Thursday, August 21, 2014

People v. Lucas (Cal. Supreme Ct. - Aug. 21, 2014)

This opinion is difficult to get through.  Not merely because of its length.  It recounts a brutal -- truly brutal -- series of crimes.  Profoundly disturbing.

I'll skip over the overwhelming majority of the stuff.  Though I'll mention briefly that I'm not too psyched about the prosecution's closing argument, and the California Supreme Court's theory that one can meaningfully distinguish between impermissible references to the Bible in a death penalty case versus permissible references (e.g., that Moses says it's okay) seems pretty weak to me.

I'll directly mention only something that appears on page 223 (!) of the opinion.  Chief Justice Cantil-Sakauye says that when the judge -- after the jury said it was deadlocked -- twice told the bailiff to inspect the jury deliberation room, and the bailiff reported that all the guilt phase exhibits remained in the file drawers (i.e., hadn't been reviewed by the jury), at which point the trial judge responded to this report by giving a supplemental instruction to the jury, that process did not "intrude upon the jurors' mental processes."

I'm not sure how someone can credibly say this.  Of course it intruded upon the jurors' mental processes.  The bailiff was specifically reporting on what the jurors were looking at.  S/he wasn't just making sure that the jury had enough food or was keeping the place clean.  Similarly, the trial judge clearly cared what evidence the jury was inspecting.

The only way to intrude more on the jury's thought processes would be to directly eavesdrop on them.  Of course that's what you're doing.  To say otherwise is, in my view, simply not credible.

Maybe the judge doing so didn't matter.  That might well be a plausible holding.  But to say that it's okay to take a look at what exhibits the jury's viewing in its deliberations seems silly.  On that theory, it's presumably okay to contemporaneously videotape the jury's deliberations as well, as long as you keep the playback on mute.  No way.

The trial judge thought the jury was confused.  Neither the judge nor the bailiff should have invaded the jury room.  But they did, albeit in good faith.  That invasion might not have made a difference.  But an invasion it was.

That's what pages 223-224 of the opinion should have said.

Martinez v. Aero Carribean (9th Cir. - Aug. 21, 2014)

It's fitting that two of the three members of this panel -- including the author of the opinion -- are former law professors.  Because the issue is straight out of a first-year civil procedure exam:

Does personal jurisdiction based upon "tagging" (i.e., personal service) apply to service upon a corporation?

The Ninth Circuit says "No."

Read the opinion and drift fondly back to those halcyon days when you were a first-year law student.

Wednesday, August 20, 2014

Pacific Shores Hospital v. United Behavioral Health (9th Cir. - Aug. 20, 2014)

Want to know why many people hate insurance companies?  Stuff like this.

United Behavioral Health kicks a severely anorexic, 88-pound woman who's planning to starve herself to death or overdose on laxatives out of the hospital because she's "healthy enough to be discharged," despite the manifest untrue of that statement and the vociferous objection of the nurse in charge of the patient's care.

Intolerable.  Seriously intolerable.

In Re A.R. (Cal. Ct. App. - Aug. 12, 2014)

Please do not drive under the influence of alcohol and methamphetamine.  If you elect to ignore this request, please do not do so with your seven- and five-year old daughters in the vehicle.  At a bare minimum, if you do all of this -- if you're driving your small children around while drunk and tweaked -- please put them in seat belts.

I'm not even going to mention the subsequent allegations from your daughters that you sexually abused them.  Or the domestic violence or other allegations.

That'd be piling on.

P.S. - Mom's not exactly a peach either.  Which is why the trial court takes away the kids, and the Court of Appeal affirms.

Tuesday, August 19, 2014

Williams v. California (9th Cir. - Aug. 19, 2014)

I sometimes find it refreshing when the Ninth Circuit adopts the district court's opinion as its own.  It's a nice hat-tip to the hardworking district court judge.  Plus, when there's no need to reinvent the wheel, why do so?

So when the Ninth Circuit this morning adopted as its own an opinion by District Judge King, I thought it nice.

Just two minor points, however:

(1)  If you're simply adopting the district court's opinion, why does it take so long?  Oral argument in this case was in October 2013.  If the district court's opinion is sufficiently complete and self-evidently correct to justify adopted in in toto (notwithstanding the appellant's arguments on appeal), I don't know why it takes nearly a year to adopt the thing.

(2)  I know that it's old-fashioned to use actual books these days.  But isn't there something a little lame about attaching the district court's opinion as a Westlaw printout?  Since the thing's formally published (at 990 F.2d Supp. 1009) already, I might have actually run down to the library and made a copy of it.

During a couple of minutes of those nine months or so.

Jones v. Taylor (9th Cir. - Aug. 19, 2014)

There were three witnesses to a crime that Scott Jones allegedly committed.  No other evidence.  At all.  But the jury believed the three witnesses, and Jones was convicted.  Fair enough.

Years later, each of these three witnesses recanted, and testified under oath that Jones did not, in fact, commit the offense, and that their contrary testimony at trial was erroneous.  The district court held that this new development entitled the defendant to habeas relief, because it created a substantial probability that Jones was, in fact, innocent of the offense.

The Ninth Circuit reverses.

Judge Tashima holds that a jury would still probably find Jones guilty -- beyond a reasonable doubt -- even when every witness testifies he's innocent and there's no evidence of guilt beyond the testimony of those three witnesses.

Interesting theory.

City of Pasadena v. Superior Court (Cal. Ct. App. - Aug. 14, 2014)

When a veritable hurricane strikes the city (as transpired in L.A. on November 11, 2011 -- a fact that I think should be subject to judicial notice), you can potentially sue the City when that wind blows down a tree into your house.

So holds the Court of Appeal.

Monday, August 18, 2014

People v. Merriman (Cal. Supreme Ct. - Aug. 18, 2014)

Here's an 141-page opinion by Chief Justice Cantil-Sakauye.  Can you guess what it's about?  The result?

Right.  Death penalty case.  Unanimously affirmed.

Friday, August 15, 2014

Weaving v. City of Hillsborough (9th Cir. - Aug. 15, 2014)

This is a great case.  Says a lot.  About police officers, the ADA, and legal doctrine.

But I fear that its length -- 35 single-spaced pages -- might deter people from wading through it.

So I'll summarize the Ninth Circuit's holding in a single sentence:

Being an asshole isn't a disability.

Even if you say that you're a jerk because of ADHD, and being a jerk gets you fired (no small task for a cop, I might add), that's not an excuse.  Much less something that entitles you to three quarter of a million dollars.

Which is what the jury awarded this former officer, and which is what's reversed by the Ninth Circuit.

There are great examples in the opinion of just how "difficult" it was to work with Officer Weaving.  Read the whole thing for a great view into the workings of someone who, clearly, lots of people hated.

Judge Callahan dissents.  She says that "[t]he majority may not like Matthew Weaving," but that's this is not a valid reason for disturbing the jury's verdict.

There's definitely a fine line between personality and circumstances that might generate that personality.

But ADHD or no, my view is that you've got an obligation not to be a complete bunghole at work.  At least when you're capable of acting professionally.  Which Officer Weaving apparently did with those above him.  But for those subordinate to him; well, read some of the e-mails.  Classic.

Carlton v. Dr. Pepper Snapple Group (Cal. Ct. App. - Aug. 14, 2014)

No one comes out looking good in this one.

Not the plaintiff.  He gets a text message on his phone that shows a man sitting on a toilet with his penis stuck between the base of the toilet and the seat.  Which he proceeds to show to everyone else who's sitting around the conference table at a work meeting.

Not bright.  I don't care if you think it's funny.  I don't even care if it is.  Here's a little guideline I like to follow:  Don't show pictures of penises at work.  Easy to remember.

Plaintiff gets fired, and sues.

Plaintiff's counsel doesn't come out looking so great either.  I'll not mention all the pleading problems, which the Court of Appeal discusses at length.  Or the failure to timely file an opposition to a demurrer. I''ll instead simply quote some of plaintiff's discovery responses.  For which he gets sanctioned:

"First, in the employment law form interrogatories, defendants asked, “Do you contend that the EMPLOYMENT relationship was not ‘at will’? If so: [¶] (a) State all facts upon which you base this contention; [¶] (b) State the name, ADDRESS, and telephone number of each PERSON who has knowledge of those facts; and [¶] (c) Identify all DOCUMENTS that support your contention.” [Plaintiff] responded, “Yes.”

Second, also in the employment law form interrogatories, defendants asked, “Do you contend that the EMPLOYMENT relationship was governed by any agreement—written, oral, or implied? If so: [¶] (a) State all facts upon which you base this contention; [¶] (b) State the name, ADDRESS, and telephone number of each PERSON who has knowledge of those facts; and [¶] (c) Identify all DOCUMENTS that support your contention.” [Plaintiff] responded, “Yes.”

Not good.  Not good at all.  Ditto for the fact that plaintiff "did not file any opposition to the motions to compel."  Yeah.  That's not going to work out well for you.

Don't think that defendant's counsel comes out perfectly either.  They get discovery sanctions imposed.  But they're reversed on appeal.  Because guess what?  Defendants failed to move to compel within the 45-day deadline.  And, despite defendant's arguments on appeal, you can't get sanctions -- even for absurd discovery responses -- if you blow the deadline.

I have a copy of a cartoon from the New Yorker on the door to my office that says:  "If someone is worth suing, he's worth suing well."  This case doesn't exactly comport with this maxim.

Thursday, August 14, 2014

People v. Tom (Cal. Supreme Ct. - Aug. 14, 2014)

When you accidentally hit another vehicle, you'd better instantly utter the words "I hereby invoke my Miranda rights."  Otherwise, in a subsequent prosecution for manslaughter, the prosecution can use your silence -- the fact that you didn't affirmatively ask about the occupants of the other car -- against you at trial.

So holds the California Supreme Court in a 4-3 opinion.

Colwell v. Bannister (9th Cir. - Aug. 14, 2014)

I'm just going to quote from this one.  Without comment.  Here are the first two paragraphs of Judge Silverman's opinion:

Plaintiff John Colwell, an inmate in the Nevada Department of Corrections, is blind in one eye due to a
cataract. It is undisputed that his treating doctors recommended cataract surgery and that the surgery would restore his vision. However, the surgery was denied by NDOC supervisory medical personnel because of the NDOC’s 'one eye policy' – cataract surgery is refused if an inmate can manage to function in prison with one eye.

We hold today, as numerous other courts considering the question have, that blindness in one eye caused by a cataract is a serious medical condition. We also hold that the blanket, categorical denial of medically indicated surgery solely the basis of an administrative policy that 'one eye is good enough for prison inmates' is the paradigm of deliberate indifference. We reverse the grant of summary judgment in favor of the prison officials and remand for trial."

Judge Bybee dissents.

Enough said.

Nguyen v. Holder (9th Cir. - Aug. 14, 2014)

The Ninth Circuit harbors terrorists.

I know you're more likely to read that headline on Fox News than here.  But it's true.  Today, the Ninth Circuit harbored a terrorist.  It held that even though the guy plotted to blow up buildings and engaged in criminal conduct involving moral turpitude, he's entitled to stay illegally in the United States.  And on that basis reversed the findings of the IJ and BIA below.

Expect a whirlwind of protest from the usual suspects.

Or maybe not.  Because the thing is, the kind of people who tend to hate the Ninth Circuit and others who are "soft on terrorism" are also the kind of people who often sort of like these kind of terrorists.

Because the terrorist here is Vinh Tan Nguyen.  A prominent member of the "Government of Free Vietnam".  Who fled that country in 1983 and who's been fighting against that communist nation ever since.  And, yes, he planned to blow up an embassy in Manila.  But it was the embassy of Vietnam.  A country that lots of people who hate terrorists also happen to hate.

Plus, the reason the Ninth Circuit lets Mr. Nguyen stay is because it finds that he's likely to be tortured by the government of Vietnam if he's deported to that country.  There's a dispute about whether the government of Vietnam really tortures people nowadays; the IJ and BIA based their decision on the views of a retired Harvard Law School research fellow who said that Vietnam wouldn't torture a guy like this because it would harm their international reputation, but the Ninth Circuit didn't find that testimony credible in light of the contrary evidence.

Hence Mr. Nguyen's eligible for relief from deportation under the Convention Against Torture.

Judge Tallman dissents from the CAT holding.  I read his dissent as basically admitting that he thinks that Mr. Nguyen is likely to be tortured.  But the standard is not whether the BIA's finding is correct, but instead whether there's "substantial evidence" to support that view.  Judge Tallman thinks the guy from Harvard's testimony is "substantial" enough.  Even if its weak.

The majority disagrees.

As for the politics of the whole thing, personally, I don't like sending people back to be tortured.  Regardless of whether I like them.  Or their cause.  So my reaction to this case focuses purely on the evidence.  With a thumb on the scale -- and I'll forthrightly admit this -- towards not sending back a guy to be tortured.

But for some others, what matters is the "talking point".  The cause.  Who one likes and who one hates.

But in this one, that gets confusing.  Some hate the Ninth Circuit.  But they love freedom fighters.  But they hate terrorists.

For that reason, this one may get less play in the places that typically come to mind when one thinks of reactions to Ninth Circuit opinions that grant relief from deportation.

Wednesday, August 13, 2014

People v. Ebertowski (Cal. Ct. App. - Aug. 13, 2014)

You tell the police you're with Seven Trees Norteno, threaten him, tell him he's "fucked with the wrong gangster," resist arrest, tell him you're going to sexually assault him, his wife, and his daughter, and pee repeatedly on the floor of the police station.  All this and you're . . . on MySpace?

Social media makes strange bedfellows, apparently.

Chubb & Son v. Superior Court (Cal. Ct. App. - Aug. 12, 2014)

Tracy Lemon is an attorney in San Francisco who works for a law firm associated with the insurance company Chubb.  Ms. Lemon contends that she was fired from her job "because she is a person with disabilities, requested accommodation, and took medical leave."  Chubb contends that Ms. Lemon was fired for "fraudulent and dishonest conduct in connection with misrepresentations [] she made in a declaration filed with the San Francisco County Superior Court in September 2011 . . . [that] sought relief for her failure to timely file opposition papers to a motion for reconsideration."

Justice Needham's opinion involves attorney-client privilege issues, and it is very comprehensive.  Things definitely get complicated when attorneys get fired and one party or another wants to use (or get access to) privileged communications to prove its case.

Meanwhile, on the merits, the contrast between the positions of the parties are fairly stark. It's of course important not to fire someone on the basis of a disability.

It's also important not to lie to a court.

Tuesday, August 12, 2014

Nordstrom v. Ryan (9th Cir. - Aug. 11, 2014)

You can go ahead and read the dispute between Judge Silverman (who writes the majority opinion) and Judge Bybee (who dissents) about whether it's a violation of the Sixth Amendment right to counsel for a prison guard to open and read a letter containing privileged communications between a prisoner and his attorney.  Judge Silverman says "Yes."  Judge Bybee disagrees.

Both sides have their points.  Which is in part why the opinion and dissent top out at 34 single-spaced pages.

My own reaction to the dispute is exactly the opposite of Judge Bybee's.  He ends his dissent by saying:

"The majority is correct that prisons are a tough place. Maj. Op. at 4. And because of the majority’s decision today, they are about to get a little tougher. Prison officials are 'responsible for maintaining internal order and discipline,' as well as 'securing their institutions against unauthorized access or escape.' Martinez, 416 U.S. at 404. To protect individuals in and outside the prison, prison officials must be allowed to read legal letters to the extent necessary to detect illegal conduct. By preventing reading in this limited sense, the majority has hamstrung prison officials’ ability to do their job."

With respect:  Poppycock.

Everyone concedes that prison guards are allowed to "scan" letters for contraband or other illegal plans and the like.  The dispute's simply about whether they're allowed to "fully" read the letters.  The only reason this case got to court was because the guard here was so pissed off by the prisoner's claim that his legal mail was private that the guard essentially read the letter in detail in front of the guy.

The stark reality is that -- contrary to Judge Bybee's excited claim in dissent -- the Ninth Circuit's opinion in fact means absolutely nothing.  Absolutely.  Nothing.  Yeah, doctrinally, there's a distinction between a guard "scanning" mail and "reading" it.  I get it.  The Ninth Circuit says a guard's allowed do the former but not the latter.  I get it. And, yes, I totally know the difference between "scanning" a letter and "reading" it.  Just like I daily know the difference between "scanning" an opinion and "reading" one.  They're distinct.

But we're in a real world, folks.  And in the real world, guards who are allowed to "scan" a letter can -- and hold on if this shocks you -- "read" it whenever they feel like it.  And there's absolutely, totally nothing that a federal appellate court can do about it.  The difference is perhaps meaningful on a doctrinal level, but in terms of practical enforcement, the difference is zero.  Once you let the guard open the letter and take a look at it, the game's over.  Whether it's a "scan" or a "read" is, for all practical purposes, entirely up to the guard.  As it's not like the Ninth Circuit, or anyone else, is looking over the guy's shoulder.  True, if the guard admits that he fully read the letter, instead of scanning it, he's in trouble.  I'm sure those concessions are going to happen all the time.  Not.  Absent a confession, it's a distinction without a practical difference.  At all.

The majority opinion doesn't "make prisons harder" or "hamstring" guards in any material way.  At all.  It just tells them what they need to say.  And/or pretend to do.  That's it.  It's a kabuki show.  Nothing more.

Which doesn't mean the majority opinion is valueless.  We care about the Sixth Amendment.  We want to get it right.  We want to make the appropriate legal rules.

But let's not pretend we're doing more than we are.

On either side.

The real world impact of this decision is zero.  Guards will scan letters when they feel like it.  And will read letters when they feel like it.

And there's not a thing this opinion can do about it.

People v. Quinones (Cal. Ct. App. - Aug. 11, 2013)

My predominant reaction to this opinion was one of nostalgia.  Busted for possessing heroin.  It seems so '70s.

Sure, the stuff is (sadly) making a comeback.  Among the yuppie crowd, apparently.  Or whatever they're called these days.  Hipsters, I think.  (Or is that so '00s?)

Plus, it's not like Humberto Quinones was out slinging the stuff in the modern era.  He was busted back in 1996.  It's just that after twenty-plus years in prison, he'd like to get out.  Sentenced as a three-striker to 75 years in prison, he'd like relief under Proposition 36.

No dice.  He had a loaded gun in his waistband at the time.  That keeps you in prison forever.

Which means that Quinones fades into history.  Like so many other memories.

Friday, August 08, 2014

Loos v. Immersion Corp. (9th Cir. - Aug. 7, 2014)

This is absurd.

I could perhaps get on board for most of the opinion.  And I understand that the last part is consistent with -- or at least analogous to -- a decision of the Eleventh Circuit.

But that doesn't make it right.

A publicly-traded company reports certain revenues during various quarters.  Everyone trades as if those revenues are real.  Then, one day, it announces that it's conducting an "investigation" into those revenues.  It says:  "[T]he Audit Committee of the Board of Directors of Immersion Corporation
(“Immersion”) is conducting an internal investigation into certain previous revenue transactions in its Medical line of business. The investigation is being conducted with the assistance of outside counsel. The Audit Committee has not yet determined the impact, if any, to Immersion’s historical financial
statements. As a result of this investigation, Immersion may discover information that could raise issues with respect to its previously-reported financial information, which could be material. Immersion will not be able to evaluate the full impact of the aforementioned matters until the Audit Committee completes its review and further analysis is completed."

Everyone and their mother knows exactly what that means.  The stock tanks 23% the same day.

The Company thereafter reports the "results" of that investigation.  Which reveals exactly what anyone with a brain already knew as a result of the initial disclosure.  The Company had indeed improperly reported revenue.  Case closed.

Stockholders sue.  Assume -- as the Ninth Circuit does (and must) -- that the stockholders can prove that the officers and directors of this company knew that they were cooking the books; i.e., that there's scienter.  Can the stockholders sue?

The Ninth Circuit says "No."

Why not?  Because according to the Ninth Circuit, there's no "loss causation".  Sure, the stock tanked, wiping out millions in company value.  But it tanked only due to an "investigation," not the reporting of actual fraud.  "An investigation is merely an investigation."  So the loss was only caused by the report of the investigation.  Not a report of actual fraud.  Hence the fraud didn't cause any losses.


There was an investigation because there was fraud.  And the entire universe of investors knows that by the time a company publicly reports that they're investigating whether revenue has be improperly booked, the company knows darn well that revenue has indeed been improperly booked.  Want proof?  That's why the stock price tanks.  Because if an investigation was "just an investigation," no one would care, right?  But they do.  Know why?  Because people with money on the line are much, much, much smarter than people in black robes who might say "Oh, it's only an investigation, no actual fraud."

Want more proof?  Go ahead and list all those times you remember in the last half-century in which a company reported that it was conducting an investigation into financial misreporting and then later said that the investigation had concluded that everything was okay.  Go ahead.  I'll wait.




Yeah, good luck with that.  How many could you recall?

Thought so.  Zero.

When a company stock tanks because it's "investigating" misreporting, everyone knows what that means.  A reality amply indicated by the reality of the stock price.  To close one's eyes to that is to blind oneself to reality.  As well as to allow deliberate misconduct to knowingly go unpunished.

Under this Ninth Circuit rule, going forward, no smart company is ever going to be found liable for misreporting.  All they have to do is warn people first.  Indeed, warn 'em in the worst possible terms.  When you find out -- or realize that others are about to find out -- that you've cooked the books for, say, $50 million, go ahead and report that you're conducting an "investigation" into whether the books have been cooked, and make the warning as dire as possible.  Your "investigation" has, of course, not yet concluded.  Nothing's "official" yet.  But "maybe" there's $50 million in fake revenue. Or even $100 million.  Or even $1 billion.  You don't know yet.  But fear not.  You'll find out, and then let everyone know.

Sure, your stock price will plummet.  People will lose millions.  But fear not.  Thanks to the Ninth Circuit, you're not liable.  Even if you deliberately engaged in fraud.  Because the stock tanked only upon an announcement of the "investigation".  Presumably, as long as the stock price doesn't tank even further once you announce the fraud, there's no "loss causation" anymore.

And you're not an idiot.  That's not going to happen.  Because you made the "non-actionable" announcement so scary that the actual "results" of the investigation will actually seem pretty mild by comparison.  Heck, the stock price might even go up.  Which the Ninth Circuit will conclude means that the market actually liked the fact that you engaged in fraud.  Right?  Because the losses were the result only of an "investigation", whereas the actual "fraud" caused the stock price to rise.  See?  No damages at all from the actual fraud.


Look, there may be extraordinary circumstances in which a stock price drop at the announcement of an investigation isn't properly actionable.  Imagine, for example, a stock that dropped 25% upon the announcement, but then when the results were announced, it bounced back 30% (or 24%).  Okay.  I agree that might establish that the actual "fraud" wasn't material.  Because if (after adjusting for market forces) a stock was trading at $25 before anyone knew of any alleged fraud, and $26 (or $24.99) after the fraud was finally and completely revealed, then, yeah, that reflects no loss causation.

But the Ninth Circuit does not say that's what transpired here.  It instead simply holds that there's no loss causation from an announcement.  Period.  Nothing about subsequent market performance.  No data about subsequent stock movement.  Nothing.

So the way virtually every observer (and court) is going to read this opinion is to have it stand for the proposition that announcement losses aren't recoverable.  That's wrong.  Flatly wrong.  Announcement losses are recoverable.  They're the "result" of the fraud.  At least presumptively.  How do you know?  The same way the market knows.  Because the market knows that "investigation" means "fraud".  Or at least a high probability (indeed, in reality, a near certainty) thereof.  Which is why the stock tanks.

Can that presumption be rebutted?  Sure it can.  Just like lots of other things (e.g., the fraud on the market theory) can be rebutted in this area.  So if the stock price rebounds upon the disclosure of the actual results -- adjusting, again, for market conditions and other changes -- then, yes, there may well be no loss causation.  Or, alternately, it might reduce damages.  So, all other things being equal, if a stock's at $30, it drops to $10 upon the announcement of an "investigation", then rebounds to $20 once the results are revealed, the losses are $10 a share ($30 minus $20), not the full $20 a share the stock dropped on the announcement.  That's the right rule.

Any other rule immunizes misconduct.  Any rule that says that losses on an announcement don't matter because it's "only an investigation" -- mere "speculation" of misconduct -- is wrong.  Clearly wrong.  In a way that really, materially matters.

So I'd be fine with an opinion that says that announcement drops don't matter when the stock bounces back completely (after adjusting for all other events) upon the subsequent disclosure of the fraud.  I'd also be less vociferous if the Ninth Circuit merely held that it was the plaintiff's burden to prove the absence of a future bounceback and that that burden wasn't met here (if, indeed, it wasn't).  (Though, for me, the presumption should be that the market's contemporaneous reaction was accurate, and the defendant should have the burden to prove otherwise.)

But that's not what the current opinion says.  Far from it.  It instead articulates a powerfully pernicious, and demonstrably erroneous, rule.


In Re J.T. (Cal. Ct. App. - Aug. 7, 2014)

Jasmine M. is a 16-year old dependent of the court.  Who has a one-year old child.  Who's also a dependent of the court.

Let's hope this cycle ends.

Thursday, August 07, 2014

People v. Shapiro (Cal. Ct. App. - July 23, 2014)

Defendant talks in a chat room with a 16-year old girl.  They fall in love.  They have cybersex, which entails mutual masturbation over the internet while watching pornographic videos and telling each other what they'd like to do to each other if they weren't two thousand miles apart.

Put to one side that defendant lies about being 17 when he's really 59.  Also put aside the fact that the age of consent in Indiana -- where the girl is located -- is 16.  There's a whole lot of other stuff to put aside as well; feel free to read the whole opinion if you'd like.

Here's the issue:

Defendant's convicted under Section 288.3(a) of the Penal Code, which makes it a crime to contact a minor for the purpose of committing various crimes; in particular, here, the crime of sexual penetration of a minor.  What "sexual penetration" did defendant try to encourage?  Masturbation.  Since he told the victim that he'd like her to play with herself, and she did, he's guilty.  Because during the process, she "penetrated" herself -- "however slight" -- with her own finger, which counts as a "foreign object".

Defendant has a lot of arguments against that conviction, but the only one I'll mention is his claim that if that's really what the statute means, it's irrational and violates the Equal Protection Clause.  Because the statute criminalizes convincing a 16-year old two thousand miles away to masturbate, but does not criminalize convincing a 16-year old two thousand miles away to have actual sex.  Since "penetration" is one of the enumerated offense, but sex is not.  Surely actual statutory rape is worse than consensual masturbation, no?  So it's irrational to criminalize one but not the other.

The Court of Appeal "commend[s] defense counsel for his clever argument."  So I'll mention his name: Richard Power.  (Note to Rich:  Take care of yourself.  Of the six "Richard Power/s" ever to join the California Bar, four are already dead.  Only two remain.  That's a pretty high mortality rate for a single name.)

But Justice Ikola has a response.  He says that the statute makes sense because the Legislature could rationally conclude that consensual masturbation is, indeed, worse for a minor than actual sex.  To use his words:  "Foreign objects may be of varying degrees of size, shape, or texture, and thus present potential dangers to a minor’s genitals or anal opening greater than simple consensual intercourse. Thus the Legislature could rationally conclude that vaginal or anal penetration with a foreign object is more harmful than intercourse between a 16 or 17 year old minor and an adult."

I agree that one of these arguments is too clever by half.  Is it the defendant's, or is it the Court of Appeal's?

Wednesday, August 06, 2014

In Re A.L. (Cal. Ct. App. - July 23, 2014)

This opinion sounds like the plot of a soap opera:

"The parents . . . began dating around 1999 following Jennifer’s divorce from her first husband who supplied her with drugs. Jennifer was convicted of prostitution in 2006 and theft in 2007, and Richard was convicted for failure to appear on a written promise in 2002.

The parents married in 2008 and have four children together. The oldest, A.L., was born in June 2002. A son, I.L., followed in May 2004. E.L. was born next in July 2005. Their fourth child, O.L., was born in July 2008. 

[] The parents have a lengthy history of drug abuse. Jennifer began using methamphetamine when she was 15. She continued abusing the drug for approximately 15 years, and evidence in the record suggests she used drugs while pregnant with I.L. After achieving what turned out to be temporary sobriety around the age of 30, she relapsed in 2011, a year before filing the petition to terminate the guardianship. Richard also began using methamphetamine as a teen. He abused the drug for over 20 years, from the age of 16 until approximately the age of 40 when he enlisted in the Army in 2007.

Child Protective Services (CPS) received at least 11 referrals regarding the parents, four of which were substantiated for an absent or incapacitated caretaker, substantial risk or general neglect. To avoid having A.L. and I.L. removed by CPS in August 2004, Richard asked his stepsister, Shannon, to care for the children. Shannon lived with her minor children in a house on the property of Richard, Sr., Richard’s father and her stepfather. In early 2005, A.L. returned to live with the parents but I.L. remained with Shannon. In January 2006, Richard asked Shannon to care for A.L. and also for E.L., who had since been born. Because she was already caring for her own children and I.L., Shannon declined. Richard and Jennifer then approached Marjorie, Richard’s mother, for help with the minors since Richard had lost his job and they were losing their home. . . .

Beginning in January 2008, A.L. moved to Kentucky where Richard was stationed in the Army to live with the parents. Because Jennifer was pregnant with O.L. at the time, the guardian and the parents agreed E.L. would stay with her until O.L.’s birth. O.L. was born with severe health issues so the guardian and the parents agreed E.L. would remain in California with her until his health issues improved. E.L. eventually moved to Kentucky with her parents around August 2009. Richard was then transferred to Virginia and the parents, the minors, and O.L. relocated; I.L. remained in California with Richard, Sr., and Shannon, and did not join the rest of the family in Virginia until approximately January 2010.

In February 2010, Richard was deployed to Afghanistan. During his year-long deployment, Jennifer and the children moved into a house on Richard, Sr.,’s property in California. While the parents maintain that Jennifer cared for the children during this time, Shannon claims she was the children’s primary care-giver between February 2010 and March 2011 because Jennifer was abusing prescription and illegal drugs and had difficulty caring for the children. 

Richard returned from Afghanistan in late February 2011. Upon his return, he discovered Jennifer had been having a sexual relationship with an ex-boyfriend who was a drug dealer. The parents got into a domestic dispute over the affair and Jennifer assaulted Richard. Jennifer also inexplicably injured her foot that same day, although the parents deny the injury was related to domestic abuse. The next day, Richard’s stepmother reported the incident to police, and Jennifer was arrested for domestic violence. Jennifer was jailed for a few days, but the charges ultimately were dismissed. . . .

Several months later, Jennifer and Richard reconciled."

The only things missing entail twin sisters and a fake deaths.

Tuesday, August 05, 2014

Columbia Riverkeeper v. United States Coast Guard (9th Cir. - Aug. 5, 2014)

I don't know if I've ever previously seen an appeal to the Ninth Circuit from "An Order of the United States Coast Guard."  But now I have.

Judge Ikuta's opinion tells you everything you need to know about how the Coast Guard relates to the regulatory review process involved with liquefied natural gas facilities.  Truth be told, there's probably an extra 26 pages in there that the vast majority of us will never need to know.  (The opinion contains 27 pages.)

But the parties care, some random other people care, and it's a federal appeal, so Judge Ikuta spells it all out for anyone interested.

At least now, when someone asks you what sorts of appeals the Ninth Circuit hears, you can say:  "Well, orders of the U.S. Coast Guard, of course."

In Re Complaint of Misconduct (9th Cir. - Aug. 5, 2014)

This is one of my favorite Chief Judge Kozinski resolutions of judicial misconduct.  Not because it's the most important (at all).  Not because it's full of any Kozinskisms (it doesn't have any).  But because it's well-written, concise, and says exactly what it needs to say and no more.

Really well done.

Monday, August 04, 2014

Ringgold-Lockhart v. County of Los Angeles (9th Cir. - Aug. 4, 2014)

With all due respect to Judge Berzon, my personal view is that this opinion substantially understates the necessity of prefiling orders as a means of combating vexatious litigation.

Nina Ringgold is an attorney.  She's also been declared a vexatious litigant in California state courts.  A finding that's more than well-established given her history.  (I'll not link to the plethora of findings that concern Ms. Ringgold's conduct in state court.  But if you want to get a flavor for Ms. Ringgold, just google "Ringgold Vexatious Litigant" and read the results.  Wow.)

Ms. Ringgold extends her litigation to federal court, and the federal district court reviews her history and declares her a vexatious litigant and imposes a similar prefiling requirement.

The Ninth Circuit reverses.

Judge Berzon's opinion clearly reflects a legitimate concern with generally keeping courts open to litigants.  But we probably differ a bit on how that (entirely proper) interest is balanced against the harassment, and resulting harm to third party interests, that results from vexatious litigation.  And Judge Berzon's belief that the availability of Rule 11 sanctions may substantially solve the problem of vexatious litigation both overstates the utility of Rule 11, IMHO, and is particularly inapt with respect to Ms. Ringgold, as this opinion -- which describes Ms. Ringgold's conduct in paying prior sanctions that were imposed upon her in state court -- amply demonstrates.

One difference between Judge Berzon's view and mine may result from one of us being a little bit more intimately familiar with the consequences of vexatious litigation.  I also can't help but wonder whether the source of the particular order at issue here -- which was entered by Judge Real -- didn't come into play here.

I know that Judge Berzon remanded the case, and that it's possible that a more narrowly tailored (or factually supported) order might survive on remand.  I hope that's in fact what happens.

But in the meantime, more harm transpires.  Harm that I'd take at least a bit more seriously than I think is reflected in this opinion.

P.S. - I have a much greater problem with the State Bar of California. Which has apparently seen fit to keep Ms. Ringgold's disciplinary record spotless notwithstanding the numerous opinions with respect to her conduct.  Seriously?

Rhea v. General Dynamics (Cal. Ct. App. - July 21, 2014)

Let's put the undisputed facts on the table.  Facts that are relevant to the vast majority of the people who are reading this summary:

(1)  If you're paid a salary (as opposed to hourly), you don't get paid overtime/time-and-a-half.  Even if you work over 40 hours a week.  You're "exempt".  You'll work however long your employer demands (or you'll be fired).  Ditto for working more than eight hours a day.  If it's a 16-hour billable day, that's your lot.  No overtime pay.

(2)  In return, you get a corresponding upside.  If you work less than eight hours, your employer can't deduct anything from your pay.  That's the benefit of the bargain.  Go home early, working only six hours that day, and you still get paid the same.  That's what it means to be on "salary".

(3)  Take a whole day off, however, and your employer can legitimately deduct that day's pay.  Or require you to take a vacation day, a sick day, or whatever deal you've struck.  When you're not doing work at all that day, it's not part of the "salary" bargain that they still have to pay you.  You're on your own for that one.

Make sense?  That's the distinction between being salaried versus hourly.

So we know that when you take part of a day off, your employer still has to pay you for the day, and that when you take the whole day off, they don't.

But when you take part of the day off, instead of dinging your salary, can they take away a vacation day (or part thereof)?  In other words, if you go home early to catch your kid's soccer game, and so only work 7.5 hours, can they force you to take .5 hours as a "vacation"?  Even though you'd get no additional "vacation" time -- or pay -- if you had worked 8.5 hours that day?

The Court of Appeal says yes.  Even in California, they can ding your vacation/sick/personal days, and can even do it if you left at 4:59:30 p.m.  You're employer's a jerk, I might add.  But it's fair.  And legal.  At least according to the Court of Appeal.

I want everyone to know this rule.  Because it's important.  But I also wanted to make one comment about Justice Irion's equitable defense of this principle.

She argues that the rule's fair because, at least in the present case, the employer doesn't ding your vacation days if you work more than 40 hours a week.  Which is, admittedly, nice of them.  So if work 60 hours one week, you can indeed leave a little early on Friday to watch your kid play soccer and not lose vacation.  Big of 'em.

Two brief points, however.  First, the employer doesn't have to do this.  You'd still be "salaried" even if the employer dinged you for every second you worked under eight hours a day.  Even though you gave 'em 16 hours a day, six days a week, for thirty years.  So holds the Court of Appeal.

Second, even at "nice" employers like General Dynamics, notice that the exception only applies to

Friday, August 01, 2014

In Re Rebecca C. (Cal. Ct. App. - Aug. 1, 2014)

Justice Bigelow is right.  Just because the parent's using drugs doesn't allow you to take their kid away.  You've got to show some actual neglect of the child.

That said, Mother should still stop smoking reefer.  When eight of your nine drug tests come up positive, it's a problem.  When you can't stop using even after DCFS is on your butt, that's a sign -- a real, substantial sign -- that you need to get clean.

P.S. - Justice Bigelow says in the opinion:  "If a parent’s failure to keep on top of a teenage child’s homework assignments is sufficient to show 'physical harm,' many, many parents would be subject to DCFS intervention."  Word.

States v. Bad Guys (9th Cir. - Aug. 1, 2014)

The captions of the published Ninth Circuit opinions this morning make clear that it's not just private litigants who are getting in the game.  You've got one opinion in which the State of Hawai'i has sued numerous credit card companies (Capital One, Citibank, HSBC, etc.) for deceptive practices.  You see another involving a CERCLA suit by the State of Arizona against Raytheon.  To top it all off, we've got People of the State of California v. U.S. Department of the Interior, which addresses what we should be doing about the Salton Sea.

August:  A big month for states.

Rundgren v. Washington Mutual (9th Cir. - July 29, 2014)

So you want to be a rock star?  It's not all sex, drugs, and rock-and-roll.  Sometimes it's suing your lender for foreclosing on your place in Hawaii.

And losing.

That's the fate of Todd Rundgren.  You'd never know from Judge Ikuta's opinion that we're dealing with a rock-and-roll legend; instead, she plays it straight, and never once mentions that the plaintiff is famous.  But even if there's more than one Todd Rundgren in the world (and I doubt it), my money's heavily on there only being one of 'em married to a woman named Michelle.  This is the rock star.  As well as the unsuccessful appellant.

(You've heard his stuff, by the way, even if you're not deeply into 70's rockers.  Here's I Saw The Light.  Here's Hello It's Me.  At least until Todd reads this and issues DCMA takedown requests.  In meantime, have a glass of wine, kick back, and remember those halcyon days.)

As an additional aside, one great thing about looking up tangents regarding Ninth Circuit cases is that you sometimes learn fascinating things that you'd otherwise never know.  For example, here, I knew (in the back of my mind somewhere) that actress Liv Tyler was the daughter of Aerosmith frontman Steve Tyler.  But what I didn't know -- until now -- was that Liv Tyler's original name was actually Liv Rundgren.  Liv was apparently conceived while her mother and Rundgren were together (with on-and-off periods), but the product of a dalliance with Tyler.  Apparently Liv's mother knew that Tyler was the biological father, but named her Rundgren -- and listed Todd on the birth certificate -- in part to put some distance between her daughter and Tyler's drug-fueled ways.

Who knew?

Thursday, July 31, 2014

Luckey v. Superior Court (Cal. Ct. App. - July 22, 2014)

If someone doesn't come in and object to this class action settlement -- which involves a FACTA suit (credit card expiration dates printed on receipts) against Cotton On stores -- I'll be stunned.

It's not an attractive settlement.  It's also an affirmatively ugly process.

Take a look.  See what you think.

Wednesday, July 30, 2014

U.S. v. Hurtado (9th Cir. - July 29, 2014)

Inserting pop culture references or funny little asides into opinions doesn't always work for me.  But I nonetheless liked what Judge Silverman did here.

Yeah, they were unnecessary.  But they seemed entirely apt and not unnecessarily distracting.  One of 'em even brought forth an audible chuckle.

Here's the first:

"Hector Hurtado appeals the 46-month sentence imposed by the district court following his guilty plea to intentionally and knowingly importing 11.64 kilograms of cocaine into the United States from Mexico in violation of 21 U.S.C. §§ 952 and 960. Hurtado was caught driving a truck loaded with cocaine across the border, for which he was paid $3,500. Hurtado argues that the district court erred when it held that he was not entitled to the 'minor role' reduction provided for in United States Sentencing Guideline § 3B1.2(b).

Hurtado’s argument is essentially this: Just as all children in Lake Wobegon are above average, all drug couriers are, by definition, below average and entitled to the minor role reduction. Like the district court, we reject that argument. We hold today that the district court applied the correct legal standard, did not abuse its discretion in its application of the guideline to the facts of the case, and did not clearly err when it found that Hurtado was a typical commercial drug smuggler – no better, no worse – and not entitled to a minor role reduction. The district court was not clearly erroneous in finding that although Hurtado may have been a cog in some larger wheel, he was an essential cog who, solely for a sizeable sum of money, knowingly smuggled a large quantity of narcotics into the United States via a hidden compartment in his truck."

Now, I'm not a monster Garrison Keillor fan, and know a personal detail or two about the guy from a firsthand source that aren't too flattering, but I nonetheless thought the reference meaningful as well as enlightening.

Here's the second:

"There’s an old saying:  Crime doesn’t pay, but at least you’re your own boss. In this case, Hurtado wasn’t even his own boss; he was paid by others to commit the crime. However, the mere fact that Hurtado may have been doing criminal work for hire does not itself establish that he was a minor participant. That Hurtado’s supervisors, organizers, recruiters, and leaders may have above-average culpability – and thus are subject to aggravating role enhancements under U.S.S.G. § 3B1.1 – doesn’t mean that Hurtado is “substantially less culpable than the average participant.” U.S.S.G. § 3B1.2 n.3(A) (emphasis added). The requisite comparison is to average participants, not above-average participants."

I smiled at how that paragraph began.  Good inclusion.

People v. Hernandez (Cal. Ct. App. - July 29, 2014)

I don't know all that much about Anders/Wende briefs.  I don't write them.  They very rarely lead to published opinions.  So perhaps you should take what I'm about to say with a grain of salt.

But when I read the three pages of content in this opinion, I was struck by just how internally inconsistent the articulated standards appear to be.

I definitely agree with Justice Rylaarsdam that counsel need not raise silly issues.  If they're clearly unmeritorious, you're not obligated to raise them.  So, as Justice Rylaarsdam quotes from a prior case, you're not obligated to "raise[] one or two frivolous issues, easily disposed of by the inspection of a few pages of transcript."  Absolutely right.

On the other hand, the other quote Justice Rylaarsdam uses seems absolutely wrong to me.  That quote says:  "We hold that an arguable issue on appeal consists of two elements. First, the issue must be one which, in counsel’s professional opinion, is meritorious."  Not in my book.

If I'm appellate counsel, I am not the one to authoritatively conclude whether an argument is right or not.  I may have my opinion.  Truth be told:  I normally do.  But that's not my job.  I'm here to decide if an argument on my client's behalf is possibly meritorious.  If so, I raise it.  If not, I don't.  That's it.  Whether I think that the argument has merit is, in my view, beside the point.

Let's make this concrete.  Assume I've been appointed to represent a criminal defendant on appeal.  I have reviewed the record and the law, and have come up with four different possible arguments:

I believe that Argument One is (a) likely to prevail, and (b) right on the merits.  Clearly I have to raise that one.  We all agree.

I believe that Argument Two is (a) unlikely to prevail, but (b) is right on the merits.  Surely I should raise that one too.  The fact that the justices on the Court of Appeal may, in my estimation, not be as bright as I am, or may read the law the wrong way, shouldn't stop be from raising an argument that I believe correctly states the law.  If only because I may be wrong (and let's hope I am!) and they may well end up (rightly) agreeing with me.  So I'm hoping we all concur that I have a duty on behalf of my client to raise Argument Two.

I believe that Argument Three is (a) likely to prevail, but (b) wrong on the merits.  Now, come on.  I surely have to raise that one, right?!  It's going to get my client off.  So, on his behalf, I clearly have to raise it.  The fact that I might think it erroneously reads the law doesn't matter.  It's arguable; indeed, so arguable that my prediction will be that neutral judges buy it and write it into law.  At which point it is law.  The fact that I don't think it's, in fact, a proper reading of the law is irrelevant.  Surely we can agree on that too, right?  I'm the lawyer.  Not the judge.  My subjective belief is entirely irrelevant.

So that leaves us with Argument Four.  One that I believe is (a) unlikely to prevail, and (b) wrong on the merits.  My view is that (b) doesn't do any work here.  Only (a).  To put it differently, my belief as to the "merits" is a one-way ratchet.  If I think the law in fact says X, I've got to raise that issue, even if I don't think the Court of Appeal will agree (assuming that my argument isn't affirmatively foreclosed by precedent such that it's frivolous to make an argument that my position is in fact "the law" or a good faith argument for the modification or reversal of existing law).  By contrast, the fact that I've decided (internally) that the law doesn't really say X doesn't matter.  We already established that in Argument Three.  Instead, what's doing the work -- what's dispositive -- with respect to Argument Four is that this argument's unlikely to in fact prevail.

Which means we also need to drill down on (a).  What do we mean by "unlikely to prevail"?  Usual non-legal usage would mean below 50/50.  But that's not the appropriate legal standard.  I raise plenty of arguments that I think have less than a fifty percent chance of being accepted.  So does every single competent lawyer in the history of the universe.  'Cause guess what?  You may be wrong.

Moreover, collectively, even a low probability of success can result in a win.  Counsel A has three independent arguments, each with only a 30% chance of success.  Counsel B has one argument with a 60% chance of success.  Guess who prevails more often?  Counsel A.  Surely you can't tell me that Counsel A doesn't have a duty to raise these three arguments on his client's behalf just because he concludes that each one of them is unlikely to succeed.  Moreover, any such rule would clearly be regressive, since a rich client could (and would) ethically find a lawyer to make 'em, whereas the poor client with appointed counsel would be stuck with your silly rule and stay in prison while the rich guy goes free.  Such a rule simply isn't supportable.

So by "unlikely to prevail," I think we clearly mean at least "less than 30% likely to prevail".  Truthfully, a lot less.  Like in the single digits.  In my mind, what we mean to say is that this argument is basically "frivolous".  It's silly.  It has such a low (or zero) probability of success that you're under no duty to raise it.  Whether -- and this part is important -- your client is rich (and hence you're retained) or poor (and you're appointed).

So when Justice Rylaarsdam's opinion -- quoting Justice Garner -- says that "an arguable issue on appeal consists of two elements," the first of which is that "the issue must be one which, in counsel’s professional opinion, is meritorious," if we're giving the term "meritorious" it's normal meaning, that's an erroneous proposition, in my mind.  We've instead got to separate out the objective and subjective beliefs with respect to "merit" and process them along the metric delineated with respect to Arguments One through Four above.  Moreover, if we get down the line to Argument Four, we've then got to decide the standard -- which I think is darn near (if not at) frivolousness -- and apply it.

None of which Justice Rylaarsdam's quote does.  It instead just flatly says that an argument has to be "meritorious".  That's the wrong standard, in my view.  On a plethora of levels.

Justice Rylaarsdam, like Justice Garner before him, admits that even though he's saying that "the issue must be one which, in counsel’s professional opinion, is meritorious" in order to be raised, "[t]hat is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success."  Which is helpful, maybe, a tiny bit, but not at all sufficiently clear or adequate to dispel the normal meaning of the term "meritorious".

With respect to the the former caveat -- that the contention must not "necessarily" achieve success -- I think we can all agree that's a response to a complete strawman.  Obviously no one's saying (or has ever said) that counsel only has to raise issues that have 100% probability of success (i.e., will "necessarily achieve success").  That's just silly.  So thanks for saying that's not the standard, but that doesn't really help us very much.

So that leaves us with the fact that the argument "must have a reasonable potential for success".  Okay. If we can agree on what you mean by that, maybe we can reach consensus.  But two points:

(1) Notice that we're not talking at all about subjective beliefs here.  We're merely talking about the objective probability of success.  Two problems:  (A) That somewhat conflicts with the opening line that to be raised, an issue must "be one which, in counsel’s professional opinion, is meritorious."  So if you're really redefining the term "meritorious" here, you need to be more explicit that you're moving from the subjective to the objective; and (B) even so charitably interpreted, this redefinition still does not correctly resolve Argument Two -- the one that's objectively (you conclude) correct, but that you nonetheless conclude is objectively unlikely to prevail.  Moreover:

(2) You haven't told me what a "reasonable" potential for success is.  I infer that you don't mean 50 percent.  (Which is what your use of the term "meritorious" would normally mean in this context.  An argument is either a "meritorious" argument or an "unmeritorious" one, and the binary nature of that description necessarily implies a 50/50 dividing line.)  Is it 30 percent?  Ten?  Three?  That's where the rubber hits the road.  And you're not telling me pretty much at all what's rubber and what's road.

Moreover, I've got a keen sense that's what a "reasonable" potential for success to you isn't the same thing to me.  Justice Rylaarsdam publishes this opinion to make clear his view that arguments that he labels "arguable-but-unmeritorious" should not be raised.  Something that's "arguable but unmeritorious" sounds very much to me like an argument that's -- depending on whether we're talking objectively or subjectively -- (1) only ten percent (or so) likely to prevail ("arguable"), or (2) lacks actual merit (i.e., a "wrong" view of the law or facts).

If it's the former, we disagree -- sharply -- on the number.  If it's the latter, we disagree -- sharply -- on the relevant standards (see Argument Three).  And if, as I fear, Justice Rylaarsdam might perhaps mean both, well, that's a double whammy, isn't it?

So I like that Justice Rylaarsdam publishes this opinion.  Truly, I do.  There are a lot of these briefs.  It's an important thing.  We want to get the standards right.  If there's a practice going on that we think is a waste of resources or improperly applies the law, we should (1) make the law clear, and (2) root these things out.  Count me in.

But I'm not at all persuaded that Justice Rylaarsdam's opinion either (1) sufficiently clarifies things, or (2) articulates the right standard in any event.  To put it a different way, the opinion is unclear, and if it were actually clearer (and hence helpful), it might well be wrong.

I've got to say, however, that it's possible that Justice Rylaarsdam and I agree.  I'd love to hear (truly) his take -- or the take of the rest of the panel (Justices Bedsworth and Thompson) [heck, pretty much anyone's informed take] -- on Arguments One through Four.  Am I right that all of 'em get made, with the sole exception of Arguments Four that are frivolous?  Or do we disagree on only the standard for Four?  Or do we disagree on that as well as Two and/or Three?

That'd be totally helpful for appointed counsel to hear.  Because I think answering those questions would actually make things clear.

And yes, I know, we can totally achieve consensus, and all agree, on opinions that are sufficiently indeterminate and unclear that everyone can read into them whatever they want.  But that's not what we should be doing.  We should ask, and answer, the hard questions.

I hope that Justice Rylaarsdam -- and/or others on the Court of Appeal -- do precisely that.

Tuesday, July 29, 2014

People v. Leonard (Cal. Ct. App. - July 29, 2014)

At first glance, this just looks like your typical conviction for pandering.  Typical (depressing) facts, typical (depressive) life of the relevant prostitute, typical (exploitative) conduct by the pimp.  A typical relationship that began this way:

"In 2011, Leonard approached Cynthia Jordan along El Cajon Boulevard in San Diego. Jordan was working as a prostitute at the time, and she thought Leonard might be a potential client. After speaking with him, however, Jordan understood that Leonard was interested in becoming her pimp. Jordan told Leonard her life had been difficult lately, and Leonard offered her protection. Leonard said he could provide Jordan with a place to live and food to eat if Jordan continued to work as a prostitute and gave her earnings to Leonard. Jordan soon gave Leonard a $100 'choosing fee,' symbolizing her choice of Leonard as her pimp, and moved into Leonard's apartment the next day."

You see this all the time.  The prostitute needs protection.  The pimp provides it.  Then you routinely see stuff like this:

"Leonard controlled Jordan's activities. Leonard told Jordan how to speak to potential clients, how much to charge, when to demand payment, and how to avoid contact with other pimps. Leonard and Walser [Leonard's friend] supplied Jordan with methamphetamines to feed her severe drug addiction. Jordan worked out of the apartment and in hotel rooms. Leonard eventually rented the apartment next door to use for prostitution. Leonard often drove Jordan to out calls, and he waited nearby to make sure Jordan turned the payments over to him immediately afterwards. Walser, and sometimes other men, rode along with Leonard for protection."

There's a stable.  Another prostitute named Hanson.  With whom you see more of the typical stuff:

"If Hanson did not have a client's payment for Leonard, or if Hanson spoke in a way that upset Leonard, he would order Walser to beat her. Leonard would say, 'beat that bitch,' and Walser would do so. After Hanson became pregnant, she stood up to Leonard more often. She did not want to continue working so many hours as a prostitute. Leonard responded that 'his other baby's mother . . . was out there working the blade until she was ready to pop,' and the beatings increased in severity. In one instance, Hanson and Jordan got into an argument. To punish Hanson, Walser punched her. Hanson suffered a cracked tooth, a dislocated jaw, and a broken lip from Walser's beating. Hanson also beat and cut herself.

Eventually, Hanson left Leonard. She returned to El Cajon Boulevard to work the streets. One night, Leonard pulled up beside her in his Cadillac. Walser was in the car as well. Walser grabbed Hanson and threw her into Leonard's Cadillac. They drove to Leonard's apartment, where Walser led Hanson to Leonard's bedroom. Leonard told Hanson she should not have left and she needed to return to Leonard. Leonard instructed Walser to beat Hanson, and he complied. Walser kicked Hanson in the stomach, back, legs, and face. Leonard kicked Hanson in the face as well. Leonard confined Hanson to the bedroom until Hanson agreed to work for him again. When Leonard released her, she returned to the streets and sought out her new pimp, Kevin Smith. Hanson soon started bleeding profusely as a result of the beating. Smith drove her to a hospital emergency room, where she suffered a miscarriage."

All of this is worth mention.  Not because it's unusual.  But because it's nonetheless important to know the next time you might think that sex work is no big deal because it's performed between consenting adults.  There's a real underbelly here.  Not a pretty one.

But I mention this case for a different reason as well.

Picture in your mind the defendant, Leonard.  The big bad pimp.  Imagine what he looks like as he goes about his daily routine and interacts with his prostitutes.  Providing them "protection" and harming them in all the ways described above.  Got the picture in your head yet?

No, I'm not going to ask you what race he is.  I'm instead going to ask if the picture in your head is consistent with this description of Leonard's life:

"Because Leonard has muscular dystrophy and uses a wheelchair, Walser assisted Leonard with certain daily activities. Walser's duties included bathing and dressing Leonard, lifting Leonard into and out of his wheelchair, and placing Leonard in his car."

Not what you were thinking, huh?

People v. Redd (Cal. Ct. App. - July 28, 2014)

What do you think the going rate for a smart phone (i.e., a cell phone with internet access) is in prison?

Answer:  $1000.

Nice work, if you can get it.

Of course, you also risk -- as here -- an additional seven years in prison if you get caught.  So you've got to definitely be aware of that downside.

I also thought it was interesting that the defendant's name in this case was "Redd".  Given that the opinion involves smuggling things (here, cell phones and tobacco) into prison, it reminded me of The Shawshank Redemption.  In which a similar character, "Red", is a "man who can get things" (i.e., smuggle them into prison).  And does.

Except Red never got caught and busted for seven extra years.

More proof that crime in the movies is a lot more fun than crime in real life.


Monday, July 28, 2014

U.S. v. Szabo (9th Cir. - July 28, 2014)

I know you're tired of waiting for a doctor at the VA hospital, and want to get treated.  Especially with the well-publicized problems in this area, we're somewhat sympathetic to your plight.

But you can't do this.

U.S. v. Gowadia (9th Cir. - July 28, 2014)

Say you wake up one morning and find that the FBI is conducting a search warrant at your house.  But you've done nothing wrong, you figure.  So you talk to them.

There's got to be a mistake.  Talking to them will clear things up.  It'll be better than looking guilty.

Seems like you're right.  After six hours, they leave.  Don't arrest you, don't nothing.  They ask you if you'll continue the conversations the next day at a coffee shop.  You agree.

It's hard to talk there, so you continue the conversation at the Maui Police Department.  But, to repeat, you've done nothing wrong.  They repeatedly tell you you're free to leave.  And, indeed, at the end of the six-and-a-half hours of chatting, you leave of your own volition.

Then they ask you if you'll fly to Honolulu to continue your chats.  They'll even pay.  You agree.  It's been going reasonably well.  They seem to understand.  No arrest.  Nothing.  You're explaining things.  It's all a misunderstanding.  Once they get it, they'll leave you alone.  And, again, you're totally free to leave.

The next week is a blur.  Seven sessions.  Around 7 hours each day.  You explain and explain and explain.  But, again, they're treating you right.  They seem to get it.

Finally, one day, you arrive via taxi for yet another conversation.  At which point they arrest you.

Next thing you know, you're being sentenced to 32 years in prison for selling military secrets to China and a plethora of other offenses.

Now, maybe you should have thought more deeply about things before you made those six trips to China and charged that government six figures for telling them "how a Chinese cruise missile, if modified with [your] designs, would perform against a United States AIM-9 class missile."  That's conduct that we somewhat frown upon.  Surprising, I know.

But we nonetheless appreciate your willingness to talk with the FBI seemingly forever without ever getting an attorney involved.  It makes things so much more efficient when you're willing to dig your own grave.

Friday, July 25, 2014

Daubert v. Lindsay USD (9th Cir. - July 25, 2014)

I was wondering when I read the caption of this opinion where the Lindsay Unified School District was located.  I had never before heard of it.  But Judge Milan Smith anticipates my curiosity and tells me in the first couple of paragraphs:

"Lindsay, California is a small town located in the Visalia-Porterville Metropolitan area. The town has a total area of 2.6 miles and a population of under 12,000. Approximately 1,100 students attend Lindsay High School."

There you have it.  It's also pretty interesting that a town of 12,000 has over a thousand students in its high school.

Given the sports programs at "city" schools -- those with which many readers may have experience -- it's enlightening to read this opinion and learn all about the football field at Lindsay High School.  Let's just say it's . . . not exactly fancy.

But it complies with the ADA.  Principally because the thing was built in nearly a half-century ago and hasn't changed since.

In Re J.G. (Cal. Ct. App. - July 25, 2014)

I guess I can buy the officer's testimony that he decided to drive his car over to talk to 15-year old J.G. -- who was walking across a parking lot towards his brother, D.G. -- for absolutely no reason, merely because he "stops and talks to people all the time."  The officer asks the boys what they're doing, and they say they're going to a party.  Fine.  I'll view that as a nice, consensual, friendly talk.

It gets less friendly when Officer Woelkers asks for their identification.  Less friendly when another police car drives up and a different officer gets out to monitor the situation.  Less friendly when the officers run a record check on the boys.

Still, no reason to suspect anything, right?  Just a "nice friendly chat" for "no particular reason".

Then the officer asks the boys if he can search them.  Presumably because he does that all the time too, right?  That's certainly my experience as a 48-year old white male.  The police are constantly stopping me in parking lots, asking what I'm up to, requesting my identification, and then asking me if they can pat me down.  For no reason.

The boys say yes, and the officers search them.  Nothing.  Meanwhile, another cop car arrives, and two more police officers join the fun.  That makes three police cars and four officers.  For a nice little chat.  Because they "stop and talk to people all the time."

Then the officers ask the kids if they'd be willing to sit on the curb.  Which they do.  Again, the police ask me to sit on the curb all the time.  Then they ask permission to search the backpack.  And the boys say yes.

Lo and behold, there's a gun in it.  The fifteen-year old gets arrested.

On the one hand, clearly Officer Woelkers suspected that something was up, and it's great police work.  He suspected that the kids were up to no good, might even have a weapon, and rather than just driving around all day, decided to do something about it.  Great job.  That's the kind of guy I want to hire.  As opposed to a guy who'd rather sit around in a parking lot, or at a doughnut shop, talking to his fellow officers or surfing the internet on his cell phone all day.

On the other hand, I'd also appreciate a little honesty.  Particularly when placed under oath.  We tend to care about that from those in authority.  Officer Woelkers didn't (IMHO) just stop these kids because they were merely one of many people he talks to every day, no different than any of the others.  He instead had some sort of suspicion.  Maybe based on their ages.  Maybe based on their race.  Maybe based on what they were wearing.  Maybe just based upon an inchoate "hunch".  But there was a reason why he stopped them.  Of that I'm confident.

But he didn't want to testify to that.  Because that might get the search suppressed.  So he instead said that he stopped them because he "talks to people all the time."  No particular reason.

Yeah, right.

I'd prefer forthright testimony as moral matter.  It also may be more efficacious.  Because the search here gets suppressed.

Great police work.  Stuff I appreciate.

Except for the stuff that came after.

Thursday, July 24, 2014

People v. Boyce (Cal. Supreme Ct. - July 24, 2014)

I don't think I need to tell you what sentence the jury returned for this offense:

"Shayne York and his fiancée, Jennifer Parish, were both Los Angeles County deputy sheriffs. On August 14, 1997, they were planning a trip to Las Vegas for Jennifer's birthday. Around 7:30 p.m., they went to the DeCut salon in Buena Park where Jennifer's sister, Amy, had agreed to style their hair. The three were alone in the salon. All neighboring businesses were closed.

Suddenly, Willis entered the shop wielding a semiautomatic handgun. Defendant followed closely behind, also carrying a handgun. When Willis yelled, 'Get the fuck on the ground, whiteys,' the three victims complied. . . . Defendant demanded York's wallet, kicking him when he did not respond quickly enough. Meanwhile, Willis yanked Jennifer off the ground, searched her pockets, and took her watch and engagement ring.

While searching York, defendant discovered his sheriff's badge and said, 'Well, well, well. Look what we have here, a mother fucking pig.' Defendant demanded to know where York worked. York replied, 'Wayside' and 'East Facility.' Defendant, who previously had been incarcerated there, asked York if he 'liked to treat nigger Crips like shit in jail?' York responded, 'No, sir.' Defendant retorted, 'No, I know you like to treat us nigger Crips like shit in jail.' York again responded, 'No, sir.' Defendant demanded and received the personal identification number (PIN) for York's automated teller machine (ATM) card.

One of the robbers said, 'Fuck the whitey,' and a shot was fired. York collapsed, bleeding profusely. Someone then declared that he had always wanted to kill a cop and that he hoped this one died. Neither Jennifer nor Amy saw the gun being fired, but both women believed that defendant had shot York based on the relative positions of the robbers."

You guessed it.  Defendant is sentenced to death.  The California Supreme Court unanimously affirms.

You may ask:  Wasn't there any mitigating evidence?  Of course there was.  Take, for example, this touching display, which transpired immediately after the robbers shot York:

"As York lay dying, Willis rummaged through Jennifer's purse looking for her ATM card. Discovering her badge, he announced, 'We've got another mother fucking pig in here.' He asked which of the two women was the 'other fucking white pig,' and Jennifer raised her hand. Willis said, 'Don‟t worry, bitch. We're not going to shoot you. You're a fucking woman.'"

Proof, I guess, that chivalry's not dead.  Even amongst the most evil and heartless of men.

I'll add, however, that there are other factors that might stop Boyce's execution.  His IQ may well be below 70.  We'll find out more on habeas.  He had a fever and seizure when he was two years old, and as a result, did not speak again until he was five.  "Defendant's first grade teacher in North Carolina described him as
the most learning disabled student she had encountered in 30 years of teaching."

None of which, I'll add, excuses his conduct.  But it nonetheless is relevant to the next phase of this already-long (sixteen years and counting) process.

Wednesday, July 23, 2014

Los Angeles USD v. Superior Court (Cal. Ct. App. - July 23, 2014)

"The Los Angeles Unified School District (the District or LAUSD) has developed a statistical model designed to measure a teacher’s effect on his or her students’ performance in the California Standards Tests (CST). This model yields a result—known as an Academic Growth Over Time (AGT) score—which is derived by comparing students’ actual CST scores with the scores the students were predicted to achieve based on a host of sociodemographic and other factors. These AGT scores are calculated at various levels—by individual teacher, by grade, by school, and by subject matter."

That's wonderful.  Getting data is good.  This is a piece (albeit only a piece) of relevant information about teacher quality.  The LAUSD should be applauded for obtaining and evaluating this data.

The LAUSD, however, wants to keep this data to itself.  It's willing to let the public know (pursuant to the Public Records Act) the various scores; e.g., that there's a teacher out there with X score and Y score and the like.  But that's all.  It refuses to tell the public which teacher has what score.

You might ask:  "Why?"  The Superintendent of the LAUSD, John Deasy, is happy to explain.  He says that releasing these scores "would (1) spur unhealthy comparisons among teachers and breed discord in the workplace, leading to resentment, jealousy, bitterness and anger, and proving counterproductive and demoralizing to some teachers, (2) discourage recruitment of quality candidates and/or cause existing teachers to leave the District, (3) allow competing schools to steal away the District’s teachers with high AGT scores, (4) disrupt a balanced assignment of the teaching staff — which is essential to the operations of the District — because parents would battle to ensure that their own children be assigned to the highest-performing teachers, and away from the lower-rated teachers, (5) undermine the authority of teachers with low AGT scores because parents and students alike would lose confidence in them, undercutting their ability to receive and accept guidance and perform their jobs, and (6) adversely affect the teacher disciplinary process because teachers subject to such proceedings could compare their AGT results with those of other teachers."

I'm surprised he didn't add (7) human sacrifice, dogs and cats living together, and mass hysteria.

The Court of Appeal agrees with Superintendent Deasy's assessment.  The balance of public interests weighs against releasing this data.  Because '[o]ne would certainly expect that if told the AGT scores of each teacher in their child’s grade, many parents would attempt to have their child assigned to the teacher with the higher score and/or away from the teacher with the lower score."

What a nightmare.

It's worth noting that both colleges and law schools routinely collect and distribute individual-level teacher evaluations to their students.  Schools do it themselves, and private entities add to the mix as well.  Yet, somehow, some way, colleges and graduate schools manage to survive; indeed, to flourish.

I'm a teacher.  I get it.  No one likes bad reviews.  We're okay with dishing out bad scores/grades to our students, but we don't like getting bad grades ourselves.  Much less letting other people see 'em.

But guess what?  We'll survive.  And flourish.  Yes, having other people see your bad grades can be discouraging.  It can also be encouraging.  Motivating.  Yes, having other people see good grades can lead to teachers moving.  We call that competition for quality.  That's a good thing, not bad.

I say that knowing full well that AGT scores are hardly the be-all and end-all of teacher assessments.  I might add, however, that the exact same is true for student evaluations in law schools.  Sometimes a really good professor gets bad evaluations.  Sometimes a poor professor gets good evaluations.  It's an imperfect world.  Scores are imperfect fits.

But that things aren't perfect isn't a reason to keep them secret.  The much better policy is to reveal this stuff and to educate people about their limitations.  Obtaining the good while minimizing the bad.

Of course, it's a lot easier just to hide stuff.  Keep information to yourself.  Don't let the ignorant masses (i.e., parents) have access to the stuff that only you are sophisticated enough to understand.

That's one approach.  Lots of countries adopt it.

But I'm not really sure it's appropriate here.

Wood v. Ryan (9th Cir. - July 23, 2014)

Joseph Wood certainly has had a busy week.

He killed his ex-girlfriend and her father in 1989, and was sentenced to death.  The usual appeals and habeas petitions followed.  Finally, in 2012, the Ninth Circuit affirmed the denial of his federal habeas claims.

Fast forward to last week.  It's about time to execute the sentence.  On Friday, the Ninth Circuit enters a couple of orders (here and here).  Then, on Saturday, the Ninth Circuit grants a preliminary injunction.

On Monday, a plethora of judges dissent from the denial of rehearing en banc. As well as predict that the Supreme Court will soon reverse.

They're right.  The next day (Tuesday), the Supreme Court reverses.  The same day, the Ninth Circuit denies Wood's latest appeal and his request for a stay.

Then, this morning, the Supreme Court also denies his request for a stay.

Which means that Wood's busy week is about to end.  Forever.  Since he's scheduled to be executed today.

And will be.

Tuesday, July 22, 2014

Gotterba v. Tavolta (Cal. Ct. App. - July 22, 2014)

When I saw the caption to this opinion, I figured it'd be about that Travolta.  Sure enough, it is.

Which is not all that surprising.  According to the Census Bureau, there are fewer than 100 people with the last name of Travolta in the entire United States.  Presumably only a portion of those are involved in lawsuits in California.  And it's not like the most famous Travolta is litigation-shy.  He's had some prior experience with the civil and criminal justice system here.  So the guess that this is yet another foray in this field was a pretty good one.

The case is also fairly significant even beyond mere star-watching.  Not because of the resulting legal doctrine articulated by the Court of Appeal, however.  But rather for two reason:

(1)  It highlights just how frivolous some anti-SLAPP appeals are. Here, someone who wants to write a book about his experiences with Travolta files a declaratory relief action seeking a declaration that he's not bound by a purported confidentiality clause.  At which point Travolta and his legal minions file an anti-SLAPP motion, claiming that the lawsuit arises out of protected activity.

That's absurd.  It's a pure declaratory relief action.  It arises entirely out of a purported contract.  The trial court held that this isn't a SLAPP suit.  The Court of Appeal agreed.  Which is not surprising.  As it's a no-brainer.  Travolta's argument that the lawsuit "arises out of protected activity" because his attorneys sent threatening letters to the plaintiff in advance of the lawsuit is frivolous.  You don't turn a contractual declaratory relief action into a SLAPP lawsuit merely by hiring lawyers to shoot off a letter.


(2)  It also highlights how you can win an anti-SLAPP motion even if you lose.  Plaintiff filed his action for declaratory relief so he could quickly obtain a determination of whether he was permitted to publish his book.  Travolta lost his anti-SLAPP motion, to be sure.  But just by filing (and losing) it, he delayed the lawsuit -- and hence the book -- by at least two years.  So plaintiff has to sit on his butt while this meritless motion (and appeal) works its way through the system.

Strike up another example of the power of tactical anti-SLAPP motions.

Given these tactical consequences, alongside the obvious lack of merit of Travolta's appeal, I was somewhat surprised not to see any consideration given to sanctions.  They might well have been appropriate.  (Reading between the lines, it may be that the Court of Appeal didn't feel like imposing sanctions because, in truth, it looks like plaintiff's lawsuit isn't particularly strong on the merits.  He's claiming that an unsigned "draft" contract is the "real" contract and a later signed contract -- the one with the confidentiality clause -- is a "fake".  I'm not especially impressed with that position.  Sure, the lack of underlying merit of plaintiff's claim is technically irrelevant to whether the defendant's appeal of an anti-SLAPP motion denial is frivolous.  But sometimes even doctrinally irrelevant things actually make a big difference.  Perhaps including here.)

In the meantime, Travolta loses.  But, in the larger scheme of things, he still wins.

Gonzalez v. Planned Parenthood (9th Cir. - July 22, 2014)

Lefties generally don't decry the Supreme Court's heightened pleading standards in Iqbal and Twombly.  But I'll bet dollars to doughnuts they'll like the applications of those standards by the Ninth Circuit in this case.  Applied to dismiss a qui tam lawsuit against Planned Parenthood for allegedly overbilling the government for contraceptives delivered to low-income women.

Let the internal conflict begin.

People v. Chavez (Cal. Ct. App. - July 22, 2014)

I certainly don't blame Justice Benke.  Nor do I think that the relevant brand needs to get any more publicity.

But in four different places in this opinion, Justice Benke refers to one of the victims as exclusively smoking "Marlborough cigarettes".  When even I -- someone who's never smoked a cigarette in his life -- knows that it's actually spelled "Marlboro".

We in the United States kill ourselves with products spelled differently than their British origins, thank you very much.

Monday, July 21, 2014

U.S. v. Liera-Mendoza (9th Cir. - July 21, 2014)

"In 2011, Liera-Morales unlawfully entered the United States with the assistance of a human-trafficking ring and later began working for the trafficking ring to pay off his remaining smuggling fee. As a part of his duties, Liera-Morales participated in at least one smuggling operation. In December 2011, he picked up three undocumented immigrants in the Arizona desert and helped transport them to a trailer house in Tucson, Arizona."

Oh, great.  Now human smugglers have discovered the power of multilevel marketing.

We're doomed.

Thursday, July 17, 2014

Velasquez v. Superior Court (Cal. Ct. App. - July 17, 2014)

There are worse things you can do than combining drinking and riding a bicycle.  But Justice Aldrich is correct.  It's still not a good thing.  As well as illegal.

Mind you, there's pretty darn good reason to believe that Jorge Velasquez, Jr. was not, in fact, guilty of the offense for which he was charged.  Mr. Velasquez was enjoying some alcoholic refreshment at Dodger's Stadium on -- appropriately enough -- April Fool's Day of 2013 when he decided to ride his bicycle home.  A bicycle with no brakes.  Did I mention it was April Fool's Day?

The good thing for Mr. Velasquez was that he wasn't drunk driving.  Plus he had just watched Clayton Kershaw beat the hated San Francisco Giants with a four-hit shutout on Opening Day.  Not bad.  Not bad at all.

The dark cloud behind this silver lining, however, was that a car pulled out in front of Mr. Velasquez on a downhill portion of his ride home, and when he swerved into the opposite lane to avoid the car, he smashed into a pedestrian, Sudha Russell, who broke several bones in her face and lost consciousness for ten days.  Suffice it to say that Mr. Kershaw had a much better April 1 -- and 2013 -- than Ms. Russell.

Not that Mr. Velasquez gets off scot free.  The police come and, according to the Court of Appeal's opinion, "Velasquez’s blood alcohol content was 2.18."  To be honest, I'm not really sure what Justice Aldrich means by that.  Maybe it's a typo.  Maybe it should read ".218".  'Cause the usual way we talk about these things is .08 for being per se DUI, .20 for being totally blotto, .50 for being dead, etc.  So on the usual scale, 2.18 would mean that Velasquez is four times the lethal level.  Or maybe Justice Aldrich is using something other than the usual scale.

Anyway, that confusion aside, the point is the Mr. Velasquez is intoxicated.  While biking.  Let's call it BUI.

So they charge him with a felony.  Under Section 23105 of the Vehicle Code.  Which covers "driving" while intoxicated and causing specified serious injuries.

You see the problem, right?  He ain't "driving".  Not the way we usually think, anyway.  Not a car.  (That's also putting entirely to one side the fact the prosecution erroneously charged him under Section 23105 even though that's actually the statute that sets forth the penalty, not the offense.  The actual statute they intended to charge him with is 23103.  "Reckless Driving".  With the relevant penalty then calculated under 23105.)

But he's "driving" a bike, so the statute allegedly applies, right?  You drive a car.  You drive a bike (sort of).  No problem.  (-Ish)

Except for one thing.  The relevant statute only covers someone who recklessly drives "a vehicle".  A vehicle, in this context, is usually a car.  So does it apply to bicycles?

You textualists out there may well say:  "Of course is does, Nimrod.  'Vehicle' means car, bike, scooter, Big Wheel, pretty much anything like that.  Common language."

Okay.  I hear you.  Let's perhaps agree to disagree on just how far a "vehicle" goes according to the plain -- and perhaps purportedly "unambiguous" -- meaning of that term.  (For example, a vase is a "vehicle" in which to hold flowers, but I'm pretty sure that's not what the statute covers.)

Because, fortunately, we don't have to resort to common language.  The Legislature helpfully expressly defined that term for us.  Section 23103 of the Vehicle Code says you're guilty if you "drive[] a vehicle upon a highway" in certain settings.  Section 670 of the Vehicle Code then defines the term "vehicle" as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

You see the problem now.  Bicycles are (or at least Mr. Velasquez's was) clearly "moved exclusively by human power".  Which means they're not "vehicles".  Which means that Section 23103 doesn't apply to him.  Which means he's not guilty of this offense.

Straightforward.  Couldn't be clearer.

Except the Court of Appeal holds that it's not true.

You see, using definitions is all well and good, but Justice Aldrich notes that there's a different statute (Section 21200) in the Vehicle Code that says that “[a] person riding a bicycle . . . upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle by this division, including, but not limited to, provisions concerning driving under the influence of alcoholic beverages or drugs."  And clearly, a driver can't drink and drive.  So, according to this statute, neither can a dude on a bicycle.

So the definition says it doesn't apply to bikes.  But a different statute says it does.  Which do you use?

The Court of Appeal holds that you apply the statute that makes Velasquez guilty of a felony.  Justice Aldrich's opinion persuasively applies both textual modes of interpretation as well as legislative history to establish that, yeah, the Legislature meant to permit prosecutions under 23103 to guys on bikes.  A fact complicated -- but not displaced -- by the pesky detail that the Legislature neglected to actually change the words (and definitions thereof) employed in that statute.

Justice Aldrich says that the more specific statute prevails over the more general definitions section.  I find that conclusion, and interpretive mode, eminently reasonable.  Justice Aldrich doesn't cite anything to support that conclusion.  But I'd refer to the maxim articulated by Section 3534 of the Civil Code -- "Particular expressions qualify those which are general" -- as entirely applicable.  Ditto for the caveat in Section 100 of the Vehicle Code, which says that “Unless the provision or context otherwise requires, these definitions shall govern the construction of this code."  Here, the statutory context requires a conclusion contrary to the identified dictionary application of the specified word.

So even though the statute requires a vehicle, and even though the statute says a bike's not a vehicle, it's still a vehicle.

Proof positive that textual interpretation doesn't merely require opening up a dictionary.  Or even the relevant provisions of the Code.