People v. Weddington (Cal. Ct. App. - April 13, 2016)

This is why you should lock your doors every time you leave your home.  Every time.

"Sometime after Fernandez had left, Barba noticed a red car parked across the street. The car pulled away, but returned five or ten minutes later. Barba saw the driver, whom she later identified as Bashir, get out of the car and approach Barba’s front door. When Bashir reached the front door she pounded on it loudly for about 30 seconds. Barba became frightened. She gathered her children and went to the master bedroom as the pounding continued. When the pounding stopped, Barba saw Bashir return to the red car, where two male passengers were waiting. The car then drove away.

About 11:00 a.m. that day, as Los Angeles Police Officer John Parker was on patrol near Havenhurst Avenue in Granada Hills, he noticed a red Chrysler Sebring driven by a woman with two male passengers who were slouching down in their seats. Officer Parker followed the vehicle and next saw it stopped in the alley behind Barba’s house. Weddington got out of the car, and as he walked toward the trunk of the Sebring, he looked in Officer Parker’s direction and immediately got back into the car. The Sebring then accelerated quickly away. Officer Parker followed the Sebring as it sped out of the alley—going 30 to 35 miles per hour in a 15-mile per hour zone—and turned right without stopping at the end of the alley or signaling for the turn. Officer Parker tried to get behind the Sebring to conduct a traffic stop, but the Sebring sped onto the 118 Freeway with Officer Parker still in pursuit. Officer Parker accelerated, followed the Sebring onto the freeway, and turned on the patrol vehicle’s lights and siren. The Sebring exited the freeway and came to a stop.

Officer Parker requested backup units and conducted a traffic stop. Weddington and Nunnery were passengers in the car driven by Bashir, who was driving on a suspended license. The Sebring was impounded and searched. The destination on the GPS on Weddington’s cell phone was an address located in the southern part of Los Angeles. In the search, police recovered a crowbar, a window punch, two flathead screwdrivers, one with a bent tip, a Phillips-head screwdriver, a tire repair tool, a pair of two-way radios, one black glove, two empty backpacks, and a pair of white gloves. Another pair of black gloves was recovered from Nunnery’s pocket. Los Angeles Police Officer Benjamin Sadeh described how these items could be used in a burglary and opined that most of these items were common burglary tools.

Midmorning on September 26, 2011, a multi-unit team of the Los Angeles Police Department conducted undercover surveillance of the red Chrysler Sebring starting in the southern part of Los Angeles and continuing north along the 405 Freeway into the San Fernando Valley. Officers in a helicopter tracked the Sebring using a powerful magnifying camera, which enabled them to see people on the ground from an altitude of 6,500 to 8,000 feet. The officers in the helicopter were in contact with numerous officers on the ground in unmarked vehicles who were using the information provided by the airship to follow the Sebring and relay street names and house numbers back to the helicopter.

The helicopter tracked the Sebring as it exited the freeway in Northridge and slowly drove through side streets, occasionally stopping in front of homes. Eventually, the Sebring stopped in front of a house on the 9000 block of Gothic Avenue. After about five minutes, the female driver exited the vehicle, walked to the front door of the house, and knocked on the door for one to two minutes. No one opened the door. The woman returned to the Sebring and drove away.

The Sebring stopped in front of the home of Julianne McCloskey on the 9000 block of Gerald Avenue. Once again, the driver got out of the car, walked up to the front door of the house, knocked, and stood there for about a minute and a half. No one came to the door. The driver then peeked over the side gate of the house before returning to the car. After a few minutes the Sebring pulled away.

The Sebring then parked across the street from a home on the 16000 block of Tupper Street. Again, the driver exited the vehicle and knocked on the front door of the house for about a minute. No one came to the door. The driver looked over the gate on the side of the house before returning to the Sebring. After about five minutes the Sebring drove away.

Police next observed the Sebring stop in front of the home of Kin Fong on the 16000 block of Labrador Street. Fong was not home. The female driver got out of the car and walked up the driveway to the front door of the house. After knocking on the door for a minute or two and receiving no response, she walked to the side gate and looked into the backyard. As she had done after knocking on the doors of the previous homes, the woman went back to the Sebring and sat in the driver’s seat. This time, however, the Sebring did not pull away. After about five minutes, a thin male emerged from the backseat of the Sebring and went through the gate to the backyard. A heavier male then got out of the front passenger seat of the Sebring and joined the thinner man in the backyard. The men opened a window through which they entered the house. After about 10 to 15 minutes, both men exited through the front door carrying small bags and pillowcases which appeared to be weighted down.

A marked police car followed the Sebring when it left the Fong residence. As police attempted to conduct a traffic stop, the Sebring began to pull over to the right and slow down, but suddenly accelerated and sped away. During the ensuing police chase, the Sebring ran several red lights in heavy traffic, and money, coins, jewelry, clothing, and video game cartridges were thrown from all four of the Sebring’s windows. Some of the coins hit the windshield of the closest police car.

The Sebring eventually crashed, and the three occupants of the vehicle ran in different directions. Police took up the chase on foot, and Bashir, Weddington, and Nunnery were apprehended and taken into custody. As Nunnery was being apprehended, he spun around and elbowed the arresting officer in the face, breaking his nose.

In a bifurcated bench trial, the prosecution presented evidence in support of the gang enhancement allegations that Weddington, Nunnery, and Bashir were all members of the Clover subset of the “Seven Trey Gangster Hustler Crip” criminal street gang (STGH), an offshoot of the original Crips gang. They all had numerous STGH tattoos. The prosecution gang expert testified that gang tattoos were earned by “putting in work” for the gang, that is, committing crimes for the gang’s benefit. . . .

According to the prosecution gang expert, the burglary and attempted burglaries represented a signature crime of STGH, known as “floccin’,” in which Crip gang members leave their territory in the southern part of Los Angeles to commit daytime burglaries of residences in the San Fernando Valley suburbs. The term “floccin’” is derived from so-called “knock-knock burglaries,” in which one of the perpetrators knocks on the door of a target residence to determine if anyone is home. The gang expert described a YouTube video he had seen by a STGH gang member known as “Cowboy” which depicted floccin’ as a residential daytime burglary in which jewelry and other small items are taken and the perpetrators flee in a getaway car."

To me, this was outstanding police work.  I wouldn't have thought the LAPD would have engaged in such expansive surveillance just to stop a string of residential burglaries.  But I'm glad it did.

On the law side, I also agree with the Court of Appeal that there were multiple attempted burglaries in this case, including those involving the homes that didn't end up getting broken into.  Justice Rothschild dissents, and says that for the houses the gang passed up on, their actions were only equivocal and "they rejected each house, not because something interfered with the execution of a burglary, but because, after considering each of the houses, they themselves decided to look for another target."  I understand that position.  But disagree.  In my view, they planned on busting into every one of the houses they cased, but in each of the non-burgled houses, there was something that interfered with the execution.  Something didn't look right.  Maybe there was a dog.  Maybe they heard sounds.  Maybe they saw a neighbor.  Whatever.  In each of these cases, I'm not sure what it was that persuaded the robbers to ditch that house and go to a different one.  But I'm confident that it was something.  'Cause they planned on breaking in, and only that something -- whatever it was -- caused them to ditch that burglary for another.

These people were ready.  Their intent to burgle wasn't equivocal.  Every single one of those homes would have been entered if things had looked as the burglars hoped and initially thought.

That's an attempt.  Every single time.

Tribble v. Edison Int'l (9th Cir. - April 13, 2016)

Plaintiffs say that their employer violated ERISA by imprudently investing in and retaining certain mutual funds in their retirement plan.  The district court dismissed most of these claims as beyond the relevant statute of limitations, the plaintiffs appealed, and in 2013, the Ninth Circuit affirmed.

But in 2015, the Supreme Court reversed.  The Court unanimously held that the Ninth Circuit erred by failing to recognize that an ERISA trustee has a continuing duty to monitor trust investments and remove imprudent one.  So back to the Ninth Circuit the case goes.

So things are looking good for the plaintiffs, having secured a unanimous victory in the Supreme Court.

Not so fast.

Today, on remand, the Ninth Circuit holds that the plaintiffs waived this "continuing duty" theory by failing to previously raise it.  So case dismissed.  Again.

The Ninth Circuit's decision seems overly parsimonious to me.

Plaintiffs first say that they raised a "continuing violation" theory below, which should be good enough to preserve the issue. The Ninth Circuit disagrees.  But in my view, if these two theories are not the same thing, they're certainly darn close.  Waiver is a matter of discretion.  Having won in the Supreme Court on the exact same theory they're now asserting, it seems a little harsh to me to parse out the briefs below incredibly carefully to try to find a meritorious assertion waived.

Plaintiffs also say that if they didn't raise this theory, that's because the law was against them, and they're under no obligation to raise below arguments that are legally barred.  Judge O'Scannlain's opinion responds that this "change of law" exception to waiver doesn't apply because there was no change in the law.  But that's a tough thing to say since the Ninth Circuit's opinion expressly says that the law was X in 2013, and then the Supreme Court unanimously says in 2015 that the law is not X, and is instead Y.

Plaintiffs have a wide variety of other waiver arguments as well.  But my basic point is this.  The lower courts didn't rely on any waiver argument.  They reached the merits.  The resulting legal issue was then squarely presented to the Supreme Court, which resolved the merits.  I understand that we generally want people to have presented arguments below in order to get the informed judgment of the lower courts.  But here, the Supreme Court was just fine to resolve the issue without any such prior adjudications.  In such circumstances, it doesn't make sense to me to find waiver.  If the Court doesn't need prior assertions of the argument -- and it didn't -- neither should we.  Especially when we're dealing with what we should do after the Court has already decided the issue.  We now know what the law is.  We should apply it.  It serves utterly no purpose to find waiver.  Or at least no real purpose other than finding a way to hose a party that got us reversed, and to find a way to dismiss what we now know may well be a meritorious claim.

Those don't seem like sufficient reasons to me to find waiver.

I understand that the Supreme Court said in the last paragraph of its opinion that it was up to the lower courts to resolve the waiver issue.  But I'd decide that issue with a finding of nonwaiver.

So here's my purported rule.  The Court of Appeal shouldn't retroactively apply the discretionary doctrine of waiver when the Supreme Court has already addressed the substantive issue on the merits.   If the Supreme Court didn't need the lower courts to chime in, neither do we.

Especially at this point,

Karpinski v. Smitty's Bar, Inc. (Cal. Ct. App. - April 12, 2016)

I wanted to write about this opinion from the Court of Appeal, if only because it involved Smitty's Bar.  Which sounds like a fake, made-for-television name, but apparently it's a real place.  Awesome.

The opinion also teaches an important lesson.  The Court of Appeal holds that you can't refuse to pay an agreed-upon settlement amount just because -- or even if -- you're worried that the plaintiff may decide not to pay his lienholders.  And you also can't permissibly "solve" this "problem" by making the settlement check payable jointly to the plaintiff and the lienholders.

Or at least you can't do so without a much more specific settlement agreement than the typical one at issue here.  You've instead going to have to work a lot harder to make payment of the liens an express condition precedent to your payment of the settlement funds.

This holding may well result in lienholders not getting their money.  But that's their problem, not yours.  (Or at least not primarily yours, since there's typically an indemnification provision in these types of agreements.  Or, as here, four of 'em.  If that's not good enough for you, you're going to have to work harder on drafting the terms of the settlement before you can make the check out to everyone.)

U.S. v. Parnell (9th Cir. - April 12, 2016)

One of the frustrating things about traditional law review articles in the modern era is that they're incredibly, incrediby long.  They're comprehensive, to be sure.  But unless you've got a couple of hours to spend learning every minute detail of a particular area of law, you're largely relegated to reading the abstract and moving on.

By contrast, Judge Watford displays an uncanny ability today to cut quickly to the chase.  Here's his concurrence.  In full.  It's perfect for a bar review class or pretty much anything else.  It tell you what you need to know and no more:

"I join the court’s opinion in full, although I confess I was initially inclined to affirm the sentence. The notion that robbery is not a 'violent felony,' as that term is defined in the Armed Career Criminal Act (ACCA), strikes me as counterintuitive to say the least. Holding that armed robbery doesn’t qualify as a violent felony seems even more absurd. But, as the court’s opinion persuasively explains, that conclusion is compelled by two oddities of Massachusetts law.

The first is that Massachusetts has abandoned the traditional common-law definition of robbery. To distinguish robbery from larceny, the common law required more than just stealing property from the person of another. To commit robbery, the defendant also had to use violence or intimidation to coerce the victim into parting with his property. [Cite] In Massachusetts, however, a defendant may be convicted of robbery without using violence or intimidation of any sort. [Cite] It’s enough, for example, if the defendant sneaks up behind the victim and snatches a purse from her hand without so much as touching the victim or doing anything to put her in fear beforehand. [Cite]

The second oddity is this: In Massachusetts, armed robbery consists of robbery (as defined above) while in possession of a dangerous weapon. The weapon need not play any role in the offense, as is often required in other States, and the victim need not even be aware of the weapon’s existence. [Cites]. Thus, the same purse-snatcher described above is guilty of armed robbery under Massachusetts law so long as he has a gun concealed on his person—even if the victim never learns of the gun’s presence, and even if the gun plays no role in facilitating the crime. So again, strange as it may seem, in Massachusetts a defendant can be found guilty of armed robbery without using or threatening to use any violence whatsoever.

The conduct encompassed by Massachusetts’ armed robbery statute surely falls within the scope of the ACCA’s so-called residual clause, [Cite] But that clause is no longer valid. [Cite] To qualify now as a violent felony, armed robbery must have as an element the use, attempted use, or threatened use of violent physical force. [Cite] That is not the case under Massachusetts law, so Parnell’s prior armed robbery conviction cannot serve as the basis for an enhanced sentence under the ACCA."

Beautiful.  Simply beautiful.

ALDF v. FDA (9th Cir. - April 11, 2016)

When every member of the panel thinks the case should go en banc, and says so -- as happens this morning -- my guess is that that's eventually going to happen.

Not a certainty.  But the smart money's probably on that side of the bet.

Jones v. Superior Court (Cal. Ct. App. - April 8, 2016)

Here's a neat little case that might be of particular interest to readers in more rural areas.  Even for those readers who live and practice in The Big City, it also raises a statutory interpretation issue in a context that I've never before considered.

The basic scoop is this:  CCP 170.6 describes when and how a litigant may exercise a peremptory challenge against a judge.  The usual rule -- the one with which we're most familiar -- says that you've got 10 days to paper the judge, and the clock runs from the point in which the litigant receives actual notice that the case is assigned to that judge for all purposes.  So once you get actual notice of the assignment, the clock starts ticking.

But there's an exception to that rule in 170.6(a)(2).  If you're in a county that only has one authorized judge, your clock (which now becomes a 30-day clock) starts ticking once you appear, rather than when you get a notice of assignment for all purposes.

When you think about it, that makes sense.  You know you're in, say, the Merced County Superior Court, and we know you know that because you've appeared there.  Merced only has one authorized judge.  Ergo, you definitely know the identity of your judge, and your time to challenge her accordingly starts then.  There's no need for a notice of assignment for all purposes to start the clock.

But here's the thing.  There used to be several counties with only one authorized judge.  But now there aren't any.

So is 170.6(a)(2) irrelevant?

Not according to the trial court here.  Because while there aren't currently any entire counties with only one judge, there are still plenty of branches that only have one assigned judge.  For example, here, the Nevada County Superior Court has more than one authorized judge, but the Truckee branch of that court only has one assigned judge.  So according to the trial court, the "one-judge" rule of 170.6 applies.  You know that you were assigned to the Truckee branch (since you appeared here), you know that branch only has one assigned judge, ergo your clock started ticking upon your appearance before that judge, not upon the later date when you received formal actual notice that the case was assigned to that judge for all purposes.  The People of the State of California agree, and support the trial court's view of the statute on appeal.

But the Court of Appeal disagrees.  The statute talks about courts, not branches.  It talks about authorized judges, not assigned judges.  So it only applies to counties with one judges, not branches.  Statute's clear.

I agree that's what the statute says, and that the Court of Appeal gets it right.

And I say that notwithstanding one of the creative -- but ultimately wrong -- arguments advanced by the California Attorney General.  She says that paragraph (a)(2) would be impermissible "surplusage" if the statute were interpreted the way the Court of Appeal does since there are no longer any one-judge counties.  Which is right, at least in part.  At this point, 170.6(a)(2) is indeed meaningless.

But that doesn't mean it's impermissible.  It's not the interpretation that made the statute meaningless.  That result arose instead from the changes in the outside world.  And that's just fine.

Here's my analogy.  Imagine a statute, passed by Congress in May of 1964 (over the President's veto, no doubt), that says:  "It shall be a felony for President Lyndon Baines Johnson to lift a dog up by its ears."  The statute is never repealed, and stays on the books.  Fast forward to 2016, and -- in a stunning development -- a contested Republican convention nominates a little-known 45-year old California resident named (you guessed it) Lyndon Baines Johnson as its nominee, and Mr. Johnson is elected a the general election.  Right after his inauguration, in his first official act, now-President Johnson lifts up a passing dog by his ears.

President Johnson is promptly prosecuted, and his defense is that the statute only applies (and was only meant to apply) to the President Lyndon Baines Johnson, not any President Lyndon Baines Johnson. The prosecutor responds, correctly, that since "the" President Johnson is dead, that would make the statute surplusage.

That's true.  But it's totally fine.  New President Johnson wins.  Sometimes statutes are made meaningless by intervening events.  Like here.  We need not interpret statutes to avoid such a result.

Still, a neat little argument.  Even if it's wrong.

O'Brien v. Welty (9th Cir. - April 7, 2016)

Judge Fletcher says something in today's opinion that both matters to me personally as well as, in my view, is spot on.  He says (in a case that squarely raises the issue):

"Professors at work in their personal offices do not generally expect to be confronted without warning by a student asking hostile questions and videotaping. If the uninvited student refuses to cease hostile questioning and refuses to leave a professor’s personal office after being requested to do so, as O’Brien admits occurred here, the professor may reasonably become concerned for his or her safety. O’Brien’s behavior as described in the FAC could be considered 'harassment' or 'intimidation' and threatening under an objective reasonableness standard. It was thus permissible for Fresno State to impose discipline on O’Brien for this conduct under its reasonable and viewpoint-neutral regulation."

Yes.  Definitely.  If you come to my office and start with hostile questions and videotape, and don't leave my office when I ask you to, that's harassing.  (Indeed, regardless of what you say, your conduct is designed to be harassing, not that your subjective motivation is determinative.)

You can't do that to an ex-significant other.  You can't do it to me either.  It constitutes harassment.  (And Judge Fletcher, a former law professor, has pretty good personal knowledge of what is and is not reasonably expected in such a professional setting.  The conduct here crossed the line.)

So Judge Fletcher holds that the discipline imposed on this student was potentially proper, pursuant to a valid regulation.

But he also holds that the student -- a prominent conservative on campus -- had made out at least a "plausible" (at the pleading stage) claim for retaliation.  So reverses the district court's dismissal of his lawsuit on that ground.

I get it.  Judge Fletcher identifies a lot of facts that suggest that plaintiff was not a popular figure on campus, and, taken one way, one might perhaps view those facts as indicating that the reason that the plaintiff might have been charged with harassment was because of his political views.  Judge Fletcher makes a pretty decent case in this regard.

But I want to add one thing to what Judge Fletcher says.  And it somewhat cuts back, I think, on his conclusion, as well as being definitely worth mention.

I'm sure that the faculty members at issue here didn't like the plaintiff, in part -- perhaps in large part -- because of his political views.  The guy was clearly an aggressive, in your face dude in all aspects of the underlying political scrum on campus, and that surely rubbed some people the wrong way.

But the fact that the faculty members didn't like the guy doesn't necessarily mean that they engaged in retaliation because of these particular political views.  In my view, there's some extremely meaningful overlap in cases like this between the political views -- or the strength with which they're held and/or displayed -- and the entirely legitimate reasons why the conduct of a particular person may cross the line and lead to a person reasonably feeling threatened.

Let me get at this point with an easy example.  If an average, run-of-the mill student of mine comes into my office and starts aggressively questioning me, and turning on a camera, and won't leave, it's definitely a pain in the butt.  I'm not going to like it.  I'm going to think the guy's way overboard.  In pretty much every single case.

But if it's just an average guy, it's quite possible that I won't feel threatened by this particular event.  I won't think it's necessarily a big deal, or -- even if it is -- maybe not a big enough deal to refer the guy to be disciplined.  I might think that I've just gotten the student abnormally worked up, and that he'll eventually calm down, and that I can defuse the situation.

But if the guy is instead a guy with incredibly strongly held political beliefs (on either side, I might add), and if it's a guy who's known throughout the campus someone who seems to feel these beliefs so deeply that he regularly "goes off the deep end" -- i.e., behaves aggressively and/or outside of the normal constraints that usually bind people in these types of disputes -- I gotta tell you, I'm going to have a lot more fear when that guy's in my office.  I'm going to likely figure that the normal, one-off student with no history of deeply-felt aggression is going to mellow out.  But for the other guy I may well have a lot greater fear that this thing may end up with him pulling out a gun and killing me.  Not "because" of his political beliefs.  But because of the strength of them, how he elects to display them (outside of social norms), and how they appear to historically dominate his conduct.  That's the guy I'm worried about.  That's the guy who's conduct is more likely to constitute harassment, in my book, as well the the guy I'm more likely to (legitimately) refer for discipline.

That's not, in my view, retaliation.  I'm not doing it because of his political beliefs.  I'm doing it because I'm scared.  Just like you -- or any other observer -- would be in similar circumstances.

To me, the availability of that alternative explanation cuts back somewhat on the plausibility of the evidence that might otherwise be viewed as proof that this guy was selected for discipline because he was right-of-center.  Yeah, he was right of center, and yeah, people (including the defendants) did not like that.  But he was disciplined because -- in colloquial terms -- he was a nut; moreover, a nut who engaged in conduct that constituted harassment and that someone could reasonably fear.

Now, I concede, there may be a fine line between illegitimate retaliation based on the political beliefs of a student and legitimate responses based in part in the way those beliefs have been expressed (that may in turn legitimately engender fear when the student, as here, crosses the line into harassment).  I nonetheless still think it's a meaningful one.  So I'd have mentioned it in the opinion.  If only because it may well be relevant at the summary judgment stage, and also because this legitimate explanation for the evidence identified by plaintiff may also be relevant at the "plausibility" (pleading) stage as well.

I'll shorthand all of this with the following:

Don't come into my office unannounced, start verbally attacking me with a videotape, and refuse to leave when I ask.  And especially don't do so if you're a nutjob (and especially if I know you're a nutjob).

Because that's definitely not okay.

In Re Jorge G. (Cal. Ct. App. - April 6, 2016)

This is a really good opinion by Justice O'Leary.

Spot on.

Hawkins v. SunTrust Bank (Cal. Ct. App. - April 6, 2016)

Wait.  Hold on.  This opinion is obviously wrong.  Isn't it?

I say that with trepidation.  Because when I read the first paragraph, I said to myself:  "Right on!"

Here's how Justice Yegan starts the opinion:

"Rather than giving full faith and credit to a South Carolina foreclosure judgment, appellant contends that we should give it no faith and no credit. This would require riding roughshod over Article IV, §1 of the United States Constitution, section 1913, subdivision (a) of the California Code of Civil Procedure, and time honored principles of res judicata and collateral estoppel.  There is no principled reason to do so."

Hear, hear.

The facts also seem totally straightforward.  SunTrust sues Flordeliza Hawkins in South Carolina in 2010 to foreclose upon her house, Ms. Hawkins defaults, the house gets sold, story over.  But fast forward to 2014, and Ms. Hawkins sues in California for wrongful foreclosure.  The trial court dismisses at the pleading stage on grounds of issue and claim preclusion (res judicata).  The Court of Appeal affirms.

Seems all good, right?

But Ms. Hawkins says she was never, in fact, served with the South Carolina action.  Which means there's no personal jurisdiction.  Which in turn I'm pretty sure means that the South Carolina judgment isn't entitled to full faith and credit.  Some case called Pennoyer or something.  Vague memory from law school.

Justice Yegan has an answer for that, of course.  'Cause I'm quite sure he paid attention that first day of civil procedure.  He says that the South Carolina court determined that there was, in fact, proper service, and hence personal jurisdiction.  It says so right on the South Carolina judgment.

But here's the thing:  That was a default judgment.  Ms. Hawkin's didn't appear.  Yeah, SunTrust filed a proof of service.  But Ms. Hawkins didn't contest it.  Maybe SunTrust was mistaken.  Maybe it lied.

A core requirement for issue preclusion -- which the Court of Appeal applies here -- is that the issue be in fact litigated and resolved.  Default judgments don't count.  Beyond a shadow of a doubt.  (I'll put to one side the fact that Ms. Hawkins eventually files a belated appeal in South Carolina that ultimately gets dismissed on procedural grounds, because that doesn't matter:  we're still talking about giving preclusive effect to a default judgment, which isn't allowed.  Plus the Court of Appeal doesn't even rely on the appeal for it's ruling; it's relying on the default judgment itself.)

Now, the Court of Appeal has an answer.  One that on first glance may make a fair amount of sense.  Justice Yegan says:  "Appellant could have brought a motion to set aside the judgment . . .  . She fails to explain why a motion to vacate the judgment was not filed in South Carolina before moving to California and filing suit here."

Okay, I get the efficiency involved in preferring a motion to vacate in South Carolina over filing a separate action in California.  But here's the thing:  You're not required to do that.  You're allowed to attack a judgment without personal jurisdiction collaterally.  For various policy reasons that I need not identify at length since it's so clearly the actual law.  If there's no personal jurisdiction -- e.g., no proper service -- we might "want" the challenging party to go to the rendering court, but they're not required to do so, since the Full Faith and Credit Clause doesn't apply to judgments without personal jurisdiction.  That whole Pennoyer thing again.  (Plus it would violate the Due Process Clause, as that opinion held, to grant full faith and credit.)

So geeze.

For what it's worth, wholly beyond the relevant law, there are good reasons why we don't, in fact, give preclusive effect to sister state judgments rendered without personal jurisdiction.  Assume for a moment that SunTrust lied in its affidavit, and Ms. Hawkins was never properly served.  She moved from South Carolina to California.  Her home's already been repossessed.  The underlying foreclosure action is sort of moot at this point, since the home is gone.  If she's right that SunTrust lied, however, that entity should still be liable for wrongful foreclosure.  And since both Ms. Hawkins and SunTrust are in California, it may well make sense to do that litigation here, rather than to first go back to South Carolina to reopen a foreclosure litigation about a house that was long-ago already foreclosed.

It doesn't matter that South Carolina said in the default judgment that it had jurisdiction.  It wasn't actually litigated.  (And what else was the court going to say given that it was undisputed since the other side didn't show up -- which, of course, it wouldn't have if the affidavit was a lie.)  This not only makes sense, but it's also the law:  in the words of the California Supreme Court in Hammell, you can still collaterally attack a sister state judgment consistent with the Full Faith and Credit Clause even if such jurisdictional recitals exist.  Which, again, makes sense.

So I'm pretty strongly convinced that this opinion is just flat out wrong.

Now, look, I get maybe why the Court of Appeal issues its opinion.  It does seem like SunTrust did in fact properly serve the South Carolina lawsuit, since surely the woman knew she was being evicted from her home.  Moreover, I read the plaintiff's opening brief in the Court of Appeal.  Let's just say:  The word "brief" accurately describes this submission.  It doesn't even cite Durfee, the leading Supreme Court case on this issue, or Marshall, the Supreme Court's latest word on the issue, or many of the other United States Supreme Court cases that make crystal clear that the Full Faith and Credit Clause does not apply to default judgments rendered without personal jurisdiction.  (And that also answer Justice Yegan's question as to why a plaintiff isn't required to go back to South Carolina and can instead litigate here.)  My hope is that if the Court of Appeal had been informed of all those cases at the time, and had a chance to look at them, it'd have come out the right way.  (And, maybe, upon hearing of them, might now reconsider, since the appellant did, in fact, make the right arguments, just not nearly as persuasively as she might have.)

Ms. Hawkins may well still lose.  But she shouldn't lose on the pleadings.  There is a disputed issue about whether she was properly served.  That issue gets to be resolved here.  You don't give full faith and credit to a default judgment in a sister state that recites that there's personal jurisdiction there.  If, in fact, there wasn't jurisdiction, there's no preclusion of any type.  End of story.

And a published opinion saying otherwise shouldn't be left standing.

Oklevueha Native American Church v. Lynch (9th Cir. - April 6, 2016)

The Ninth Circuit doesn't think much of the new "church" in Hawaii that really, really likes to smoke marijuana.  But instead of resolving whether the church is bona fide, it simply holds today that there's no valid exemption from federal anti-drug laws under the Religious Freedom Restoration Act because the church's doctrine doesn't "require" its members to smoke marijuana, which the church admits is only a substitute for its preferred theological drug, peyote.  So the Ninth Circuit holds there's no "substantial burden" on the plaintiff's exercise of religion since no one's being "coerced" to act in contravention of their religious beliefs.

I'm not sure that this same analysis would necessarily fly if the federal government decided to, say, ban the Eucharist, which I guess isn't technically mandatory either (except maybe during Easter).  I nonetheless get where the Ninth Circuit's coming from.  The church seems bogus; it didn't seem to cross its i's and t's when it threw together its doctrine, so we'll spank it on narrow grounds instead of doing the hard thing like holding that a particular religion is fake.  I get it.

Just recognize that doesn't solve the problem.  All the next person has to do, following the Ninth Circuit's blueprint, is to start a new religion that mandates an occasional Wake-And-Bake in order to commune with God.  Maybe cut-and-paste the canons of the Catholic Church and do a global find-and-replace changing "Eucharist" to "Pot Brownie".  Then see whether the Ninth Circuit can wheedle around things.

But I guess that's Round Two.

Diocese of San Joaquin v. Gunner (Cal. Ct. App. - April 5, 2016)

Some days, the Ninth Circuit and the California Court of Appeal give me very little to think about.  Or at least very little that might be interesting to others.  Some days the courts don't publish much.  Some days the opinions are about relatively routine things.  Or the court's analysis seems spot on.  Or both.  On such days, I occasionally find myself with not a lot to say.  There's usually something that is of interest, but it's not hard to focus on the particular case, say a bit about it, and move on.

This is not one of those days.

The problem today is that there are several keenly interesting cases.  Really interesting ones.  And the topics they raise are big.  Or at least are really substantial to me.  (Or in my little head.)

Which also means that they deserve a lot of attention.  A lot.

Which is awesome.  Except for one thing:  I have a job.  A "real" job.  (And, yes, I put that in quotes, because I'm admittedly a law professor.)  Which means that I have other things to do.  Including some things that I have to do.

Now, thank the Lord, the reality is that even those days are usually not crushingly burdensome.  This may come as a shock, I know, but it turns out that being a law professor is not as stressful as being, say, an associate or partner in a major law firm.  For that reason, if a neat little case comes along that requires me (and I should probably put "requires" in quotes as well) to devote two hours to thinking about the case and expressing my thoughts, that's something that -- again, blessedly -- I can do.

Except on days like today.

Which miffs me, because I'm sitting here thinking about all these various published opinions that were issued today, and they're fascinating.  They're worth talking about at length.

But while I can multitask and think about 'em while I doing other things, thinking ain't writing.  So I'm left with plenty of ability to ponder but no time -- at least right now -- to express those thoughts.

Which stinks.

Now, I know you may be thinking:  Dude, you just spent ten paragraphs telling me why you have no time to write.  STOP BITCHING AND JUST WRITE.

And you'd be right.  Of course.  The only caveat is that it's a lot easier to write sentences that purely vent than it is to write (what I hope would be) sophisticated legal analysis of a published opinion that was written with lengthy pondering by incredibly sophisticated people who were confirmed by the Senate (plus their incredibly bright clerks).

Particularly when every mistake or legal error that you might make, plus people who disagree with you on the merits, may give rise to substantial umbrage.

So, anyway, in the end, maybe this is just (a) a vent, and (b) a long winded way of saying:  Stay tuned.  I think there are some great cases out there from today.  Which I'll chat about at length when I next have a couple hours.  (The fact that my wife just flew out of town, leaving me with four hungry children and a crop in the field, doesn't help in this regard.  Though it does increase my appreciation for her!)

In the meantime, I can say the following:  If you're ever thinking about dissolving a church, perhaps due to theological differences, just recognize that it's a mess.  Particularly when the property of the church has to be divided between the various factions.

As today's opinion amply demonstrates.

POSTSCRIPT - I had always thought that Kenny Rogers tellingly told the story purely from the perspective of the husband; that you never were told why Lucille left her husband, and that there was perhaps a good (or at least understandable) reason why the wife had left.  Boredom, poverty, perhaps domestic violence, etc.  Classic old-school country music perspective.  But upon actually going back and listening to the song, I discovered -- maybe for the first time, maybe I just forgot (or never paid attention -- the song's actually from the perspective of a guy in a bar who witnesses the underlying exchange between the spouses.  So you actually do get at least a tiny bit of insight into the whole marital dynamic, not just the guy's perspective.  Who'd have thunk?

Kirchmeyer v. Phillips (Cal. Ct. App.- March 28, 2016)

If you're a shrink who's nailing one of your patients, make sure that you keep your paramour happy.

Because it's incredibly hard to prove that you're engaging in misconduct if s/he doesn't help.

U.S. v. Alexander (9th Cir. - April 1, 2016)

Portions of today's opinion may sound like an April Fool's joke, but aren't:

"Almost immediately upon entering the United States, Alexander filed a motion to dismiss his indictment, claiming that the delay between the indictment and his arrest violated his constitutional right to a speedy trial. The district court held a hearing on the issue during which the U.S. and Canadian officials responsible for Alexander’s case testified that the process of extraditing a defendant from Canada can be a frustrating one. . . .

In this case, it took the U.S. prosecutor 9.6 months to submit a draft of the extradition request to OIA. It then took OIA four months to complete its initial review and return the draft to the prosecutor. Four months later, the request was provided to the Canadian authorities. Canada did not approve the request, however, and instead repeatedly returned it to the United States with demands for corrections or additional information. On each occasion, the United States prosecutor revised the request per Canada’s specifications, only to have Canada identify other reasons to return it. This process continued for over three years. According to the testimony at the hearing, this extensive back-and-forth between the United States and Canada was 'very typical.'"

Those darn Canadians.  If they don't shape up, they may find themselves invaded.  Again.

U.S. v. Mallagon-Lopez (9th Cir. - March 31, 2015)

Judge Berzon concurs in today's opinion and says that, although it's not argued here, maybe she'd find a right under the Due Process Clause to be informed of the true reason for your arrest, rather than be told a made-up story by the police about why you were busted.  (Here, after some wiretaps, the police stopped a drug-laden vehicle, but told the driver that he was being stopped for an illegal lane change -- a lie -- because the police did not want to reveal the nature of the ongoing investigation.)

Judge Berzon argues that several states, including California, have adopted precisely such a rule as a matter of good practice.  And California does indeed have such a rule.

But I'll nonetheless mention that this rule contains important exceptions, including one that'd be applicable here.  In California, yes, you have a right to be told why you're being arrested.  But not if the officer has reasonable cause to believe that the arrestee is -- as here -- actually engaged in the commission of an offense.  (Ditto for if he's arrested immediately after committing the offense or after an escape.)

So don't be thinking that, in California, you always necessarily get told why you're being arrested.  In many cases, there's indeed no such state-created right.

People v. Poisson (Cal. Ct. App. - March 30, 2016)

"On March 2, 2014, at about 1:55 a.m., Robert Gerari was standing near his motorcycle outside of Gilly's Bar located at 2306 El Cajon Blvd. Poisson walked by Gerari and said, "nice bike," to which Gerari replied, "thank you."

Well, that's nice.  Good to see that polite behavior still has a place in our society.  Even outside a bar at two in the morning.

"Poisson then struck Gerari on the side of his head and attempted to run away. In response, Gerari chased Poisson, took him to the ground, and began punching him."

So much for the return of civility.

People v. Jones (Cal. Ct. App. - March 30, 2016)

Joan and Gary Marlow live in Yreka, and on the morning of December 4, 2011, discover that their home has been burglarized.  The burglar took the usual stuff:  a camera, a television, mobile phones, Ms. Marlow's purse, Christmas presents (presumably not yet wrapped), and . . . a carton of Virginia Slims cigarettes.

Weird.  But I guess cigarettes are getting expensive.  The new rage:  cigarette theft.

Oh, and when officers search the defendant, Robert Jones, they find in his possession . . . a carton of Virginia Slims cigarettes.

Case closed.  Clearly.

Oh, yeah.  Lots of other stuff from the Marlows was in his possession as well.

That probably helped the jury convict.

San Diego Navy Broadway Coalition v. US DOD (9th Cir. - March 30, 2016)

Judge Pregerson authors the majority opinion and holds that the redevelopment of a fifteen-acre waterfront site in San Diego can go forward because the Department of Defense adequately took a "hard look" at the consequences of a possible terrorist attack on this facility.  Judge Carr, sitting by designation, disagrees, and dissents.

Personally, I'm neither sure who's right, nor -- on a broader level -- the whole point in the first place.

I'm quite confident what the consequences would be of a terrorist attack on this, or any, facility.  It would be bad.  Extremely bad.  People would die, property would be destroyed, citizens would be freaked, traffic would be terrible, etc. etc. etc.   I don't think that actually spelling out in minute detail each one of these various consequences would matter in the slightest.  It'd be bad.  Very bad.  End of story.

It's not like someone's going to support this redevelopment project but then say:  "Oh, wait.  Now I know the specifics of how a terrorist attack might throw up dust.  Forget it.  Now I'm opposed."  Not going to happen.

Still, I get it.  The law says you've got to do X, the parties fight about whether X has been done, and the Ninth Circuit has to resolve the dispute.

But, in the scheme of things, I just don't see how fights like this matter.

People v. Ybarra (Cal. Ct. App. - March 29, 2016)

The California Court of Appeal will teach you a whole new set of terminology if you pay attention.

You may well already know what "gassing" entails.  And, if you don't, today's opinion -- which involves (in part) precisely such an event -- will give you a glimpse.  Fortunately, today, it's just spit.  But as you likely know, gassing can also involve some even less pleasant substances.  But there's one term.

What I didn't know until today, by contrast, is the distinction between a "bomber" and a "hitter".  The latter term I could have probably figured out.  But now I know what the former is as well.

Justice Murray explains:

"Sergeant Villanueva then turned toward the exercise area in the yard and saw three inmates punching and stabbing another inmate. He observed a fourth inmate running away from that area. . . . Officer Castellon pepper-sprayed the assailants to stop the assault. He testified that Amaya and Colon did not have weapons on or near them. Officer Castellon explained that based on his experience with Northern Hispanic gang assaults, he believed Amaya and Colon were 'bombers.' He went on to explain that the 'bombers are the people who direct the incident away from the person who actually did the stabbing and cutting,' allowing the prisoners with weapons, called 'hitters,' to get away while the bombers continue to attack the victim without weapons."

Good to know.  My prison lingo has now marginally expanded.

Brooks v. Yates (9th Cir. - March 28, 2016)

I tend to side with Judge Kozinski on this one.

Not that anyone's expressly disputing what he says.  The opinion is per curiam.  The opinion says that the petitioner gets habeas relief.  The opinion says that the petitioner had been essentially abandoned by his attorney, and names that attorney.

But Judge Kozinski doesn't think that's necessarily enough.

Judge Kozinski has gotten some flack from others in the Ninth Circuit recently for allegedly acting like a "roving commissioner" looking to identify and root out misconduct by lawyers.  And this is yet another case in which there's alleged misconduct that leads to an appeal.

So Judge Kozinski feels like defending his practice.  And this is a perfect example, in his view, of when -- and why -- spelling things out in detail appropriate.

Here's what Judge Kozinski says:

"I join and applaud the majority’s sound disposition. I write separately in fulfillment of our venerable obligation “to the public [to issue] a civil reprehension of advocates, where there appeareth cunning counsel [or] gross neglect.” Francis Bacon, Essays, Civil and Moral in 3 Harvard Classics 7, 139 (Charles W. Eliot ed., 1909). As the principal opinion demonstrates, Brooks’s federal habeas counsel, Gregory H. Mitts, satisfied both of these categories by ignoring Brooks’s communications, missing deadlines and then concealing his dereliction. In doing so, he jeopardized his client’s chance to obtain federal habeas relief. Maj. at 6. Yet Mitts continues to practice law in California with no mark on his record that would apprise prospective clients of the grave risks of hiring him to represent them. . . .

The facts are even worse than one would gather from reading the majority opinion. After Mitts was retained in March 2010, Brooks apparently sent a letter (not in the record) suggesting how the case might be handled. In October, Mitts sent an imperious response admonishing Brooks not to “micromanage” the case from prison. The letter also mentioned offhand that the California Supreme Court had denied Brooks’s pending post-conviction relief petition, but didn’t say when. Nevertheless, Mitts assured Brooks that he was “aware of the time constraints attendant to” filing his federal habeas petition.

That turned out to be untrue. Brooks’s federal habeas deadline expired just days after Mitts wrote to Brooks, but Mitts sat on his thumbs. Over the next year, Mitts systematically ignored a stream of letters that Brooks sent inquiring about the status of his case. In May 2011, Brooks wrote to Mitts pointing out his “lack of regular communication” and asking Mitts to call him at the prison. Brooks wrote again the following month, explaining that Mitts’s silence was “extremely frustrating.” Having heard nothing, Brooks wrote yet again in July. To facilitate a response, Brooks enclosed questions to which Mitts could provide “yes/no” answers and brief explanations. Brooks begged Mitts to “PLEASE ANSWER THESE QUESTIONS AND MAIL THEM . . . WITHIN 2 WEEKS.” Brooks continued to send letters to Mitts approximately once a month over the next four months. In August, he reminded Mitts of his responsibility to “be in contact and communicate with [your] client” and mentioned that he had been waiting “almost a year” for responses to his “11 previous letters.” In October, Brooks sent Mitts an “urgent” letter imploring him to communicate, even if it meant referring him to a paralegal.

In August 2011, ten months after the deadline expired, Mitts finally deigned to file a federal habeas petition, apparently without notifying Brooks. When the district court issued an order to show cause as to why the petition shouldn’t be dismissed as untimely, Mitts didn’t file a response or notify Brooks of the order. Mitts later explained that he did not respond to the show-cause order because he couldn’t contest the court’s untimeliness finding. When the magistrate judge recommended that the petition be dismissed, Mitts didn’t object. The district court thus entered final judgment on a habeas petition that Brooks didn’t even know had been filed on his behalf. Mitts has never explained why he missed the filing deadline by almost a year, or why he did not notify his client immediately of the default and subsequent court orders. . . .

A lawyer who comports himself as Mitts did is not only a hazard to clients, but also a menace to the profession and to the courts. Mitts’s actions consumed countless hours of this court’s and the district court’s time in dealing with his obstinate incompetence. If Mitts was so lackadaisical in Brooks’s case, we can only imagine what problems he’s caused, or is likely to cause, other clients. Potential clients, who will put their lives in Mitts’s hands, as Brooks did, are entitled to know that this lawyer ignores client inquiries, misses jurisdictional deadlines and does not own up to his mistakes."

I think that's a pretty persuasive argument.  Sure, there's a power differential when a member of the judiciary calls out an attorney in a published opinion.  Particularly since the ability of the attorney to draw a similar audience for any refutation of what the judge says is generally pretty low.

But when you're confident that an attorney has a serious problem, Judge Kozinski seems right that the protection of the public may justify calling him out.  If only so others, in the Google era, can perhaps learn of the attorney's prior conduct before they elect to put their lives in his hands.

Judge Kozinski ends his concurrence by saying:  "I am unaware of any disciplinary action currently underway to address what appears to have been misconduct by Mitts. The State Bar of California may not yet be aware of Mitts’s behavior. Perhaps now it will be."  No need for the "Perhaps".  I'm extremely confident the opinion will make the Bar aware this problem.

Extremely.

People v. Florez (Cal. Ct. App. - March 25, 2016)

I'd mention this opinion even if there wasn't a dissent.  If only because the factual settings are somewhat unusual.

It's a three strikes case where the defendant was sentenced to 25 years to life after the police caught him urinating in public.  At which point he dropped a small bag containing 0.19 grams of cocaine.  That got him put in prison forever.

After Proposition 47 passed, Mr. Florez petitions for resentencing.  But the trial court says that he's too dangerous to release.

His commitment offense -- which was in 1999 -- doesn't demonstrate dangerousness at all, obviously.  But in 1976 (!), Mr. Florez did rob two convenience stores.  More significantly, in 1983, he placed a knife at the throat of a 7-11 store employee and demanded money.  And in 1990, there's another knife at a victim's throat, this time when he also beats the victim and takes his car.

But on Mr. Florez's side, that last violent offense was in 1990.  Over a quarter century ago.

Oh, yeah.  And Mr. Florez is now 66 years old.  Having already served 18 years of his three strikes sentence.

That 66-year old (63 at the time he filed his petition) is the person the trial court thought was way too dangerous to be released.

Now, Mr. Florez has been a bit more, shall we say, "active" in prison than most of your inmates of Social Security age.  Or at least he was when he was a bit younger.  He hit another inmate with a broomstick in 2004, engaged in mutual combat with another inmate in 2007, and fought another inmate again in 2009.  Mr. Florez says that these were basically instances of self-defense.  But they are still fighting.  Albeit in prison.

Still, the last fight was in 2009.  On the bad side, he was reasonably aged then -- the last fight was when he was 55.  But on the good side, 66 ain't 55.  Your ability, or willingness, to get violent with someone in your 50s is a lot different at that age than when you're starting to notice different walker models.  Statistics, not surprisingly, back that up.

So there's an interesting debate here about when this now-66 year old who's served 18 years in prison for dropping a bindle of cocaine in the twentieth century is really sufficiently violent that he's a continuing danger to society.

But then there's also Justice Rushing's dissent on a legal point.  Which would merit mention of this case even if it stood alone.

I won't get into the details.  I'll just let you read the first paragraph of that dissent for yourself:

"My esteemed colleagues join a number of courts in refusing to apply Penal Code section 1170.18, subdivision (c) (§ 1170.18(c)), according to its plain meaning. To the best of my knowledge, only one of those decisions is currently citable. (People v. Esparza (2015) 242 Cal.App.4th 726, 734-737; see Cal. Rules of Court, rules 8.1115(a), 8.1105(e)(1).) Although I joined in that decision, I have concluded on further reflection that I erred in doing so, as I believe my colleagues continue to err here. All of these cases should be governed by the fundamental principle that statutes possessing a plain meaning must be given effect in accordance with that meaning. None of the recognized exceptions to this rule is present. Least of all can the language at issue here be credibly said to involve a 'drafting error.' The real rationale for refusing to enforce the statute according to its terms is that the effect of the statute‘s plain meaning was not pointed out in the ballot pamphlet to the voters who adopted it. I have concluded that for a court to disregard plain statutory language on such a ground is obnoxious to the constitutional separation of powers. I have also concluded that, carefully read, the statute contains ample intrinsic evidence that it is intended to accomplish exactly the result my colleagues attribute to a drafting error. In addition, it is apparent that opponents of the measure were aware of this effect and that, while they apparently chose not to refer to it in their argument in the ballot pamphlet, they did urge it in the surrounding public debate as a ground to reject the measure. For those reasons, I would apply the statute as written and would reverse the judgment here so that the trial court can reassess the issues under the legal standard mandated by section 1170.18(c)."

Read the rest if the foregoing whets your appetite.  Interesting stuff.

People v. Soto (Cal. Ct. App. - March 25, 2016)

It's bad enough when you're violating a protective order by following your ex-wife's bus in your car.

It's even worse when you're driving on a suspended license.

Drunk.

Ledezma-Cosino v. Lynch (9th Cir. - March 24, 2016)

Do we still have federal statutes that refer to "habitual drunkards"?

Apparently so.

Anyone so labelled isn't eligible for cancellation or voluntary departure in deportation (removal) proceedings.  Judge Reinhardt authors a majority opinion today holding that this statute violates the Equal Protection Clause.  The way he frames the issue is this:  "[I]s it rational for the government to find that people with chronic alcoholism are morally bad people solely because of their disease? The answer is no."

Judge Clifton dissents.  He thinks the statute is fine.  Plus, he begins his dissent with a point about how the issue was raised, saying:  "The words 'equal protection' did not appear in the opening brief filed on behalf of Petitioner Solomon Ledezma-Cosino. Given that, it is not surprising that they did not appear in the government’s answering brief, either. Ledezma did not file a reply brief. So how did the issue arise? The argument deemed persuasive in the majority opinion is an argument of the majority’s own creation. Ledezma did not make that argument until urged to do so by the majority at oral argument and via a subsequent order for supplemental briefing. Perhaps that pride of authorship helps to explain why the majority finds the argument persuasive, despite its obvious and multiple flaws."

Judge Reinhardt's majority opinion is joined by a district judge sitting by designation.

I don't think you've heard the last word about this case.  Because votes en banc and/or for review by Supreme Court seem likely to me.

Smith v. Obama (9th Cir. - March 22, 2016)

One fairly facile way of making a case moot -- or potentially moot, anyway (hence justifying a remand to the district court) -- is to simply wait it out.  That way you won't have to write an opinion.

So Anna Smith challenges the metadata program of the USA PATRIOT Act in 2013, and an appeal of the district court's decision is filed in 2014.  The oral argument of that appeal transpires later in late 2014.  So in  normal circumstances, you'd expect an opinion sometime in 2015.

But the panel instead waits.  Because the PATRIOT Act was set to expire in June of 2015.  It got replaced by the USA FREEDOM Act, which was slightly different.  Plus there were some intervening decisions of the FISC.

So, come 2016, the Ninth Circuit is ready to dispose of the case.  So today, it dismisses part of the appeal and moot and remands other portions back to the district court for an initial determination of whether the remaining portions are moot as well.

Problem "solved".

People v. Aguilar (Cal. Ct. App. - March 22, 2016)

I'm not going to recite all the facts of this rape conviction, since they're (1) long, and (2) brutal.  Nor will I describe the defendant's purported version of the events.

I'll nonetheless say that if you ever wonder why criminal defense attorneys don't have their clients testify, today's opinion is a good explanation.

Defendant's story was simply not credible.  Full of holes.  Not plausible.  No way a jury was going to believe it.

Plus it let the prosecution get in the defendant's prior gun conviction.

Next time your criminal defense client insists upon testifying, have 'em read this opinion.

U.S. v. Nickle (9th Cir. - March 21, 2016)

The Ninth Circuit not only reverses a conviction today, but reassigns the case to a different judge on remand.

It says it does so in order to preserve the appearance of justice.  And that's undoubtedly true.  In part.

But I think the real reason is because the panel is profoundly distressed that the district court judge -- Judge Haddon (in Montana) -- didn't let the defendant plead guilty, for reasons far afield from what judges may legitimately invoke.

Once you start doing crazy things, the Ninth Circuit starts to be worried that you may be crazy.  And thinks about reassigning the most egregious of your cases to a different judge.

Ebner v. Fresh, Inc. (9th Cir. - March 17, 2016)

The Ninth Circuit and I simply have differing views about the reasonable expectations of consumers.

There's a lip balm called the Sugar Lip Treatment that's basically (as I understand it, anyway) just a high-end sort of Chapstick or Burt's Bees.  The package says it contains 4.3 grams of lip balm or, for the "mini" size, 2.2 grams.  And that's right.

To a degree.

I say "to a degree" because the Sugar Lip Treatment packaging makes sure that the user can only actually use 75% of the product.  There's a "plastic stop device" that stops the other 25% from going over the top of the applicator and hence being applied to the lips.

I agree with Judge Tashima that there's no legal violation for the actual statement that there's 4.3 (or 2.2) grams of actual product.  Because there is, in fact, that amount of product.

But Judge Tashima, and the rest of the panel, also think it's okay not to include a supplemental statement that discloses something like "But you can only actually use 3.2 or 3.3 of those 4.3 grams because we have designed the package to make you throw away a full quarter of the product, unlike some other manufacturers (like Burt's Bees) who let you use the whole thing."  That's because, according to Judge Tashima, every "reasonable consumer" would "understand[] that some product may be left in the tube to anchor the bullet in place" since they're familiar with these sorts of tubes.

That's where the panel and I part ways.

First off, it's simply not true.  Factually.  Or, at a minimum, there's one consumer in the universe who thinks it's not true.  Me.  Because there some plastic stop gaps come over the lip of the dispenser, thus allowing you to apply all the product.  At least if you try hard enough.

I'm admittedly not intimately familiar with lip balm.  But I do use roll-on deodorant, which works on the same principle.  And you can get at all, or virtually all, of the product if the plastic "holder" stops over -- rather than under -- the lip.  That can happen.  That does happen.

So when Judge Tashima says that everyone understands that some product may be left in the tube, I think that statement's only accurate if you put a heavy emphasis on the word "may".  Maybe it could be.  Maybe it wouldn't be.  Maybe all of it will be usable.  We don't uniformly understand that every tube leaves a block of the product deliberately stuck down the tube.

More importantly, even if I -- and everyone else -- knows that there might be some product left in the tube, that doesn't mean necessarily mean it's okay for a quarter of the product to be designed to get stuck down there.  Yeah, truthfully, I know that when I get to the end of a deodorant thingy (I don't know what they're technically called -- that's my dysnomia showing itself), there's often a bit left in the little gap.  And when I have to rub my underarm against the plastic to get the rest out, that hacks me off a bit.

But I'd be super hacked if a quarter of the thing was left.  That is not what I would expect.  And I'd be miffed -- super miffed -- if I bought a product and discovered it was packaged that way.  Indeed, were I to know that at the outset, I might well not buy it.

That, in my mind, is what a reasonable consumer might expect.  They might expect a tiny bit of some product to be left in the can.  But not a huge amount.

And twenty-five percent sounds huge.

That's the part of Judge Tashima's opinion I don't get.  Nowhere does he address how much -- if any -- is too much.  And there's got to be a line, otherwise I definitely disagree with the opinion.  At least according to the actual words of the opinion, the Ninth Circuit's holding seems to be that a product in a tube wouldn't be deceptive even if 99.999% of the product was stuck beneath the tip, unusable.  It seems like the Ninth Circuit would simply say, as it does here, that  "the consumer’s knowledge that some additional product lies below the tube’s opening is sufficient to dispel any deception; at that point, it is up to the consumer to decide whether it is worth the effort to extract any remaining product with a finger or a small tool."

Yeah, because that's what a reasonable consumer would be fine with.  Ninety nine percent of the product underneath the tube's just fine so long as I can eventually get at it with a toothpick or pocket knife and slab it on my face.  That's definitely what I'm paying for.

If this had been a case on summary judgment, and there were uniform consumer surveys that said that everyone's cool with having a full 25% of the product below the line, I'd be okay with the result.  I'd be surprised, admittedly.  But were that the state of the evidence, well, it is what it is.  Maybe at the high end of the lip balm industry people are fine with 25%, or 50%, or 99% (or whatever) wasting away in the tube.  Not me, mind you.  I'm likely hacked off once the number starts hitting the double digits.  And I'd call myself a reasonable -- indeed, informed -- consumer.  But I admit I'm not the kind of guy who pumps his lips full of lip balm, and if all of those people are happy with 99% wasted, so be it.  Summary judgment.

But this is a 12(b)(6) motion.  The Ninth Circuit decides, as a matter of law, that no reasonable consumer could possibly care or be deceived about a product that says it contains 4.4 grams of product but in fact is deliberately designed so you can only get at 75% of it.

I'll have to respectfully disagree with that.  'Cause I think I'd be precisely such a consumer.  And can readily conceive that there might be at least one of me who might buy this particular product.

Hence the need for actual evidence.

At some point, I could get on Judge Tashima's bandwagon.  At 1% loss, I'd be on board for saying that no reasonable consumer would be deceived.  Ditto for 5%.

And I can't tell you exactly where I'd end.  Might change from product to product.

But I can tell you that at 25%, we're way past the line.  At least for me to dismiss a lawsuit as a matter of law.

It's a pernicious opinion.  Consumers should be informed.  Manufacturers shouldn't have an incentive to employ designs that force you to buy more than you intend.  God forbid that Pringles start getting packaged in a Chapstick-like tube where you've got to dig out a quarter of the Pringles with a fork.

So I don't like this one.  It seems wrong to me to decide this as a matter of law.

It's an opinion that makes the marketplace less informed, not more.  Less efficient, even.

That's bad.

People v. Appleton (Cal. Ct. App. - March 15, 2016)

You get used to seeing a certain pattern in these types of cases.  Today's opinion breaks the pattern in a couple of different ways:

"At the time of the offense, defendant was a 43-year-old computer technology worker in Mountain View. In July 2013, John Doe contacted the police and made the following statement. In early 2013, he met defendant through Grindr. Doe was 16 years old at the time. For several months, defendant and Doe maintained a consensual relationship that involved kissing, handholding, and sleeping together, but no further sexual conduct. In July 2013, Doe stayed at defendant’s residence for several days. Around midnight on July 12, defendant and Doe were sleeping in defendant’s bed when two male friends of defendant entered the bedroom. The three men forced Doe to orally copulate them over a period of about 15 to 20 minutes. Doe left the residence at around 1:00 a.m. and called the police later that night. He told another witness one of the men had forcibly sodomized him.

Doe declined a SART exam. After he expressed suicidal thoughts, he was taken into custody under Welfare and Institutions Code section 5150.

Police interviewed Doe several days later. He made the following statement, which differed in some respects from his initial statement. He had met defendant on Grindr one year earlier, but they did not start dating until February 2013. At that time, defendant bought Doe an iPhone and performed oral sex on him. Defendant performed oral sex on Doe three other times, and the two slept together for a period of several days, but they engaged in no other sexual conduct. Doe reiterated that defendant and two of defendant’s friends forced him to orally copulate them in July 2013 when Doe was sleeping in defendant’s bed. Doe declined to make a pretext call."

The charges, and the disposition, are different than you might initially expect as well.  No charges for rape.  And a favorable deal:

"The prosecution charged defendant by felony complaint with oral copulation with a minor. (Pen. Code, § 288a, subd. (b)(1).) The parties entered a plea agreement whereby defendant pleaded no contest to false imprisonment by means of deceit (Pen. Code, §§ 236, 237, subd. (a)) in exchange for formal probation, credit for time served, and dismissal of the oral copulation count. In accord with the plea agreement, the trial court suspended imposition of sentence and granted a three-year term of probation to include a jail sentence of 236 days."

Presumably no sex offender registration either.

Not your usual case of this type.

People v. Nestdrop LLC (Cal. Ct. App. - March 14, 2016)

Capitalism definitely puts a premium on creativity.  At least when demand for the underlying product is, shall we say, high:

"Pycher, Radnia, and Adam Larson founded Nestdrop in 2013. Initially, the Nestdrop app allowed Los Angeles-area users to order alcohol for local delivery within the hour. In October or November of 2014, Nestdrop’s developers expanded the app to allow deliveries of medical marijuana in parts of the City. To procure marijuana through the app, a user orders from a menu of products. The order is then placed with a medical marijuana business with which Nestdrop has partnered. According to defendants, an employee of the providing medical marijuana business or a “volunteer” then delivers the marijuana to the purchaser."

Capitalism isn't the only creative force.  The Court of Appeal demonstrates its cultural awareness as well:

"Defendants . . . . contend the measure summary and impartial analysis that appeared in the ballot pamphlet materials for Proposition D described the ordinance as authorizing delivery of medical marijuana by vehicles and they maintain that the voters enacting the proposition adopted that construction. This argument is meritless. We do not rest our interpretation of an ordinance on statements in ballot pamphlet materials where the text of the measure is otherwise unambiguous. [Citations]  But more to the point, and paraphrasing Inigo Montoya, we do not think the ballot pamphlet materials mean what defendants think they mean."

Inigo Montoya got his man in the end.  But Los Angeles area residents can't get their weed via delivery.  So holds the Court of Appeal.

Orcilla v. Big Sur, Inc. (Cal. Ct. App. - March 11, 2016)

From the Court of Appeal this morning:

"It is ordered that the opinion filed herein on February 11, 2016, be modified in the following particulars:

On page 6, the second full paragraph, insert the following as a footnote after the last sentence in the paragraph (“The Orcillas timely appealed.”):

While this matter was pending, the parties notified us that the case had been settled and the Orcillas requested dismissal of the appeal. “After the record on appeal is filed, dismissal of the action based on abandonment or stipulation of the parties is discretionary, rather than mandatory.” (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1121, fn. 5; Cal. Rules of Court, rule 8.244.) We concluded that the matter is important and of continuing public interest, warranting our review. (Burch v. George (1994) 7 Cal.4th 246, 253, fn. 4.) Accordingly, we denied the request for dismissal. In deciding the appeal on the merits, we follow established precedent in retaining jurisdiction to resolve the issues presented in the case."

That probably should have been in the original opinion.  But better late than never.

Burton v. Davis (9th Cir. - March 10, 2016)

When Judge Bybee (joined by Judge Rawlinson) writes the majority opinion  in a death penalty habeas case, and grants relief, you should already have a very good sense that he's right.  Even if Judge O'Scannlain dissents.

That's the case here.

It's a pre-AEDPA case.  Judge Bybee expressly notes in a footnote that the result would go the other way under AEDPA.  But since there's a circuit case on point, Burton gets a new trial.

Mind you, Burton's been on death row for thirty-two years.  That's a long time for a case to work its way through the state and federal systems.  Especially for, as here, a first habeas petition.

But it is what it is.

Preserve Poway v. City of Poway (Cal. Ct. App. - March 9, 2016)

I think this case is closer than the Court of Appeal's opinion makes it out to be.

Not that the Court of Appeal necessarily gets it wrong.  Indeed, I have a lot of sympathy for where the Court of Appeal comes out.

But it's a decently close case.

A landowner currently operates a horse stable in the City of Poway, which likes to think of itself as a funky little country town in the middle of a city.  Now, having been to Poway many times, that's not really how I think of the place.  But be that as it may, some residents of Poway have this belief about its character, and the presence of a big horse stable in the City is consistent with that characterization.

But the landowner wants to sell off the stables and build a dozen houses on the property.  Those lots would be a bit bigger than normal, and would allow horses on 'em.  But that would nonetheless make the City look a bit less "country" than it is presently.  So some neighbors sue, claiming that there's a need under CEQA for an environmental impact report.  The trial court agreed.

But the Court of Appeal reverses.  Yeah, Justice Nares says, there may well be an impact on the city if the project goes forward.  But it's only a "psychological and social" one -- the loss of a nice place to board and ride horses -- and those types of impacts are categorically exempt from CEQA.  So there's no need for an EIR.  Reversed.  Justice Nares rejects the proposition that, as he puts it, "because Rogers, a private property owner, obtained a conditional use permit to operate horse stables they have enjoyed using for 20 years, the public has a right under CEQA to prevent Rogers from making some other lawful use of his land."

There's a lot to be said for the validity of the Court of Appeal's holding.

But there's a fair piece to be said on the other side, too.

My own view is that there's an incredibly fuzzy line between "psychological and social" impacts, which are admittedly not cognizable under CEQA, and impacts that are indeed cognizable.  For example, Justice Nares admits that "community character" impacts may require an EIR, and that those may validly include aesthetic impacts.  Well, at issue in this case is whether the City will lose a horse stables, and its associated expansive pastures, and have 'em replaced with twelve homes.  That change definitely affects the "look" of the City.  I could easily see someone thinking that a nice little horse stables with its broad pastures is a ton more attractive than twelve homes plopped on the same piece of property.  If that's the case, then there's a potential need for an EIR under CEQA.

Now, it's true that, here, the alleged "social" impacts of getting rid of the stables are broader than just not having something pretty to look at:  no more ability to board horses, to have your kids learn how to ride, etc.  But that some of the impacts are social doesn't mean that others aren't validly aesthetic.

In the end, really, I think that all of the aesthetic impacts of a development -- which can be considered -- are also "psychological and social" ones that can't.  Something's pretty.  The loss of that thing will potentially make people less happy.  That's a psychological and social impact, to be sure.  But it's still one that can be considered.

Now, I'm somewhat sympathetic with the view that someone can't be compelled to keep a pretty piece of property the same just because it's pretty.  At least when there are other properties in the area that are of the same un-pretty type that the landowner wants to create.  Which is indeed the case here, since there are other single-family homes in the area.

But as for an alleged sharp dividing line between the "psychological and social" impacts here, on the one hand, and "aesthetic" impacts on the other, well, that's less persuasive to me.

I have little doubt that Poway will be a tiny bit less aesthetically pleasing after the horse stables get replaced by single family homes.  So I'm not sure that this impact can be categorically shrugged off as merely a "psychological and social" impact of the project and hence noncognizable under CEQA.

Castillo v. DHL Express USA (Cal. Ct. App. - Jan. 16, 2016)

I tell students in my upper-year class on pretrial practice that California has a longstanding mandatory five-year dismissal rule that compels trial courts (with limited exceptions) to get rid of lawsuits that have been around for that long.  I also tell them, however, that in the modern era, with fast-track rules and modern case management techniques, that this statute is rarely applied, since neither courts nor litigants generally let cases linger for incredibly long periods like they used to in the old days.

But "rarely" doesn't mean "never".  As this opinion demonstrates.

I'm not sure why the plaintiff wasn't more careful.  I'm not sure why the trial court let the case linger for so long.  But both things transpired.  And, as a result, a litigation that may well have had merit -- a wage-and-hour class action against DHL -- gets dismissed.

It doesn't often happen.  But when it does, it's devastating.

Especially when it happens to you.

People v. ZarateCastillo (Cal. Ct. App. - Feb. 17, 2016)

This is why you have to be super careful when you ask questions of a witness in a criminal case:

 "The prosecutor then elicited the following testimony:

Q. And did she tell you if this touching was done under or over her clothing on her top area or both? A. Both.
Q. Did she describe the touching of her top area under her clothing to have happened more than once?
A. Yes.
Q. Did she describe the touching of her top area under her clothing to have happened more than once?
A. Yes.

As the People observe, the last two questions are exactly the same, and the answers to both of those questions establish only that defendant touched the victim’s chest under her clothing more than once. The People concede that '[r]eview of the record does not demonstrate that the prosecutor [ever] asked Detective Price whether [the victim] described the touching of her top over her clothing to have happened more than once.' (Italics added.) It may be that the prosecutor meant one of her questions to cover touching over the victim’s clothing but misspoke, or it may be that the prosecutor did, in fact, ask about the touching over the victim’s clothing but the court reporter did not record the question correctly. Whatever the case, however, it makes no difference for our purposes. On the record before us, there is no evidence that defendant touched the victim’s chest over her clothing more than once. Accordingly, as defendant contends, the evidence is insufficient to support his conviction on count 3, and therefore we must reverse that conviction."

Oops.

Not that it's going to make much of a difference in the present case.  Defendant's still going away for decades on the other counts.

But still.  Gotta be careful.

Shell Offshore v. Greenpeace (9th Cir. - March 4, 2016)

There's one part of today's opinion that confuses me.

The district court enters an injunction that orders Party A to stop doing X, and says that for every hour it continues to do X, it'll be fined $2,500.  Party A eventually stops doing X -- the coercive sanction works -- but allegedly did X for seven hours after the deadline, thereby incurring a fine of $17,500.  But before the district court resolves the disputed issue about the seven hours (and determines the relevant fine), Party A appeals the injunction, and the action is stayed.

So there's no actual determination of the fine yet.  And, because the injunction is time-limited, and there's no continuing violation of it right now, the injunction has now expired.

But the parties continue to dispute whether the injunction was valid and whether Party A actually violated it (and hence should be fined $17,500).  That's the dispute on appeal.

The Ninth Circuit, however, dismisses the appeal of the injunction as moot.  Holding that since Party A has stopped violating the injunction (which has now terminated anyway), there's no live dispute.

But what about the $17,500?

The Ninth Circuit says that the fine doesn't matter now since Party A has stopped its contemptuous conduct; i.e., the threat has worked.  True enough.  But surely it still owes the fine, right?  At least if the injunction was valid, which is what the disputed appeal is about.

The Ninth Circuit appears to say otherwise; that, at this point, Party A doesn't have to pay the fine, since the point of the fine (to coerce compliance) has now passed.  Perhaps that's true as a theoretical matter, but practically, the argument doesn't really work for me.  Contempt fines don't work -- or at least don't work well -- if you can make them moot by filing an appeal and eventually comply with the injunction, thereby avoiding the actual imposition of a fine that's ostensibly now "moot".

I may well be worried, and comply, if you threaten to spank me for $2,500 for every hour I delay.  But if you don't actually impose that sanction, or -- worse -- if the Court of Appeals says that you can't impose that sanction as long as I've eventually complied, I can tell you right now that the extent of my worry, and the rapidity of my compliance, will almost certainly diminish.

I understand that, under the Ninth Circuit's ruling, in some circumstances, I might still worry about an eventual fine; e.g,, if the injunction is unlimited in time, (maybe) if the district court rapidly gets off its butt and determines an amount, etc.  But I imagine there are lots of situations that are exactly like the present case.  And if belated compliance moots out otherwise valid contempt fines, it's eminently conceivable to me that district courts will have a much harder time enforcing their orders.

Which would be a bad thing.  For me, anyway.  (Not so much for Greenpeace.)

People v. Adams (Cal. Ct. App. - March 3, 2016)

From this opinion:

"Defendants were cousins and fellow members of a violent street gang. May 2 was the gang’s 'birthday' or 'gang day.' On May 2, 2011, Diane T. was working as a prostitute. . . . Defendants approached Mr. Odhiambo’s car. Mr. Moreland pointed a black gun at Mr. Odhiambo’s head. Mr. Moreland took Mr. Odhiambo’s car keys and money. Mr. Adams asked Diane for money. He forcibly searched inside her pants and bra. Mr. Adams grabbed Diane and dragged her to the white car. Mr. Adams raped Diane in the backseat. Mr. Adams then moved to the driver’s seat. Over the course of an hour or more, while Mr. Adams drove, Mr. Moreland repeatedly sexually and physically assaulted Diane in the backseat. Mr. Moreland was armed with a gun during the assaults. Mr. Moreland forced Diane several times to orally copulate him. He repeatedly raped her. Mr. Moreland attempted to sodomize her. He repeatedly hit her on the head. . . .

Mr. Moreland ordered Diane out of the car. He punched her in the face breaking her jaw. Mr. Moreland told Diane to get on her knees. He ordered her to orally copulate him. Diane refused. Mr. Moreland pointed the gun at Diane’s forehead and fired twice. But the gun malfunctioned. Diane heard it click. Diane saw Mr. Moreland 'messing with the gun.' He was hitting it against his hand. Diane got up and started to run. Mr. Moreland ran toward the car. She heard him arguing with Mr. Adams. Mr. Adams said, 'Stop, bitch.' Diane stopped behind a truck. Mr. Adams pointed the gun at her. She heard a click. Diane ran to a nearby house and summoned help. Defendants left the scene.

After law enforcement officers arrived at the cul-de-sac, Diane described her assailants. Diane said one suspect was a 25 to 35 year old light skinned male Black, approximately 6 feet tall with a muscular build. The second suspect was a 25 to 30 year old dark skinned Black male, approximately 6 feet tall with a thin build. . . . Diane also worked with a forensic artist, Sandra Enslow, to create sketches of the perpetrators. At trial, Diane testified, '[The sketch artist] drew them perfect.' The jury was able to compare the sketches to defendants’ booking photographs as well as to how they appeared in the courtroom. Upon our own review, it is apparent that the sketches bear a striking resemblance to the defendants."

Let's hear it for the sketch artist.  That can't be an easy job.  Well done here.

Tarango v. McDaniel (9th Cir. - March 3, 2016)

This opinion is all about the I-15 in Las Vegas.

A bunch of off-duty Las Vegas cops are hanging out at a local bar listening to a band of other off-duty Las Vegas cops.  Masked men make the unfortunate election to rob that particular bar on that particular night, entering the bar and announcing that it's a robbery.

You can guess what happens then.  A shoot-out ensues, with several patrons shot, one robber killed, and one police officer wounded.  The other robbers escape.

Six years later, Mr. Tarango goes to trial as one of the robbers. As you might imagine, police interest in the trial is extraordinarily high, and numerous police officers attend.

During jury deliberations, the jury sends a note saying it's deadlocked 11-1 in favor of a conviction.  One of the jurors, Juror No. 2, is the lone holdout.  The judge instructs the jury to continue deliberating.

The next day, when Juror No. 2 gets in his car to drive to the courthouse, and pulls on to I-15, he says he starts to be tailed by a Las Vegas police officer in a marked black-and-white cruiser.  Juror No. 2 says he checked to make sure he wasn't speeding, but the police cruiser kept right on his tail, "close enough I couldn't see his front wheels or bumper."

So Juror No. 2 gets in the far right lane, but the police cruiser stays right behind him.  This goes on for like seven and a half miles, the cruiser right on his tail, not pulling him over, but also staying so close that no one else can get between them.  Juror No. 2 pulls off the freeway, but the cruiser still follows him.  Tight.

Juror No. 2 finally reaches the juror parking lot, and pulls in. Only then does the cruiser let him go.

Juror No. 2 is freaked out.  He says he felt intimidated, and for that reason, later that day, changes his vote and votes to convict.

The Nevada Supreme Court says this isn't a problem.  It says that an officer conspicuously tailing the lone holdout in a police-involved shooting doesn't count as a "communication" so there's no relief.

Everyone on today's Ninth Circuit panel disagrees with that.  Rightly so.

But there's still a split in the panel.  Judge Murguia, joined by Judge Fisher, says that the last reasoned state court decision in this habeas case assumed arguendo that Juror No. 2 was credible, so there needs to be an evidentiary hearing about prejudice and other fact-finding.  Whereas Judge Rawlinson dissents, saying that in her view, the relevant state court didn't think that Juror No. 2 was deliberately followed by the police on the basis of his holdout status.  So she'd just go ahead and deny habeas relief.

The majority finds it troubling that an officer would just-so-happen to tailgate someone who, coincidentally, was the holdout juror in a police-involved shooting trial.  For over seven miles.  Right up to the juror parking lot.  For no reason, and without pulling him over.  Whereas Judge Rawlinson says that everyone knows that the I-5 is the main highway in Las Vegas, and is on the way the police headquarters, so it's not surprising that an officer during rush hour traffic might innocently tailgate a guy for miles.

Different views, to be sure.

U.S. v. Lemus (9th Cir. - March 2, 2016)

You say you want to buy two ounces of methamphetamine.  I say "Okay," but point out that this will be a hassle, since I'm a big-time player, and generally only deal in pounds.

We arrange to meet for the two ounces, but at that meeting, I tell you it's a no-go, since it'll be too big of a hassle for me to rip up my pound packages of methamphetamine just to sell you two ounces, but I reiterate that I'll sell you a pound, and offer to give you a sample.  I also say I have "pictures" of the pound that I'm happy to show you.

You say, smartly, that there'd be no proof that the sample would be representative of the rest of the package, so don't feel like seeing a (meaningless sample).  And as for the "picture" of the pound you want to sell me, come on.  That could be anything.  From anywhere.  And, in any event, I don't want a pound.

So we part ways.

Notice that you've never actually seen any drugs from me.  I've talked a big game, to be sure.  I've said I could get you a pound.  Which means I've said I have at least a pound.  Hell, I might have said I have a ton.  Or fifty tons.  Or a million.  You never saw anything.

Surely I can be convicted of lots of crimes.

But can I be convicted of possession?  Or, in particular, possession with intent to distribute over 50 grams?

The Ninth Circuit says yes to the first question, but no to the second.

Weird.

Maybe that's right.  What do I know?

But as to the former, I mean, it seems eminently plausible to me that the dude has utterly nothing.  I never saw any drugs.  Including but not limited to the drugs we're now saying -- beyond a reasonable doubt -- that they guy purportedly "possessed".  And I have a sneaking suspicion that the guy may not have had any drugs to begin with.  Maybe he was just trying to rip me off.  Which is why he wanted me to agree to buy at least a pound.  Sure, maybe he in fact had a pound.  But do I know that for sure?

The Ninth Circuit says so.  Based solely on the guy's word, essentially.  Since there's no actual drugs anywhere that we can actually find.

But as for whether it's actually 50 grams, the Ninth Circuit says, that'd be total speculation.  Because we don't know for sure the purity of those purported drugs.

I'm not exactly sure why what's true for purity isn't also true for their mere existence.  Or vice-versa.  But the Ninth Circuit says we can be sufficiently sure (beyond a reasonable doubt) of the one but not the other.

Okay.  That's the law, apparently.  At least after today.

But it still seems weird.

There are, I think, some circumstances when I'd be extraordinarily confident that you actually had an item you said you had based merely on your word and the fact that you were trying to sell it to me.

But if I meet a guy in a bar and he says he has a pound of methamphetamine to sell to me, there's surely a chance he's actually got a pound.  But if you think it's beyond a reasonable doubt that he in fact has a pound, rather than is actually just trying to rip you off . . . well, I think you may need to hang around more criminals.

'Cause they ain't exactly the trustworthy type.

People v. Dobson (Cal. Ct. App. - March 1, 2016)

Hmmm.  I didn't think about this.

Prop. 47 was passed to ameliorate the harsh consequences of the three strikes law for nonviolent offenders.  There's been a ton of litigation about that as Prop. 47 works its way through the courts.  Tons.

That presents problems of its own.  But those problems, while tough, are relatively straightforward.

What I didn't think about was how Prop. 47 might -- or might not -- affect a different class of offenders.

The criminally insane.

Let's say you're a guy who was charged with burglary, and you had a prior strike or two.  If you were convicted, and your sentence was enhanced, you're eligible (in lots of circumstances) under Prop. 47 to relief.  You may well get your sentence reduced.

But let's say that, instead of pleading guilty, or losing at trial straight up, you were found not guilty by reason of insanity.  In that case, you don't go to prison.  But you do to go a mental hospital.  For how long?  Well, the trial court says that the amount of time you spend there (absent other proceedings) is how long your sentence would have been if you weren't insane.  So if, for example, your three strikes sentence would have been 25 years, your maximum amount of time in the hospital is also 25 years.

But then, after Prop. 47 passes, the dude who was actually convicted of the crime get Prop. 47 relief, and gets his sentence reduced.  But you -- someone who "beat the rap" and got an NGI verdict -- are not eligible for relief.  You stay in the hospital for your maximum "three strikes" term.

Petitioner here says that's not cool.  But the Court of Appeal disagrees.

Justice Poochigian's opinion seems right on the merits.  There's a rational basis for this differential treatment.  Which, it bears mention, doesn't necessarily mean that the distinction is rational.  Only that it satisfies the rational basis test.  Someone non-nutty might well have wanted to grant relief only to "ordinary" criminals, not criminals found not guilty by reason of insanity.  So petition dismissed.

We might have wanted to put more thought into this when we passed Prop. 47.  Maybe we'd have done the same thing in any event.

But I readily admit this wasn't something I thought about at the time.  Or since.

Until I read this opinion, anyway.

Stuard v. Stuard (Cal. Ct. App. - March 1, 2016)

When the original opinion came out in January, I said that in an appropriate case, I thought it would make sense to think deeply whether taking a child away from admittedly fit parents and granting the child's grandparents twenty percent visitation -- a weekday overnight visit, one overnight weekend a month, and a seven-day vacation each summer -- might violate the parents' rights.

Today, the Court of Appeal amends its opinion to make clear that, in the present case, the appellant "provided no constitutional analysis of the facts upon which he now rests his as-applied challenge -- namely, the financial and practical day-to-day effects of the visitation order so disrupt his and Riley‟s life that the visitation order violates substantive due process."  The Court of Appeal essentially thinks the issue was waived.

Fair enough.

But let's be careful in the future.  If there really are trial courts who are giving out twenty percent visitation orders to grandparents over the objection of the child's fit parents, that's a big deal, IMHO.

Maybe this is a one off.  Maybe it's not.  Time will tell.