s side door. Paul testified that the officer was inches away and that he could not open the door without hitting the officer. The video shows that, even if Officer Kumlander was standing a few feet away from the Prius initially, he was holding his flashlight only inches away from the driver’s side window and had to move back to permit the door to open even slightly. Paul could not have exited the vehicle with Officer Kumlander standing there, nor could Paul have pulled the Prius out and driven away without either engaging or endangering Officer Kumlander. An objective person would not believe that he or she was free to simply start driving away with Officer Kumlander standing in the roadway. Moreover, the presence of Officer Helmkamp on the passenger side of the vehicle prevented Paul from sliding across the seat and exiting on foot without engaging Officer Helmkamp.
Second, Officer Kumlander and Officer Helmkamp exited their vehicle, approached the Prius from both sides, and shined their flashlights into the Prius from close range, right at the car door windows. This was a display of authority that would lead an objective person to believe that he or she was suspected of wrongdoing, both because more than one officer approached and because the officers shined their flashlights on Paul from opposite angles, effectively illuminating him on all sides. . . . If the officers wished to signal that Paul was free to go, the officers could have approached the Prius from the same side of the vehicle and engaged Paul in casual conversation. The officers instead flanked the Prius and approached from both sides while shining their flashlights into the vehicle. The officers’ approach is exactly the kind of coordinated action that an objective person would expect to witness when being detained. A reasonable person would conclude that when two officers approach in this manner, surrounding the individual in the vehicle, he or she is not free to leave.
Third, the officers approached Paul while he was talking on his phone inside a legally parked vehicle with the windows rolled up. Paul could not reasonably decline to interact with the officers without suspending or ending his phone conversation and at least engaging in a brief conversation with them. The circumstances would lead an objectively reasonable person believe that the officers required their attention and that they could not simply depart. . . .
Finally, although the dialogue between Paul and Officer Kumlander appears to have been non-confrontational in tone and language up to the point when Paul stated that he was a parolee, this is not strong evidence to conclude that a reasonable person would have felt at liberty to terminate the encounter with the officer. . . . Ostensibly, Officer Kumlander would interact in a polite, professional manner with a detainee who was responding in a polite manner, as Paul was in this case. If the officer’s tone and words had been aggressive, it would be an additional reason for a reasonable person to believe that he or she was being detained. The converse is not necessarily true, however—the officer’s courteous manner of speaking did not overcome the impression that he intended to detain Paul, which he and his partner conveyed through their actions. Moreover, if Officer Kumlander did not intend to detain Paul, he could have stated that Paul was free to leave at the outset of the conversation.
In light of all of the circumstances, we cannot conclude that the interaction between Paul and the officers was consensual."
I'm confident that there are many appellate judges (both state and federal), in California and elsewhere, who would have found these interactions entirely consensual, even today.
But I also think there's an increasing number who would agree with Justice Moor. Including but not limited to, obviously, the other two members of the panel here, since the opinion is unanimous.
It's a slow "news" (opinion) day today, with only a single (clearly right) published opinion from the Ninth Circuit and nothing yet from the California appellate courts, so I thought I'd go back and briefly mention this opinion from last week. If only because it's unusual. Typically, when the Attorney General makes a concession in a criminal case, it's accepted by the Court of Appeal, and thought well-founded.
In 2008, Kelly Kimble gets a three strikes sentence of 25 to life, plus one year for an enhancement. In 2022, he attempts to be resentenced, but the trial court only shaves off the extra enhancement year, so he appeals. The Attorney General's office opposes the appeal, and in July of 2023, the Court of Appeal agrees with the Attorney General and affirms.
Usually, that'd be the end of the story.
But, here, two weeks later, the Attorney General files a petition for rehearing, saying "that his position had changed, and that he now conceded defendant was entitled to application of the Reform Act’s revised penalties at his 2022 resentencing." That's a big win for the defendant, right?
Not so much. The Court of Appeal is not persuaded. It says that "[t]he Attorney General did not explain the basis for his change in position, cite to any recent authority that might have triggered the sudden reversal, or point out any errors of law or fact in our opinion." So the Court of Appeal tells the AG to pound sand, and refuses to change its opinion.
End of story, right?
Nope.
Then the California Supreme Court gets involved.
After the Court of Appeal refuses to rehear the case or change its opinion, in October of 2023, the California Supreme Court grants review and transfers the case back to the Court of Appeal with instructions to "reconsider the cause in light of the Attorney General’s concession that defendant was entitled to resentencing under the revised penalty provisions of the Three Strikes Reform Act. (Cal. Rules of Court, rule 8.528(d).)”
Defendant then submits briefs saying that he's entitled to resentencing (and noting the AG's previous concession), and the Attorney General's office doesn't submit an opposition.
Okay. Handwriting on the wall, right? Certainly, at this point, the Court of Appeal will relent and go the way that pretty much everyone -- even the California Supreme Court -- apparently seems to think is the correct resolution, right?
Nope. Not even then.
Here's how Justice Krause summarizes the Court of Appeal's current take:
"Having carefully reconsidered the matter, we again decline to accept the Attorney General’s bare concession. As a general rule, we are not bound by concessions made by the People in a criminal case. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021.) And here, we are not inclined to give the Attorney General’s concession significant deference, as the issue before us turns on a question of statutory interpretation, such that the analysis is not invalidated simply by a change in party position.
It also is worth highlighting that while the Supreme Court’s basis for granting review appears to be the Attorney General’s concession, he has declined to take any position after transfer. Defendant, however, advances new arguments in his supplemental brief following the Supreme Court’s transfer order. We will address these contentions, and explain why the judgment is properly affirmed."
There you have it.
Which is basically the Court of Appeal saying: "Hey, we still think we're right, and we don't care what anyone else seems to think. At this point, it's your move, Cal Supremes. If you think we're wrong, fix it yourself. We're sticking with what we said."
Now we just wait and see if the California Supreme Court feels like fixing the alleged problem itself.
The Ninth Circuit holds -- fairly predictably -- that the California Supreme Court did just fine when it held that individual PAGA claims may be required to go to arbitration but the non-individual PAGA claims can stay in court. So for that issue, absent anything new (like the Supreme Court stepping in and saying that its earlier dicta about the scope of state law in Viking River Cruises was correct), we pretty much know at this point how these things will go in both federal and state court.
Judge Lee adds a concurrence that has little to do with the substance of the court's holding but that he nonetheless feels is important to add just so employers don't potentially get stuck with issue preclusion from the outcome of the arbitration proceedings. He says that, in his view, even if the employer loses in arbitration, there shouldn't be issue preclusion on the PAGA claims that remain in court because the tiny amount of money at stake in the individual arbitration claim means that there's no "adequate opportunity or incentive to litigate" in arbitration. Meaning that the employer should get two bites at the apple: one in the arbitration proceeding, and another one in court.
I could say a lot about the opportunity/incentive aspect of res judicata, but my facial reaction can be summed up fairly quickly. To me, it's one thing to say that there's no incentive to litigate when a party is sued for a tiny amount (say, $500) and potentially faces issue preclusion in a much bigger suit as a result. There's nothing the defendant can do about that, since it was the plaintiffs who split up the lawsuits and raised the possibility of such issue preclusive effects.
It's quite another, it seems to me, when the defendant is the one who put himself in this position; i.e., when it was the defendant himself who (1) elected to create an arbitration provision, (2) decided that this would cover PAGA claims that he knew couldn't be arbitrated, and (3) elected to insist upon arbitration anyway once the lawsuit was filed -- typically over plaintiff's objection. If you decide to go down that path, with full knowledge of the issue preclusion consequences of your strategic choices, to me, you can hardly be heard to complain about that result. You could have avoided issue preclusion entirely by simply litigating the tiny individual claim alongside the much bigger claim in court. You chose not to. Any issue preclusion consequences of that decision are your own doing, and I find it implausible that you can be heard to complain about them.
So I understand and appreciate Judge Lee's attempt to provide an advance viewing of his position on a topic that's not at issue in the present case but that may perhaps nonetheless arise in some cases in the future. But it seems to me that he's wrong on the merits. Just as, for example, a plaintiff can't potentially assert non-mutual offensive issue preclusion when she was the one who strategically split up the two cases, so too should a defendant not be permitted to claim lack of incentive/opportunity to litigate with respect to defensive issue preclusion when he's the one who elected to split up the cases in the first place.
That's my take, anyway.
It's always amazing to me just how bad some people can be at committing a crime. Especially a serious crime like murder. Even when it's totally planned.
Did Donald Sherman successfully kill his former girlfriend's father? Yep. Went to Las Vegas, broke in through a window, and bludgeoned him to death in his bed. No witnesses. No prints, either. No DNA or anything else at trial.
Okay. I suspect that Mr. Sherman might have considered that a job well done.
Now, before the murder, Mr. Sherman might have done some unnecessary talking that might have raised suspicions. After all, according to the opinion, "On May 1, 1994, Dianne’s friend, Erin Murphy, informed her that Sherman was going to Las Vegas and that she feared he would harm Dr. Bauer. Murphy told Dianne that she should tell her father and the Las Vegas Police Department. Dianne says that she informed her brother, the Longview Police Department, and the FBI about the danger Sherman posed to her father."
But that's not super compelling evidence that he's guilty of a murder that took place a month later. Still, he might not want to have said anything to anyone beforehand.
Here was his first big mistake, though. "Sherman stayed at a local Las Vegas hotel from May 28 to May 31, 1994, which coincided with the murder." Yeah, that's probably a bad idea. Might want to pay cash, or sleep in your car, if you're planning to kill someone in a different town. Or get a fake identification for the hotel room. Given how many kids have one for getting into bars, they can't be hard to get, right?
But it's not just that. Here's the absurdly stupid part. With a reminder that the person who was murdered was Dr. Lester Bauer:
"On May 30 [the day of the murder], Sherman called Swinging Susie’s, an escort service, and asked for an escort to meet him at his hotel room. An escort, “Paige,” met with Sherman, who introduced himself as “Dr. Bauer.” Sherman paid for Paige’s services with Dr. Bauer’s credit card and signed the receipt as “Dr. Lester Bauer.” Paige returned to Sherman’s hotel the next morning, May 31.
Later on May 31, Sherman checked into a hotel in Santa Barbara, California. Again, he introduced himself as “Lester Bauer,” paid with Dr. Bauer’s credit card, and signed the receipt as “Dr. Lester Bauer.”
On June 2, Santa Barbara law enforcement arrested Sherman while he slept in Dr. Bauer’s stolen car. Inside Sherman’s wallet the officers found Dr. Bauer’s credit cards and restaurant and jewelry-store receipts signed by “Lester Bauer.”"
Dude, seriously? After you bludgeon a guy to death with a hammer, you might not want to (1) tell an escort that you're that guy, (2) pay with the dead guy's credit card, (3) check into a hotel as that guy, using (again) his credit card, (4) buy jewelry and go to restaurants with that same card, and (5) sleep in the dead guy's stolen car.
Needless to say, the guy gets convicted and sentenced to death in Nevada. And, on habeas, the Ninth Circuit affirms. Because, among other reasons, any potentially problematic evidentiary rulings at trial would have been harmless error given the overwhelming evidence of Mr. Sherman's guilt.
Since it's Nevada, there's a slightly greater chance than in California that Mr. Sherman would actually be executed since his federal habeas appeals are about over. That said, Nevada hasn't actually executed anyone since 2006, and of the dozen people executed there since the death penalty came back in 1976, all but one have been "volunteers". So I'm not sure that today's opinion really puts Mr. Sherman on the edge of actually having his sentence carried out.
Still. Life in prison on death row in Nevada is hardly where one wants to end up in life. Or, as here, spend 27 years, and counting, with another 30 or so to go before almost certainly dying in the place.
If you litigate long enough, you'll eventually have some issues with an expert. Maybe tiny ones, maybe big ones.
Just be glad you're not the lawyer in this case.
It's a divorce action, and the big fight seems to be about the value of the marital home. Wife says it's worth $1.1 million, whereas Husband says it's worth $1.02 million. At trial, they both get experts to testify to their respective positions. (Why you can't just settle at $1.06 million or so is beyond me, as opposed to going to trial over the $40,000 difference, but that's a different issue, and I don't do family law, so the unique dynamics of that field may perhaps explain the decision here.)
Wife's appraiser, Kristina L. Burke, prepares an appraisal report on November 16, 2021, and the parties exchange reports two days later, on November 18, 2021. The trial is the next day, on November 19, 2021. (Aren't you jealous of family law cases getting to trial so quickly after expert reports are due?)
At trial, Wife's expert, Ms. Burke, doesn't actually show up. Instead, she testifies . . . on the phone.
From her car.
Without access to her appraisal (or the opposing expert's appraisal) or other documents in the case.
The trial judge was not impressed, to say the least:
"During cross-examination, Andreas’s counsel moved to exclude or strike Burke’s testimony and appraisal report “due to lack of preparation and lack of ability to testify in this matter.” In response, the court stated, “Essentially, you’re doing it from a phone in a car, and you can’t use your phone to look at documents and appear in a hearing.” The court declared that Burke’s manner of testifying created a problem in an evidentiary hearing. The court continued the trial to November 22, with the admonition, “Ms. Burke, I’m hoping that you will be in a different situation, not on a phone.”"
Ultimately, Wife loses, as the trial court found Husband's appraiser "to be more credible and found the home to be valued at $1,020,000."
Wife appeals, and loses in the Court of Appeal as well.
Litigation tip of the day: Don't have your expert testify at trial from her car.
I gotta give props to Justice Kelety. When this opinion was initially published last week, I thought: "Whoa. I understand Part II, but I'm seriously thinking deeply about Part III. Was the evidence really insufficient to sustain defendant's conviction? The guy nearly hit a cop car, drove like a bat out of hell at 60 to 100 mph (!) in a 35 mph zone for over a mile while evading a marked police car with its siren and lights on while driving on the wrong side of the road and nearly hitting other vehicles, and then crashes his car into a brick wall. The officers totally recognize the defendant as the one driving the vehicle during the pursuit, but when they get to the crashed car, he's nowhere to be found. They so testify at trial. Is that really insufficient evidence as a matter of law that the guy in fact committed a hit and run, which is what the Court of Appeal in fact held? Seems to me like the guy obviously fled."
So I thought about saying something like that, but then life got in the way, I got busy, other things happened, the whole "Biblical Flood in Southern California" thing went down, etc. etc.
Today, Justice Kelety decides to not publish Part III, even after originally not publishing the entire thing, then deciding to publish the whole opinion, and then splitting the middle to take out (IMHO) the part that totally had me wondering.
I mean, I get her point: the police didn't testify about how long it took them to respond to the collision, or why exactly Mr. Jimenez was nowhere to be found after the crash. They definitely (probably) should have.
But, I mean, come on. The guy was crazy evading the police. It's obvious (to me, anyway) that after trying out outrun 'em, and then crashing his car, he ditched the thing in one last effort to get away. Is it theoretically possible that it took the police, like, an hour to get to the car after it crashed, or that the guy really wanted to call the police and report his crash but, shucks, was just too concussed or confused to do so? Maybe. I guess. But I'd bet my left foot that the police got there really quickly after chasing the guy at 100 mph for a little over a mile, and even if the guy testified that he intended to call in the accident (which he didn't), I'd bet my entire set of feet on the fact that he wasn't telling the truth and that he deliberately fled in a (continuing) attempt to get away.
But, hey, at this point, Part III is unpublished, and -- as I noticed at the time -- the guy's sentence on Count 2 (the one reversed by the Court of Appeal) was stayed anyway. So not like it really matters at this point. To anyone.
Problem solved.
(Though I still do wonder if the Court of Appeal is really right on this one. Which I'd care more about if it mattered, which, again, it doesn't much at this point.)
I know that it doesn't matter much either way. But since senior judges on the Ninth Circuit aren't allowed to vote on en banc calls in the first place (even though they're invited to express their views internally, if they wish), I probably wouldn't have them publish something that simply says -- as Judge O'Scannlain does here -- that in a universe in which they had a vote, they'd have voted for en banc review. ("I agree with the views expressed by Judge Bumatay in his dissent from the denial of rehearing en banc.")
I mean, sure, that's great to know, and there's no real downside in saying so. But, to use an analogy, we don't allow 14-year olds (or people in prison) to vote in elections, even though they're fully entitled to participate in deliberations about whom to elect in those things, and we likewise don't have official procedures designed to record how they would have voted if they had a vote. (Which, again, they don't.)
So I'd probably just leave this one alone.
I'm not entirely sure why, but I find this case hilarious.
The City of Cerritos (in LA) doesn't want a ton of heavy truck traffic. It's fine with trucks are dropping off stuff to City residents or businesses, but otherwise, it doesn't really want them to drive through the place. Noise, road damage, etc.
So it passes a law back in '74 that says that trucks travelling through the city (as opposed to "in" the city) are restricted to two particular roads. Then, in 2019 and 2020, the City amends the ordinance to remove one of those roads from the list of permissible truck routes.
Which hacks off the City of Norwalk, a neighboring municipality, because Norwalk says that after the change, the trucks started driving through Norwalk instead. So it sues, alleging the Cerritos' statute creates a public nuisance.
The trial court grants Cerritos' demurrer, and the Court of Appeal affirms, holding that Section 3482 of the Civil Code makes cities immune from nuisance liability for any acts done, as here, pursuant to a statute.
The whole thing is funny to me because it's like two little kids arguing about sharing a toy or who has to clean up their room. Just deal with it, dudes. Norwalk: If you don't like truck traffic through your city, pass your own ordinance that limits the stuff to particular routes. Or just recognize that, oh well, there are sometimes going to be trucks driving through your place.
Or, heck, if you want, try to get the Legislature to pass a law that stops cities from doing stuff like this. I'm not sure that running to your parents -- here, filing litigation in front of a court -- is really the most productive way to try to solve this dispute.
But, hey, at least it gets resolved. "Deal with it, Norwalk."