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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

U.S. v. Bassignani (9th Cir. - March 25, 2009)

Posted on March 25, 2009
The majority opinion (by Judge O'Scannlain) and dissent (by Judge Bea) demonstrate one of two things. Either (1) that the standard of review matters, or (2) that it doesn't.Check it out.

People v. Reyes (Cal. Ct. App. - March 24, 2009)

Posted on March 24, 2009
You're from Guatamala. You're in a restaurant and see a guy who's from Mexico who's celebrating a friend's birthday. That's a really good reason to kill the guy. Right.Glad to see you off the street.

People v. Uecker (Cal. Ct. App. - March 24, 2009)

Posted on March 24, 2009
Some guys are creepy. Very. And unacceptably so. That's something that's clearly true, and I want to make that crystal clear.So with that understanding, let's run with the concept and see how far it goes. Here are the acts of a person I'll call "Danny Uecker"...

U.S. v. Gutierrez-Sanchez (9th Cir. - March 23, 2009)

Posted on March 23, 2009
Here's a case that helps establish a couple of self-evident points. First, that some people really, really want to be in the United States. Like Hugo Gutierrez-Sanchez, who had previously been caught in and removed from the United States twelve times prior to being found in the brush a couple of hundred yards north of the U...

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People v. Henry (Cal. Ct. App. - March 23, 2009)

Posted on March 23, 2009
It's your trial. During the prosecutor's opening statement, you start saying -- in front of the jury -- "You know what I'm here. They trying to save me life. I didn't do no murder in here." The Court responds: "Stop. Stop." Since your outburst is improper...

People v. Grimes (Cal. Ct. App. - March 16, 2009)

Posted on March 20, 2009
Next time the Clerk of the Court gives you a hard time, just remember: They're not perfect either. Take, for example, this criminal case:"The offense occurred on the night of August 20, 2005. Defendant entered his plea on October 14, 2005. He was sentenced on November 23, 2005, and he filed his notice of appeal that same day...

Fisher v. City of San Jose (9th Cir. - March 11, 2009)

Posted on March 19, 2009
Want to see another case in which the en banc draw definitely matters? Here you go.It's a case about $1. Or about the sanctity of the home. Or about warrants. Or about the needs of the police to respond to emergencies. It depends on who you ask. What everyone agrees is that the plaintiff here was a guy who needs to drink less and stop making threats and pointing guns and people...

The Nethercut Collection v. Regalia (Cal. Ct. App. - March 19, 2009)

Posted on March 19, 2009
"You say to-may-to. I say to-mah-to." Or, as in this case, "You say slader per se, I say slader per quod."Per se. Per quod. Per se. Per quod. It's the latter, so let's call the whole thing off; i.e., reverse the jury verdict of $750,000 and enter judgment in favor of defendant...

321 Henderson Receivables v. Ramos & Red Tomahawk (Cal. Ct. App. - March 18, 2009)

Posted on March 18, 2009
Today's a big day for 321 Henderson Receivables Organization, which is a huge player in the California structured settlement market. That market basically consists of entities (like 321 Henderson) who buy up structured settlements -- e.g., tort annuities -- and give the recipients a lump sum...

Symantec Corp. v. Global Impact (9th Cir. - March 11, 2009)

Posted on March 18, 2009
There's a difference between a default and a default judgment?! Who knew?(You should feel the dripping sarcasm on this one.)

Alan T.S. Jr. v. Superior Court (Cal. Ct. App. - March 18, 2009)

Posted on March 18, 2009
According to a report issued by the CDC this morning, not only did 2007 see the largest number of children born ever in the United States (4,317,119), but the percentage of children born out out wedlock reached an all-time high as well: 40%. Pretty interesting stuff...

People v. Williams (Cal. Ct. App. - March 12, 2009)

Posted on March 17, 2009
Here are the facts. Sorry they're so long, but I want you to have the full details. What's the appropriate punishment?"Appellant was released from state prison on Wednesday, May 24, 2006, on parole after a Madera County conviction of forcible rape in concert...

U.S. v. Brobst (9th Cir. - March 9, 2009)

Posted on March 17, 2009
If you like kiddie porn (and print it out from the internet), put it away before you hire a contractor to redo your cabinets. Because other people aren't so fond of it, and have a tendency to call the police when they stumble across it in your home.A simple warning, really...

Trout Unlimited v. Lohn (9th Cir. - March 16, 2009)

Posted on March 16, 2009
Natural versus hatchery-spawned salmon and steelhead in the Pacific Northwest. Did I know much about this distinction before today? No. But now I do.Sort of interesting stuff.

People v. Kim (Cal. Supreme Court - March 16, 2009)

Posted on March 16, 2009
Let's make a list of things not to do.First, if you're a minor, don't possess live ammunition. Yes, it's just a misdemeanor, but still; it's a crime (plus it's lame). Second, if you've ignored my first instruction, while you're on probation for that offense -- and while you're waiting to start your freshman year at UCSB -- don't burglarize a tool shed...

U.S. v. Mayer (9th Cir. - March 16, 2009)

Posted on March 16, 2009
This morning sees a dissent from the denial of en banc review. Joined by only three judges. But I mention this dissent because(1) It's got a neat opening line: "This is a train wreck in the making."(2) The average IQ of the dissenters - Judges Kozinski, Reinhardt, and Willie Fletcher -- is quite high...

U.S. v. Hammons (9th Cir. - March 11, 2009)

Posted on March 13, 2009
When you have Judges Pregerson and Dorothy Nelson on the panel, you sometimes get an opinion that's much nicer to -- e.g., softer on -- the participants than you might receive from some other judges. For example, here is what Judge Pregerson says about one of the arguments that the AUSA made at oral argument:"The Probation Office also alleged that Hammons had violated the conditions of his supervised release by failing to show up for a drug test and by testing positive for alcohol use...

People v. Garcia (Cal. Ct. App. - March 12, 2009)

Posted on March 12, 2009
Do I think that Mario Garcia is guilty of murdering Christie Wilson? Yeah. Probably. (Though the evidence is far, far from clear on this point. Indeed, there's not even a body, and the evidence of Christie's death is a lot less than in many no-body cases...

U.S. v. Hilgers (9th Cir. - March 11, 2009)

Posted on March 12, 2009
Sure, Judge O'Scannlain writes the opinion, and Judge Bybee (alongside Judge Graber) is also on the panel, so it's not radically surprising that the court agreed that the district court's (fairly substantial) upward departure from the guidelines was permissible...

Le v. Astrue (9th Cir. - March 10, 2009)

Posted on March 11, 2009
Sometimes the law can be flexible and do the right thing. Even in a snare-filled and hypertechnical area such as the contents of your notice of appeal, which is something that we generally require you to do just right.For this reason, I agree with Judge Ikuta here...

People v. Banker's Ins. Co. (Cal. Ct. App. - March 11, 2009)

Posted on March 11, 2009
Sometimes it's pretty easy to describe succinctly (and colloquially) competing positions in a case.Justice Haller, writing for the majority: "It's totally easy to say the words 'Bail is forfeited' on the record. That's been the rule for decades. Just do it...

Walker v. GEICO General Ins. Co. (9th Cir. - March 10, 2009)

Posted on March 10, 2009
Dude! Your name -- or at least the name on the caption -- is "Johnnie Walker". What are you thinking?! Don't do business as "PJ's Auto Body". Do business as "Johnnie Walker's Auto Body".Here's my idea for your slogan:"Been in a car accident? Time to visit Johnnie Walker!"Feel free to trademark it.

U.S. v. Krstic (9th Cir. - March 10, 2009)

Posted on March 10, 2009
Here's a good case for the statutory interpretation crowd. It involves a statute that gets messed up when Congress adds the seemingly innocuous word "such" to it. It's not an obvious problem, but it definitely exists. The statute reads:"Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document ...

Vaden v. Discover Bank (Supreme Court - March 9, 2009)

Posted on March 09, 2009
I very rarely post about United States Supreme Court cases, on the theory that they already receive a massive amount of attention and don't need much more from me.But I thought I'd make an exception -- albeit a brief one -- for this case. Because (1) it's a civil procedure case, and (2) on an arcane jurisdictional point, and hence probably won't get much play from anyone other than us (pathethic) civil procedure professors...

Golden Gate Restaurant Ass'n v. City and County of San Francisco (9th Cir. - March 9, 2009)

Posted on March 09, 2009
No one writes a dissent from the denial of rehearing en banc with the Supreme Court as the target audience, right? Nah. Never. How could one think such a thing? How would a judge even try to write an opinion that was designed to encourage the Supreme Court to grant certiorari -- talking about intercircuit splits, the need for national uniformity, the national importance of the issue, etc...

U.S. v. Hahn (9th Cir. - March 4, 2009)

Posted on March 06, 2009
I agree with the per curiam opinion here. Even if notice that the judge is considering X is required by the rule, and no such notice is given, that's not fatal if the parties fully brief the issues notwithstanding the absence of such notice.I also agree with Chief Judge Kozinski's succinct concurrence...

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