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Federal Judiciary

California Appellate Report

Commentary on recent Ninth Circuit.
By Shaun Martin

Post Frequency: 4.3/day

Last Entry: November 04, 2020 at 16:52:00

People v. Williams (Cal. Supreme Court - May 5, 2008)

Posted on May 05, 2008
You can read the first ten pages of this 80+ page opinion if you'd like. But it can also be summarized by simply saying that Dexter Williams engaged in a series of events during February 1991 that constitute nothing less than a barbaric display of inhumanity...

Brown v. Farwell (9th Cir. - May 5, 2008)

Posted on May 05, 2008
This is definitely a powerful way to begin an opinion:"At Petitioner Troy Brown?s trial for sexual assault, the Warden and State?s (?Respondents?) deoxyribonucleic acid (?DNA?) expert provided critical testimony that was later proved to be inaccurate and misleading...

Pinhoster v. Ayers (9th Cir. - May 2, 2008)

Posted on May 02, 2008
The lower court docket number is"CV-95-06240-GLT"; in other words, this case has been pending in federal court for 13 years. The appeal to the Ninth Circuit was filed in 2003, it took four years before the thing was scheduled for oral argument, and over a year after argument for the panel to issue its opinion...

Enpalm v. Titler Family Trust (Cal. Ct. App. - April 30, 2008)

Posted on May 01, 2008
I've always found perjury an interesting subject. It seems to me that it's fairly common. Even in the civil side, in which only money (rather than liberty) is typically at stake. My belief is that the typical civil case involves an extraordinary amount of "shading" by the majority of witnesses, a healthy dose of manifest exaggeration, a plethora of convenient forgetfulness, and the not-at-all-rare occasions of outright lying...

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Luce Forward v. Koch (Cal. Ct. App. - April 30, 2008)

Posted on April 30, 2008
Sure, I've been listed (as most of us have) on the counsel line in a variety of published appellate opinions. And my academic pieces are occasionally cited by courts, so my name appears there as well. But I've never been singled out by name in the text of a published opinion...

People v. Semien (Cal. Ct. App. - April 30, 2008)

Posted on April 30, 2008
Some peremptory challenges that are allegedly race-neutral are, I'm fairly convinced, based upon stereotype and pretext, and shouldn't be allowed. But then there are cases like this one.Yes, the dismissed juror was the only African-American on the panel, and the defendant was an African-American charged with very serious crimes...

Roman v. Liberty University (Cal. Ct. App. - April 29, 2008)

Posted on April 29, 2008
We're on the Left Coast. So we don't usually see cases in which (1) Liberty University is a defendant, and (2) Jerry Falwell provides a supporting declaration.But they happen.At least the plaintiff's name is a classic California. Last Name: Roman. First and Middle Names: Marlon Brando...

Wang v. Valverde (Cal. Ct. App. - April 29, 2008)

Posted on April 29, 2008
Cheating on your DMV test. No upside (if you're caught). But no downside either. At least if you're not criminally prosecuted.A concise and coherent opinion by Justice Rothschild that spans a little over two double-spaced pages. Who says justice needs to be prolix?

U.S. v. Stoterau (9th Cir. - April 29, 2008)

Posted on April 29, 2008
Pimp out a boy who's 14? You'll get right around the same number of years in prison.Oh, yeah. One more thing. When you appeal to the Ninth Circuit, and ask the court to use a pseudonym rather than your real name (because otherwise everyone in prison will shank you as a child sex offender), we'll deny the motion...

People v. Lewis (Cal. Supreme Court - April 28, 2008)

Posted on April 28, 2008
It's been a busy m*****f***ing month. By which I do not mean that it's been busy for me personally, though assuredly it has. No, what I mean is this: Lately, the California Supreme Court has been really busy using the word "motherfucker".How busy, you ask? How about three different opinions in less than 40 days...

People v. Morgan (Cal. Supreme Ct. - Nov. 15, 2007)

Posted on April 25, 2008
It's been a slow day today in the Ninth Circuit and California Court of Appeal. So not much about which I can intelligently comment. Plus my posts yesterday dragged on forever; sorry about that.So I decided to go back and comment briefly on a case from several months ago that was in a different genre than the recent cases I've discussed...

Humane Society v. Gutierrez (9th Cir. - April 24, 2008)

Posted on April 24, 2008
Sometimes justice is way speedy. Which is, in part, why I loved this one.It's just an order on an emergency motion for a stay pending appeal of a preliminary injunction motion. You don't see many of those granted -- especially with a published order -- outside the death penalty context...

U.S. v. Sei (9th Cir. - April 24, 2008)

Posted on April 24, 2008
Let's talk about pirates.They exist. Not just in Disneyland. And they're bad.Okay, I get that. The question then becomes: How can they be punished? Or, more accurately, does the United States, in particular, have jurisdiction to punish pirates for offenses committed on the high seas?Let me give you the short (and easy) answer: Yes...

People v. Soukomlane (Cal. Ct. App. - April 23, 2008)

Posted on April 23, 2008
Justice Cornell writes a concurring opinion in this case to try to be helpful to trial courts in confronting the challenges involved when a criminal pro per defendant may potentially be disruptive.Let me add another one:Chill out. Remain calm. Because if you don't, you may well engage in conduct that's clearly -- or, as Justice Gomes more tactfully (but equally correctly) puts it, "patently" -- erroneous...

Wagner v. Wagner (Cal. Ct. App. - April 23, 2008)

Posted on April 23, 2008
It's not enough to have a good claim on the merits. You've also got to follow the rules on appeal.So, for example, Justice Perluss says today to James Crowell, the attorney for the appellant (Claire Wagner):"Our review of the court?s ruling on this motion, however, has been thwarted by Claire?s failure to provide us with a transcript of the hearing on the motion or a copy of the court?s minute order denying the motion...

Villegas v. Mukasey (9th Cir. - April 23, 2008)

Posted on April 23, 2008
Mental institutions in Mexico may not constitute deliberate "torture" sufficient to justify withholding of deportation. But, at least currently, they're really horrible. So sayeth Judge Hall.I did not realize that Mexican mental institutions are/were as bad as they are/were...

U.S. v. Staffeldt (9th Cir. - April 22, 2008)

Posted on April 22, 2008
Two years? I mean, sure, I understand why the government might not want the name of the relevant AUSA mentioned in the published opinion. He's being reversed, after all. I can also understand why the panel might grant an unopposed motion to delete references to him -- though I could see the other side as well...

Daybreak Group v. Three Creeks Ranch (Cal. Ct. App. - April 21, 2008)

Posted on April 22, 2008
Now you're just making fun of me.It's a published opinion by Justice Bedsworth. It's got only three and a half pages of text. And it begins with the following paragraph:"This is a case of first impression. Many such cases present interesting analytical challenges; others result only in rueful head-shaking...

U.S. v. Arnold (9th Cir. - April 21, 2008)

Posted on April 21, 2008
They can search your laptop at the border without probable cause. We know that from a couple of years ago.But Judge O'Scannlain adds to that today. They can also search your laptop at the border without even reasonable suspicion.Personally, I would have at least cited the earlier Ninth Circuit case, especially since it says a lot of things (albeit in dicta) that support Judge O'Scannlain's holding...

People v. Zamudio (Cal. Supreme Court - April 21, 2008)

Posted on April 21, 2008
When you read all the death penalty cases in California, there are some basic, fairly universal themes. Most of the time, guilt is fairly obvious, and the evidence is overwhelming. And you have some incredibly bad facts about the defendant that, when combined with his obvious guilt, makes you appreciate (even if you don't agree) why the jury sentenced him to death...

Brooks v. WCAB (Cal. Ct. App. - April 18, 2008)

Posted on April 18, 2008
I don't know why this struck me as particularly funny. And it admittedly came out of some slim pickings today (the Ninth Circuit, for example, didn't publish anything).But when Justice Vartabedian introduced the case by saying: " that Virginia Brooks sustained an injury to her right shoulder and psyche arising out of and in the course of her employment as a correctional officer," I found myself smiling...

People v. Concha (Cal. Ct. App. - April 16, 2008)

Posted on April 17, 2008
Unlike the Ninth Circuit, you typically don't see that many votes ever cast to grant a petition for rehearing in the California Court of Appeal. My intuition is that many (or at least some) on the Court of Appeal deem it somewhat "out there" to do so; that it's somewhat uncollegial in a way that's different than just dissenting...

U.S. v. Davis (9th Cir. - March 19, 2008)

Posted on April 17, 2008
"When we tell you to jump, the proper response is 'How high?', not 'I'm going to do a double gainer.' Learn it or be reversed."That's the message the Ninth Circuit sends to Judge Damrell. In a per curiam opinion that takes only a week or so after oral argument to write.

People v. Bragg (Cal. Ct. App. - April 15, 2008)

Posted on April 16, 2008
Taxes are finished. Money has been paid. The national welfare and defense is secure.So now we can move on to more important issues. To wit: Precisely what is the lingo of your classic exchange between Bloods and Crips?Let me give you the context. Which, needless to say, is a sad one, since it's reflected in a judicial opinion...

Warner Bros. v. Golden Channels & Co. (9th Cir. - April 15, 2008)

Posted on April 16, 2008
I can't honestly say that I'm interested enough to read the underlying briefs and make sure that my impression of this case is absolutely, positively right. But I can definitely say this: Judge Kleinfeld writes an opinion that I find both entirely persuasive and incredibly equitable...

In Re Viray (Cal. Ct. App. - April 15, 2008)

Posted on April 15, 2008
You know the story. The Board of Parole Hearings grants parole to a convicted murderer in an exceptional case. The Governator files a rubber-stamp reversal of the grant. The defendant files a habeas petition. The California judiciary then reverses the Governor...

U.S. v. Reveles-Espinoza (9th Cir. - April 15, 2008)

Posted on April 15, 2008
"So you want to petition for rehearing and rehearing en banc with respect to our memorandum disposition, eh? Maybe getting a little traction on the latter, are you? So be it. We hereby vacate the memo dispo and replace it with an opinion that's a bit more solid in its analysis, and hence more difficult to attack...

Munson v. Del Taco (9th Cir. - April 14, 2008)

Posted on April 14, 2008
There's courtesy, and then there's courtesy.Appellate certification requests often begin with a standard boilerplate; for example, the common "We respectfully ask the California Supreme Court to exercise its discretion and decide the certified questions below...

Martinelli v. International House (Cal. Ct. App. - April 11, 2008)

Posted on April 11, 2008
It was not a good day today for lawyers in the California Court of Appeal and the Ninth Circuit. At least in those cases in which they were parties.On the criminal side, California attorney (and U. of Houston Law graduate) Geoffrey Mousseau loses his appeal of his conviction for five counts of bankruptcy fraud and conspiracy...

People v. Gomez (Cal. Supreme Ct. - April 10, 2008)

Posted on April 11, 2008
Here's a great opinion for those substantive criminal law buffs out there. Or, for that matter, anyone else who wants to know the precise difference between "larceny" and "robbery".Here, it starts as larceny, but turns into robbery. I'll leave you to the opinion to ascertain precisely when (and how) that happens.

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