莫晓梅和医老张

莫晓梅和医老张Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Thursday, June 25, 2020

People v. Stamps (Cal. Ct. App. - June 25, 2020)

This California Supreme Court decision resolves a complicated question about whether a particular sentencing statute is retroactive and, if it is, how that retroactive effect is to be effectively accomplished.  It's an issue that has split the Courts of Appeal and, today, the California Supreme Court resolves the matter.  Unanimously.  And, to me, correctly.

I know that justices on the Court of Appeal (generally) have thick skins, and sufficient ego without regard to whether the California Supreme Court agrees or disagrees with their analysis.  Still, Justice Meehan is probably a little bit happy that the California Supreme Court's opinion extensively quotes from her Ellis opinion (which was on one side of the split) and calls that decision and its analysis spot on, ultimately adopting precisely the remedy she advanced.  By contrast, Justice Dhanidina sees his opinion (Wilson, on the other side of the split) eviscerated and, ultimately, expressly disapproved.  Unanimously.

That's the way of the world, of course.  Winners and losers.  Can't be one without the other.

But still typically better to be the winner.

Tuesday, June 23, 2020

People v. Mayfield (Cal. Ct. App. - June 23, 2020)

It was a lazy day in the California Court of Appeal; only a single published opinion all day, and that one issued only at the very end of the day.

But what a doozy.

It's by Justice Bedsworth.  Here's how it begins:

"The members of this panel have enjoyed long careers in the practice of law.We’ve seen enough to make it difficult to shock us. But not, as it turns out, impossible."

Wow.  I mean, I've seen a lot of opinions as well, and hence a lot of crimes.  Given the introduction, I was expecting an incredibly heinous and violent offense; something akin to torturing numerous small children or the like.

But that's not really what he meant.  Or at least not particularly, I don't think.

The actual offense at issue was not more serious than many offenses you read about in published opinions -- indeed, in a lot of ways, it was less violent.  But it's a hate crime.  There's an African-American woman at a bus stop who's eight months pregnant, and the defendant starts spewing incredibly hateful language, threatens to kill her unborn child, ends up grabs her backpack, and instills a massive amount of fear in her.  It could have been worse, of course.  There are lots of murder cases; in this one, no one (fortunately) gets killed.  There are lots of cases involving torture and serious bodily injury; in this one, there's an incredible amount of emotional distress and PTSD, but no blood or knife wounds or severed limbs or the like.  So, yes, it's a serious offense, which is why the defendant's facing serious time.  And the defendant has a very lengthy criminal record -- a fact that's (again) not unprecedented, as we read plenty of cases with similar (or worse) records, but which nonetheless sets the stage for Justice Bedsworth's point.

It was a three strikes case, and the trial court struck one of the defendant's prior convictions and hence gave him a five-year sentence (in return for a guilty plea) instead of 25 to life.  You almost never see such decisions reversed; it's an abuse of discretion standard, and there's usually a lot of deference by the Court of Appeal to the boots-on-the-ground judgment of the trial judge.

Not here.  The Court of Appeal reverses.

You can see why.  Lengthy criminal history.  Not Mr. Mayfield's first hate crime (!).  Serious issues and serious threats to a vulnerable person.  Plus, every time Mr. Mayfield gets released, he seems to quickly reoffend in some manner.  Someone who commits a random hate crime at a bus stop, after committing a different random hate crime at a liquor store (where he stabbed a guy) which led to a prior conviction, is not someone we generally want rapidly back on the streets.  As Justice Bedsworth says, yes, offering him five years if he pleads guilty does make sure he goes to prison, and saves us a little bit of money in prosecution costs, but "[a]ny expense saved the state by his plea wouldlikely be re-incurred with interest if he gets out in five years and there are still bus stops."

All of this leads the Court of Appeal to do what it does here.  And it's not just the Court of Appeal.  As the opinion notes, the Orange County District Attorney -- the District Attorney -- showed up to argue the case below.  It's a high-profile thing.  Even back then.  We are none-too-keen on people committing hate crimes.  And our attentiveness to this sort of thing has only increased an order of magnitude since then.  If there was ever an era in which Mr. Mayfield didn't want his case to be argued, it's probably now.  As perhaps tangentially indicated by how long it took the Court of Appeal to render its opinion after oral argument:  three work days.  Not something you usually see, and an indicia of how urgently the Court of Appeal wanted to get out the relevant message.

Justice Bedsworth's opinion is worth reading in its entirety, and he does an outstanding job of making the case for Mr. Mayfield being amongst the "worst of the worst" -- at least in the setting of offenses that don't involve the taking of a life and the like.  People reading the opinion will, I think, generally have the same reaction as Justice Bedsworth (and the rest of the panel) did:  Lock him up.  Forever.  (Mr. Mayfield is 44 years old, so with a 25-to-life sentence, he's likely to die in prison, especially as I suspect he's exceptionally unlikely to ever get paroled.)

For myself, I'm loathe to call people undilutedly "evil" (a word that's in the opinion to describe Mr. Mayfield, but those are the District Attorney's words, not Justice Bedsworth's).  Yes, he's done some terrible things, and keeps doing them, and that needs to stop.  But one thing that's not in the opinion -- that's nonetheless readily discoverable -- is that Mr. Mayfield is a transient.  Probably someone with a fair degree of mental illness, I suspect.  As with many homeless people.  That doesn't excuse any of his conduct, of course.  Nor, I'd bet, does his mental illness likely satisfy the standard for technical legal "insanity," as I suspect that Mr. Mayfield knows "right" from "wrong" full well.  (Within the confines of his clearly messed-up normative framework.)

So, yes, I get where Justice Bedsworth is coming from.  Though I nonetheless wonder what people a century or two from now will think when they read this published opinion.  Will they think:  "What a screwed up society:  Mayfield should definitely have been incarcerated for the rest of his life -- only crazy people could fail to see that, and what a messed-up world that a trial judge didn't understand that."  Or will they think something softer?  There's a relentlessness to the opinion -- an expressed desire or perceived need to incarcerate Mr. Mayfield for the rest of his life -- that works at present.  And maybe, perhaps, will play even better in a century of two; in the same way we view even more positively now the writings of pre-Civil War abolitionists (e.g., "How could anyone possibly fail to understand how obviously right these people were?!").

But maybe not.  Maybe it plays out a little bit the other way instead.

Regardless:  Fascinating opinion.  Read the whole thing.  See what you think.

Monday, June 22, 2020

Masellis v. Law Office of Leslie Jensen (Cal. Ct. App. - June 19, 2020)

And yet they say no one reads law review articles anymore.

Professor Vincent Johnson of St. Mary's writes a law review article in 2018 that says that there are some California cases that say that you've got to prove certain types of legal malpractice cases to a "legal certainty" but that the correct way to read those cases is that they only apply the typical rule that plaintiff must prove her case by a preponderance of the evidence.  The article's not published in an especially prestigious law review -- it's published in a secondary journal at Professor Johnson's home institution -- but its published.

Lo and behold, in 2020, there's an actual case that squarely raises the precise issue on which Professor Johnson opines.  And to resolve that dispute, the Court of Appeal repeatedly cites and mentions him and his article to say, essentially, that Professor Johnson gets it exactly right, for exactly the reasons he articulates.

Good to see that law professors can be useful.  On occasion.

In re Sisk (9th Cir. - June 22, 2020)

It's a series of individual bankruptcy cases, and none of the unsecured creditors objected to the proposed bankruptcy plan, either below or on appeal.  That's not surprising.  They're never getting paid, regardless, so it'd likely be a waste of time and money to object.

The bankruptcy court refused to confirm the bankruptcy plans at issue because they had "estimated" times for various payments, a provision that adversely affects creditors in various ways, in a manner in which the San Jose Division of the Northern District of California thought wasn't appropriate and didn't comply with the bankruptcy code.  The debtors appealed.  But, again, the creditors didn't care, and didn't file anything.

The Ninth Circuit's right that the lack of an appellee doesn't preclude appellate jurisdiction, and that the debtors have standing regardless.  Some bankruptcy cases -- like this one -- work out that way.  The Ninth Circuit still gets to decide whether the district court got the legal issue right.

But the absence of an appellee still matters.  The Ninth Circuit holds that what the bankruptcy court did conflicted with the bankruptcy code.  The position articulated by the Ninth Circuit was opposed by . . . no one.  No one presented the arguments on the other side.  The lawyers for the parties who argued the case were both on the debtor's side (i.e., the ones who wanted their plan confirmed, and who argued in favor of the Ninth Circuit's ultimate decision), and while the lawyer for an amicus argued as well, she represented the trustee, who also thought (and argued) that the plans were totally fine to contain "estimated" times -- again, consistent with the Ninth Circuit's ultimate holding.

It doesn't determine constitutional standing, but as a prudential matter, I think it generally advisable to be presented with both sides of an argument when you're deciding an appeal.  Particularly one that, as here, potentially affects thousands (or tens of thousands) of bankruptcy plans.  The panel cites a case from the Supreme Court in which there wasn't an appellee (Toibb) to establish (correctly) that the absence of an appellee doesn't divest the appellate court of standing, an describes that case by stating:  "The Court foundno jurisdictional issue with the lack of an adversary, butappointed an amicus to support the bankruptcy court’sposition."

Yep.  And that's what should have happened here.  There's standing, but as a prudential matter, the panel should have asked for (or appointed) an amicus to present the arguments against the position that the Ninth Circuit ultimately adopted.

In general, that makes for a better opinion.  Not a foundational prerequisite for standing.  But a good idea -- and general practice -- regardless.

Thursday, June 18, 2020

People v. Chen (Cal. Ct. App. - June 18, 2020)

My eldest son, who's 16, was hanging out with a couple of friends in the evening a week or so ago (yes, I know that violates the quarantine rules; I'm a terrible parent) when I received a call from the group.  They were in the midst of a vituperative argument about under what circumstances it was permissible to shoot someone in defense of your property, and wanted to know from a "lawyer" the correct answer.  On the theory that teenagers arguing about deadly force was better than teenagers hitting a crack pipe, I took the call and explained the answer (at least in California) as best I could.

Now I can tell them to just read today's opinion.

Justice Raphael is technically talking about when it's permissible to brandish a weapon (rather than use it), but it's basically the same rule, since if you can't permissibly use a weapon, you're not allowed to brandish it either.  He does an outstanding job of both articulating the rule as well as explaining why that particular rule exists.  He hits the same themes that I explained to my son: that you can use deadly force to prevent death or serious personal injury to yourself or others, but you generally can't use it solely to protect property.  Even if that property's yours and even if the other party is doing something unlawful.  Both because we (1) value lives more than property, and (2) fear that pulling a gun in a property dispute risks escalating the matter and putting the lives of both parties at risk (e.g., the other side pulls their gun too).

Today's case is a prototypical example (albeit, fortunately, one that doesn't escalate).  Neighbors are fighting over a common fence.  One neighbor wants to tear it down and replace it; the other doesn't.  The police are called, and tell 'em it's a civil matter, and that they should mellow out an resolve it informally, or, if not, in civil court.  The police then leave, but before the officer even gets a block away, one of the neighbors pulls a shotgun and brandishes it at the other neighbor.

The jury convicts of misdemeanor brandishing.  And the Court of Appeal affirms, holding that even if the one neighbor was doing something wrong in tearing down a fence he shouldn't, that doesn't allow the display of deadly force.

Which is a pretty accurate assessment of the relative values, I think.

Justice Raphael indicates that there may be an exception for "home invasion" situations, but he doesn't articulate the scope of that exception much -- which is not surprising, because that's not at issue on these facts.  Anyway, remember the general rule:  No deadly force just to protect your (or others') property.  Even against improper or criminal destruction or theft of that property.

There's also a neat little portion of the opinion at the end about a very tangential matter; whether the shotgun at issue contained birdshot or buckshot.  Didn't matter to the result, but it was interesting to see that matter addressed by individuals (and I include myself in this category) more familiar with legal doctrine than with the intricacies of how shotgun pellets work.

The issue arose because "In the morning after thePeople rested its case, but before Chen began his, the People sought to reopen to clear upa point of potential confusion. [Police Officer] Weber had originally testified that she believed theammunition retrieved from Chen’s shotgun was birdshot, even though the prosecutorpersonally believed it was buckshot based on personal experience and the informationprinted on the shells. The People wanted to reopen to allow Weber to clarify becausethey believed there was “a good chance that one juror or more . . . will know the difference and it will be this funky thing where the evidence says one thing and theythink it’s something else.” The trial court allowed the People to reopen and Webertestified that, since her prior testimony, she had come to believe the ammunition couldpotentially be buckshot. Weber also testified that she refers to ammunition as birdshotwhenever it contained pellets, even if doing so may be inaccurate."

None of this matters to a brandishing charge, since it doesn't matter what pellets the shotgun contains for such a crime (or even whether the shotgun is loaded or not).   The opinion said that the parties seemed to agree that "buckshot . . . is more dangerous than birdshot."  Which I suspect is true, but there's apparently a huge debate as to whether buckshot or birdshot is more dangerous (or better) in a home defense scenario.

Though I doubt this topic is unlikely to be the next conversation piece of my teenage sons and his friends.  Though perhaps it would have been had he grown up in Virginia (like me) or North Carolina (like my wife).

Wednesday, June 17, 2020

In re S.J. (Cal. Ct. App. - June 17, 2020)

Maybe I'm just punch drunk after a long day's work, but I found this opinion inexplicably funny. 

The Court of Appeal deals with all sorts of incredibly serious cases -- murder, molestation, etc. -- on a daily basis, as well as (often) incredibly long prison sentences.  By contrast, this one involves a just-turned-17 year old who, unwisely, borrowed his brother's car, got drunk at a party, stupidly elected to drive home at around midnight, and ended up hitting a parked car and a fence.

No one's hurt.  The kid's got no criminal record.  But he's busted for DUI -- a serious offense -- so he gets put into the juvenile system.  Which is fine, because, honestly, that's why we have the thing in the first place.  To put people like this back on track.

Lots of times, the court will just place kids like this on informal supervision.  Which basically means nothing.  And the kid seems to have the right attitude.  He tells his that "he regretted hisaction and had learned his lesson. He said he did not belong to a gang andhis goal was to graduate high school and find a union construction job."  Fair enough.  Made a mistake, yes.  But has a plan.  Someone far from irredeemable.  (Other facts from the opinion:  "The Probation Department’s report stated that Appellant’s familysupport system “appears to be stable” and that his mother said he “behavesin a prosocial manner at home.”"  Good.  Glad to hear it.  That helps.)

But the kid also admits that he's previously smoked marijuana twice a week, as well as (obviously, given his DUI) occasionally consumes alcohol.  Again, he's 17.  I suspect that a nontrivial number of 17-year olds would say the same thing.  Not good, definitely.  But at least he admitted it.

So it just struck me that the juvenile court judge here is totally just being a parent.  Thinking about things the exact same way I would if it were my own kid who had done all these things, and I was trying to figure out what discipline to impose and how to get him back on track.  It's funny to think of a black-robed judge just basically being a parent.  Nothing more, nothing less.  Albeit within the weird confines of a formal criminal justice system and the fact that it's not, in fact, your kid, and you've maybe had 15 minutes with the child in your whole life.

But the kicker to me was this:  "Appellant had good school attendance, but his grades were very poor,including many F’s in the past two years."

Yeah.  That's not okay.  Way not okay.  I suspect that my own children think I overvalue education way too much.  But tough.  Whether it's my kids or other kids, when you're getting F's, that's very much unacceptable, and a sign of serious trouble.  Trouble that we need to stop in its tracks, now.

Which is exactly what it seems like the probation department and the trial court here were thinking.  The minor wants informal probation, which is often imposed in cases like this, but they're not on board for that.  The probation officer says: “I think that if thisminor had been doing better in school and his parents had a better handle onthings, he would be more appropriate. But because it does appear he has alack of supervision and consequences provided at home and is doing so poorin school with his substance abuse issues, that informal probation would notsuffice."  The trial court similarly opines:  "A standardterm in adult-land for a DUI is search and seizure for alcohol. It’s important.And it’s particularly important when we have a minor . . . whose parents orhis mother has allowed, whether tacitly or expressly, the minor to consumealcohol. So I think that it’s a nonstarter where we have facts like these here.So I just don’t see how, in a DUI with a .12 and a minor who also smokesmarijuana, we can effectively supervise and ensure rehabilitation without asearch and seizure clause, which is foreclosed in an informal probationsetting.”

Maybe some parents decide to drug-test their kids after incidents like this.  Or start to search their kid's room.  The trial court here does basically the exact same thing.  She's not going to put him on informal probation because that way the probation department can search him whenever they'd like.  That's the formal justice equivalent of a parent taking the door off your room, searching your closet, or making you take a drug test.

Parents in robes on a Wednesday afternoon.

People v. Reneaux (Cal. Ct. App. - June 17, 2020)

There's a real intellectual fight -- on something important -- between the majority and the dissent in this case.

It's about the "forfeiture-by-wrongdoing" doctrine.  Something that Mr. Reneaux cares about a lot, as he's spending over 21 years in prison as a result of the Court of Appeal's application of this principle.

The bookends of this doctrine are well-established.  We know that, ordinarily, you have a right to confront witnesses, including your accuser, at trial.  That's an extremely big deal.  So big that it's in the Constitution.  We don't want people going to prison -- for even a second -- based on the hearsay testimony of someone they're not allowed to cross-examine at trial.  Much less for 21 years.

That's one bookend.

The other bookend is that you can't complain about not being able to cross-examine someone who you've, say, killed to stop them from testifying.  We think that's your bad, not ours.  So if there's a witness who's going to testify against you and you murder them before trial to stop them from doing so, we'll allow hearsay testimony (i.e., someone else to testify) about what that witnesses-you-killed-to-stop-her-from-testifying previously said.  We call that "forfeiture by wrongdoing."

Over time, we've expanded the doctrine.  It started with killing; pretty egregious misconduct.  But it also applies to other crimes.  Bribing a witness.  Threatening a witness.  Things like that.

But just how far does the doctrine go?  What about expressing love for a witness?  Does that count?

It's a pattern that's not unique to this particular case.  There's domestic violence, the police get called, the victim tells the police she's been abused, and the abuser gets arrested and put in jail.  While he's in jail, the parties reconcile.  Now she doesn't want to testify against him, and says she made it all up (or tells a different story).  Either the police don't want to put her on the stand, or (as here) she refuses to testify.

Can we nonetheless admit her prior statements to convict the defendant, notwithstanding the inability of the defendant to cross-examine her?

Ordinarily, no.  He's got that right.  If she dies, no hearsay testimony.  Ditto if she gets sick, decides to leave town (or emigrate to Australia), whatever.  Sixth Amendment right.

But, remember, if the defendant, say, bribed her to go to Australia, or threatened that he'd beat her if she didn't go to Australia, that's an exception.

None of that happens here.  Instead, we've got two recorded conversations between the two people, taken four months apart, taken while the defendant's in jail before trial.  The tenor of which are what you might perhaps expect.  With the defendant/alleged abuser saying something like:  "Please, baby, I love you.  You're the best.  I want to be with you.  I don't want to go to prison, without you.  You're awesome.  I want to spend my life with you, rather than spend 21 years in prison."  Combined with an implicit or explicit exhortation to "tell the truth" to the police -- the alleged "truth" being that the abuse was all made up and that what she told the police was a lie.  (In the words of the defendant here:  "I want to [f****n'] marry you . . .  You’re the only place I wanna [f****n'] be, baby,is in your [f****n'] arms."  Defendant's big on the word "f****n'".)

Is that doctrinally equivalent to killing or bribing or threatening a witness?  Does it mean you no longer have the right to cross-examine her at trial?

Let's assume (as one might easily conclude) that the defendant is expressing his love strategically.  If only because the defendant is likely not a moron, and probably realizes that his chances of not dying in prison exponentially improve if the alleged victim recants.  Remember:  Defendant has never said that he expressly wants the witness to lie.  He's said he wants her to tell the "truth" -- to admit that she made "another false report" of abuse.

It bears mention:  Someone entirely innocent might say exactly that as well.  "Honey, please, I love you, don't do this to me, please tell the truth."  And mean by the "truth" the actual truth.

But guilty people -- particularly guilty people knowing that their jail conversations are being recorded -- might say those exact same words.  But by the "truth" mean a lie.  They're not going to say "If you testify against me I'm going to kill you," because that's (1) definitely another crime, (2) definitely gets you forfeiture-by-wrongdoing, and (3) might well be ineffective.  Instead, they express love.  With a goal of achieving the same thing.

Does that waive their Sixth Amendment rights?  If it does, what about simply marrying a witness, with the internal desire that she's then not compelled to testify against you?  Does marrying count as "wrongdoing" in this setting, thereby resulting in forfeiture?

Tough questions.  We know that violence and threats are wrongdoing.  What about sincere (or insincere) expressions of love?  Different, or the same?

The majority says that expressions of love can count and invoke the doctrine.  The dissent disagrees.

You can see the arguments on both sides.  We have to draw a line somewhere.  Where one draws that line is the debate.

A meaningful, very significant debate.

P.S. - I almost forgot, albeit about something far less significant or meaningful.  In the middle of the majority opinion is the sentence:  "Later in the hearing, E. appeared in court with appointed conflicts counsel,attorney Spangler. (The record does not reflect attorney Spangler’s first name.)"  As I read that, I thought:  "Geeze, I don't suspect there are many California attorneys with the last name 'Spangler' anyway, much less in Los Angeles.  Shouldn't be tough to figure out."  Wrong.  There are 19 "Spangler" California attorneys.  Including several in Los Angeles.  And others in places as far afield as New York, Kansas City, Rhode Island, Indianapolis, St. Cloud, etc.  Way more than I'd have thought.  And what a diverse mix of places to end up, eh?  It's almost as if being an attorney named "Spangler" eventually ends up with you fleeing California.  The percentage of Spanglers who end up out of state (and in unusual places like Wakefield, Rhode Island) has got to be a fair piece higher than most other last names, I suspect.  Regardless:  Lots more Spanglers than I would have thought.


Tuesday, June 16, 2020

Cordoba v. Barr (9th Cir. - June 16, 2020)

The Ninth Circuit may perhaps be right that wealthy landowners in Columbia do not constitute a "particular social group" for purposes of asylum -- notwithstanding FARC's severe animosity to them -- because they are not “set-apart, or distinct from otherpersons within the society in some significant way.”

But I bet none of the members of the panel would want to be a wealthy landowner in FARC-held territory back in the day.

Pacifica First National Inc. v. Abekasis (Cal. Ct. App. - June 15, 2020)

This is another exceptionally staccato opinion by Justice Wiley, who distills plaintiff's arguments down to twelve propositions and then dismisses each with two or three sentences.  So it's a short opinion and reaches, I think, the right result.

The basics are fairly straightforward.  P served a lawsuit, D filed a cross-complaint, D served P's lawyer with the cross-complaint, P failed to answer, so D took P's default on the cross-complaint.  Simple.

P says the default is invalid because P only served D's lawyer.  But that's how you serve cross-complaints.  P says D didn't really serve his lawyer, but D submitted a proof of service, and P inexplicably didn't submit a declaration from the lawyer denying such service.  End of story.

So the result's right.  But I wonder if the last sentence about the "seventh" argument (on page five) is really right.  That paragraph reads, in its entirety:

"Seventh, Abekasis argues courts normally set asidedefaults when there is little prejudice to the opposing party.Pacifica correctly notes this presumes a proper motion in the firstplace. Abekasis does not return to the topic of prejudice in hisreply brief, which is a concession."

(See what I mean about Justice Wiley responding to arguments super briefly?)

The problem is that not responding to something in a reply brief isn't a concession.  At least it wasn't until today's opinion.  Reply briefs are optional.  Similarly responding to something in a reply brief is optional.  You've got limited space, and need to pick and choose your battles.  You may diminish the persuasiveness of your submission by not responding to a facially good point made by the other side in its opposition brief.  But you haven't thereby waived or conceded the point.

The last sentence of this paragraph also isn't necessary.  It's probably sufficient to instead simply say what Justice Wiley basically says in the second sentence of the paragraph:  "Yeah, often, we vacate defaults when there's no prejudice, but not always, and that in any event assumes you filed the right motion and with supporting evidence, which we think you didn't."  The "concession via reply" claim isn't really necessary.

And it's harmful.  (Or, conversely, you should use this erroneous statement the next time it benefits you.).  From now on, if the other side files a reply brief, and it doesn't respond to an argument you made, you get to say:  "Ha!  Concession!  Pacifica First National!"  And the trial court will have to figure out whether you're right.  And that'll almost always happen, because replies invariably don't respond to some particular argument you've made; they're only half-length, after all.

So I'd delete that sentence.  Or, when you litigate, shamelessly employ it.

Monday, June 15, 2020

Davis v. Superior Court (Cal. Ct. App. - June 15, 2020)

I appreciate the Court of Appeal taking up this (somewhat untimely) writ petition and trying to help out self-represented litigants.  That's a good thing.  Lots of Justice Segal's opinion makes total sense.

Though two quick things:

(1) Do you really need a court reporter for ex parte hearings?  My experience is that lots of these (depending on the judge) are in-chambers and not recorded, even back in the "old days" when the court provided court reporters.  And, as the Court of Appeal notes here, some judges (including the judge here, perhaps) don't hear argument on ex partes, and simply rule on the papers.

I agree that self-represented, indigent litigants should be entitled to a court reporter on equal terms with other litigants.  But I'd make clear that that's as far as today's holding goes.  You're not entitled to a court reporter if the trial court (a) doesn't hear argument at all, or (b) hears ex parte applications in chambers without anyone being able to bring a court reporter there (even attorneys).

I'm less certain about (b) because there's not much of a downside to having court reporters there.  But there's not much of an upside either.  They're ex partes, after all; very few of those things require an appeal, and still fewer require us to know what exactly the court and parties said therein.  Normally this self-corrects, since it's simply not worth it for a party to spend the money to have a court reporter there.  But for indigent litigants, since they don't pay, that self-correcting mechanism doesn't exist.  Hence my slight preference for (b).

So, yes, self-represented litigants should be treated equally well as represented litigants.  But that doesn't mean they should get a court reporter when represented litigants can't either.  Thus (a) and (b).

(2) The Court of Appeal holds that the petitioner here should be entitled to appear telephonically.  As a general matter, I agree.  That's what the rules say, and it's the right thing.

Almost always.

But it's still a matter of discretion.  And I wonder if this is really the best case in which to articulate (or apply) such a rule.  The petitioner, Jaime Davis, owes the other side over $150,000 in costs and fees.  She hasn't paid for eight years, and her creditor wants to take a judgment debtor exam.  She doesn't want to appear at one, and doesn't show up.  Even after the trial court repeatedly denies her requests to cancel the examination.  Hence the bench warrant.

Normally, I'm sympathetic to a litigant's desire to appear telephonically.  But the one exception to that rule is when a litigant wants to do so in order to avoid justly imposed consequences.  One reason that a trial judge might not allow a litigant like Ms. Davis to appear telephonically is because it doesn't want her to continue skipping out on court-ordered obligations; e.g., the debtor's exam.  So a trial judge might reasonably say to her, I think:  "Okay, I'll hear your ex parte to cancel the exam.  But show up personally; if I deny your application, you're going to be examined that day (or arrested).  No requests to cancel the exam and then, if I disagree, simply not showing up.  Appear personally."

Yet the Court of Appeal here doesn't seem to allow that.  The panel says that Ms. Davis is allowed to show up via telephone.  Period.

But I could see a reasonable trial judge coming out the other way given the equities of this and similar cases.

Admittedly, a represented party could play fast and loose with a debtor's exam, and hire a lawyer to show up for an ex parte and then, if denied, not show up for her exam.  So maybe we should allow a self-represented litigant to play the same game by showing up telephonically.

But I would likely think it permissible for a trial court in both cases to require the party to show up personally.  To say to the represented litigant, or example:  "I'm happy to hear your ex parte.  But I require the client to show up personally alongside her lawyer.  That way no games."  And if you can do that with the represented litigant (and I think you can), I'd let a trial court do the same thing with a self-represented litigant.  Thus requiring them to appear in person rather than over the telephone.

So I agree that self-represented litigants should be treated equally and fairly.  But I'm not sure that results in as categorical of a rule as the Court of Appeal articulates in today's opinion.

A couple of caveats instead should apply.

Friday, June 12, 2020

People v. Gerberding (App. Div. Sup. Ct. - June 12, 2020)

Talk about being unknowingly prescient . . . .

This opinion was issued on May 12, 2020.  But published decisions from the Appellate Division are invariably delayed for quite a bit before they actually get "published" by the Judicial Council, so it just came out today.  (You'll see why the date matters in a tiny bit.)

It's doctrinally a statutory interpretation case:  Does a particular Fresno municipal ordinance only prevent a "person" from blocking a sidewalk, or does it prevent a person from placing "property" that blocks the sidewalk as well?  The Appellate Division ultimately decides the former.

But that's not why I mention the case.

The facts involve a fairly common interaction, but one that's particularly timely.  There's a homeless person (Billy Gerberding) on the street, and the police get called.  Mr. Gerberding is with a couple of other people, and they've set up a shopping cart with a tarp on it and multiple pallets as their camp.  Their setup is in a high-traffic area in Fresno on Peach and Olive Avenues, with lots of shops and an apartment building nearby.  The shopping cart is missing one of its wheels, so it's not easy to move, and the whole thing is blocking the sidewalk.

So Fresno Police Office Omar Khan shows up, and tells Mr. Gerberding that he's got to move the cart since it's blocking the sidewalk.  But Mr. Gerberding says since one of the wheels is off, it can't be moved.  Officer Khan says it's still got to be moved, since it can't stay on the sidewalk, but tells Mr. Gerberding that they can store the thing for him for 90 days if he wants.  Mr. Gerberding's okay with that, and so is Officer Khan, but Officer Kahn tells him that certain stuff -- pets, food, and soiled clothes -- can't be stored since they're a health hazard, so those will have to be taken out.  But Mr. Gerberding's only okay with the entire thing being stored.

So we're at an impasse.  So Officer Khan tells Mr. Gerberding several times he's gotta move the cart or be arrested for blocking the sidewalk.  At which point Mr. Gerberding gets agitated and says he's being harassed.  A different police officer had told Mr. Gerberding to move the cart several hours before all this, so it's doubtful that this situation is going to be resolved any time soon.  Both sides seem locked into their position:  Mr. Gerberding won't or can't move the cart from the sidewalk, and Officer Khan wants/needs it moved.

At this point, Mr. Gerberding reiterates yet again that he's not going to move the cart, and starts to walk away.  At which point Officer Khan decides to arrest him, and tells him he's going to be under arrest for obstructing the sidewalk.  Officer Khan then teaches out for Mr. Gerberding to grab his left wrist to place him under arrest, and tells him to place both hands behind his back, and Mr. Gerberding becomes rigid and tense, and begins pulling away from the officer and begins to turn towards Officer Khan's right side, which makes Officer Khan nervous because that's the location of his gun.

Let me interrupt the story to say:  This does not end in Mr. Gerberding getting shot or killed.  I've read plenty of cases where all of the above is the introduction to a fatal or near-fatal injury.  But that doesn't happen here.  Thankfully.

But there's nonetheless a struggle.  Officer Khan is telling Mr. Gerberding to comply, but the latter continues to struggle and resist putting his hand behind his back to be handcuffed.  Officer Khan is getting pretty worried that he's losing control of the situation, so he calls for backup.  And during the struggle, as Mr. Gerberding is trying to twist away, Officer Khan sweeps his legs out from under him and they both go to the ground.  More struggles ensure on the ground, Mr. Gerberding is swearing at the officer and saying "Let me go" and that he doesn't want to go to jail, and ultimately Officer Khan pins Mr. Gerberding down on the ground and straddles him, pinning him there.

You get why all this rings a bell, right?  Someone is suspected of a very minor offense, the police get called, decide to arrest him, what begins innocuously turns into a physical struggle, and the suspect gets pinned to the ground by the police.  Happens all the time, of course.  But reading the details of this encounter, particularly now, definitely made me focus even more intently than usual on the facts.

But here's the part that sent chills up my spine:  The penultimate sentence of the statement of facts says:  "After Officer Khan swept appellant’s leg with his own left leg,and straddled him, he did not put his knee on appellant’s neck."

That "knee on the neck" part:  Wow. 

And, yes, I get it, the officer did not put his knee on the neck.  But in a way that makes it even more strange and prescient to include this sentence -- the killing of George Floyd and resulting controversy would not happen until two weeks after the opinion was written and published.  And yet we still talk about officers pinning a suspect down and placing (or, here, not placing) a knee on their neck.

For one thing, when we bother to mention that the police "didn't" put their knee on someone's neck in a particular setting, that suggests -- accurately, I think -- that the police might well (and do) put their knees on the neck of a suspect in analogous situations.  As well as perhaps indicate that we think that putting knees on necks is a fairly serious affair.

Regardless of what it shows, it's still something that definitely pops out at you when you're reading the thing.  How weird that you mention something that, just two weeks hence, would become (and remain) a central part of the major issue that confronts American democracy today.

Chilling.

Hernandez v. FCA US LLC (Cal. Ct. App. - June 12, 2020)

Oops.  There's nothing like having your worst lawyering preserved for posterity in a published opinion.

The Knight Law Group is a firm that specializes in automotive Lemon Law cases, and it partners with Los Angeles attorney Michael Rosenstein.  Knight Law is supposed to do all the filings and the motion work, while Mr. Rosenstein is in charge of showing up for motions and at trial.  They've got a particular case involving a person named Mr. Hernandez, and on the first day of trial, the case settles for $77,500, as well as whatever attorney's fees the court feels like awarding.  (If you know these types of cases, the attorney often gets up getting lots more money than the client, and many of these drawn-out cases are fee-driven, with both sides jockeying for their respective interests.)

The parties orally recite the settlement agreement to the Court, which accepts the settlement and tells the parties it wants to set a deadline for the attorney fee motion we all know is coming, so goes ahead and sets an OSC re: dismissal for 90 days out, telling the parties that any fee motion has to be heard by then.  That date then gets confirmed in the subsequent written OSC.

Rosenstein (the lawyer at the trial) then emails the group at Knight Law and tells them:  “'The case settled for $77,500.00. The terms of the settlementwere put on the record. Attorneys’ fees and costs by motion.Plaintiff is the prevailing party for purposes of our fee motion. . . .Plaintiff will file a request for dismissal of all causes of actionagainst all Defendants upon full payment of the settlementamount as well as attorneys’ fees and costs. The Judge wouldnot permit an OSC set further out. This was the latest date hewas willing to provide.'” The email then set out the date and timeof the upcoming hearing (August 16, 2018 at 8:30 a.m.) and thetype of hearing (OSC re dismissal), and specified that notice waswaived."

So now Rosenstein presumably thinks that Knight Law will prepare the motion for fees before the deadline, and the parties presumably might (and perhaps did) try to settle the amount in the interim.  But, surprisingly, nothing gets filed.  Maybe Knight Law made a mistake and didn't calendar the dates or figure out the deadline.  Maybe Rosenstein's email wasn't sufficiently clear.  Maybe both.  You'd think that sometime before the OSC date, Rosenstein would say to Knight:  "Hey, where's that fee motion you were preparing?  I don't see anything filed."  After all, he was at the trial, and the judge was super clear on the deadline.  But, for whatever reason, nothing like that seems to happen.  Like I said at the outset:  Not anyone's finest Lawyering Hour.

So then, at the OSC, Knight Law shows up.  At which point the judge says:  "You guys blew the fee motion deadline.  What the heck?"  You'd think that, at a minimum, at that point, everyone would immediately recognize the problem and scramble to solve it.  But no.  Over a month passes, and no one seems to do anything.

Over a month later, Hernandez files an ex parte seeking relief from her failure to file a fee motion and an extension of time to file it.  But the Court is not amused.  It says, yep, the settlement agreement did indeed contemplate a fee award -- but then you guys blew the clear deadline.  Your bad.  And while that may well have been a result of neglect, it surely wasn't "excusable" neglect, so I'm not giving you relief.  The Court adds:  "I’m not exercising mydiscretion [under section 473, subdivision (b)] because I don’tthink, in this case, that the neglect either was excusable or thatthere was diligence. I would have – I may well have thought differently had you come back in right after August 16th andsaid, you know, ‘Oops, we made a mistake, and we are asking forex parte relief.’ It’s – this is 33 days later; we are now onSeptember 18th, not August 16th. [¶] Today is the OSC redismissal. To give the court the ex parte on the day that youknow the case is going to be dismissed, I don’t think that’sdiligence.”

To reiterate:  Oops.  (And I'm pleased to see the Court use that exact word at the hearing as well.)

The Court of Appeal -- quite understandably -- affirms.  In a published opinion.  So now the entire world gets to read about these lawyering mistakes.

Thursday, June 11, 2020

In re Albert-Sheridan (9th Cir. - June 10, 2020)

This Ninth Circuit opinion is somewhat bold.

The issue is one of line-drawing, so reasonable people could go various ways.  The question is whether a particular debt can be discharged in bankruptcy.  The relevant bankruptcy statute says that most private debts can be discharged but most debts to the government cannot.  That's the general rule, sure -- but as usual, the toughest cases are at the margins.

So what about criminal restitution orders?  Say that I get drunk, smash into someone's car, cause $4,000 worth of damage, get convicted of DUI, and as part of my sentence, the judge enters a restitution order that requires me to pay the vehicle's owner the $4,000 damage that I caused.  Can I declare bankruptcy and get out of the restitution order?

The order isn't a debt to the "government" since I have to pay the car's owner, not the prosecutor.  It also looks a lot like a judgment that the car owner might have been able to get against me in a civil lawsuit for damage to his car, which would (absent wilfulness) be dischargeable.

Nonetheless, the Supreme Court held in a decision called Kelly that restitution orders like these aren't dischargeable.  They're part of a "government-like" decision to punish someone (e.g., a prosecution), and as part of that, the government can make you pay back the victim.  You can't get out of that just by declaring bankruptcy.

Okay.  That's the law.

So now we get to follow-on cases.  What about, say, arbitration awards against lawyers?  Say an attorney steals $4000 from a client, and the client files a fee arbitration proceeding and obtains a $4000 award.  Is that dischargeable in bankruptcy?

The Ninth Circuit, back in 2016, said it was.  Which seems right.  Arbitration proceedings are very similar to lawsuits.  Those judgments are dischargeable.  So ditto for these.  That seems like a correct reading of precedent, text, structure and purpose.  We're all good.

Now fast forward to 2020.  And the hardest case:

Lenore Albert-Sheridan is a California attorney and does some very bad things.  She repeatedly gets sanctioned for misconduct.  She doesn't pay the sanctions.  The State Bar investigates her, and she's far from apologetic; for example, she files a motion that requests an extension of time to respond to the Bar's complaint to "the eternity of time."  Ultimately, in 2017, her disciplinary proceeding gets up to the California Supreme Court.  Which says that the appropriate penalty is to suspend Ms. Albert-Sheridan for at least 30 days, said suspension to be lifted once she paid the discovery sanctions that were entered against her.

Ms. Albert-Sheridan didn't pay.  Instead, she simply filed bankruptcy.  Then she filed a suit against the State Bar saying that her suspension was over since all her debts were discharged.  And that her post-disciplinary bankruptcy filing essentially invalidated the California Supreme Court's order that she be suspended until she paid the sanctions.

Is she right?

Is the California Supreme Court's order more like a restitution order, which is nondischargeable?  Or is it more like a fee arbitration award, which are dischargeable?

(There's a separate part of the opinion about whether the award of the State Bar's disciplinary costs is nondischargeable, but I think it's very clear -- as the panel holds -- that those are not dischargeable.  So I'm not going to talk about that.  To me, the tough -- and interesting -- part of the case is about the requirement to pay the sanctions.)

Remember:  All of these require the party to write a check to another private party.  That doesn't distinguish restitution payments, sanction orders, and fee arbitration awards.  Some of those are dischargeable and some aren't.  So it's not sufficient just to say that the check's written to a private party so it's dischargeable:  that won't work.  We've instead got to draw the relevant and doctrinally principled line.

So what result?

My personal take is that there's a decent argument that the California Supreme Court's order is more like a restitution order.  "You did some bad, we're punishing you, and we're not willing to let you off that punishment until you make things right."  That's the sentiment behind restitution orders, and it's the exact same sentiment behind the California Supreme Court's disciplinary order.  Which means the financial obligation is like the debt in Kelly and is nondischargeable.

That's what the bankruptcy court thought (and held).  But the Ninth Circuit disagrees, and reverses.

What I thought was most bold about Judge Bumatay's opinion for the panel was the extraordinarily dismissive way it treats the holding in Kelly.  The opinion slams that opinion as a "relic[] of the 1980s,such as big hair, jam shorts, and acid-wash jeans," and suggests that it should go the same way, since it reached the result it did by analyzing (inter alia) the purposes of the statute rather than its mere text.

Now, you might expect such a critique of a prior "liberal" Ninth Circuit opinion from a conservative judge in the modern era.  But remember:  This is a critique of an opinion of the Supreme Court, not a Ninth Circuit panel.  We generally follow those things, and when we slam them, we do it in a dissent or concurrence, not in a majority opinion.

And it's not just any Supreme Court opinion.  It's a 7-2.  So it's not like that opinion was especially close.  Yes, it was rendered in the 1980s, when we cared a lot more about policy and purposes and (rightly or wrongly) didn't slavishly follow statutory text.  But guess who (amongst others) joined that 7-2 opinion?  Chief Justice Rhenquist, for one.  Justice Scalia, for another.  Hardly jurists who don't care about the primacy of statutory text and who willy-nilly draw whatever lines they feel.  (Indeed, the two dissenters in that case were Justices Marshall and Stevens -- far from your usual textualists.)

So slamming Rhenquist and Scalia as relics from the '80s insufficiently concerned with the centrality of statutory text seems bold.  Wholly apart from the fact that it's an attack on the reasoning of a higher court that you're obligated to follow.

Now, admittedly, Judge Bumatay wasn't the first one to assert this critique.  Judge Owens said some of the same things in the fee arbitration case in the fee arbitration case in 2016.  (Though isn't it funny that the "relic of the 1980s" that Judge Owens listed was NutraSweet, whereas Judge Bumatay says it's "big hair, jam shorts, and acid-wash jeans.")

(Parenthetically:  I agree with Judge Bamatay about the "big hair" part, but I'm not really sure about the other two.  I see lots of people with acid-wash jeans these days; in the modern incarnation, we also seem to "distress" and rip them -- here are the current Forever 21 styles.  As for jam shorts, I'm starting to see a ton of those, particularly here in Southern California beach communities.  And if the clothing choices of my 16-year old surfer-and-water-polo son are any indication, that particular style is making a huge comeback these days.  For better or worse.)

Back to the point.  Maybe it was a bit bold for Judge Owens to offer a critique of Kelly back in 2016.  But at least he was doing so in the context of a case (fee arbitration awards) that wasn't analogous to the Supreme Court's restitution opinion anyway.  In 2020, we've got a case that's (IMHO) very close to the Supreme Court's restitution opinion.  And to largely say "Well, that case was stupid, so we're going to pretty much limit that Supreme Court holding to its facts, even if restitution orders and disciplinary orders are indeed somewhat analogous" seems a fair piece bolder than what we've done before.

I get the critique.  And I get that someone might think, for principled reasons, that restitution orders are potentially different than disciplinary "pay your sanctions" orders.

But still.  Bold.

Wednesday, June 10, 2020

People v. Padilla (Cal. Ct. App. - June 10, 2020)

I mean, I get it (I guess).  Mr. Padilla was convicted of murder a long time ago -- in 1999.  But for various procedural reasons, his case repeatedly bounced up and down the Court of Appeal.  As a result, technically, it's not "final" yet.  For that reason, the Court of Appeal holds today that he's entitled to retroactive relief available under Proposition 57, passed in 2016, which makes it easier for juveniles to stay in juvenile court rather than being charged as adults.

But it's nonetheless weird -- very weird -- that Mr. Padilla now potentially gets to be tried in juvenile court, with remedies granted to juveniles, even though he's now nearly forty years old.  Who ever thought that a 38-year old would be in juvenile court?!  Probably not many of the people who passed (or voted for) Prop. 57 in 2016.

Yet, there you have it.

Now, as a practical reality, I doubt that Mr. Padilla is going to in fact end up there.  The Court of Appeal remands to ask the trial could whether it "would have" kept the case in juvenile court all the way back in 1999 had it operated under the new Prop. 57 standards.  Keep in mind that the trial court sentenced Mr. Padilla to life without the possibility of parole, and has imposed the same sentence for the past two decades every single time the Court of Appeal has remanded the thing back to it during that period.

My strong guess is that the trial court says:  "Nope.  Would have had him tried as an adult.  Even under the new rules."  Whether (1) because that's in fact the case, and/or (2) because the trial court is repulsed by the concept that a 38-year old Mr. Padilla might now be tried as a juvenile in juvenile court.

And my guess is also that, thereafter, the Court of Appeal will affirm.

But who knows.  Stay tuned.


Monday, June 08, 2020

People v. Rosas (Cal. Ct. App. - June 8, 2020)

Does it bother anyone else that the police officer's body cam footage "just so happens" to stop when it does in this case?

Neither the majority nor the dissent mentions this fact.  Maybe there's an innocent explanation for why a body cam would suddenly be turned off (or stop working) right before the police officers start the critical phase of their encounter with the suspect (here, the challenged search and seizure).  If so, I'd like to hear about it.  Because otherwise, one might reasonably think that the officer turned off the body cam at that point precisely because he didn't want a judge to be able to see what was about to go down (e.g., the disputed search).

Not especially relevant to the doctrinal dispute between the majority and dissent.  But worthy of notice regardless.

People v. Whalum (Cal. Ct. App. - June 8, 2020)

As my kids would say, the defendant in this case really "Took the L" on appeal.

He's convicted of possessing a tiny amount of marijuana in prison (.4 grams), and gets sentenced to a little under three years in prison as a result.  After cannabis is decriminalized, he files a petition (as the statute allows) to vacate his conviction, but the trial court holds that making weed legal doesn't make it legal in prison.

So he appeals, and gets appointed counsel for the appeal.

He loses, with the Court of Appeal agreeing with the trial court.

Normally, that would just mean that the defendant is back where he was initially.  But, here, during the appeal, the Court of Appeal notices that the abstract of judgment says that the two-year, eight-month sentence for possession of cannabis was to be served concurrently to defendant's existing prison sentence, whereas the trial judge (and plea agreement) said the sentences would be served consecutively.  So, sua sponte, the Court of Appeal corrects the judgment.  Thereby adding nearly three years to defendant's sentence.

Given that result, I suspect that Mr. Whalum now wishes that he had just left well enough alone on this one.


Friday, June 05, 2020

People v. Bettasso (Cal. Ct. App. - June 5, 2020)

Michael Bettasso gets sentenced to 19 years to life for driving while intoxicated.  That's a lot of time.  Mind you, he did hit and kill someone.  That's a huge deal.

Still, there are plenty of people who deliberately kill people that don't sentenced to 19 years.  There are nonetheless some bad facts for Mr. Bettasso.  He's a bartender, and there's a video that shows him drinking a mixed alcoholic drink (while on duty) at 1:21 p.m.  Which wouldn't be all that terrible, but for the fact that the video also shows him drinking "an additional six mixed drinks, including fourbetween 1:21 p.m. and 3:05 p.m., one at 4:16 p.m., and one at 6:06 p.m. . . . [plus] five total shots at 3:49 p.m., 4:53 p.m., 5:39 p.m., 5:55 p.m., and 6:34 p.m."

That's a lot of booze.  A lot.

Plus there were the statements of his co-workers, who testified that he was definitely drunk and told him she shouldn't drive.  Indeed, one of the last statements to Bettasso, from a close childhood friend (who worked with him at the bar), was:  "You are an asshole if you decide to drive."

Indeed.

One last thing.  "The parties stipulated that Bettasso had four prior DUI convictions in 2001, 2005,2013, and 2014. For the 2013 and 2014 convictions, Bettasso admitted that his blood-alcohol content (BAC) level was over .15 percent."

Wow.

There's still the issue of whether 19 years isn't too much given that other defendants who knowingly kill often receive lighter sentences.  But some would argue that's a problem with the latter cases, not the former.  Regardless, given the facts of Mr. Bettasso's offense, you can understand why he gets the sentence he does.  Even if you don't agree with it.

Don't get four DUI's, get drunk, and drive.  Terrible idea.

"You're an asshole" understates the appropriate critique.

Thursday, June 04, 2020

National Family Farm Coalition v. US EPA (9th Cir. - June 3, 2020)

This 55-page opinion from the Ninth Circuit tells you probably more than you would ever want to know about soybean farming (and cotton farming) in the United States -- and, in particular, (1) how we get rid of weeds in modern farming, and (2) just how dependent we are on both (a) Round-Up and its follow-on chemicals (here, dicamba) and (b) genetically modified seeds that protect crops against such chemicals.  It's an amazing description of an industry that you usually don't see discussed much in the Ninth Circuit (as opposed to, say, Iowa).  Suffice it to say:  Farming is tough.  Very tough.

The most amazing thing to me about the opinion was the mutually-reinforcing nature of the chemicals and their (related) genetically modified seeds.  Super-brief summary:  Farmers need to get rid of weeds, picking them by hand is a hassle, everyone starts using Monsanto's Round-Up as well as genetically modified seeds that make the crops resistant to Round-Up, weeds start becoming resistant to Round-Up since it's used so pervasively, farmers start using stronger dicamba-based herbicides to which there's no resistance as well as genetically modified seeds making crops resistant to Round-Up, dicamba works well but also drifts and spreads easily to other crop- and non-crop plants (killing them in a specific way) in other fields, and then farmers with "regular" soybeans then face pressure to buy the genetically modified soybeans because if they don't the drift of the herbicide from their neighbor's field kills their own soybean (or cotton) crop and, voila, everyone's using the herbicide alongside the genetically modified seeds.

Pretty good marketing strategy for a product.

It's also interesting to see how the EPA and manufacturers try to "regulate" the problem.  There's a clear problem with "drift" so the policies about how and when farmers can apply dicamba become more and more strict over time, and those policies generally "work" when followed, but to follow 'em basically becomes impossible over time:  e.g., wind has to exist (over 3 m.p.h.) but not be too strong (over 10 m.p.h.), no spraying before one hour after sunrise or after two hours before sunset, only two applications per crop, no spraying during temperature inversions, no spraying if nontrivial rain is expected within 24 hours, etc.  In practice, that essentially means that you can basically never spray the stuff, so many farmers spray it illegally and pay the resulting fines as the cost of doing business.  Though recall that the illegal spraying doesn't harm them (except for the fines) -- it instead harms their neighbors.  The classic collective action problem, combined with a regulatory regime that is theoretically effective but practically marginal.

So if you want to learn a lot about modern farming, this opinion is definitely for you.  I promise you'll learn a lot.  As I undeniably did.

It's almost certainly not as bad as learning in detail how sausage is made.  But it's pretty bad regardless.

Wednesday, June 03, 2020

Nicole G. v. Braithwaite (Cal. Ct. App. - June 3, 2020)

It's a domestic violence case with competing requests for protective orders.  Nicole and Warren begin dating in 2011 while Warren was married to someone else.  "Warren found a one-bedroom apartment for Nicole, withhigh monthly rent that 'fit his taste'; he insisted Nicole move tothis new apartment because he did not like where Nicole lived.He co-signed for the apartment, paid the rent, and paid for newfurnishings and electronic devices."  Shortly thereafter, Warren gets arrested for trafficking in drugs, and spends five years in prison.

Warren and Nicole rekindle their relationship after Warren's released from prison, and suffice it to say, it's an unhappy relationship.  Both parties claim that the other is abusive.  Among other things, there's a lot of evidence that Warren repeatedly stalked Nicole; on Warren's side, there's that picture that Nicole admittedly sent him of her holding an AK-47.  Ultimately, the trial court finds in favor of Nicole, enters a protective order on her behalf, and kicks Warren out of the apartment.  Warren says the ownership of the property should be decided in a civil action, not as part of a domestic violence case, but both the trial court and the Court of Appeal hold otherwise.

What I thought most interesting about the opinion was that Nicole is listed in the opinion as "Nicole G." but Warren is listed (both in the caption and in the text) with his full name.  I understand that in the context of a plaintiff who files for a restraining order, but in the context of mutually requested restraining orders, I wonder if the better practice isn't to omit the last names of both sides.  Imagine, for example, that the trial court had denied Nicole's requested order and found that Warren was the actual victim.  It'd be crazy to just use the petitioner's initials just because s/he filed first, no?  I also doubt that the rule is (or should be) that we only use the initials of the party who prevailed below.  After all, what if the case gets reversed on appeal?  What if the Court of Appeal finds that the real victim is the one who lost below?  Crazy, again, to use the full name of the victim but use initials for the person ultimately found to have committed the abuse.

Plus, the decision here is sort of strange because when the opinion was initially rendered, it was unpublished, but used Nicole's full last name, both in the caption and in the text.  Plus, on the docket sheet -- which is publicly accessible online -- Nicole's full last name again repeatedly appears (no initials).  And as far as I can tell from the docket sheet, there was never a request to change the opinion to delete the last name from either the caption or the text, nor any posted amendment; there was just the decision to publish, with no formal amendment of the opinion (and yet a change to the use of initials).

I understand quite well the reason why one might want to keep the names of domestic violence victims out of appellate opinions.  As well as why one might want to keep the names of domestic violence abusers in the opinion.

It's just hard to do that consistently -- or rationally -- in the context of mutually conflicting requests for domestic violence restraining orders.  You can't presume that the person who filed first is the one entitled to privacy.  And you can't necessarily presume that the person who prevailed below is the one entitled to privacy either (or, at least, the only one).

Another tough call as regards who stays anonymous and who gets outed in public appellate decisions.

Tuesday, June 02, 2020

Wicks v. Antelope Valley Healthcare Dist. (Cal. Ct. App. - June 1, 2020)

It's not that I didn't appreciate the opportunity to read this case.  I did.  It's about someone who's feeling severe chest pains, goes to the emergency room at 4 in the morning, gets somewhat minimal diagnostic treatment there (e.g., there's an ECG/EKG and a chest x-ray, but no CT scan), gets sent home, and dies eight hours later of an acute aortic dissection.  A CT would have caught the aortic dissection, and there were plenty of hints that this might be a problem (a BMI of 33, high blood pressure and cholesterol, history of smoking, etc.), but basically the hospital was just looking for a regular old heart attack, not a dissection.

Which is a reminder to choose an ER carefully.

But what struck me most about the opinion was that it was incredibly case- and fact-specific, with excruciating detail about particular evidentiary objections, the status of particular nurses and doctors and this particular hospital, the specific facts of this particular patient's medical treatment, etc.  All of which was indeed necessary to resolve whether the trial court here properly granted the defendant's motion for summary judgment.  But nothing in the opinion jumped out at me as anything legally or doctrinally important, which is the standard guideline for deciding whether or not an opinion gets published.  This just seemed instead to be one of the many run-of-the-mill, fact-bound MSJ appeals that the Court of Appeal resolves every day.

There are definitely varying applications of the publication standard amongst the various divisions and panels in the Court of Appeal.  This is a good example, I think, of an opinion that many (perhaps most) panels would elect to leave unpublished.

Not much harm in publishing, of course.  Just wastes some trees, and maybe is helpful -- or at least marginally so -- for someone in an arguably factually analogous situation at some point in the future.

But you can put this opinion on one extreme side of the "publish-or-not-publish" spectrum.  So a good example of the disparity between panels and opinions on this score.

And a reminder that severe pain in your chest can be a dissection instead of a heart attack.  A definite killer.

Monday, June 01, 2020

Hester v. Public Storage (Cal. Ct. App. - May 28, 2020)

Please tell me you know which way this case is coming out just by reading the facts.  Yes, it involves a reality television show "star" (David Hester), but that doesn't matter.  In the actual reality show we call civil "Justice," cases like this only come out one way.

The question presented is whether Public Storage is entitled to void the sale of a storage locker once it discovers (30 minutes after the auction) that the owner has actually paid all the fees that are due and that the locker was accordingly auctioned in error.  Here are the relevant facts:

"Self-service storage facilities (owners or sellers) rent storage space toindividuals (occupants) for the purpose of storing personal property. If an occupant fails to pay rent, an owner may sell the personalproperty contained within the occupant’s storage unit through a lien sale. Defendant owns and operates self-storage facilities throughout the countryand conducts lien sales in California pursuant to the Self-Service Storage Facility Act. Plaintiff has made a living for the past 30years buying the contents of storage units at lien sales and reselling the purchased items.He was featured on several seasons of the television show “Storage Wars,” whichdocumented the lives of several individuals that make a living in this manner. In hiscareer, plaintiff has attended about 10,000 lien sales, about 20 percent to 25 percent ofwhich were conducted by defendant.

Defendant held a lien sale at its facility in Fountain Valley in July 2017.As a condition to participate in the sale, plaintiff signed a Delinquent Tenant Sale Sign-inSheet and Agreement (delinquent sale agreement) containing various rules andregulations, including, among others: (1) “[a]ll bidders must read these Rules andRegulations and fill out the Bidder’s Sign-In Sheet below”; (2) “[a]t the time of purchase,Purchaser must complete a Certificate of Public Sale form . . .”; (3) defendant “reservesthe right to null and void the auction and sale of any unit if, among other reasons, theDistrict Manager verifies that the tenant has paid the outstanding balance in full while theauction was taking place”; and (4) “[a]ny violation of the above rules may result inbidders being barred from future sale at any Public Storage facility.”

At the sale, defendant accepted plaintiff’s offer to purchase the contents ofa storage unit for $11,800. Plaintiff then placed two locks on the unit’s door and paid forthe unit with a credit card and cash. He also signed a Certification of Public Sale for theunit, which certified he had made the winning bid for the contents of the storage unitduring competitive bidding. The certification also stated plaintiff “[understood] that [defendant] reserve[d] the right to null and void the auction and sale of the unit for anyreason.”

About half an hour after plaintiff signed the certification, a senior districtmanager for defendant learned the unit had been mistakenly listed for sale due to atechnical glitch. The unit’s occupant had paid his past due balance weeks before the sale,but the system incorrectly listed the unit as delinquent and marked it to be sold.Defendant would not have sold the unit had it known of this mistake.

After discovering the error, the district manager immediately notifiedplaintiff that defendant was voiding his purchase of the unit. Defendant reversed theportion of the purchase price paid by credit card and attempted to refund the cashbalance. Plaintiff refused to accept the sale’s rescission and declined the refund.Defendant then cut plaintiff’s locks off the unit and replaced them with its own locks.Defendant later sent plaintiff a letter explaining that it had voided his purchase of the unitand enclosed a refund of the cash balance and reimbursement for the cut locks."

What result?

It's obvious to me.  As well as to both the trial court and Court of Appeal.  Public Storage wins.  The contract and documents repeatedly said the sale could be rescinded if it turned out the owner had actually paid.  And that's in fact, precisely what happened here.  Summary judgment for defendant, and decision affirmed on appeal.

Exactly right.  Beyond a shadow of a doubt.

Friday, May 29, 2020

Boermeester v. USC (Cal. Ct. App. - May 29, 2020)

Two very, very, very different takes on the equity of USC's decision to expel USC kicker Matthew Boermeester from the school for intimate partner violence in 2017.

Read the whole thing at your convenience.  Troubling regardless of which side you take, IMHO.

Rubinstein v. Fakheri (Cal. Ct. App. - May 29, 2020)

When someone takes out a loan and then admits they don't repay it, it's not surprising that (1) the trial court will find in favor of the plaintiff suing for the loan, and (2) the Court of Appeal will affirm.

The defendant (Mr. Fakheri) can -- and does -- make a ton of different hypertechnical arguments in an attempt to prevail.  But the optics are terrible.  Just terrible.  You've got to repay the money you took.  Period.

Last paragraph of Justice Lui's opinion:  "Rather, the judgment awardsonly the principle amount that Fakheri owes directly toRubinstein (either personally or by assignment from Lanark)because of the loan that Fakheri received. That obligation doesnot involve any promise to answer for the debt of another, andthe statute of frauds therefore does not apply."  Seventh word should be principal.

Otherwise spot on.


Wednesday, May 27, 2020

Insalaco v. Hope Lutheran Church (Cal. Ct. App. - May 27, 2020)

Sometimes an opinion is worth mentioning simply because one might cite it.

Like this one.

It's a pretty darn categorical case that holds that even if a party has entirely failed to be diligent in discovery, a requested continuance of a motion for summary judgment still needs to be granted if the not-yet-obtained discovery is critical to the opposition.  Justice Miller doesn't say this in exactly those terms, but that's nonetheless the holding.  That even if (as here) there was no rational reason why the nonmoving party hadn't conducted yet a site inspection of the property during the prior year of discovery, that lack of diligence doesn't matter when there's not yet a trial date, discovery hasn't cut off, there's been no prior request for a continuance, and the requested discovery is essential.

The case basically obviates the due diligence requirement in that setting, holding that the need to get the MSJ right outweighs whatever marginal downside exists from continuing the motion in such a setting.

Plaintiffs can (and should) use the case to request and obtain a continuance of an MSJ  Defendants should be aware of the case so they don't schedule a hearing too early and get it continued on this basis.

Good to know for both sides.

Tuesday, May 26, 2020

In re Tom Smith (Cal. Ct. App. - May 26, 2020)

I'm starting to think that maybe I'm just a minority of one on this particular topic.

This is another case in which the defendant says his lawyer admitted his guilt at trial contrary to the defendant's wishes.  The Supreme Court recently held that you can't do that, and so the defendant here filed a habeas petition requesting the same relief (a new trial).  The Court of Appeal denied the petition (just like it denied defendant's original appeal), but the California Supreme Court then issued an order to show cause for the Court of Appeal to explain why the petitioner wasn't entitled to relief under the Supreme Court's precedent.  At which point, today, the Court of Appeal affirms its original conclusion and holds (again) that the defendant is not able to prevail on the merits.

I talked on Friday about one of these cases, and discussed at length why it seemed to me that the Court of Appeal in that case overlooked the significant factual discrepancy between the defendant's story and the defense counsel's version of the facts.  I thought that the defendant said one thing and the attorney said another, and so an evidentiary hearing was required -- even though the Court of Appeal thought there was no conflict at all.

Today's opinion -- the very next business day after Friday's opinion -- seems more of the same.

Maybe even worse.

I was struck by the strategy here.  It's a case involving a murder at Patton State Hospital.  One of the patients gets strangled in a fairly gruesome fashion, and the defendant gets charged.  The evidence against him is, quite frankly, pretty darn overwhelming.  He's virtually caught in the act, and then there are his repeated and unabashed confessions to the offense.  (For example:  "[W]ejust wanted to see how it felt to kill someone” and "I killed him. I strangled him with the suspenders. . . . because [the victim] was a childmolester.”)

Pretty tough to overcome.  Definitely.

Trial eventually comes around.  Defense counsel doesn't give an opening statement at all.  Then, at the defense stage, counsel puts his client on the stand (presumably because the defendant insisted on testifying) and the client insists that he's totally innocent and that this confession to the police was a lie.  There's no doubt that this is his defense:  as the Court of Appeal notes, at trial, defendant "denied killing Lucas, claiming it was Zamora and Porter who did it.  He said he was going to leave, but Porter threatened to get him too if he did."

Okay.  That's his story.  It's not a great one, given the confessions and evidence and all.  But it's his version of the facts, and the jury gets to decide.  A decision that's probably even a little easier after the rebuttal phase of the trial, in which a fellow inmate testifies that defendant told him that he "strangled the victim from behind, and it turned himon sexually" and "that if he could win at trial, he would go back to attackand rape other women as he had done in the past."  But, hey, that's life in the big city.  Defendant says he's innocent, the prosecution says he's guilty, and the jury chooses whether guilt has been established beyond a reasonable doubt.

Now it's time for closing arguments.  The prosecution's argument goes pretty much how you'd expect, the only drama being that, in the middle of it, the defendant stands up and says that he wants to leave the courtroom, saying "It’s just been so long,your Honor. I’m tired of hearing it. I didn’t do it."  But he ends up staying anyway.  The only point being this:  It's pretty darn clear the defendant's story is the one he told at trial:  That he's (allegedly) completely innocent, and that that's his defense.

Now it's time for defense counsel's opening statement.  Which begins in a way that, to me, is both understandable and yet bizarre.  Defense counsel tells the jury that the trial has made his job very very hard, telling them:  "But I’llcarry on. For all of you parents out there let me offer you some advice for a certainfew who might meet this criteria in terms of for a job description. Undeterred byimpossible odds. Ready to change your story at the drop of a hat. The ability to look 12citizens in the eye and look sincere. Doesn’t mind losing once in a while. That would bea defense lawyer. And welcome to the defense bar.”

Look, I get that the job is tough sometimes.  But it's a murder case.  Maybe don't highlight that your job is to be "ready to change your story at the drop of a hat" and to try to "look sincere" even when you're arguing things you obviously don't believe.  That's something to complain about after the trial, in a bar or to your spouse or the like.  I'm not so sure it's an awesome strategy at trial.

Regardless, then, after talking about the presumption of innocence and the like, the defense counsel told the jury that it was "his belief that this was a second degreemurder, not a first degree murder case."  At which point the defendant gets up and starts objecting to his own lawyer.  As the Court of Appeal notes, "[a]t that point, petitioner interjected, “Did Iunderstand him correct? Did he just say—” The trial court asked petitioner to be quiet.Petitioner stated, “He said second-degree murder. I said I didn’t do it. [¶] . . . [¶] Iobject to that.”

So his counsel is saying that he's guilty of second degree murder, but the client is saying -- indeed, has testified under oath -- that he's completely innocent.  Seems a fairly stark divergence, no?

Lest there be any doubt, later on during the defense counsel's closing, there's this (classic) exchange as counsel continues to explain why his client is guilty to second degree murder:

“THE DEFENDANT: And that’s my lawyer saying that. 
THE COURT: Mr. Smith— 
THE DEFENDANT: I want to go back to my holding cell, man. I’m tired of thisbull shit. I don’t want to be here, homie. 
THE COURT: Mr. Smith— 
THE DEFENDANT: I don’t care. I don’t want to listen to that bull shit. I didnot commit murder. I didn’t kill that son of a bitch. 
THE COURT: Take Mr. Smith out of the courtroom. 
THE DEFENDANT: Thank you. You lying sack of shit.”

At which point the defense counsel continues his strategy.  Maybe one that makes tactical sense in light of both the evidence and all that's transpired, concluding with:

“You take your clientsas you find them, okay. Despite his actions, despite his outbursts, despite his numerousproblems, remember this is still a guy that it seems like the guy never caught—you can’tconsider sympathy in your deliberations—but I can’t think of a time in this guy’s lifewhen he caught a break. And I would like you to disregard his outbursts and think aboutthe facts, that it took two people to hold and do the poking. And find him guilty ofsecond-degree murder instead of first. Thank you.”

It's pretty clear from all this what went down, no?  Defendant insisted he was innocent, his counsel thought that was a terrible strategy, so defense counsel went with what he thought -- most likely, correctly -- made the most tactical sense notwithstanding the client's desires.

The only problem being that the Supreme Court's recent holding that you can't do that.

So reversal, right?

Not according to the Court of Appeal.

Justice Ramirez resolves this case just like the case on Friday:  By holding that there wasn't really a conflict in the evidence.  Even though it's crystal clear to me that there was.  Remember:  Defendant testified at trial that he was totally innocent, and yet, minutes later, you've got counsel contradicting that testimony and saying that his client's guilty (albeit of a lesser offense).  And when he heard his counsel conceding guilt, defendant immediately stood up and "objected" to that, insisting (yet again) that he was completely innocent.

How are these events even possibly consistent with one another?

Justice Ramirez has an answer.  He admits that, yes, at one point, defendant clearly wanted to insist that he was innocent (e.g., during his sworn testimony).  But Justice Ramirez insists that defendant must have changed his mind at one point -- namely, after the prosecution's opening argument.  Justice Ramirez appears to credit the defense counsel's testimony in this regard, saying:

"[Defense] counsel indicated that after the prosecutor’s argument,he informed petitioner that he believed there was no way the jury would buy his defensethat he did not do it, based on all that had been said, and that he was going to go with the best defense he could. The record does not show petitioner made an express andunambiguous intent to maintain factual innocence at that time. Thereafter, defensecounsel made his closing argument, conceding petitioner’s involvement in the murder, atwhich point petitioner objected."

Now, it's factually possible that's right.  It's possible that defense counsel told the defendant at that time that the "innocence" strategy was stupid and no longer viable, and that defendant at that point went along with that decision.  Truthfully, even on a stale paper record, it's very difficult for me to reconcile that fact with the undeniable reality that once counsel admitted for the first time during closing argument that his client was guilty (albeit of second degree murder), the client was both definitively surprised and went ballistic.  That certainly doesn't sound like someone who had agreed minutes earlier to that new strategy.  Sounds instead like someone who definitely did not agree with the strategy.

But we don't need to decide merely based on inferences like that, however persuasive.  Yes, Justice Ramirez is right that defense counsel says that he told his client about the change in strategy.  But Justice Ramirez's opinion also expressly states that "in fact, petitioner, in his declarationin support of his traverse, denies that defense counsel informed him of a proposed changeof strategy during the prosecutor’s closing argument."  Which is certainly consistent with the events we subsequently see during defense counsel's closing, which which the defendant strenuously objects to what his counsel is saying to the jury.

So, yes, if the defense counsel is telling the truth, and there was agreement by the client that it was the best strategy to concede guilt, then the fact that the client later objected doesn't matter, and the habeas petition should be denied.  But if, instead, the defendant is right that there was never any agreement on this strategy -- e.g., that defendant always insisted (as he testified at trial) that he was innocent of the murder -- then the habeas petition should be granted.

A classic evidentiary conflict.  Which requires a hearing and a factual determination.  Because neither the trial court nor the justices on the Court of Appeal were there during the conversations between the defendant and his counsel.  Maybe (contrary to what defense counsel says) they never discussed at all the proposed "new strategy" of conceding guilt.  Maybe there was a discussion, but the defendant said "No freaking way; I'm innocent, and that's what I want you to argue."  Or maybe there was agreement after all.  You've got to figure out who's telling the truth.  Something we can't do on appeal.

So, again, maybe I'm a minority of one.  Maybe everyone else is happy -- just like every member of the panel in the Court of Appeal is happy -- deciding that, yep, the defense counsel is telling the truth here.  Just like in the case on Friday.

But, to me, you can't do that.  Particularly not here, when everything we can actually see (e.g., the outbursts during the closing argument) are totally consistent with defendant's version of the facts and his unwavering insistence on the same version of the facts he gave as his sworn testimony at trial.

Maybe I'm crazy.  But that's what I think.

Dorit v. Noe (Cal. Ct. App. - May 26, 2020)

Legal doctrine may be somewhat indeterminate, but it can nonetheless answer questions.  Today's opinion by Justice Brown is a good example.

The case raises the issue of whether filing a mandatory attorney fee arbitration proceeding can give rise to a malicious prosecution suit.  I hadn't thought about that issue before.  And even after Justice Brown posed the question, I still wasn't sure what the answer should be.  When someone files and loses a fee arbitration proceeding, can the prevailing party sue them for malicious prosecution if that filing was with malice and without probable cause?  The answer matters not only for which side gets to prevail on the merits, but also for which side gets to prevail on an anti-SLAPP motion, since (as the Court of Appeal holds) the filing of such a fee arbitration is an "official proceeding" under the anti-SLAPP statute.  So there's real money at stake.

As I said, I didn't have a view one way or the other on this issue.  Even after thinking about it a bit.  You could see arguments both ways -- a fact that highlights that legal doctrine doesn't necessarily give you definitive answers to lots of questions.

Nonetheless, after reading Justice Brown's opinion, I was totally persuaded.  Nope, no malicious prosecution suits.  For all of the plethora of reasons she explains.

It's not that I can no longer see the other side.  I still can.  But I'm persuaded that the position that Justice Brown articulates is decidedly superior to the alternative.  I concede that the procedural posture of this particular case -- an attorney who took $10,000 from a client to evaluate a medical malpractice lawsuit, didn't file anything, didn't return any of the money, defended a fee arbitration proceeding successfully, and then sued the client for malicious prosecution -- makes me somewhat inclined to the position advanced by the Court of Appeal, since an attorney defending against a fee dispute seems par for course and unlikely to require powerful tort remedies to sufficiently deter.  But even in the abstract, and even if you switch around the parties (and have the lawyer file a fee claim against a client), I agree that the point of these things is to get matters resolved quickly and easily, and that the spectre of malicious prosecution suits would only muck things up.

So a very well done opinion by Justice Brown.  A nice, definitive answer, and one that makes sense.

Friday, May 22, 2020

People v. Palmer (Cal. Ct. App. - May 22, 2020)

Because of all the initials for witnesses and crime victims, I had to literally draw a chart to try to figure out what was going on in this one.

Palmer and S.H. go to a bar, S.H. leaves, and Palmer flirts with C.S. and takes C.S. back to Palmer's room and they start having sex, except Palmer can't keep an erection.  S.H. meets A.K. after leaving Palmer, and then they too go back to Palmer's room and start having sex, at which point C.S. joins and has oral sex with S.H. while A.K. has sex with C.S. while Palmer watches (unhappily), at which point Palmer kicks everyone out (except S.H.).

Clear?

It took me a little while before I even figured out everyone's gender, much less who did what with whom.  (Except that, given the erection part of the opinion, I knew that Palmer was male.  Plus his name was Joshua.)

Anyway, all this happens at the Chadwick Hotel in San Diego, which I've driven past many times and in so doing often wondered who would ever stay there, since it looks like a flop house.  Now I know.

Only when I got halfway through the opinion did I realize that I already knew this story.  Because it was reasonably high profile down here in San Diego, since Palmer then killed S.H., stuck her body in a suitcase, left it out for the trash, and it was found by bystanders.  Made the news a lot.  Though the whole sex preclude was left out (or at least left out of what I recall).

Mr. Palmer ultimately gets convicted and sentenced to LWOP, which is hardly surprising, particularly once you read Justice Huffman's opinion and discover all the conflicting (and absurd) stories that the defendant told the police and allegedly wanted to introduce at trial.  Justice Huffman goes to great lengths to explain why the defense counsel's strategy -- which was to concede that Mr. Palmer killed A.H. but to claim that it was only manslaughter, in the heat of passion -- made total sense, as opposed to Palmer's (most recent) version of events, which no one in the universe was going to believe.  (One of the particularly bad pieces of evidence were the deleted videos on Mr. Palmer's phone that showed him digitally penetrating S.H.'s anus and vagina after she was deceased.)

So everything about Justice Huffman's opinion makes sense.

Except maybe one thing.

Mr. Palmer's basic argument on appeal was that he's entitled to reversal because he told his lawyer that he didn't kill S.H. at all and yet the lawyer nonetheless admitted at trial that Palmer killed her.  If so, yes, that requires reversal; a defendant is entitled to insist upon his factual innocence, and the lawyer can't take that decision away from him by arguing otherwise at trial.

Justice Huffman explains -- again, persuasively -- why Mr. Palmer's version of the facts is absurdly stupid, and why the defense lawyer (smartly) adopted the strategy she did.  I also can't find anything in the various transcripts quoted in the opinion that suggests that, before trial, Mr. Palmer ever told the court (in connection with potential Marsden motions or anything else) that he was insisting on his innocence and yet the lawyer was nonetheless going to admit to the murder at trial.  As far as I can tell, Justice Huffman's right that if there was a conflict like that, no one on the outside knew about it before Mr. Palmer was convicted.  Which lends a lot of credence to the view that Mr. Palmer -- who's very keen on telling different stories at different times -- simply made up the story about instructing his attorney to maintain his innocence rather than admitting that he killed S.H.  On that point, I feel very confident.  If you ask which person I believe -- the defense lawyer, who said that she followed Mr. Palmer's (ultimate) instructions, or Mr. Palmer -- I definitely believe the defense attorney.

So does Justice Huffman, who distinguishes the otherwise controlling Supreme Court case on this issue by saying:  "Unlike the defendant in McCoy, whoemphasized, both before and during trial, that that he wanted to proclaim his innocence,there is nothing in the record that indicates Palmer told his trial counsel that he wanted toassert his innocence before or even during trial. At most, he wanted to argue that thevictim died after a "taboo sex act" (erotic asphyxiation) went wrong. The record hereshows that when his attorney told Palmer that the evidence did not support such a theory,Palmer relented, decided not to testify, and refused a Marsden hearing in the middle of trial when the court asked him if he wanted one."

But the thing is:  While that's probably true, it's not what the record unambiguously shows.  As the opinion itself concedes, "Palmerasserted that a month before trial, he told his counsel he wanted to testify. According toPalmer, counsel responded that it was his right to do so, but if he chose to testify, she wasnot going to help him, and it would be his job to defend himself. He felt she had usedcoercion and fear to force him to relinquish his right to testify and tell the truth."  So it's at least Mr. Palmer's story that he wanted to testify and "tell the truth [sic]" about the alleged non-deliberate killing, his lawyer refused to permit him to do so (saying she wouldn't help him if he did so), so his desires to protest his innocence were frustrated.

Now, again, I have little doubt that the defense attorney's version is more credible, and that (as the opinion recounts) "In response to Palmer's accusation, defense counsel denied that she told Palmershe would not help him if he wanted to testify. Instead, she asked Palmer to give hernotice if he planned to testify so she could prepare how best to handle it. According tocounsel, Palmer told her he would think about it and then called her later to tell her he was going to take her advice and not testify. At that time, she advised him again that itwas absolutely his right, and although she was in charge of strategy decisions, whether hetestified at trial was not one of them."  Perfectly fine and perfectly ethical.

But it seems to me you have to decide who's telling the truth at an evidentiary hearing, no?  Not just decide the thing on a stale paper record.  Justice Huffman's opinion correctly notes that "Palmer only complained about defense counsel'srepresentation after the jury returned a guilty verdict."  Yes, it's true he only complained about it publicly afterward.  But if his version of events is believed, he told his defense attorney privately about his desires way beforehand.  Just because someone only tells the world about something later -- whether it's trial strategy or sexual harassment or whatever -- doesn't mean it didn't happen, or that s/he didn't tell someone different (privately) earlier.  Similarly, yes, Justice Huffman is right that Mr. Palmer "admitted to tellinghis attorney multiple stories about what happened with the victim," and that he "conceded that he was not consistently telling his attorney that he was innocent andwanted to present an innocence defense."  But that you lied to your attorney at one point in no way waives your right to insist upon your innocence at trial.  Maybe, for 12 months, I consistent tell my attorney:  "Yes, I deliberately killed her, darn it, wish I hadn't."  And maybe, two months before trial, for the first time, I suddenly tell my attorney:  "Wait.  No.  I totally did not kill her.  I was lying to you before.  I want to assert my innocence at trial."  The attorney can no way at that point say:  "Tough.  You once told me you killed her.  So I'm going to plead guilty for you (or admit at trial that you killed her)."  You -- the defendant -- get to decide whether or not to concede your guilt.  Maybe -- probably -- you were lying the second time.  But maybe you were lying the first time.  Regardless, whether you killed the person is something the jury gets to decide, not your own attorney.  If you want to say you are not guilty, fine, that's your right.  Good luck with that.  You're entitled to present that defense at trial, regardless of whether your lawyer thinks that's a great idea.  It's your life on the line, not hers.  (Put to one side whether the lawyer can put you on the stand to testify, since that's neither the issue here nor do we need to get into the thorny issue of how one "knows" that testimony is perjured or a defendant's right to testify via a narrative.  The defendant indisputably still gets to control whether he pleads guilty and/or have his counsel admit the offense at trial.)

So, yes, the Court of Appeal is right that "this is not a case like McCoy where the defendantemphatically insisted he was innocent and consistently told his attorney to argue such attrial."  But the rule is not that you have to "emphatically" insist on that right nor advocate for it "consistently".  Yes, in the end, you've got to direct your attorney to do something, in terms that are not equivocal.  But if I say, definitively, "No, seriously, I don't care what I said before, I'm telling you now:  Don't admit that I killed her at trial," then that's what you've got to do.

And that's what Palmer says that he said.  We certainly have a lot of reasons to disbelieve him.  But I don't think that either the Court of Appeal or the trial court can properly decide who's telling the truth without putting both of the relevant witnesses on the stand and listening to their stories under oath.  An event that, as far as I can tell, has not yet transpired.  And which means we can't say for certain which version of the facts is right.

I'd be fine if the opinion said "So we can't tell what really happened here, since there was no evidentiary hearing, so we'll remand for one," or maybe even if it said "We're not saying what actually went down, for that, you can assert a claim on state or federal habeas, in which you'll be entitled to an evidentiary hearing, but for now, on appeal, you can't get relief."  But the opinion casts itself much more categorically than this.

Which accurately describes -- very accurately, I suspect -- how any evidentiary hearing will almost certainly ultimately come out.

But you're entitled to one before someone says that what you've said is untrue and hence you're in prison for the rest of your life.  Because if -- a big if -- what Mr. Palmer says is actually true was true, he's entitled to a trial at which his counsel does not concede that he deliberately killed the victim.