Put a hidden camera in your stepdaughter's room to capture pictures of her undressing? Spend the rest of your life in federal prison, even for a first offense. (The defendant here is 61, and was sentenced to 21 years in prison. He's very unlikely to be alive when released.)
One more thing. You also forfeit your house. Since it's the location, and hence an instrumentality, of the crime.
So even if you're utterly amoral: Not a good decision.
With respect, I think that Justice Cody beats Justice Yegan in this one.
Everyone agrees that one judge generally can't reconsider the decisions of a different judge. In criminal cases (like this one) or any others.
Justice Yegan, in dissent, thinks that's dispositive here. But Justice Cody says that the prosecution forfeited this argument by not brining it up in the trial court, and I agree.
Justice Yegan says (repeatedly) that as a result of today's holding, "[t]he judge shopping lamp has now been lit." I think not. The unique thing that happened here was that once the issue was raised in front of the second judge -- here, whether or not to strike a prior strike under Romero -- the prosecutor didn't argue that the second judge had no authority to reconsider the first judge's decision not to strike the strike. The prosecutor instead argued that the first judge's decision was persuasive, not that it was binding.
That's a strategic choice. The first judge had expressly said that the issue was "very, very close," so there was a definite chance that the first judge might end up reconsidering. The prosecutor apparently did not want to take that risk, and instead argued the merits with the second judge. That's fine. The prosecutor might well have thought that the second judge was more likely to agree with the prosecutor's argument than the first.
But having made that call, after the second judge decides against you, you can't then argue that the second judge had no jurisdiction to make the call in the first place. Forfeiture doctrines are expressly designed to prevent such strategic election.
Indeed, to me, the "judge shopping lamp" is more applicable to the rule articulated by the dissent, rather than the majority. Under the majority's rule, all that the prosecutor has to say is (accurately) "Your honor, you have no jurisdiction to reconsider the prior judge's ruling." Easily done, and quickly turns off the purported judge shopping lamp. Whereas under Justice Yegan's principle, the prosecution (or the defense, if the tables are turned) can successfully judge shop with the second judge, hoping to prevail if the issue is decided their way and, if unsuccessful, then arguing that the first judge is the only one who can make that call.
Everyone agrees that judge shopping should be avoided. But I think that the majority opinion here is actually the best way to stop it.
I completely understand why Justice Feinberg comes out this way. Her analysis of precedent is coherent and thoughtful. I appreciated it.
But unlike Justice Feinberg, I think that Justice King's dissent in 2010 got it right. My view is that a defendant has a constitutional right to testify in his own criminal competency hearing. Yes, his lawyer didn't think it was a good idea for his client to testify. But the client wanted to. That's a critical right, and one we should respect.
People have a right (obviously) to testify in their own defense at a criminal trial. The same should be true in the competency aspect of a criminal trial. If the client wants to take the stand and provide evidence that he's not competent, great. We'll evaluate that evidence. Ditto if he wants to take the stand and claim that he is competent, even though his lawyer (and perhaps the doctors) insist he's not. That's great too. The judge will hear him out and make a decision one way or the other.
There's a serious dignitary interest at stake. Particularly when, as here, the competency determination is likely to be the dispositive one -- everyone admits here, for example, that the defendant in fact stabbed the various people he stabbed (very likely in a psychotic state). If a guy wants to testify, let him testify. Even if his lawyer thinks it's a bad idea. It's the client's life at stake, after all, not the lawyer's. And letting the client testify will only enhance, rather than retard, the search for truth. If I am the judge trying to decide whether a particular defendant is competent or not, I can't fathom not wanting to hear him testify if he's so inclined. That'll help me immensely, I suspect, in deciding whether or not the guy's in fact competent to understand or assist with his defense.
There's no binding California Supreme Court case going the other way, so that's the way I would rule if I was on the Court of Appeal. And were I the California Supreme Court, I would take this case up and hold the defendants have a right to testify at their competency hearing if they want. Full stop.
California can make its own police officers wear uniforms and provide identification, but it can't make the federal government do the same. Even within California.
That's different than traffic laws. Traffic laws apply to everyone, so California can (maybe) require that federal officials comply with them. It's true that the California No Vigilantes Act applies to all officers too (including California officers), but since it "targets" federal officers, it's barred by the Supremacy Clause.
So holds the Ninth Circuit, which now reverses the lower court's refusal to grant a preliminary injunction. (A decision it has already stayed, so the handwriting was already clearly on the wall on this one.)
I agree with Justice Chavez that the writ here should be granted, but if it were me, I would add one important caveat to the opinion.
I'm on board for the Court of Appeal's holding that the prosecution can file a timely 170.6 challenge to a judge who's acting as a "master calendar department" in a criminal case when that judge indicates that they're going to provide an indicated sentence, rather than just refer the matter out to a department for trial. Once a judge decides that they're going to resolve a disputed issue themselves -- here, whether to strike priors as part of the sentence -- then they're no longer acting in a purely ministerial function (e.g., simply assigning courtrooms), and a 170.6 challenge is timely and appropriate at that point. Agreed.
But the opinion here reads as if the reason the challenge here was timely was because the relevant "disputed issue" was the actual acceptance of the plea, rather than issuance of the indicated sentence. I understand that reasoning: the "indicated" sentence is essentially a conditional prediction, since the defendant hasn't yet pled guilty. Hence the opinion's focus on the actual acceptance of the plea, which takes place only after the indicated sentence (and, even then, only if the defendant accepts the "offer").
But that focus seems rife for abuse.
To me, the 170.6 time period would run from when the judge stated that they intended to provide an indicated sentence, rather than serving merely as a master calendar department. At that point, the judge has indicated their intention to decide a disputed issue of law or fact. So that's when the 10- (or 15-) day clock starts ticking. The later dates -- either when the indicated sentence is pronounced, or when the guilty plea is ultimately accepted (and/or formal sentence imposed) -- aren't the relevant dates. Just like when you get a judge assigned for all purposes, it's the date of the assignment that starts the 170.6 clock, not the date on which the judge ultimately makes any rulings.
The distinction matters. Here, the prosecution made a 170.6 challenge three days after the trial judge indicated they were going to provide an indicated sentence. Great. That's timely. I agree. And, three days later, the court denied the challenge (wrongly), issued the indicated sentence, took the plea, and entered the sentence. That's not okay. A different judge should have been assigned. Spot on.
But imagine a slightly different temporal setting. Let's say the judge indicates that they're going to issue an indicated sentence three weeks later, and the prosecution does nothing. Then, on the appointed date, the judge indicates a particular sentence that the prosecution doesn't like, and only then does the prosecutor file a 170.6 challenge. Before the actual sentence -- the purported "determination of fact or law" under today's Court of Appeal opinion -- but after the indicated sentence.
That would be untimely, in my opinion. Can't do that. You have to file your challenge before, not after, the indicated sentence. The clock starts upon assignment, not the indicated (or ultimate) sentence.
So I would make that clear in the opinion. It's an important caveat.
We presumably won't see any published opinions today since it's a holiday (for some), so I wanted to briefly mention this opinion from late Friday.
It's unusual. You don't see many Court of Appeal opinions that find it to be an abuse of discretion for the trial court to refuse to grant a new trial based on juror misconduct. You similarly don't see many cases in which the jury, as here, allegedly awards insufficient damages; instead, the problem (if any) is typically awards that are too high, rather than too low.
So the opinion is worth a read, if only as a statistical outlier.
It's also worthwhile because it involves a factual setting that I imagine is not uncommon in motor vehicle accident cases; namely, the jurors (allegedly) wondering why the plaintiff is suing the driver himself rather than the insurance company, and purportedly not wanting to award damages against an individual.
You would have thought that jurors would understand, either through instructions or otherwise, what's really going on in this setting, but apparently -- and perhaps not surprisingly -- not.
I'm grading midterm examinations in my civil procedure class right now, and the essay portion of that exam entirely revolves around the "relatedness" requirement of specific personal jurisdiction after the Supreme Court's holding in Ford Motor Co. Which is precisely the dispositive issue in this interlocutory writ proceeding in the Court of Appeal.
So, needless to say, I was interested.
I'll not go into the particular merits here; ultimately, the Court of Appeal holds that, on this record, there's no personal jurisdiction over the Japanese manufacturer of a robot that injured someone in California.
I'll just say this:
This opinion shows, in my view, why it's so important to have someone who deeply knows this stuff during the initial law-and-motion proceedings, not just on appeal.
Because I'm fairly confident that if the plaintiffs had known at the time what they had to prove, they could have done so. Potentially easily.
Because I think that personal jurisdiction in fact exists here. Even though the appellate records amassed by the plaintiff on appeal may well not show it.
The Court of Appeal holds today that when you want to sue anonymously, you've got to follow the correct procedures; to wit, filing your complaint conditionally and then seeking to proceed as a Jane Doe. By contrast, if you simply file anonymously, the defendant is free to call a press conference and reveal your real names. Not only isn't that illegal doxing, but it's protected by the anti-SLAPP statute, so if you sue the lawyers who revealed your names, you'll have to pay their legal fees.
So be sure to do it correctly. It's a big deal.
Multimillionaire neighbors in Los Gatos using California environmental statutes to delay their neighbor from building a home on a vacant lot next to theirs.
It doesn't work in the trial court, but succeeds in the Court of Appeal today.
It's not going to stop the project. But it will make it more expensive. CEQA review ain't cheap.
Plaintiff files a retaliation suit against his employer, DoorDash, but deliberately refrains from making a sexual harassment claim, hoping that the trial court will refuse to compel arbitration on the merits, without applying the California harassment exception. Sadly (for him), the court issues a tentative disagreeing with his position and compelling arbitration. So at the hearing, plaintiff asks (for the first time) to amend and add a harassment claim. Has the plaintiff waived, or forfeited, arbitration by not raising the issue in his original complaint and in his opposition to the motion to compel arbitration?
Justice Scherb authors the majority opinion and says "Yes." Justice Wiley dissents, arguing that while he would be fine with sanctioning plaintiff's lawyer for the manipulation, there's no waiver. (Truthfully, this is more "forfeiture" than "waiver" -- the two concepts are often conflated.)
Two competing views of a strategy that, in all honesty, I don't think anyone should replicate regardless.
If you kill a police officer -- even one, as here, who's off-duty -- you can rest assured that the authorities will do everything in their power to make sure that you never see the light of day. That's true even if, as here, you are only the lookout, and someone else kills the person. That's also true even if, as here, the off-duty officer is a lower-level employee primarily doing administrative work.
Sentenced to 29 years to life. Not the actual shooter, but petition for resentencing denied. Affirmed.
Bad cases make bad law.
The Court of Appeal holds today that even if the insurance company doesn't ask, you're required sua sponte to tell them anything that might potentially influence their decision regarding whether or not to issue a policy. On that basis, it reverses the jury award in favor of the policyholder below.
Look, I know that everyone hates Michael Avenatti. For good reason. But the insurance company here didn't ask any questions at all about where the money came from to buy the airplane it insured. (Turns out, he embezzled those funds.) Moreover, the policyholder here isn't even Avenatti; it's a different, innocent person that ends up owning the plane, and hence losing $3 million-plus when the insurance company rescinds the policy based on the failure to volunteer information that the insurance company didn't even bother to request.
This just seems like a terrible decision for pretty much every insurance coverage case other than this one. There are legions of facts that might potentially influence an insurance company's decision. I understand that the insurance code requires me to be honest, with full disclosure. But that only applies to things that the insurance company asks. If my health insurance company doesn't feel like asking about my medical history, I don't have to tell them. If my life insurance company doesn't ask about whether I'm occasionally depressed, I don't have to tell them. If my auto insurance company doesn't ask about whether I sometimes exceed the speed limit on the highway, I don't have to tell them.
Until today.