People v. Phillips (Cal. Ct. App. - Feb. 28, 2022)

I'm used to seeing 70+ opinions in murder cases -- typically, death penalty cases -- in the California Supreme Court.  It's less common to see them in the Court of Appeal, where (as here) the defendant "merely" receives a life sentence (albeit LWOP).

But Justice Stewart's opinion indeed tops out at 70+ pages here.

Michael Phillips murdered a 75-year old man who was already dying of late-stage lung cancer.  His motive was the classic one:  money.

For the first dozen or so pages of the opinion, Justice Stewart recites the facts of the case in exhaustive detail, but my overall reaction was:  "Seriously?  That's all they've got on the defendant?  This seems like an incredibly shaky case."

But then I read the next ten pages.  At which point I got it.  Yeah, I can totally see why Mr. Phillips was convicted beyond a reasonable doubt.  No eyewitnesses or confession or anything like that; the victim was killed at his home, and his body wasn't discovered for several days.  But the evidence against Mr. Phillips was nonetheless fairly damning.

Deliberately taking the life of another person for money seems a particularly heartless crime.  Sadly, however, that's not a rare motive.

Balistreri v. Balistreri (Cal. Ct. App. - Feb. 24, 2022)

If, perchance, you want to know everything there is to know about how you can modify a trust agreement -- in particular, whether you're required to get the signatures notarized -- this is definitely the opinion for you.

Spoiler alert, though:  Both the majority and the concurrence agree that when the trust instrument says quite clearly that any amendment "shall be . . . acknowledged by a notary public," well, yeah, if you want to get the thing amended, you've got to get those signatures notarized.

Perhaps, especially, when -- as here -- the amendment happens the day before the guy dies.

A fact that's technically irrelevant to the holding but that nonetheless may provide some color as to why the panel (like the trial court) was eminently persuaded that the amendment here was ineffective.

In re Darien R. & S.S. (Cal. Ct. App. - Feb. 24, 2022)

It's a testament to the times in which we live that in both of these published opinions today, (1) a mother is using methamphetamine (sometimes, daily), and (2) we take her kids away, permanently.

In the first case, the mother was horribly addicted to methamphetamine and both she and the father were using it every day.  Three kids.  In the second case, the mother had her parental rights terminated after the police saw her pushing her four-month old baby around in a stroller (1) at midnight, (2) when it was below 50 degrees outside.

Not fantastic parenting.  At all.

You'd hope that cases like this would be incredibly sporadic (or, preferably, non-existent).  Rather than twice in a single day.

And that's only the published ones.

Dow v. Lassen Irrigation Co. (Cal. Ct. App. - Feb. 23, 2022)

Justice Robie's opinion is spot on.  Indeed, I can summarize this 14-page missive in a single paragraph (of my own creation):

"The watermaster appointed by a court pursuant to a judgment doesn't have standing to appeal a decision of a trial court giving water to a particular person; instead, the other landowners (if any) thereby deprived of water are the only ones who might be able to appeal. Even if the trial court's decision seems wrong, or makes the watermaster's job more difficult, that doesn't matter -- the watermaster is getting paid for its work, so more work simply means more money, and that's not harm.  In any event, if the watermaster doesn't like the burden, it can quit.  Because it's not harm, it doesn't have standing, so the watermaster's appeal of the decision below is hereby dismissed."

There you have it.

Or, as we sometimes say on the basketball court, "No blood, no foul."

Grand Canyon Trust v. Provencio (9th Cir. - Feb. 23, 2022)

With the long weekend, there hasn't been much from the Ninth Circuit or California Court of Appeal lately.  But this morning, I read this opinion, which struck me as a fairly good example of "balls and strikes" jurisprudence.

The case involves uranium mining in the Grand Canyon, and whether it should continue.  Now, personally, I'm not exactly thrilled that we're puking out radioactive material alongside one of the natural wonders of the world.  So if you asked me whether it was worth it (as a society to do so), I don't have a definite sense one way or the other (without knowing more), but would lean towards a "Nah, let's leave the place pristine" vote.

But, as a judge, that's not what one does.  You gotta follow the law.  And the law here is admittedly disputed and unclear, but what we gotta do is simply try to figure out what it says the best way we can -- regardless of where it leads.

Legally, the limited question here is whether, under a particular statute, it's okay to ignore sunk costs when deciding whether particular mineral deposits are valuable.  The relevant law withdrew certain public lands from mineral exploitation (including those here), but also says that companies that own existing claims there get to continue to exploit them if there are "valuable mining deposits" there.  So one thing you've got to do to figure out if the deposits are (in fact) "valuable" is to figure out if it'll cost more to dig 'em out of the ground than the deposits are worth.  'Cause if not, then the deposits aren't (practically) valuable.

Easy enough, at least in theory.  But here, some of the expenses that'd be involved in mining the stuff have already been expended -- roads, the first fifty feet of the mine, etc.  We call those "sunk" costs -- a term that's somewhat ironic (but particularly appropriate) given that we're talking in part about a mine shaft.  Do you count those costs as part of the relevant costs?  Or do you ignore them since they were already spent?

That's the legal issue in the appeal.

On that point, I have a definite sense of what's right.  You ignore them.  The money has already been spent.  You can't get it back.  If it only costs, say, $10 million more of drilling to get $50 million worth of gold, it doesn't matter that you previously spent $45 million to get where you are.  It's worth it to spend the $10 million.  So the minerals are valuable.  (Even though, in retrospect, you shouldn't have started the project in the first place.  That ship has already sailed.)

Here, that fact's dispositive.  Since it means that the uranium is, in fact, valuable.  Which means it gets mined.  Even though I'd probably prefer that it not be.  The law's the law.  (And I say that even without the Chevron deference that the panel applies here; in my view, even wholly on the merits, it's a basic and sound economic principle that you ignore sunk costs, so that's the right way to resolve things even if the relevant agency hadn't already spoken on the point.)

I'm not saying that every case gets resolved purely on the meaning of words, without consideration at all of the underlying result.  That's not, in fact, the case.

But this is a good example, to me, of one that properly does.

P.S. - Unexplored in the opinion is how you resolve this issue for materials the value of which can (and does) wildly fluctuate.  For example, here, the company started the mining process when uranium was expensive, but stopped once it became cheap.  Then, when that commodity became expensive again (at the time, $56/pound), wanted to restart, and that's the price at which the cost/benefit ratio was assessed in this opinion.

But for what it's worth, up until about six months ago, uranium prices had fallen again, and were back down to $30/pound.  Which may well mean that the mineral isn't "valuable" any longer.  So does that mean the lands were withdrawn at that point?  And what about now, when the price (in September) spiked up to $50/pound, and has now settled at around $45/pound.  Still "valuable"?  Or no longer valuable?  How do these things work out when commodity prices fluctuate, as they invariably do?  No clue, but interesting.

Rogers v. Dzurenda (9th Cir. - Feb. 14, 2022)

The three different opinions in this death penalty case -- four, if you count Judge Hurwitz twice -- take various different approaches.  But I can summarize the one point on which they all agree in a single sentence:

"Are we seriously appointing lawyers to defend people in death penalty cases who passed the bar four months ago?!"

People v. Clements (Cal. Ct. App. - Feb. 16, 2022)

Defendant asked her ex-husband to kill her brother, and he did so.  That's pretty rare.  Usually you don't kill your brother.  Even then, you usually don't get your ex-husband to do it.

Also unusual:  the brother was only 16 years old.  Not your typical murder victim.

Add to the complexity:  The motive for the murder was, in part, the prior sexual relationship.  Between the sister.  And the brother.  And the ex-husband.  All three.

For these and other sordid details, check out the opinion.

People v. Reynoza (Cal. Ct. App. - Feb. 14, 2022)

The Court of Appeal reverses Raymond Reynoza's conviction for dissuading a witness on the grounds of insufficient evidence.  That's a fairly huge win for the guy.  It means he's released from prison and can't be retried, right?

Except for one thing -- something not mentioned anywhere in the opinion.  Mr. Reynoza was convicted and sentenced to two years in prison in 2019.  It's now 2022.  They guy's already out.  With the various extensions of time for the filing of briefs and the reporter's transcripts, the appeal didn't even get heard (much less decided) until pretty much everything was basically already mooted by the passage of time.

Does that make the appeal moot?  No.  Not legally.  It would still (potentially) count as a strike if Mr. Reynoza was convicted of anything in the future, he might still be supervised after his release, etc.

Nonetheless, as a practical matter, even a "huge win" by Mr. Reynoza in the Court of Appeal isn't all that huge after all.  He might not have (legally) done the crime, but already served his time.

People v. Alvarez (Cal. Ct. App. - Feb. 14, 2022)

You can see why Justice Perluss comes out the way he does in this case. given the questions that were asked and the way the issues were framed.

But the questions that aren't answered are, in my mind, at least as important as the ones that are asked and answered.

(1) The Court of Appeal squarely holds that the first question that the prosecution asked at trial didn't violate Miranda because, technically, the question was simply "Did you ask the defendant if the bag was his?" and the answer was "Well, I didn't, but my partner did."  (I'm simplifying the exchange .)  Okay, yes, technically, at least in light of the answer, the question didn't call for anything the defendant said, so there was no Miranda violation.

But the second question ("What'd the defendant say in response?) definitely called for something protected by Miranda -- at least if he was in custody, which he pretty clearly was, I suspect.  But to that, the Court of Appeal says:  "But there was no objection to that question, so the issue is forfeited."

Which is probably correct as a legal matter.

But it doesn't answer the underlying question:  Was there a Miranda violation or not?  And since that's still an issue, it'll come back again:  this time, as an ineffective assistance of counsel claim.  A fairly good one, at that, since there was zero tactical reason not to object to that second question as well.

So, yeah, the Court of Appeal elides the issue for now, but it doesn't really answer the relevant question, which is something they'll have to deal with at some point anyway.

(2) There's a similar thing going on with respect to the "Does wearing a mask during COVID violate the Confrontation Clause" issue.  Not surprisingly, the Court of Appeal holds that wearing a mask is fine -- a holding consistent with pretty much every other court to have decided the issue.

That answers the question of whether wearing a mask is permissible.

But the real question -- a much harder one, in my mind -- is whether wearing a non-transparent mask during COVID violates the Confrontation Clause.  There's no doubt wearing a mask that blocks one's view of the mouth and a big portion of the face makes it more difficult (though not impossible) for a jury to decide credibility, which is the whole point of the Confrontation Clause in the first place.  And there's also no doubt that transparent masks are readily available -- ones that would obviate that problem -- and that these masks are likely just as effective at preventing COVID as the cloth and other masks that people are permitted to wear.

So the though question is whether, so framed, there's a Confrontation Clause violation.  Yeah, the state can order people to wear masks.  But if a defendant says "I want the jury to see your whole face; here's a transparent mask, wear that one," is there really a state interest in saying "Nope, the witness is free to obscure half of his face while testifying (and do so behind a plexiglass shield, even) despite the fact there's not really a state interest in making sure the mask isn't transparent?"  That seems the much tougher -- and dispositive -- issue.

Those are the two questions neither asked nor answered in today's opinion.

Kirk v. Ratner (Cal. Ct. App. - Feb. 10, 2022)

Maybe it's that I'm simply in the wrong field, but until a couple of years ago, I wasn't at all used to seeing settlement agreements in which each of the parties deliberately used fake names on these documents.  Yet nowadays, I stumble across a non-trivial number of cases where, yeah, that's apparently an accepted and common practice.

Take this opinion from earlier today, for example.  Personally, I've never heard of the actress in this case (Charlotte Kirk) -- though, apparently, things involving her caused quite a stir in the movie studio world at some point.  To keep everything quiet, the parties used completely fake names on all their underlying legal documents.  To no avail, ultimately.  As this latest published opinion (using their real names) amply reflects.

I know the whole "confidential settlement" thing is a hot topic these days.  There are definite upsides and downsides to the practice.

Ultimately, just remember that even if you think the stuff is supposed to remain confidential, that doesn't always end up being the case.

No matter how much you try and how many lawyers you employ.

Joseph v. City of Atwater (Cal. Ct. App. - Feb. 9, 2022)

It looks like Samuel Joseph won't be the chief of police of the City of Atwater any longer, but he might perhaps be a lieutenant on the force -- at least if he wins the hearing to which the Court of Appeal holds he's entitled.  (Plus, presumably, back pay for all those years he was previously off the force.)

The opinion doesn't mention them (at all), but here are some of the allegations against Mr. Joseph.  Maybe they're true, maybe they're not.  I guess we'll eventually find out in the hearing.

But either way -- and even if they're true -- I suspect that Mr. Joseph will get a fair chunk of change.

U.S. v. Mendoza (9th Cir. - Feb. 8, 2022)

Here's one of those rare opinions that reverses a criminal conviction -- several of them, actually -- for insufficient evidence.

Judge Bea's opinion is pretty darn comprehensive, as well as persuasive.  It's far from a clear-cut case, but I think Judge Bea is spot on in his (extensive) evaluation of the evidence on both sides.  (With one caveat:  I'd have liked to read a bit more discussion of the "police scanner" fact, which the opinion mentions but pretty much otherwise elides.)

I also liked the opening gambit of the opinion, which reads:  "Every parent knows that teenagers make mistakes. A fifteen-year-old Henry Mendoza was no exception, though his error was far more serious than most."  That's a sentiment far too uncommon in modern parlance -- judicial and otherwise.

Even after the opinion, Mr. Mendoza's still convicted of a federal offense. But he's going to serve a lot less time than the 15 years in prison for which he was originally sentenced.

People v. Mendoza (Cal. Ct. App. - Feb. 3, 2022)

You don't see many appellate decisions these days involving the crime of extortion.  Some, of course, but not many.  Maybe that's because it doesn't happen all that much.  Maybe it's because practitioners usually get away with it.  Whatever the reason, I simply haven't thought about that particular crime much.

But today's opinion involves a defendant convicted for extortion, and Judge Harutunian (sitting from San Diego) writes something that suggests -- quite accurately, I think -- that the line between "extortion" and simple "robbery" is often an incredibly narrow one.

Take, as here, a guy who walks up to someone and says (in sum or substance) "Give me $100 or I'll beat you."  Sounds like a fairly typical robbery, eh?  But it can also sound like a classic attempt at extortion -- in particular, a demand for payment of "protection" money.

So which is it?  Or is it both?  Regardless, what's the legal distinction?

Here, it seems like it's extortion -- which is what the defendant is in fact convicted of -- if only because the defendant did the same thing to the victim repeatedly and on a schedule (i.e., here, on the first of every month).  That seems clearly a protection racket and, hence, extortion.

But imagine it was only the first time he did it.  And, perhaps, that it was simply a one-time thing:  pay me $100 now or I'll hurt you.  Robbery?  Extortion?  Totally hard to tell.

I'm not certain at all that I can come up with an actual "rule" to distinguish the two crimes, honestly.  I have a keen sense that I know extortion (as opposed to robbery) when I see it, at least in its most classic manifestations.  But were prosecutors to charge someone with extortion in the classic robbery setting -- e.g., the prototypical "mugging" scenario -- I'm not sure I could come up with good arguments for why one crime is the one and the other crime is the other.

There's got to be a difference, that I know:  we don't (and can't) have entirely duplicative crimes.  But what the difference actually is here honestly escapes me.

Perhaps smarter others can figure it out.  But as for me, I remain befuddled.

Panterra GP v. Superior Court (Cal. Ct. App. - Jan. 31, 2022)

Justice Smith begins his dissent by saying: "I respectfully dissent from the majority opinion. The majority, in this rather straightforward case, has gone to great lengths to reverse the trial judge, when the latter correctly resolved this case . . . ."

I like the first sentence, in which the "respectfully" part actually appears respectful (as opposed to sarcastic), but am less certain about the second one.

Yes, the majority opinion (written by Justice Poochigian) reverses, and yes, it seems to fix a problem that pervaded the case.  But I'm not sure it does so erroneously.

Plaintiff says the parties accidentally wrote down the wrong name on the contract and that, as a result, the actual plaintiff (the one who did the work) can't get paid a dime.  That seems plausible to me; I could see that happening sometimes, and (perhaps) particularly in this context.  If that in fact transpired, that's not right, and the law should grant a remedy; something we call reformation.  And that's what the majority opinion says might in fact happen.

No one's saying that plaintiff's definitely right; we're at the pleading stage here.  But if they're right, the law seems to me both can and should grant a remedy.  Writing in the wrong name isn't fatal.  And that's true regardless of the fact that the prior lawyers initially filed a complaint -- presumably relying on the name written in the contract -- on behalf of the wrong name.

It's a fact question.  Let summary judgment and/or trial sort it out.

Even if that means writing a somewhat lengthy majority opinion to allow that to happen.

Zannini v. Liker (Cal. Ct. App. - Jan. 31, 2022)

This is a medical malpractice case in which the plaintiff becomes a paraplegic, and while the case against most of the defendants gets resolved (one way or the other) before trial, one of the doctors goes to trial and prevails.  The Court of Appeal subsequently affirms.

Nonetheless, when reading the opinion, I gotta say that I don't come away from the thing thinking that that the Henry Mayo Newhall Hospital in Santa Clarita is necessarily the place to which I want to go if I'm in a life-critical situation.  Events like these are definitely troubling to me:

"Mr. Zannini was paralyzed. “I can’t feel my body.” Mrs. Zannini called 911 and the paramedics came within 10 minutes of the call. They took Mr. Zannini by ambulance to the emergency room at Henry Mayo Medical Center in Newhall, where his initial surgery had been performed 11 days earlier. He arrived in the emergency room at 5:25 p.m. . . .

Upon arrival, Mr. Zannini was seriously compromised. He was acutely paralyzed with no motor strength and had no sensation from the nipple line down. He had no anal reflex. He had a priapism (an involuntary erection), a slow heartbeat, and low blood pressure. Dr. Lee knew time is of the essence in every patient who is paralyzed. At 5:26 p.m. she called a Code Trauma . . . .

Dr. Lee ordered the MRI scans at 6:11 p.m. The plan was to determine if there was pathology that could be corrected by surgery. The MRI scanner was located in a separate building which required medical staff to transport Mr. Zannini out of the emergency room, across a street. and into another building about 300 yards away. The MRI team had to be summoned to the hospital. The MRI technician arrived at 6:50 p.m.

In the meantime, Mr. Zannini was in the emergency room experiencing, in addition to his paralysis, difficulty breathing, severely low heartbeat, and low blood pressure. . . .  However, the MRI technicians could not take Mr. Zannini to the MRI suite and put him into the scanner unless he was medically stable; to remain stable, Mr. Zannini needed the Levophed infusion during the MRI. The Levophed pump had to be MRI compatible. The hospital did not have a compatible pump readily available. By the time hospital staff located a compatible pump and Mr. Zannini was stabilized, it was 7:40 p.m. when he was finally transported to the MRI scanner. While Dr. Lee was trying to stabilize Mr. Zannini’s blood pressure and staff looked for a compatible pump, Dr. Liker called Dr. Mortazavi at 6:00 pm. to brief him on what was happening . . . .

He, Dr. Liker, and Dr. Yashar reviewed the MRI scans on their phones. Dr. Mortazavi called the operating room and the emergency room and told the staff to prep Mr. Zannini for surgery and to be prepared to start surgery at 10:00 p.m. when he arrived. Dr. Mortazavi received a response from the hospital that the operating room was not going to be available for Mr. Zannini’s emergency surgery until 11:00 p.m. because there was another operation in progress that would not be finished until then. Mr. Mortazavi asked staff to bring in a second operating room team; he was told that would take even longer.

Both Dr. Liker and Dr. Mortazavi separately called the hospital to no avail to try to expedite the surgery. Dr. Liker called Mrs. Zannini to tell her that Dr. Mortazavi had decided on surgery. Dr. Mortazavi called the hospital and told staff to have Mr. Zannini in the operating room ready to proceed when he arrived.

Now that he knew he could not start surgery until 11:00 p.m., Dr. Mortazavi drove a little more slowly and arrived at the hospital at around 10:50 p.m. He was dismayed to find that Mr. Zannini was still in the emergency room, not yet in the operating room as he had requested. He yelled at the staff. Eventually Mr. Zannini was taken to the operating room where Dr. Mortazavi commenced surgery at 11:35 p.m. and removed the blood clot."

Not exactly what you want to happen when what's at stake is whether you're going to be paralyzed for the rest of your life, eh?

People v. Holmes et al. (Cal. Supreme Ct. - Jan. 31, 2022)

My reaction to the first eight pages of this opinion can be accurately summarized by what I found myself spontaneously saying out loud as I reached the end of those few pages, which was:  "Jesus Christ.  This stuff should not be happening in our world." 

You can read the whole thing for yourself if you'd like, but here's the most depressing/disturbing part -- the part that made me speak to myself out loud.  I present it without commentary, though will mention that it follows a description of several other murders and/or attempted murders:

"Earlier that night, 14-year-old Reggie Crawford, 13-yearold Edgar Evans, and 13-year-old Stephen Coats attended a Halloween birthday party in Pasadena. Around 10:00 p.m., they left with Coats’s brother, Kenneth, and seven other boys.7 As they walked to the Coats home, a car carrying four or five Hispanic men sped by and turned from North Wilson Street (hereafter Wilson Street) onto Villa. Immediately afterward, four or five cars “packed full” of Black men drove down Villa toward Wilson Street. These men displayed P-9 gang signs and swerved near the curb as they passed by. One witness said three of these cars were dark-colored compacts, and another recalled that one was tan or grey. Holmes owned a grey Ford Tempo.

About three minutes later, three boys left the group of departing party goers. Crawford, Evans, and the Coats brothers continued walking down Wilson Street with Lawrence A., Lloyd S., A.A., and A.P. As they walked, Stephen and Kenneth’s mother, Deborah Bush, drove by and offered her sons a ride home, but they declined. Stephen joked that Bush drove so slowly he could get home sooner on foot. As they continued on, Stephen, Crawford, and A.A. sang a song called “Gangster Lean.” When the song ended, Kenneth heard a deep male voice say, “Now, Blood.”

Shots erupted. Several witnesses described what happened. Lloyd heard a single boom followed by approximately 20 gunshots and saw blue sparks pass by his feet. Initially he thought the noise and sparks came from “a pack of firecrackers.” He and A.A hid behind a brick barbeque. A.A. had been shot in the hand. Lawrence also hid when he heard the gunshots. When the firing stopped, he emerged and called out to his friends. No one responded, but a figure stood nearby. Gunfire resumed. Lawrence retreated to his hiding spot but was shot in the leg as he ran.

Kenneth also initially thought the gunshots were firecrackers. He and his friends kept walking until they noticed Evans holding his stomach. Evans cried, “Mama,” and began crawling away. Stephen then pushed Kenneth away and said, “I’m hit.” As he tried to hide, Kenneth saw the outline of two figures. One was taller and heavier and wore his hair in braids. The figures ran toward Orange Grove.

The three boys who had split from the group earlier ran back to their friends when the firing stopped. Crawford and Stephen lay unmoving. Kenneth screamed, “They shot my brother!” and “Let me to him.” Evans lay on some stairs, still calling for his mother. A.P. sat in a driveway, shot in the leg.

Lloyd knocked on a nearby door and asked to use the phone. He called his mother while the homeowner called police. Bush had heard the shots as she pulled into her driveway and ran back down the street toward her sons. When she arrived at the scene, she found two boys on the ground. Crawford had no pulse. Bush saw that her son Stephen “had a bullet in his head and . . . was already gone.” She never saw Evans. Kenneth ran up to her, crying “I want my brother. Please don’t let this be my brother.” Bush’s daughter arrived and covered Stephen’s body with a jacket. Paramedics and police arrived shortly thereafter.

Stephen sustained multiple gunshot wounds. Crawford was struck by three to five rounds and died from a shot to his chest. Evans died from a similar wound."

People v. Gerson (Cal. Ct. App. - Jan. 28, 2022)

One thing we teach students in Constitutional Law is that it's really, really hard to win an equal protection challenge to a statute if the underlying legal standard is rational basis review.  Essentially impossible; all the government has to do is to have its lawyers come up with a non-laughable post hoc argument for the way two different groups are treated that might potentially in some universe be true and, boom, the state wins.

So it's noteworthy that the Court of Appeal here -- in the midst of a lengthy opinion on numerous distinct issues -- holds that the statute at issue violates equal protection.

Not that the Court of Appeal is wrong; indeed, it's right (IMHO).  The statute says that when you're charged with a crime and can't make bail, one option is for the court (with your permission) to allow you to be placed in home detention -- with GPS monitoring, requirements that you not leave the residence, particularized exceptions, etc.  And when you're in that program (stuck in your house) before you've been convicted, if you ultimately get sentenced to prison, you get credit to your sentence for the days you were stuck in your house.

Makes sense.

But Mr. Gerson did make bail ($2 million worth!), and got the same conditions imposed on him as the statute requires for people who can't make bail and are released on home detention -- GPS, can't leave the home except for specified things, etc.  He says he should get custody credit too; it makes no sense to treat people who make bail but are then released and confined to their home any different than people who can't make bail but are then released and confined to their home.

And the Court of Appeal agrees with him.

Mind you, for Gerson himself, this only knocks a couple of years off his nearly 34-year sentence.

But still, it's an important decision overall.  Plus, even for Gerson, even two more years in prison is a bit deal.  Much better to be out.  (And, parenthetically, given the facts of the case -- which happened down here in San Diego -- Gerson is super lucky merely to be alive, rather than shot and killed by the police.)

The facts are also a fairly chilling lesson about what can happen when you find yourself way too deep in the whole hallucinogenic scene, my friends.

To repeat the mantra of a show from my youth (albeit in a somewhat different context):  "Lets get careful out there."

People v. Banner (Cal. Ct. App. - Jan. 21, 2022)

The facts of this case are incredibly straightforward; indeed, they're on video.  As Justice Snauffer says:

"The facts are simple. Banner entered a restaurant and waited in line several minutes behind multiple customers. Two employees helped each customer. When Banner reached the cash register at the front of the line, he produced a toy firearm and demanded money from the employee operating the register. That employee did not believe the firearm was real and refused to comply.

A second employee, standing near the register and across from Banner, ran away in fear. Banner subsequently left emptyhanded and was arrested nearby a short time later."

That's sort of a pathetic attempt at a crime, no?  Sufficiently pathetic that no one's really even harmed, even though I readily concede it's not fun, someone could theoretically have a heart attack, etc.

Mr. Banner has a criminal history, of course, so it's not like he's going to just be sentenced to probation.

Still, I was somewhat surprised that he got nine years in prison for this.  That's a fair piece of time for a not-so-impressive attempt at a robbery.  (Especially since it seems from the opinion like Mr. Banner has a fair amount of mental health issues; e.g., the court's statement that it "believed he did have mental health issues" and "the fact [Banner] was able to conduct the crime in the way he did does not mean that he does not suffer from a mental health issue. It may just mean that it was somewhat in abeyance at the time ….”

I suspect those underlying issues won't improve much during Mr. Banner's subsequent years in prison.

McDougall v. County of Ventura (9th Cir. - Jan. 20, 2022)

I'll simply reprint what someone e-mailed me about this opinion by Judge VanDyke:

"You see this? (I'm sure you have actually).  A concurrence to one's own opinion simply for the purpose of belittling your colleagues in a sarcastic and snarky way?"

Yes.  Unusual, indeed.

United Grand Corp. v. Stollof (Cal. Ct. App. - Jan. 19, 2022)

When you're an attorney and the Court of Appeal repeatedly mentions your name in its opinion, that's rarely a good sign.

The opinion's opening sentence gives you a sense of what the Court of Appeal's (understandable) attitude might be towards this case.  It reads: "In this sixth appeal arising from a simple unpaid rent case that began in 2014 . . . ."  Given that introduction, you know that the Court of Appeal is likely to be miffed at at least one of the parties; in particular, whomever it blames for the repeated litigation.

And the Court of Appeal seems to think that the culprit here is the appellant, United Grand Corporation.

Once you read the opinion, you can readily understand why.

In essence, Malibu Hillbillies and Marcie Stoloff allegedly fail to make some rental payments, and so get sued, and a default judgment is entered against them.  They eventually try to simply pay the judgment, but United Grand Corporation isn't having it, and instead wants them to pay the judgment plus "close to $2 million in attorney fees."  Which the trial courts are most decidedly not psyched about; indeed, "as a partial terminating sanction, the trial court issued an order striking United Grand’s prayer for attorney fees due to 'pervasive misconduct' by United Grand, its attorney or both."  Thereafter, "the trial court incorporated its March 17, 2017 ruling into the judgment and specifically found that United Grand’s attorney had committed misconduct."

Neither the trial court nor the Court of Appeal was shy about identifying that attorney: Cyrus Sanai. Whose name might perhaps be familiar to you from other litigation.  (For example, as today's opinion explains, "As detailed in our previous opinion, “Despite the essentially uncontested nature of the case, [UGC’s] attorney, Cyrus Sanai, continued to generate a large amount of attorney fees on the case.” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (United Grand).)"  

The Court of Appeal mentions Mr. Sanai's name around a half-dozen times and his role in this whole morass throughout.  As I said at the outset:  Never a good sign.

You can look up Mr. Sanai's disciplinary history here if you wish.  It's actually fairly depressing that the original charges against him were filed over eight years ago and are still simply pending.  The docket reflects a long, long history -- just like the present appeal.

In the end, though, today's opinion at least ends the civil matter.  Ms. Stoloff had to pay her $56,000 or so in unpaid rent etc., so she's out that money.  But today the Court of Appeal affirms the award to her of $165,000+ of her attorney's fees, plus awards her costs on appeal.

Which doesn't likely make her even, of course:  she still had to spend the money.

But it's nonetheless something; at a minimum, she might take it as a little bit more cosmic justice than she'd received previously.