Tuesday, November 25, 2014

In Re M.D. (Cal. Ct. App. - Nov. 24, 2014)

Justice Pollak tells you in this opinion where to go in this opinion if you want to pick up a 16-year old prostitute in the Bay Area:  Laguna and Ellis Streets in Concord.

Why this particular location?  Justice Pollak explains why, as well as what to look for:  "[P]rostitutes frequent the area of Laguna and Ellis Streets in Concord because it is a safe area to work. The area is a couple of blocks from a BART station, and a majority of prostitutes come from outside the area. According to Robison, for the purposes of attracting men, prostitutes in the area of Laguna Street and Ellis Street will wear revealing clothing showing their midsections and low cut tops, tight shorts, or skirts. They choose that area because it is easy to get there by BART and it has a high population density so they can make a lot of money."

Okay, then.

I thought the concept of being a prostitute near a BART station was interesting, so I looked up the area.  Which revealed that, yes, there's a BART station two or three blocks away from where this particular 16-year old prostitute (and her adult pimp) were picked up.

So that's the upside of this particular location.

There is, however, one downside.  One that's not mentioned in Justice Pollak's opinion, but that's nonetheless very clear from a map of the area.  Guess what's directly in between the BART station and the high-prostitution intersection of Laguna and Ellis Streets in Concord?

The headquarters of the Concord Police Department.

Which somewhat explains why officers are willing to police this area.  An area a block or so away from their station.

Pretty bold to parade your underage prostitute around this area, no?

Monday, November 24, 2014

U.S. v. Prince (9th Cir. - Nov. 24, 2014)

The bad news for Byron Prince is that he accidentally shot himself with a revolver.  Oops.

The worse news for Mr. Prince is that, since he's a felon, once the United States realized (presumably at the hospital) that he accidentally shot himself, they convicted him of being a felon in possession of a firearm.

Welcome to fifteen years in prison.


People v. Aleksanyan (Cal. App. Div. (LA) - Nov. 5, 2014)

Were I ever sentenced to probation, a lot of time, I think and take my lumps and just let it go.  Even if I thought the conviction was dubious in some way.

Because, yeah, I could appeal.  Because who wants a conviction on one's record?

But the downside of filing an appeal is that (1) you might lose, and (2) the appellate court might publish the opinion.  Thereby disseminating to everyone what you've (allegedly) done.

Admittedly, if I'd done a fairly routine thing, and/or had a common name like "John Smith," I might give it a shot anyway.  Good job figuring out which "John Smith" is the defendant.

But say, for example, that I've got a name like "Vahe Aleksanyan" and I'm in Los Angeles.  Now, it turns out that -- who knew -- there are a lot of Vahe Aleksanyan's.  In Armenia (and on Facebook), anyway.

But in the United States, apparently, there are only two.  So you're risking a lot if the thing gets published.

That said, maybe you're not embarrassed about the facts of the case.  You're happy to have it out there!  You're innocent, for goodness sakes!  That's why your appeal maintains that the evidence is insufficient to support your conviction.  Truth's on your side.

The only problem with that theory is that the Court of Appeal is going to recite the facts of the case.  Which will read something like this:

"Los Angeles Police Officer Tara Munjekovich testified that on January 10, 2013, she was working undercover posing as a street-walking prostitute. She wore a tank top, a jacket, shorts, leggings, and boots, and walked back and forth from one corner of Sepulveda Boulevard and Haynes Street to the other. At approximately 8:55 p.m., as Munjekovich stood at the northwest corner in front of a motel, defendant drove his car south on Sepulveda, slowed, and made eye contact with her. Defendant turned right on Haynes heading west, then right again going north on a frontage road parallel to Sepulveda. He stopped in the middle of the road, about 10 feet north of the intersection and five or six feet from where Munjekovich was standing. Defendant rolled down his driver‟s window, and Munjekovich walked up to the car.

Munjekovich said “Hi,” and defendant said “Hi” and asked if she was a “cop.” Munjekovich told him she was not, and defendant asked if she had “a place.” Munjekovich responded she had a room “right here,” pointing to the motel. Defendant asked if she wanted to get in his car; she told him again her room was “right there”; and he said, “Well, let‟s talk out of the street.” Munjekovich directed defendant to park in the motel parking lot, and he drove into the lot, got out of his car, and waited for her by the trunk of his car.

Munjekovich walked up to defendant, asked him “what are you looking for,” and he asked, “What are you good at.” She told him she was good at “everything,” and he told her he was “looking for everything.” Munjekovich responded, “We can do everything. However, I don‟t do anal,” referring to anal intercourse. Defendant said “No?” and she said, “No, I'll fuck you and I'll blow you . . . . But I don‟t do that.” Defendant said, “Okay, how about a facial,” a street term for a man ejaculating onto someone‟s face. Munjekovich told him he could do that to her, and he asked, “How much?” She told him “for something like that it was going to be a little bit more,” and they went back and forth a couple of times regarding how much money defendant had. He asked her to give him a price, and she responded, “For that, it‟s gonna [sic] be around $80.” Defendant said, “Okay, $80. How long can I go for $80?” Munjekovich testified defendant explained “he may be really fast the first time and want to go again, so how long could he get for the 80.” Munjekovich responded she would give him an hour, and defendant asked whether he “could record it on his phone.” Munjekovich told him he could record, he said “Okay,” she told him “Let‟s go into my room,” and he said “Okay.” Munjekovich and defendant then started walking toward a row of motel rooms; at that point, she gave a signal, and uniformed officers drove up and took defendant into custody."

Yikes.  Not something I'd want my mother to read about me.  Or my brother.  Or uncle.  Or pretty much anyone, quite frankly.

Plus, wholly beyond the facts of the offense, it doesn't make me look brilliant either.  First there's the "Are you a cop?" part.  Does anyone think that's actually a defense?  Does anyone think the vice cop is actually going to say "Yes?"  Seriously?

Then there's the fact that you're trying to do all this stuff for $80 bucks.  Multiple times, full service, recording it on the cell phone, etc.

There's an old saying:  If it sounds too good to be true, it probably is.  Doesn't just work at retail stores.  Ditto for prostitutes.

But at least Mr. Munjekovich has a choice.  I feel even worse for Officer Munjekovich.  She's got a very specific name as well.  Only one person in the entire U.S. with that name.  And you can find out so much.  Not just how she spends her time on vice, and what she wears on the job on Sepulveda, but also where she trains, how many sit-ups she can do, how fast she runs, her salary, her book, and so much more that I won't post.  All in less than a minute of looking.

I know it's part of the job.  More power to her, even.

Well done on the bust, Tara.  (Ditto for the promotion and being in such good shape.)

Thursday, November 20, 2014

Laguna v. Coverall North America (9th Cir. - Nov. 20, 2014)

Is that pesky Ninth Circuit perhaps getting in the way of your cushy class action settlement and fee award?  Fear not.  They've got an app for that.

The settlement at issue in this case gives former franchisees $475 in cash and adds some ancillary relief.  The attorneys get nearly a million dollars.

The district court approved the settlement.  The Ninth Circuit panel did so as well, but Judge Chen, sitting by designation from the Northern District, dissented.  He wanted to know more -- much more -- about the settlement.  In particular, about how much it was actually worth in order to justify the nearly million dollars in fees.  Are the attorneys getting rich by negotiating relief that sounds good but that's really just a cover for an actual payout of almost nothing?  At least one inquiring mind wanted to know.

More than one, apparently.  Since a member of the Ninth Circuit sua sponte expressed interest in calling for en banc review.

But the parties weren't interested.  Sure, the objector had initially filed a petition for en banc review.  But then withdrew it.  You figure out why.

But that doesn't stop us, right?  Just like the parties may not be able to settle a class action, surely we can review a decision en banc if we'd like.  Even if the objector elects -- for whatever reason (good or bad) -- to withdraw the petition.

So, in August, the Ninth Circuit orders briefs.

Fear not, parties.  The parties settled.  The objector settled.  Everyone got paid (and/or the relief they wanted).

Today, the Ninth Circuit dismisses the appeal as moot, and vacates all the opinions.

So, crappy, unjust settlement or not, it works.

Wednesday, November 19, 2014

Helgestad v. Vargas (Cal. Ct. App. - Nov. 18, 2014)

Sometimes I lean towards not talking about opinions by a particular author because I don't want to sound like a homer.  You don't need me saying five dozen times that this justice writes especially well because, well, it's self-evident. And I've already said it two dozen times, so why beat an eloquent horse?

Nonetheless, for people like me, one great thing about Court of Appeal opinions is that they retain mystery longer than some other courts.  In the Ninth Circuit, for example, you see the author of the opinion right off the bat, immediately below the caption.  But in the Court of Appeal, you have to wait until the end -- or flip forward (if you can't stand the suspense) -- to see who you're reading.

I mention this only because sometimes, the writing is so clear and cogent and of a particular style that you don't have to guess.  Not because it's full of Kozinskisms or the like.  (Though those are fun too).  But rather because, as you're reading, you're simply thinking:  "I wish I could write like that."

This is one of those opinions.

Admittedly, the first sentence of the opinion demonstrates a writing style that's somewhat idiosyncratic, so that sort of gives it away.  But notice how the first three paragraphs of this opinion so clearly tell you, in a very concise manner, not only what the case is about, but where it's going and why.  It reads:

"Family law is not getting any easier. Consider this scenario: A couple live together and have two children. They do not marry. Then they separate. The couple agree to a paternity action judgment which establishes the father’s paternity, his right to visitation, and fixes a monthly monetary child support payment to be made to the mother who will have primary physical custody of the children. Later the couple attempt a reconciliation; the father moves into the residence of the children and the mother. After about nine months, the reconciliation fails, and the father moves out. Issue: Can the father obtain any credit for actual, in-the-home child support he afforded the children during the nine months he lived with them and the mother?

The question is one of first impression in California. (See Wright, Right to Credit on Child Support Arrearages for Time Parties Resided Together After Separation or Divorce (2002) 104 A.L.R.5th 605, 610-612 [absence of California cases] (hereinafter “ALR Annot., Credit for Time Resided”.) Had the original order been made in a marital – as distinct from paternity – action, and had the couple simply switched custody so that the children went to live with the father instead of attempting reconciliation, there seems to be no question that a line of California cases beginning with Jackson v. Jackson (1975) 51 Cal.App.3d 363 would allow such credit. In fact, family law has developed a shorthand term for credits. They’re called “Jackson credits,” after the first case to allow for them. But whether the same rules obtain in a paternity action as in a dissolution action has not previously been addressed.

The trial court concluded the father here, appellant George Vargas, was not eligible for any such Jackson credits, because this case did not fit the Jackson pattern of a child support order which originated in a divorce proceeding, and also because there wasn’t a total reversal of custody, but rather a period of cohabitation – shared custody – in the context of an attempted reconciliation. We reverse because we believe the same equitable considerations that apply to support orders arising out of marital cases should
also apply to support orders arising out of paternity cases. We see no reason to differentiate total changes of custody from periods of living together in the same household; actual support is actual support."

You can read the next twenty pages if you like.  But after that introduction, if you want, you can stop, and still know volumes about what the author's saying.

That's the very definition of a good introduction.

The author is Justice Bedsworth, of course.  You'd figure that out soon enough by the writing style -- or the multiple nine-point discursive footnotes (another trademark) -- if you hadn't already by the nature of the introduction.

Wholly apart from the writing style, which is outstanding, I've got a strong sense that this one's going to be memorable on the merits.  Indeed, I think it has generated a new legal term.  I'm just trying to figure out if, in the future, we're going to call them "Helgestad" credits or "Vargas" credits.

My money's on the latter.  Technically, because Vargas was the father and is the one getting the credits.  But realistically simply because his name is easier to pronounce.

Another incredibly well-crafted and -written opinion by Justice Bedsworth.  Which I imagine will get a new shorthand name in family law circles within the week.

Tuesday, November 18, 2014

Gwartz v. Weilert (Cal. Ct. App. - Nov. 18, 2014)

Today's published opinion from Justice Franson begins by saying:  "This appeal follows a highly publicized jury trial of a fraud claim arising from a $2.3 million sale of 15 acres of land that included a residence, riding arena and associated buildings, located on South Kings Canyon Road, Parlier, California. The plaintiffs who purchased the property obtained a judgment for $1,553,800, which included $850,000 in punitive damages."

Hmmm.  I had never heard of that "highly publicized" trial before.  Maybe I just forgot about it.  So I read the rest of the opinion to see if that would help.

Nope.  Still never heard about it.

I'm sure that's just my Southern California, big(gish) city bias.  I'm sure it was a huge story in the city of Parlier.  Population 14,494.  Five miles southeast of Selma, California.

I wish also there were more details.  Because I'm sure Justice Franson's right that it's a fascinating case.

As it is, the opinion merely deals with the appellate disentitlement doctrine.  Which is itself a neat thing.  The Court of Appeal dismisses defendant/appellant's appeal because they engaged in various machinations to try to avoid, circumvent, and hide from the judgment.

To tell the truth, I've seen worse.  Lots worse.

Not that that's a defense.  But if you ever want a case for the proposition that defendants can't try to hide from a judgment and simultaneously appeal it, here's a good one.

Monday, November 17, 2014

In Re Daniel B. (Cal. Ct. App. - Nov. 17, 2014)

Mom and Dad have a one-year old child together, and are living in a small two-bedroom home owned by Dad's parents.  Mom and Dad get into a fight.

Dad stabs Mom with a knife.  In the left shoulder.  Not good.

When Dad stabs Mom, Mom's pregnant with Mom and Dad's next child.  Twenty-nine weeks pregnant.  Makes things even worse.

The only dispute between the parties is whether, when Dad stabbed twenty-nine week pregnant Mom in the left shoulder, she was also holding their one-year old child in her arms at the time (as Mom said), or whether Dad's right that she had just given this infant to Dad's parents.

As one might already imagine, a lot doesn't ride on the resolution of this particular controversy.  You know that Dad's in trouble.  He's going to jail.  And, not surprisingly, there's a dependency action.

The dispute in the Court of Appeal is not about what you might expect.  Or, depressingly, maybe it is.

Dad has a restraining order against him at this point, is homeless and living out of his car, and he has a 13-year methamphetamine addiction.  Mom seems completely clean, as far as I can tell.  Her only deficiency is essentially her relationship with Dad.

Which she might perhaps want to one day continue.

The trial court tells her that if she has any contact whatsoever with Dad, it's going to take her kids away from her.  “You are hanging by a thread with these kids. If there is any contact with this man, I guarantee you somebody is going to tell the [DCFS], and, if that is the case, your kids are gone. Got it?”  Plus it orders her, as a condition of keeping her kids in the interim, that she's got to attend group therapy classes for victims of domestic violence.  For as long as the therapists want.  Mom objects, saying she doesn't want a group, but rather individual therapy, and wants to know how long this will take, rather than an open-ended order that says she's got to participate indefinitely.  The trial court's response:  "“Not a chance. She needs to be in a group. She needs to have other people saying to her, you let him back in and you let him back in and you let him back in. That doesn’t happen . . . with Family Preservation. They are very nice people. They will do individual. No, no, no. She needs to be in a group."  As for length:  "This is up to the domestic violence treatment program and the domestic violence counselors to say how long Mother needs to be in. They may say four weeks. . . . They may say a hundred. That is their call, but it’s got to be a group.”

Mom appeals, arguing that she's the victim, not the perpetrator, but the Court of Appeal affirms.

You can see why all of this transpires.  Though, at some point, one has to be worried about the long-term consequences of approaches like this one.  If victims of domestic violence are made to feel like victims in court, and (albeit for understandable reasons) have orders entered against them under penalty of losing their children, the incentive to report domestic violence in the first place may drop dramatically.  At some point, to potentially dangerous levels.

To solve this problem, we rely in large part on the public not knowing much about what goes on in this realm.  Mothers who are victims of domestic violence largely believe that when they report it, the consequences will entirely fall on the perpetrator, not on the victim.

But as more and more cases like this one arise, I wonder if that's an entirely stable dynamic.  At some point, the word may get out.  Changing the reporting dynamic.  Not necessarily for the better.

Yes, Mom needs counseling.  Yes, Mom needs to realize there's a serious problem here.  She likely already does, but perhaps we need to send that message even more strongly.

There's nonetheless, somewhere, a line here.  I'm just not sure at what point, systemically, it's crossed.

Friday, November 14, 2014

Overstock.com v. Goldman Sachs (Cal. Ct. App. - Nov. 13, 2014)

You think that your summary judgment motion was complicated?  Check out this one:

"[D]efendants moved for summary judgment on the remainder of plaintiffs’ causes of action . . . on multiple grounds. Plaintiffs’ opposition would eventually fill 38 banker’s boxes and included thousands of pages of discovery materials that had been designated “Confidential” or “Highly Confidential” pursuant to the protective order. . . . The trial court heard three days of argument on evidentiary objections to the materials filed in connection with the summary judgment motions and a full day of argument on the merits of the motions. "


It also takes the Court of Appeal 63 pages just to resolve the resulting disputes about which of these materials should remained sealed and which should be open to the public.

But that's not all.  The Court of Appeal issues another published opinion, in the same case, on the same day, that addresses the merits.  It's 60 pages.  We're talking a lot of work by everyone involved.

Moreover, if you think the stock market is just a nice, easy place, and trading's pretty straightforward, and an individual investor really has all of the same advantages as an institutional insider, feel free to check out the first fifteen pages of that second opinion.  You'll get a tiny glimpse into what happens in the "back office" of trades.

And perhaps be horrified.

Thursday, November 13, 2014

People v. Murillo (Cal. Ct. App. - Nov. 13, 2014)

The prosecution calls a witness at a criminal trial, but the witness refuses to answer any questions, saying at the very outset "I've got nothing to say."  What we do with the witness is another issue; he doesn't have a privilege claim, so we may well be holding him in contempt.  But it's likely he'd prefer that to getting shanked -- or worse -- for testifying.

Okay.  Since the witness clearly isn't going to testify, we presumably just move on to the next witness, right?

Not here.  No, instead, the trial court let's the prosecutor ask over a hundred leading questions to the nonresponsive witness.  Essentially testifying on his behalf.  Things like:  "[D]o you recall circling number four [Murillo] and putting your initials, the date, and the time on that document?; [D]o you recall writing a statement that says, 'Number four [Murillo] looks like him, but not completely sure. Kind of the same face structure'?"

Defense counsel objects like crazy, but the trial judge is totally fine with everything.  Let's the jury hear all of the witness' purported testimony from the prosecutor's mouth.  Admittedly telling the jury at the end that the prosecutor's questions "aren't evidence".  But nonetheless letting the prosecutor get all the "facts" he wants in front of the jury.

The Court of Appeal is not impressed.  It reverses.

Usually we assume that the jury followed a judge's instructions.  But in situations like this, when there's such manifestly inappropriate conduct, I agree that it makes total sense to reverse and remand for a trial in which the jury decides the case based upon the actual evidence, not the non-evidence out of the mouth of the prosecutor.

Wednesday, November 12, 2014

Garcia v. Google (9th Cir. - Nov. 12, 2014)

Let's just say that "Innocence of Muslims" is now in reruns.  Because this morning the Ninth Circuit took the case en banc.

This is not an especially surprising development.  As I mentioned when the opinion came out, it's a high-profile case that makes fairly new law.  So taking the case en banc was reasonable foreseeable.

I'll just make one comment you may not find elsewhere.  Chief Judge Kozinski wrote the majority opinion that's been taken en banc.  Moreover, as chief judge, under Ninth Circuit Rule 35-3, he's automatically on the en banc panel.  Which means that you likely already know one of the eleven votes.

With one wrinkle.  By my calculation, Judge Kozinski only has 18 more days -- and counting -- as chief judge.  So at the time of the actual argument (indeed, even at the brief submission date), he's not going to be the chief.

I'm not quite sure how Rule 35-5 gets applied in this setting.  I'm assuming that since he's the chief at the time the case is taken en banc, he gets to be on the en banc panel.  Even though that means that the en banc panel won't have the "chief" on it.  (Which somewhat highlights that there's totally no reason to have the chief automatically put on the en banc panel; something that I hope the Ninth Circuit will eventually change.)

A foresighted judge might have delayed the en banc call and/or vote just a few weeks to get a different judge on the en banc panel.  But maybe that'd be too obviously manipulative.  Conversely, maybe the Ninth Circuit will let the new chief sit on the panel.  (Instead of Kozinski?  In addition?)  Though I do not think that likely.  Seems to me that the best interpretation of the relevant (bad) rule is that the person who's the chief at the time the case gets taken en banc gets to sit.  Otherwise you've have to deal with situations like when the transition happens the day before oral argument, etc.

We'll see what happens.

POSTSCRIPT - Or maybe not!  An astute reader applied his substantial legal talents and looked for -- and found -- a precedent.  Seems that in the prior transition, back in 2007, the Ninth Circuit dealt with a similar issue.  A panel opinion got taken en banc on October 29, 2007.  Judge Schroeder was chief on that date.  But not for long; Judge Kozinski took over a month later.  Then the en banc case got argued in December.  Kozinski had been the chief for only two weeks or so.  Who was on the en banc panel?  Kozinski, not Schroeder.

So it looks like it should be Thomas, not Kozinski, on the panel on this one.  Unless, of course, the former chief is drawn by lot.  Which would make the whole thing moot.  (Except for the irrelevant but exciting fight about who gets "listed" as the chief when the en banc opinion comes out.)

Great stuff.

Tuesday, November 11, 2014

People v. Gonzalez (Cal. Supreme Ct. - Oct. 20, 2014)

No opinions from the Ninth Circuit this morning.  And nothing from the Court of Appeal.  Enjoy your Veterans Day.

But there's still some interesting reading from a little while ago.  For example, I'm not going to recite the facts that ultimately resulted in a case over which the California Supreme Court ultimately granted review.  If only because children might stumble across this blog.

But for the adults amongst us, go ahead and read the second paragraph of this opinion by the California Supreme Court, which briefly recite the underlying facts of the case.  It's a conviction that arises from an event that transpired during the early evening of June 25, 2010 on a public sidewalk in downtown San Diego.

And ask yourself:  What was the defendant possibly thinking when he did this?

Celebrate today's holiday in style.  But let's be careful out there.

Monday, November 10, 2014

Friday, November 07, 2014

HH Computer Systems v. Pacific City Bank (Cal. Ct. App. - Nov. 6, 2014)

In his inimitable style, Justice Bedsworth tells you everything you need to know -- and more -- about the process of depositing (and stealing) checks

Thursday, November 06, 2014

Giorgio v. Synergy Management Group (Cal. Ct. App. - Nov. 6, 2014)

Defendant doesn't come off as very sympathetic in this civil case.

The Court of Appeal doesn't give a lot of facts.  But the impression one might get is that defendant is evading service of process.  Big time.

Regardless, plaintiff tries and tries and tries to serve him, but ultimately gives up, gets an order of publication, does the deal, and takes defendant's default.  For a ton of cash.

Defendant moves to vacate, claiming that he never got notice..  But the trial court denies the motion, and the Court of Appeal affirms.  Plaintiff did what he had to do.  The facts look bad.  In particular, defendant's failure to explain why the post office says he's getting mail at 1109 South Wooster St. #3 in Los Angeles, why the guys in the Netherlands says he's at that address, why he's got an invoice telling plaintiff to make payment to him at that address, and yet nowhere does plaintiff explain why he's not, in fact, at that address.

That's a problem.  Which is why he's a $250,000+ judgment lighter at this point.

The Court of Appeal also (belatedly) publishes the opinion.  Which is a bonus to the "Cromwell Group, Attorney Services," which the Court of Appeal describes as "specializ[ing] in difficult service of process."

Thanks for the free advertising, Justice Kriegler!  (And now, Professor Martin!)

Hope we both get a free ham in the mail for Christmas.

U.S. v. Mavromatis (9th Cir. - Oct. 28, 2014)

Here's a nice little disposition that makes total sense.  On the part of everyone involved (except, perhaps, the Alaska US Attorney and the district court).

It's sufficiently brief that I can quote the disposition in full:

"Appellant James Mavromatis was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Following a bench trial, the district court entered a judgment of acquittal. Based on the same incident of possession, Mavromatis was charged in a new indictment and convicted of possessing a firearm after previously being committed to a mental institution, in violation of 18 U.S.C. § 922(g)(4).

Appellee, the government, has filed a “motion for remand based on confession of error,” because it agrees that Mavromatis’s conviction pursuant to 18 U.S.C. § 922(g)(4) is barred by the Double Jeopardy Clause. The view of the Department of Justice is that Congress intended not to establish multiple offenses when the same incident of possession violates two subsections of § 922(g). The government further concedes that the Department of Justice took this position in a brief filed with the Supreme Court in 1992, when the Solicitor General agreed that § 922(g) states a single offense that supports a single conviction and sentence, rather than multiple offenses that may be charged separately. See United States v. Munoz-Romo, 989 F.2d 757, 758-759 (5th Cir. 1993) (summarizing the Solicitor General’s position before the Supreme Court).

Accordingly, the government’s motion for remand is granted.

We remand this case to the district court with instructions to vacate the conviction and dismiss the indictment.

The mandate shall issue forthwith.


Short, coherent, good.  Nice to see.

Wednesday, November 05, 2014

People v. Palafox (Cal. Ct. App. - Nov. 3, 2014)

Guess how this one turns out:

"Defendant [Luis Palafox's] maternal grandfather died in prison after being convicted of molesting a 12-year-old relative. Two of defendant’s uncles (one of whom was Hoffman) were serving life sentences for murder. Defendant’s maternal grandmother beat his mother, who, along with one of her sisters and a brother, got involved in gangs. Defendant’s father was also a gang member. Defendant’s maternal grandmother used cocaine and “speed,” and his paternal grandfather was an alcoholic.

Defendant’s mother became pregnant with him at age 15. Defendant’s father described it as an unwanted and unplanned pregnancy. Although defendant’s mother denied using drugs during her pregnancy, she smoked marijuana daily and drank — sometimes heavily — on weekends after defendant was born. Gunfire and gang activity were frequent in the neighborhood in which defendant lived.

Defendant’s parents separated in 1993. Prior to their separation, defendant was
frequently exposed to incidents of domestic violence. After the separation, defendant’s father rarely chose to see him. Defendant’s mother moved a lot and continued to drink and smoke marijuana.

Defendant’s mother became involved with another gang member, Israel Rios, and together they had four children. Rios and defendant’s mother used drugs, smoked marijuana with the children in the house, and Rios drank heavily. Rios was aggressive with the children, and whipped defendant with his hand or a belt until defendant turned 12 years old and was 'too big to beat.' Because the family moved around a lot, defendant never joined a gang. . . .

Mason’s report detailed the large number of different schools defendant attended throughout his life. In high school, he tested below basic in English and algebra, and far below basic in world history, life science, and biology. According to an aunt, he had speech problems and a lisp. Another aunt described him, as an adolescent, as 'quiet, withdrawn, and young-minded.' During his school years, he was suspended multiple times for marijuana, possession of a knife, tagging, and other behavior problems. . . .

Defendant had “self-injurious behavior,” including biting and burning. On one occasion, he set the bathroom on fire. He used drugs and drank, drinking heavily at least three times a year. He started using marijuana at age 13, and smoked it daily until his arrest in this case. He experimented with cocaine and ecstasy. Three months before his arrest, his mother caught him inhaling Freon.

Despite everything, defendant was kind and helpful to his family. He babysat and cared for his younger siblings, and got them ready for school while his mother slept. After Rios hurt his back in an accident, defendant took care of the house and yard. He also helped people in need, such as by loading grocery bags into cars for people at the store and helping his blind grandfather do laundry. His aunt tried to get defendant to live with her, as she wanted to be a positive influence in his life, but he felt he had to stay with his mother, because she needed him to care for his younger siblings."

That's basically the story of his life until the age of 16.  Which is when he and another 16-year old broke into the home of an elderly couple in Bakersfield looking for drugs and beat them to death with a baseball bat as they lay in their bed.

He's sentenced to two counts of life without the possibility of parole.  The Court of Appeal affirms.

End of story.

Tuesday, November 04, 2014

Maxwell v. Dolezal (Cal. Ct. App. - Nov. 4, 2014)

You'd normally think that an opinion that was completely fact-dependent and was simply about whether the plaintiff had adequately stated a garden variety cause of action would be unworthy of comment.  Like this one.

You'd be right.  Normally.

But I have to make at least a brief reference to the opinion for two reasons.

First, the contract at issue is a funny one.  Funny as in "strange" but also as in "ha ha".  According to the Court of Appeal, here's what plaintiff -- who filed in pro per -- said about the relevant contract:

"Maxwell alleged that Dolezal had used his photograph and his website, JordanMaxwell.com, without Maxwell’s authorization or consent and for the purposes of advertising and/or soliciting purchases of merchandise. Maxwell alleged that, as a result, he had suffered injury to his business and lost income as a celebrity; he sought damages and an injunction preventing Dolezal from using his website and likeness for advertising or soliciting purchase or rental of videos. . . .

[Maxwell] alleged that on or about March 30, 2010, he entered into an agreement with Dolezal in which he agreed to assign his intellectual property rights in exchange for free housing, free food, and 50 percent of the monies received as a result."

JordanMaxwell.com.  In return for "free housing, free food, and 50 percent."  Classic.

Second, of course, I had to investigate the actual web site.

Ordinarily I'd simply provide a link.  And I will.  But it's too good not to share directly.  It's just that awesome:

Owino v. Holder (9th Cir. - Nov. 4, 2014)

My first thought on reading this opinion was:  "Quinn Emanuel does pro bono immigration work?!"

But, indeed, it does.  At least now.

Not that I'm complaining.  That's great.  Wonderful, even.

Just not necessarily what I expected.

Monday, November 03, 2014

Aspen Grove Condo Assoc. v. CNL Income Northstar (Cal. Ct. App. - Nov. 3, 2014)

This opinion amply reflects the central problem that California faces in the modern era:  Too much water.

Okay, so maybe not all of California has this problem.  But the condo owners at Aspen Grove have precisely such a problem.  At least after Northstar Village expanded its ski operations.  Northstar built a lot of buildings and parking lots and the like, which reduced the preexisting ability of the ground to deal with runoff from melting snow and the like.  So Northstar created a nice little pond to collect all that water -- right near the condos -- but the pond didn't work, and water intrusion on the Aspen Grove property was a fairly constant problem as a result.

Northstar tried to solve the problem, but eventually just gave up.  So Aspen Grove sued.  And won.

Justice Hoch's opinion doesn't paint Northstar in a very favorable light.  Remember that the next time you go skiing in Lake Tahoe.  And feel free to rent a condo at Aspen Grove.  It's close to the slopes.  Even closer to the runoff therefrom.

People v. Eroshevich (Cal. Supreme Ct. - Nov. 3, 2014)

The month of November did not start out well for Howard K. Stern.  (To be clear, we're talking about this Howard Stern -- i.e., the "Anna Nicole Smith" one -- not the "King of All Media" Howard Stern.)

Mr. Stern was convicted at trial of conspiracy to obtain prescription drugs for Ms. Smith (a.k.a., Ms. Vicki Lynn Marshall) under a variety of false names.  But the trial judge granted a new trial, and the Court of Appeal held that although the jury's verdict might perhaps be reinstated, the Double Jeopardy Clause barred a new trial.

The California Supreme Court reversed and remanded, unanimously holding that a new trial was permissible.

Among other things, today's opinion shows just how troubling Supreme Court dicta can be.  The Court of Appeal's decision relied upon an express statement from the California Supreme Court in which that tribunal said that once a trial court finds the evidence to be insufficient, no new trial is permissible.  That statement is indeed dispositive here.  But as the Court explains, it's also wrong.  Such a holding is conclusive for Double Jeopardy purposes if made before the jury returns its verdict.  But not if made after the jury finds the defendant guilty.

The Court of Appeal felt constrained by the California Supreme Court's express statement.  Whereas the latter didn't feel similarly constrained in the slightest.

Friday, October 31, 2014

People v. Aparico (Cal. Ct. App. - Oct. 31, 2014)

I agree with the trial court and the Court of Appeal in this one.  Proposition 36 permitted three-strikes offenders to be resentenced.  But not if the petitioner presents an unreasonable risk of danger to public safety.

With respect to the petitioner, Luis Aparico:

In March 1985, a juvenile court found true the allegation that Luis Ramon Aparicio committed battery with serious bodily injury after he dislocated the victim's nose by pushing the victim's head onto concrete. Aparicio was 15 years old at the time. In August 1986, Aparicio attacked a victim with a knife. In October 1988, Aparicio suffered his first strike conviction for robbery when he and three cohorts robbed two victims of their stereos. During the struggle, one of the assailants stabbed one of the victims. Aparicio was sentenced to 365 days in jail and three years of formal probation, but probation was ultimately revoked and he was sentenced to three years in prison.

In June 1989, Aparicio suffered his second strike conviction after he pleaded guilty to attempted robbery after trying to rob three victims with an ice pick. While fleeing the scene, Aparicio's vehicle struck another vehicle and he was later found to be under the influence of a controlled substance. He received a two-year prison sentence. In 1992, Aparicio received a three-year prison term for possessing PCP and marijuana. In 1996, Aparicio was convicted of battery and resisting a police officer. He received probation, but probation was later revoked. In 1997, Aparicio was convicted of his commitment offense after burglarizing a car. During the reading of his guilty verdict, Aparicio attacked a marshal and attempted to remove his gun. He received a 27-years-to-life prison sentence under the Three Strikes Law.

Aparicio received nine write-ups while incarcerated. In February 1998, he received administrative punishment after pinching a female prison employee on the buttocks and grabbing her thigh. In June 1998, he headbutted another inmate. In October 1998, he flooded his cell. In February 1999, he flooded his cell and threw urine at an officer. In December 2000, he obstructed a peace officer by refusing to accept a new cellmate. In 2001, 2005 and 2007, he engaged in mutual combat with other inmates. In November 2012, he stole desserts from the dining hall."

I'm sorry, Mr. Aparico.  But Justice McIntyre is right.  You're the exception to the rule.  You may perhaps be granted parole, but the trial court properly found that you're not entitled to resentencing.

Vathana v. EverBank (9th Cir. - Oct. 31, 2014)

Plaintiff --- like a lot of other customers -- buys a certificate of deposit from EverBank.  It's not a regular CD, however.  It's essentially an Iceland CD.  Whereas a normal (American) CD is denominated in dollars, this one was denominated in Icelandic krona.

That interjects some risk. As well as some potential benefit.  If the krona goes up compared to the dollar, American investors make money.  But if it goes the other way, the depositor loses money.

Fair deal.

Unfortunately for plaintiff, she invested in mid-2008.  Right before Iceland got hit by the financial crisis.  In a way that devastated Iceland's economy.

So the krona plummets.  So does the value of plaintiff's CD.

So far, there's nothing awry about that.  Lots of people got hit during that era.  Plaintiff's one of them.

The troubles begin -- the legal troubles, anyway -- once the CD matures.

The agreement with EverBank says that absent instructions from the client, the CD automatically renews, at whatever interest rate then prevails.  Plaintiff is fine with that.  She thinks Iceland's going to come back.  At the very least, she thinks it can't get worse than it already is.  So she sends EverBank an e-mail telling it to make sure they renew the CD.

But these products aren't so fun for EverBank anymore.  It's not like customers are psyched about buying Icelandic CDs anymore.  It would just as soon be out of the business entirely.

But there's that pesky agreement.  Plus the customer's express instructions.

But let's be clear.  EverBank shouldn't care.  If it had done its business like a normal bank, it didn't stand to lose on the transaction.  Normally, what you'd think would happen on these deals is that the customer would give EverBank dollars for the CD (say, $40,000), EverBank would exchange those dollars into krona (say, 3,500 ISK), and then the 3500 ISK just sits there earning whatever interest banks in Iceland would pay on 3,500 ISK.  EverBank wouldn't lose.  Instead, it'd gain.  Not a ton; just the administrative fees it charges on the account.  But hey.  It's a bank.  That's how these things work.

The rub, however, is that EverBank didn't do it the normal way.  Instead, it took some risk.  It didn't actually buy the 3,500 krona.  Instead, it entered into forward contracts.  That way it was largely hedged in exposure to fluctuations in krona valuations.  Plus maybe it would make a bit more money on the deal itself.

Which works.  Unless the krona collapses.  Which -- as we now know -- it did.

Once the krona collapsed, EverBank couldn't find anyone willing to write new forward contracts for it.  A situation that wouldn't be a problem -- at all -- if it had actually exchanged the dollars for krona.  Since then EverBank would just sit on the krona it had.  But since it didn't, now EverBank is in trouble.  It has promised to allow its customers to renew their CDs.  That's also what one of its customers expressly wants.  But to do so now would create risk for EverBank, since it can't find a new hedge.

So EverBank reneges.  Closing the CD.  And paying plaintiff in dollars instead of in krona.  Dollars that were a third of what plaintiff put into the CD three months ago.

Plaintiff's not psyched.  So sues.  Including class action allegations as well.

EverBank's principal defense is paragraph 1.17 of the relevant agreement.  Drafted, of course, by EverBank.  Which says that "if we [EverBank] believe that it is necessary to close your account immediately in order to limit losses by you or us, we may close your account prior to providing notice to you.”

The Ninth Circuit concludes that this defense succeeds.

I'm not a monster fan of this conclusion.  Though I certainly see how Judge Murguia reaches it.  To me, the closing of the CD doesn't legitimately protect the customer because the customer's expressly on board for taking the risk.  She wants the CD to remain open.  Plus, as it turns out, she's absolutely right.  The krona does indeed substantially rebound.  When I buy Apple stock, you can't sell my stock in the guise of limiting my losses if I'm constantly telling you that I still like the thing.  To interpret the clause otherwise makes no sense.  I wouldn't have agreed to it.  You wouldn't have required it.  Sure, for silent customers, maybe the provision authorizes a sale.  But not in situations where the plaintiff's screaming "Hold, hold, hold!"

I'm not really sure the Ninth Circuit would disagree with what I just said.  Although it's not explicit about this point.  Instead, I think that Judge Murguia is hanging her hat on the fact that EverBank could permissibly close the account in order to limit its losses.

Paragraph 1.17 does indeed provide for that.  But remember that EverBank wouldn't have had any losses if it had done what we expect banks to normally do and actually put plaintiff's money into kronas.  Instead, the bank did something that it thought would make the bank more money -- it bought forward contracts.  A risk that turned out to be a problem once forward contracts became unavailable and/or extraordinarily expensive.

The Ninth Circuits says that closing the account limits EverBank's risk.  True enough.  But it was EverBank's decision that created that risk.  I'm exceptionally unsympathetic to an interpretation of 1.17 that would relieve it from the consequences of that unilateral decision.  To me, the Ninth Circuit reads 1.17 as if it said:  "When you open this account, if we decide to take a risk that might make us more money, and if that risk turns out to benefit us, we keep the extra money, but if it turns out to harm us, we get to close your account and harm you, even though this problem wouldn't have even exist had we done what you almost certainly think we're going to do when you use dollars to buy krona."  I doubt that a reasonable customer would agree to such a provision.  Nor do I think that's what 1.17 says.  If you create a risk, you've got to live with it.  And that's just what EverBank did.

But the Ninth Circuit lets it off the hook.

The only saving grace of the opinion, in my view, is how it ends.  Remember that plaintiff tells EverBank to renew the CD, and also says that, if it nonetheless terminates the thing, to pay her in krona, not dollars.  An e-mail that makes sense because, as you recall, plaintiff thinks the krona will bounce back.

EverBank doesn't do that either.  It pays in dollars.  Because, among other things, it doesn't have any krona, since it didn't actually buy any when plaintiff opened her CD.

The Ninth Circuit says that maybe that decision was impermissible. But with enough caveats so it's a big maybe.  Something that has to be sorted out on remand.

For me, if the plaintiff gets paid in krona, then I don't care that much.  She wanted exposure to the krona.  She paid for it.  Even if her CD gets (illegally) terminated, if she's paid in krona, she retains that exposure.  If she's right that it's going to bounce back, then she'll indeed bounce back.  And I think the Ninth Circuit is largely right in the way it parses through the terms of the EverBank agreement on this point.

My only concern is that it's not at all clear that's what's going to happen on remand.  The Ninth Circuit is not strong on this point.  A point that, in my view, is the opinion's only saving grace.  The too-generous view of 1.17 might not matter much if the plaintiff was entitled to get paid in krona.  But matters a ton -- indeed, in a dispositive fashion -- if EverBank can terminate her account and pay her in dollars.  Then she's screwed.

To reiterate:  When a bank takes a risk, it should be held to that risk.  Not the customer.  If I put dollars into an account and the bank's supposed to buy krona and hold it for me, that's what they need to do.  And if the bank doesn't don't do it and something goes awry, those consequences should be on the bank, not me.

Give me my damn krona.

Thursday, October 30, 2014

Edwards v. Lake Elsinore USD (Cal. Ct. App. - Oct. 30, 2014)

The good news for Lori Edwards is that the Court of Appeal holds that the trial court erroneously held that her complaint against the Lake Elsinore Unified School District was barred by the relevant limitations period.

The bad news, however, is that the Court of Appeal rules against her on the merits.  She was not, in fact, a permanent teacher.  She was a substitute teacher.  Even though she taught for the entire year.

So she's not entitled to employment for life even under California's (extraordinarily generous) tenure rules.

NRDC v. US DOT (9th Cir. - Oct. 30, 2014)

Fear not.  Judge Wardlaw -- a resident of L.A. -- understands that trying to get out of the Port of Los Angeles and connect to the 405 is even scarier than four uncostumed teenagers showing up on your doorstep at 9:30 p.m. tomorrow night and yelling "trick or trick".  Joined by the rest of the panel, she holds that the Department of Transportation took the requisite "hard look" at the environmental impact of the proposed expressway and properly approved it.

Enjoy the additional trucks on the 405, my commuting L.A. friends.  It's progress.

Wednesday, October 29, 2014

In Re A.B. (Cal. Ct. App. - Oct. 29, 2014)

You read a ton of dependency cases in which drugs are involved.  Not surprisingly.  Drugs and kids simply do not mix very well.

It's usually methamphetamine or marijuana or cocaine.  But this case is slightly different:

"Just after midnight on December 31, 2012, San Anselmo police received a call that Z.B. had been observed running from his apartment toward a nearby park. When officers found him he was crying and fearful of his mother. When they brought Z.B home, officers saw a marijuana pipe, thousands of empty nitrous oxide containers all over the apartment, and very unclean and hazardous conditions, including rotting food in the sink, a toilet bowl full of feces, and prescription pain pills within reach of the minors. A.B. was asleep upstairs."

That's not something you see every day.

On the other hand, I sort of get it.  There's a reason that stuff's called "hippy crack".


Negro v. Superior Court (Cal. Ct. App. - Oct. 21, 2014)

Think it's easy to order production of relevant e-mails from a party's gmail account?

Think again.

It's not that it doesn't happen here.  It does.  Eventually.

But look how much time -- and money -- it took.  Ultimately requiring innumerable trips to Florida and California and a peremptory writ by the Court of Appeal.

It ain't easy.

Monday, October 27, 2014

Abbott v. Federal Bureau of Prisons (9th Cir. - Oct. 27, 2014)

We know it's "kidnap".  But is it "kidnaping" or "kidnapping"?

Today's opinion from Judge Gould uses the former term.  Half a dozen times, no less.  Which struck me when I was reading it.

I'm not a good speller.  At all.  But it looked weird to me.  Is that the right way to spell it?  Or is this one of those things where there are two acceptable versions?  Maybe one English, one American.

Fortunately, in the modern era, answers to questions like that are at the tips of our fingers.  So I looked it up.

Judge Gould is definitely in the minority when he uses the spelling "kidnaping".  Here's the relative frequency of both terms:

So while "kidnaping" made a definite run for it during the '30s and '40s, the game's pretty much over at this point.  "Kidnapping" wins.  (And, yes, I looked at British versus American usage as well.  Doesn't help solve the mystery.  Same basic discrepancy.)

So why does Judge Gould use the former rather than the later?  Just stuck in the old usage?

I think about just letting Eugene answer this question.  He loves this stuff.  But then I figure that maybe he has better things to do.  Bigger words to fry, perhaps.  So I embark upon the mission myself.

I thought I had a pretty good answer.  Still might.  The opinion is about whether a Montana conviction for unlawful restraint disqualifies the petitioner from getting into a favorable federal drug program because it's equivalent to "kidnap[p?]ing" under 28 C.F.R. § 550.55(b)(4).  So I went back to the underlying federal regulation.  How does it spell the relevant term?

Yep.  "Kidnaping".  That's how the Bureau of Prisons spelled the thing when it passed the regulation.  Way back in . . . 2009.

Mind you, even the BOP couldn't keep it entirely straight.  The proposed regulation used "kidnaping" five times, including in the relevant text.  But the BOP's summary of the proposed regulation used "kidnapping".  I can't come up with a coherent reason why.  But there you have it.

So my theory was that Judge Gould's opinion simply uses the same spelling that's employed by the regulation at issue.  Makes sense.  Even if that spelling's extraordinarily old fashioned and not at all what we're used to nowadays.

Except then I get to the penultimate paragraph of Judge Gould's opinion.  In which he uses "kidnapping".

Damn it!  Chucking my entire theory out the window.

Wait.  Maybe I can salvage the thing.

Judge Gould's last use of the term says:  "Further, unlawful restraint is a lesser included offense of kidnapping under Montana law. See State v. Brummer, 287 Mont. 168, 177 (1998)."  That crafty Judge Gould.  I get it now.

He's using "kidnaping" whenever he's referring to 28 C.F.R. § 550.55(b)(4).  Or any action (like this one) arising thereunder.  But when he's referring to Montana law -- as in his next-to-last paragraph -- he uses "kidnapping" since that's the way Montana uses it.  Judge Gould doesn't put quotation marks around the relevant words or anything like that, but he's just using whatever spelling the underlying source employs.

That's a perfectly consistent explanation.  Maybe not the best way to write an opinion, but I get it.

Except then I look up the case he's cites for Montana's "kidnapping" offense:  State v. Brummer, 287 Mont. 168, 177 (1998).  Which consistently uses . . . "kidnaping".

At this point, I give up.

Judge Gould uses two spellings.  Typically using a decidedly minority spelling but then ending with the dominant spelling.  Why?

Because he feels like it.  No other reason I can fathom.

In Re D.S. (Cal. Ct. App. - Oct. 27, 2014)

What a tangled web we weave:

"This appeal involves competing claims for presumed father status of four-year-old D.S. by the boy’s biological father, A.V., and his stepfather, B.E. . . .

Mother and A.V. met in 2009, when mother was 19 years old and A.V. was 45 years old. Mother had just been released from jail and needed a place to stay, so she moved in with A.V., who had an extensive criminal history. Mother began prostituting at A.V.’s request, as she had done in the past. On December 8, 2009, mother and A.V. were arrested for shoplifting. Following that arrest, A.V. remained incarcerated until November 8, 2010. Mother, however, was released on bail.

Mother learned that she was pregnant in February or March 2010 and believed A.V. to be the father. She informed A.V., who was incarcerated, about the pregnancy and sent him an ultrasound picture. Also in approximately March 2010 mother began living with a new boyfriend, B.E.

On July 2, 2010, after mother informed A.V. that California law precluded him from appearing on the baby’s birth certificate if he was not present at the birth, A.V. sought to obtain a declaration of paternity form. He never received the form. While A.V. was incarcerated, mother withdrew approximately $100 from his jail account.

D.S. was born in August 2010. B.E. was present at the birth. Mother and B.E. married two months later. . . .

Mother had a son, A.E., with B.E. in January 2012.

B.E. was incarcerated between February 5, 2012 and August 12, 2012, for theft. In March 2012, while B.E. was incarcerated, A.V. stayed with mother and D.S. for a few days.

On March 12, 2012, B.E.’s mother (step-grandmother) received a call from mother, who was high, indicating that she could not find her sons. Step-grandmother located the boys, who moved in with her."

I could go on.  But I think you get the point.

My hat's off to lawyers and judges who deal with these sorts of cases.  Yours is not an enviable task.

Friday, October 24, 2014

U.S. v. Castro-Ponce (9th Cir. - Oct. 24, 2014)

Sometimes wins on appeal are huge victories.  Sometimes they're like this.

Castro-Ponce is charged with distribution of methamphetamine.  The feds have him under surveillance, and on wiretaps, for a long time.  Castro-Ponce testifies in his own defense and provides, under oath, innocent explanations for all of his alleged misconduct.  The jury disbelieves him, and convicts him.

The trial judge then not only sentences Castro-Ponce to the usual consequences, but also tacks on a two-level upward adjustment for obstruction of justice, finding that Castro-Ponce "clearly lied" on the stand.  The guidelines say sentence him to life, but the district court judge sentences him to twenty years.

Casto-Ponce appeals, claiming that the trial judge found that his testimony was false, but also needed to expressly say that his testimony was on a material matter as well as willful in order to tack on the two-level enhancement, which she didn't do.

The Ninth Circuit agrees.  Remanding back to the trial court to see whether it will to make the specific findings on remand that it didn't realize it had to make the first time.

Do you have any doubt whether the district court will make those precise findings on remand?

Not me.  Not in the slightest.

Thursday, October 23, 2014

Williams v. Swarthout (9th Cir. - Oct. 23, 2014)

Judges Noonan and Reinhardt are extraordinarily concerned about fairness.  Deeply, profoundly, and sincerely.  In every case, including but not limited to (and perhaps exceptionally in) criminal cases.

So when the trial judge mistakenly tells the jurors that the defendant has pled guilty, the prosecution and the court reporter notice this error but says nothing, and one juror concedes during the trial that this error made her -- and perhaps others -- essentially "space out" during the trial because it didn't look like the trial made a difference any more, well, Judges Noonan and Reinhardt care.  They vote to grant the defendant a new trial.

Judge Murguia, by contrast, dissents.  She wouldn't grant relief.  Especially in -- as here -- an AEDPA case.

You'll have your own view as to whether the majority or the dissent has the better of the argument.  I am of the belief that a majority of the justices on the Supreme Court -- perhaps even all of them -- are not as similarly concerned as Judges Noonan and Reinhardt about fairness.  Including but not limited to -- and perhaps especially in -- AEDPA cases.

So this one, I think, may well end up in yet another Supreme Court bench slap of the Ninth.

Time will tell.

U.S. v. Bell (9th Cir. - Oct. 22, 2014)

Defendant represents himself at a criminal trial.  The prosecution gives a closing argument.  The district judge never asks defendant if he wants to give one; instead, he simply moves on, and starts reading jury instructions.

There's a Sixth Amendment right to make a closing argument on your own behalf at a criminal trial.

Whatcha think?

For me, Judge Hawkins hits the nail on the head when he says:

"There is a certain value in saying what is necessary and no more. Here, although I have no quarrel with the bottom line result, I am concerned that the majority goes further than needed in announcing, for the first time anywhere, that a pro se criminal defendant has no right to be advised of the opportunity to present closing argument.

I agree, given the litigation history of this case, that the failure to ask Raymond Bell if he wished to make a closing statement to the jury was not error. Certainly the better practice would have been to ask, particularly in the circumstances of this case where the district court urged the jury to listen carefully to the arguments of the prosecution and Bell’s represented co-defendant who both proceeded to make arguments attempting to undermine Bell’s case.

I would affirm, but on the narrower grounds that Bell’s non-participation during the course of the trial and his failure to object or request argument effectively waived his right to make a closing argument. I would not say, as I think the majority does, that a defendant in a criminal case, pro se or otherwise, need not be advised of an opportunity to make closing remarks to the jury."

But Judge Gould, joined by Judge Graber, feels otherwise.

Wednesday, October 22, 2014

Lofton v. Wells Fargo (Cal. Ct. App. - Oct. 22, 2014)

The trial court said that it was "very, very troubled" by the events that transpired in this class action case, stating that he thought that "[i]t appears to me [that] there has been egregious misconduct and bad faith on the part of ILG [Initiative Law Group]."

After reading this opinion, I gotta say, I'm profoundly -- profoundly -- troubled as well.  And the Court of Appeal doesn't seem particularly happy either.  Affirming the trial court's decision below.

You've got to read all the facts for details.  They're fairly shocking allegations about how lawyers at the Initiative Law Group basically stole from their clients.  Again, these are just allegations, but oh, my the facts seem really bad here.

I was somewhat surprised that the Court of Appeal didn't name names here; e.g., expressly say in the opinion which individual lawyers at ILG did what.  Especially since there's apparently some reason to believe that the response of Initiative Law Group to this whole fiasco was to . . . change its name.

Troubling stuff, IMHO.  Profoundly troubling.

Blueberry Properties, Inc. v. Chow (Cal. Ct. App. - Oct 22, 2014)

Do you know what an elisor is?

I'll readily confess that I did not.

Until today.

Tuesday, October 21, 2014

In Re J.S. (Cal. Ct. App. - Sept. 11, 2014)

I can summarize this opinion in three words:

"And" means and.

Under ICWA, an "Indian child" is "either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe."  It's undisputed that the child here is not a member of an Indian tribe, so (a) doesn't apply.

But he's also "eligible for membership" in the Cherokee tribe because his great-great grandfather was an enrolled member.  So (b) might apply.

Except for the "and" part.

You've got to be eligible for membership and be the biological child of a member of the tribe.  It's undisputed that the child isn't the biological child of a member of the tribe.  His father isn't a member.  His mother isn't a member.

"And" means and.  You've got to both be eligible for membership and be the biological child of a member.

That's what the statute says.

End of story.  As the Court of Appeal holds.

Monday, October 20, 2014

US v. Fowlkes (9th Cir. - Aug. 25, 2014)

I'll merely recite the relevant facts of this case without (much) commentary.  With the caveat that they are a little gross, so the squeamish might want to skip to the next post:

The defendant (Mark Fowlkes) is a big guy, and the DEA suspects he has drugs.  The police conduct a pretextual stop for an expired registration, see some alleged drug residue, and arrest him.  Then it gets a little funky:

"At intake, the officers strip searched Fowlkes in the jail’s strip search room, a five by six enclosure with three concrete walls and an opening in the fourth wall. Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and 'assistance' in the form of additional officers because he thought Fowlkes might have drugs. The officers instructed Fowlkes to remove his clothing and face the far wall as they watched him. Fowlkes was instructed to bend over, spread his buttocks, and cough, but according to Sergeant Gibbs, Fowlkes instead moved his hand toward his right buttock. Instructed to repeat the procedure, Fowlkes made a quick movement to his buttocks area with his hand and appeared to Gibbs 'to be forcing or forcibly pushing an item inward.' Officer Harris testified he believed it was possible Fowlkes was attempting to push something into his anus. However, he did not actually see any object Fowlkes could have been pushing, and he acknowledged that there was no other way for Fowlkes to comply with the directive other than by reaching back and putting his fingers towards his anus. For his part, Sergeant Gibbs testified that he believed Fowlkes appeared 'to be forcing or moving an object or further
secreting an object' inside his rectum to destroy evidence.

To prevent that, Gibbs 'delivered a drive stun tase to the center portion of the defendant’s back.' Fowlkes’s arms went straight into the air, and the officers handcuffed him. Fowlkes began to 'squirm[]' and 'struggl[e],' and the officers 'lean[ed] him against the wall, . . . brace[d] his body
up against the wall' so that '[h]e end[ed] up being bent over.'  With Fowlkes in this position, the officers testified that they could see what appeared to be a plastic bag partially protruding from Fowlkes’s rectum.

Officers continued to 'brac[e] [Fowlkes] up against the wall' to prevent him from resisting. At this point, Fowlkes was handcuffed and incapacitated by five male officers, making escape or resistance impossible. Fowlkes had no ability to destroy or further secrete what was in the plastic bag. Neither Sergeant Gibbs nor the other officers could tell what, if anything, the plastic bag contained while it remained in Fowlkes’s rectum. Nor could they determine how large it was or how far it extended into Fowlkes’s body. Despite this, and despite the fact that none of the officers had any relevant medical training, the officers did not attempt to obtain a warrant, summon medical personnel, move Fowlkes to a sanitary location, or allow Fowlkes to pass the suspected contraband naturally. Instead, Sergeant Gibbs forcibly 'retrieved' the bag. He put on the protective gloves he had brought along to the 'search' and pulled the object from Fowlkes’s rectum without the assistance of anesthesia, lubricant, or medical dilation. Although Sergeant Gibbs testified that he was able to remove the object using his thumb and index finger without penetrating Fowlkes’s anal cavity, Officer Harris testified that the removal itself was a difficult, abrasive procedure:

I watched the entire process of him removing it in his fingers. [The object] went from a dime size to a penny size to a nickel size to a quarter size to somewhat near a golf ball size as it was taken out.

Officer Harris further testified that he could 'see blood and what looked to be feces' on the plastic bag after it had been removed. Photographs of the object that are included in the appellate record confirm that the object was covered in blood."


Judge Tashima writes the majority opinion (joined by Judge Alarcon) and holds that this process was an unreasonable search and seizure in violation of the Fourth Amendment.  Should have waited for a warrant, or let the stuff pass naturally, instead of simply yanking it out of his butt.  Judge Restani, sitting by designation from the Court of International Trade, dissents.

Just one minor point.  The officers clearly didn't know how big the thing was.  On the one hand, you don't expect a golf-ball sized thing up there.  And once you've started the process of pulling it out -- on the assumption it's just a tiny piece of rock or something -- it's sort of difficult to figure out when to stop as the thing goes from "dime" size to "penny" to "quarter" to essentially mondo huge.

None of which necessarily conflicts with Judge Tashima's likely position that the officers shouldn't have even started the whole process.  But I just wanted to mention it because my money's on the fact that the officers might well have done something different if they'd have actually thought that there was a golf ball-sized thing up there as opposed to the quick "snatch-and-grab" I bet they thought they were about to perform.

Friday, October 17, 2014

Johnson v. Appellate Division (Cal. Ct. App. - Oct. 17, 2014)

The Court of Appeal confirms today that when CCP says that you have to have "three judges" on the panels that hears appeals, it really means "three".  Not two.  Three.  Even if two judges are enough to issue a judgment.

You can't have panels of two.  Because you're supposed to have panels of . . . wait for it . . . three.

Three is better than two.  Two is not three.  It's one less.  To make three, you need not one, not two, but three.

Read Justice Elia's complete opinion for more detail if you're unsure about the concept.

Some of this advanced mathematics is moot at this point, since after the Court of Appeal issued its OSC, the Appellate Division of the Santa Cruz Superior Court got the message and stopped hearing appeals with two (instead of three) judges.  But just in case anyone else was thinking about cutting back, Justice Elia publishes the opinion.  Making clear that . . . well, I think you get it at this point.


Nixon Peabody v. Superior Court (Cal. Ct. App. - Oct. 17, 2014)

Here are two hypotheticals.  Tell me how you think each one should come out.

Hypothetical One.  Plaintiff files a state court lawsuit through counsel, plaintiff and his attorney decide to dismiss the lawsuit and refile it, and counsel does so, but in the dismissal, the attorney accidentally checks the "with prejudice" instead of "without prejudice".  Plaintiff subsequently moves to vacate the state court dismissal under CCP 473 -- a dismissal that would otherwise be res judicata to the refiled complaint -- claiming that the dismissal with prejudice was void because he only authorized a dismissal without prejudice, not with prejudice.  Do you vacate the dismissal?

Hypothetical Two.  Plaintiff files a state court lawsuit through counsel, plaintiff and his attorney decide to file two other duplicative actions in federal court as well "to be safe", and then plaintiff and his attorney decide to dismiss the state suit and one of the federal actions and go forward with the third, and attorney does so.  But neither person realizes that the dismissal of the state and federal actions will operate as a dismissal with prejudice under the federal two-dismissal rule, so plaintiff subsequently moves to vacate the state court dismissal under CCP 473 -- a dismissal that would otherwise be res judicata to the pending complaint -- claiming that a dismissal that was effectively with prejudice was void because he only authorized a dismissal without prejudice, not with prejudice.  Do you vacate the dismissal?

What's the rule?

The Court of Appeal holds today that a court is required to vacate the dismissal in Hypothetical One but is precluded as a matter of law from vacating the dismissal in Hypothetical Two.  Granting a writ of mandate in Hypothetical Two compelling the trial court to set aside its order vacating the dismissal.

Was that your answer as well?

Thursday, October 16, 2014

People v. Blakely (Cal. Ct. App. - Oct. 16, 2014)

Ordinarily you'd be happy if someone told you that you were pretty clearly sane.

But the contrary is true when that person is a trial judge holding that the evidence of your sanity is so clear that she's taking this issue away from the jury.  Meaning that you get 35 years to life in prison.

People v. Garcia (Cal. Ct. App. - Oct. 16, 2014)

"Defendant’s criminal history began about 30 years before, with felony receiving stolen property in 1980, for which he was placed on probation. A year later, in 1981, he committed second degree burglary and was sentenced to prison for 16 months. In February 1982, the month he was released, he was arrested and a month later pled guilty to robbery (his first strike) and sentenced to four years in prison. In 1984, he was convicted of unlawful driving/taking a vehicle and sentenced to two years in prison. The same year, he was also convicted of escape. In 1985, he was convicted of grand theft and sentenced to three years in prison. In 1988, he was convicted of assault on a peace officer, battery on a peace officer, and thereafter, with another escape, all resulting in another four years and eight months in prison. Defendant violated parole and was returned to prison in 1991. When released on parole, he was arrested again in June 1991 and when released again, within months committed a first degree burglary (his second strike), a robbery (his third strike), and vehicle theft in 1992, which resulted in a total prison term of 18 years. He was released from prison in February 2003. Within nine months, in November 2003, defendant was arrested again. In August 2004, he brandished a weapon and was placed on probation for two years, including serving 180 days in jail. In January 2005 and January 2007, he violated that probation and was reincarcerated. Defendant was paroled in April 2007 and committed his current offense eight months later. Defendant’s criminal history was preceded by his delinquency in 1979, for which he was committed to the California Youth Authority."

That's pretty extensive criminal history.  Which is why he's not getting relief from his three strikes sentence.

Wednesday, October 15, 2014

C.B. v. City of Sonora (9th Cir. - Oct. 15, 2014)

This is one way to write an en banc opinion.

But it's a mess.

Judge Paez authors the "majority" opinion.  But there's not a majority for "Part II.C.1.".  For the Ninth Circuit's holding on that issue, you've got to look to Judge Milan Smith's opinion that concurs in part and dissents in part.  Because Judge Smith has a total of four votes (including his own) for his proposed disposition, and then he gets three others (Judges Kozinski, Graber, and Gould) -- a total of seven -- to join that particular portion of his disposition.

So you've got to skip around opinions to find the actual holdings.

For The Three, Judge Gould writes a concurring opinion (for himself and Judges Kozinski and Graber) explaining their theory.  Then Judge Berzon -- joined by Judge Thomas -- write another concurring opinion explaining that they join in Judge Paez's majority opinion, except for one of the claims therein, as to which they agree with his result but not his reasoning.

As a result, it's a classic 2-4-3-2 Ninth Circuit en banc split.

Sarcasm intended.

Tuesday, October 14, 2014

Litmon v. Harris (9th Cir. - Oct. 14, 2014)

I'm fairly confident that Chief Judge Kozinski's opinion in this case correctly summarizes existing precedent.  It's not unconstitutional for a state to require -- as California does -- everyone who has ever been found to be a "sexually violent predator" to physically appear at a police station every 90 days for the rest of their lives and answer questions and fill out various forms.  Even after they have been released from treatment.

That's the law.

I merely wonder how far this goes.  What if it's 30 days?  Every week?  Every day?  Judge Kozinski says there's no fundamental right at stake, so it's only rational basis review.  Presumably making prior sex offenders show up at the police station every single day would accomplish the same objectives that Judge Kozinski notes are advanced by the 90-day rule:  deterrence, information, etc.  Even more so, I imagine.

So no violation there either?  Gotta show up at the police station every day for the rest of your life because we've found that you're the "type" of person who's "predisposed" to commit various offenses?

What's the right line here between the permissible and impermissible?

Monday, October 13, 2014

Foster v. Williams (Cal. App. Div., Sup Ct. - Sept. 9, 2014)

It's Columbus Day!  Which, for many workers, means absolutely nothing.  But in our world, it means that the courts are generally closed.  Which means no opinions.

But while we're thinking about what transpired in 1492 -- five hundred-plus years ago -- maybe we can also file this opinion in the "What will they think in thirty years" department:

CCP 1162 says that when you're evicting someone you've got to give them a three-day notice to pay rent or quit and the notice has to include an "address of the person to whom the rent payment shall be made."  Which is what landlord Jennita Foster did for her Santa Monica tenant Keith Williams.  With the slight complexity that the "address" was a web site (i.e., a URL):  www.erentpayment.com

That would make a difference to me if the tenant had made his prior payments by check or in person to the landlord.  It's also make a difference to me if the web site charges the tenant a fee.  'Cause I'm not willing to let the landlord hose a tenant by making it more difficult (or expensive) to respond to a three-day notice than it is to pay the usual rent.

But here, it seems that the tenant always paid his rent (when he paid it) on the web site.  And at least according to the web site the landlord may be paying the relevant $3 fee per transaction (or, perhaps, the lease requires an additional $3 by the tenant in addition to the rent).

If the three-day notice doesn't require the tenant to do anything more than he's already obligated to do and/or routinely does, I don't see why a web address isn't as good as a physical address.

But the Appellate Division holds otherwise.  Concluding that the Legislature, when it passed the relevant statute, was thinking in old school ways, and hence that's what "address" means.

This seems to me form over substance.  Which the law's supposed to disregard.  A web site is indeed an "address".  If there's a reason to define "address" as a physical address, I'm totally for doing so.  In the present case, however, I don't see any such reason.  Tenant could pay.  He didn't.  He should be evicted.  He shouldn't get to stay (effectively rent-free) for even longer because the three-day notice gave him the exact same address to which he'd successfully paid rent every month for nearly a year.

When the tenant didn't pay, it was because he didn't want to (or couldn't), not because there was not an "address" on the three-day notice.  That's not a defense.  Regardless of what "address" meant in the 1950s.