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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

Airlines Reporting Corp. v. Renda (Cal. Ct. App. - Aug. 27, 2009)

Posted on August 27, 2009
For what it's worth, I think that Justice McIntyre is right in this case. When a plaintiff gets a judgment in another state by default, and thereafter registers this judgment in California, the defendant can assert the absence of personal jurisdiction in the rendering state at any time...

People v. Moberly (Cal. Ct. App. - Aug. 19, 2009)

Posted on August 27, 2009
It seems stupid in retrospect, of course. But I'd have also said it's not very wise at the time. So let me reiterate the message I learned from this case.Yes, he's your 59-year old father, and he presumably loves you. But you two have just left a somewhat emotional therapy session, and you've got four children of your own you need to think about...

U.S. v. Comprehensive Drug Testing (9th Cir. - Aug. 26, 2009)

Posted on August 26, 2009
Oh my God. This is such a freakishly good opinion.Okay, okay. Maybe I should have high expectations. It's an en banc opinion, so you know it's going to get scrutiny. It's about the BALCO case, so it's going to get press coverage. Finally, it's written by Chief Judge Kozinski -- and on a topic (electronic privacy) in which he's keenly interested -- so his normally wonderful writing is presumably going to be even better...

People v. Flores (Cal. Ct. App. - Aug. 19, 2009)

Posted on August 26, 2009
Here's a tolerable law review topic. One which I'll illustrate with the following hypothetical, which is an extreme application of the principle:In 1993, the rules in murder cases allow introduction of X, Y and Z into evidence to prove an offense. In 1994, Flores allegedly commits a murder and flees to Mexico...

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In Re A.I. (Cal. Ct. App. - Aug. 25, 2009)

Posted on August 25, 2009
Sometimes concepts like "fairness" and "equity" get lost in the shuffle. Not here.Defendant (a juvenile) files a motion to suppress based on an illegal search. Since most of the prosecution's witnesses on this motion are the same on this motion and at trial, defendant agrees not to make them come back a second time...

People v. Dungo (Cal. Ct. App. - Aug. 24, 2009)

Posted on August 25, 2009
From the outset of the opinion, it's not looking good for the defendant. Justice Blease begins with:"Defendant Reynaldo Santos Dungo admitted choking his girlfriend Lucinda Correia Pina to death, but claimed he did so only after he was provoked to the point of losing control, and thus, was guilty of at most voluntary manslaughter...

U.S. v. Gonzalez (9th Cir. - Aug. 24, 2009)

Posted on August 24, 2009
Headline of the Day: "Ninth Circuit Concludes That Police Search Was Proper And Hence Evidence Was Lawfully Admitted, But Supreme Court Grants Certiorari, Vacates and Remands, At Which Point Ninth Circuit Is Forced To Reverse."Or, more concisely, "Man Bites Dog...

Humanitarian Law Project v. U.S. Treasury Dep't (9th Cir. - Aug. 24, 2009)

Posted on August 24, 2009
The majority opinion describes the issue presented with the following opening line: "We are asked to invalidate the President?s authority to designate terrorist organizations when there is an extraordinary threat to national security . . . ." At which point you can pretty much figure out where the rest of this one's going...

Benyamin v. Holder (9th Cir. - Aug. 24, 2009)

Posted on August 24, 2009
Few things in life are certain. Death. Taxes. Stuff like that.But let me add another item to the list. I'm exceedingly confident that if you're the BIA, and if you draw Judge McKeown as part of your panel on appeal, she isn't going to be all that pleased when you deny asylum on the ground that the child's threatened female genital mulilation "isn't really all that bad...

U.S. v. Brandau (9th Cir. - Aug. 21, 2009)

Posted on August 21, 2009
The best way to reflect what an opinion says is often to use its own words. But on occasion, the message that one should receive from an opinion is nowhere expressed therein. That's where I can help.Take this opinion. On its face, it's a simple remand order...

U.S. v. Saavedra-Velasquez (9th Cir. - Aug. 21, 2009)

Posted on August 21, 2009
I can't say it any better than Judge Reinhardt, who authors the opinion:"As an ?attempt? in the state of California requires only ?slight acts in furtherance of the [criminal] design,? People v. Superior Court, 157 P.3d 1017, 1022 (Cal. 2007) (emphasis added), one would reasonably expect that the California definition was categorically broader than the definition at common law, which requires a ?substantial step towards committing the crime,? United States v...

In Re Johnson (Cal. Ct. App. - Aug. 4, 2009)

Posted on August 20, 2009
So you want to be a justice on the Court of Appeal (or a law clerk there), eh? The excitement. The novelty. The power. The duty to personally review articles in Men's Health about how to give women a really good orgasm to see whether a prisoner can be properly written up for having them...

Rodriguez v. Hayes (9th Cir. - Aug. 20, 2009)

Posted on August 20, 2009
In a case brought by the ACLU on behalf of aliens detained for more than six months without a bond hearing while engaged in immigration proceedings, when the plaintiff files a motion for class certification -- and the defendant opposes it -- is it really too much to ask the district court to say something about the merits of that motion beyond a conclusory two-sentence disposition? You know: Factual findings, legal analysis, etc...

U.S. v. Harrison (9th Cir. - Aug. 19, 2009)

Posted on August 19, 2009
I wish all opinions were like this.The majority opinion, written by Chief Judge Kozinski, is concise, witty and fun. It also contains a tone that seems exactly right to me.Here's how the majority opinion describes the facts:"This is a tale of two Rex Harrisons...

U.S. v. Hector (9th Cir. - Aug. 18, 2009)

Posted on August 19, 2009
I must admit I'm surprised.Defendant gets convicted of two counts at trial: (1) receipt, and (2) possession of child pornography. The Ninth Circuit subsequently holds that you can't be convicted of both. So which conviction stands, and who decides? (This matters a ton since receipt has a five-year mandatory minimum but possession doesn't...

U.S. v. Alba-Flores (9th Cir. - Aug. 18, 2009)

Posted on August 18, 2009
Alba-Flores drives eight pounds of meth into San Ysidro and is caught. He's facing a ten-year mandatory minimum, but he strikes a deal with the government. Everyone agrees that he'll plead guilty and provide all the information he can about his offense and his confederates, and in return the government will recommend application of the safety valve so that Alba-Flores can potentially get below the ten years...

People v. Hochanadel (Cal. Ct. App. - Aug. 18, 2009)

Posted on August 18, 2009
A mixed bag (pardon the pun) today for pot dispensaries in California. On the one hand, the Court of Appeal uphold the dispensary provisions of the Medical Marijuana Program Act against various challenges -- a result that's huge for storefront operations...

U.S. v. Thongsy (9th Cir. - Aug. 17, 2009)

Posted on August 17, 2009
There are limits to where experience can take you. For example, I've never slept in a tent with two other guys guarding an 160-acre marijuana field in southern Oregon with 8,918 marijuana plants. Or at least I'm not going to admit that I have. Nor have I, while sleeping in such a tent, had a ...

Fashion Valley Mall v. County of San Diego (Cal. Ct. App. - Aug. 17, 2009)

Posted on August 17, 2009
This one might be interesting only to people who live in San Diego and who shop at the Fashion Valley Mall. But since that's an appreciable fraction of my friends and neighbors, I'll mention it.Otherwise, it's a boring, fact-specific tax case about whether a particular transaction resulted in the transfer of 50% versus 100% of the mall (and hence changed its tax basis)...

Ransom v. MBNA Bank (9th Cir. - Aug. 14, 2009)

Posted on August 14, 2009
When you file for bankruptcy under Chapter 13, you get to deduct from your projected disposable income the "ownership costs" of a vehicle; e.g., lease or loan payments. But do those costs also include the costs of owning a vehicle you own free and clear?This is an issue that's beguiled courts for several years, and on which the various circuits are intractably split...

People v. Neely (Cal. Ct. App. - Aug. 13, 2009)

Posted on August 13, 2009
Comparing cross-jurisdictional debates is sometimes enlightening. For example, for all of the high-profile commentary and precedent about the wisdom and validity of the federal sentencing guidelines, far too often overlooked is what happens in California...

People v. Martinez (Cal. Supreme Court - Aug. 13, 2009)

Posted on August 13, 2009
Thinking about hiring a babysitter who lets her drug-addled boyfriend -- who carries a buck knife on his hip and who's previously drawn a picture for your ten-year old daughter of a cross dripping with blood -- visit her while she's babysitting your children?Think again.

Flores v. Horne (9th Cir. - Aug. 13, 2009)

Posted on August 13, 2009
This is surely amongst the shortest published dispositions of the Ninth Circuit recently, which states in its entirety: "We remand this case to the District Court to comply with the Supreme Court?s decision in Horne v. Flores, 129 S. Ct. 2579, 2607 (2009)...

People v. Peyton (Cal. Ct. App. - Aug. 10, 2009)

Posted on August 12, 2009
Okay, so I clearly was not at the trial. But just based upon reading the Court of Appeal's opinion, are you really sure the defendant's in fact guilty? I mean, like, positive of it, as opposed to just willing to believe it? Positive enough to sentence him to 66 years in prison without any apparent criminal history whatsoever?The following is admittedly irrational and wrong of me...

People v. Moore (Cal. Ct. App. - Aug. 11, 2009)

Posted on August 11, 2009
Why did it take almost four full years after the discovery of the fraud to file criminal charges? Moreover, why does someone who steals $44,000+ from the LA Dep't of Public Social Services get probation when someone who steals a slice of pizza may get 25 to life?Doesn't make sense to me.

U.S. v. Monghur (9th Cir. - Aug. 11, 2009)

Posted on August 11, 2009
Judge Tallman finds -- in a quite well-written opinion -- that there's a qualitative difference between (1) forthrightly admitting to the police that you have cocaine in a closed container, which suffices to waive your Fourth Amendment privacy expectations, and (2) using secret code words in a jailhouse telephone call that you know is monitored in the hope that your confederate can dispose of some evidence, which does not...

People v. Flores (Cal. Ct. App. - Aug. 11, 2009)

Posted on August 11, 2009
Speaking of sentences, what do you think the appropriate sentence is for spitting on a prison guard?How about five years?Too long? Too short?

Gilman v. Dalby (Cal. Ct. App. - Aug. 10, 2009)

Posted on August 10, 2009
Here's a case that's important to any attorney with a personal injury practice. It's also one that I think does an outstanding job of analyzing and resolving the competing public policy considerations at issue.The simple question is whether an attorney or medical lien has priority when both exist...

Richter v. Hickman (9th Cir. - Aug. 10, 2009)

Posted on August 10, 2009
It's overstated to say that who's drawn for the en banc panel invariably matters. It's not too much, however, to say that it's often very important what the wheel brings. Here's a good example.It's an ineffective assistance of counsel habeas case that gets dismissed by the district court and, back in April of 2008, is unanimously affirmed by the panel, which consists of Judges Beezer, Trott and Randy Smith...

People v. Perez (Cal. Ct. App. - Aug. 4, 2009)

Posted on August 06, 2009
Here's a classic case of an appeal to which I'd have stipulated error.Alejandro Perez forcibly took a $29 pair of pants from someone else (the victim wasn't wearing them; he had just bought them). He's convicted of second degree robbery. Fair enough...

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