• Appellate Procedure,  Constitutional Law,  Criminal Procedure,  Double Jeopardy,  Standard of Review,  Waiver of Issues

    Double Jeopardy Argument Not Waived by Failure to Object to Multiplicitous Convictions and Sentences

    December 6, 2007

    In U.S. v. Zalapa, case no. 06-50487 (9th Cir. Dec. 5, 2007), the Ninth Circuit holds that a defendant can raise a double jeopardy challenge to his multiplicitous convictions and sentences on appeal even if he fails to object to them in the district court. Zapala was charged with two counts — possession of an unregistered machine gun and possession of an unregistered firearm with a barrel less than 16 inches long — under the same statute, 26 U.S.C. § 5861(d). Catch is, those counts were based on possession of the same gun. Zapala did not object to the indictment, pleaded guilty to all charges without a plea agreement, and…

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  • Appellate Procedure,  Briefing,  Standard of Review,  Waiver of Issues

    Things You Don’t Want to Read about Your Work

    December 5, 2007

    I’ve been working almost non-stop for the last 18 hours, and its 3 a.m. (so pardon any typo’s), so I’m not about to plow through the 82-pages of opinions in Schmidlin v. City of Palo Alto, case no. H026841 (6th Dist. Dec. 4, 2007).  But I’m not too sleepy to browse through it, and I happened upon the “bloggable” portion.  Or at least one of them. Its a case brought by a plaintiff who alleges various constitutional violations against city cops.  The jury finds that the cops used excessive force, but did not unlawfully arrest the plaintiff or fabricate police reports.  Both sides appealed. Issue 1: Sufficent evidence of excessive…

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  • Appellate Procedure,  Articles by Greg May,  Confrontation Clause,  Constitutional Law,  Criminal Procedure,  Federal Procedure,  Standard of Review

    “Confronting Confrontation”

    November 30, 2007

    That’s the title given by the Los Angeles Daily Journal to my article, which it published in its November 19, 2007 issue, regarding U.S. v. Larson, the en banc Ninth Circuit’s confusing “resolution” of the perceived split of authority on the standard of review in Confrontation Clause challenges based on limitations on cross-examination. The article (PDF link) grew out of this blog post giving my initial impressions about the case on the day it was published. I followed up that post with another providing links to some other blog coverage of the case.

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  • Legal Research,  Standard of Review

    New Book on Federal Standards of Review

    November 26, 2007

    West has published a new book on federal standards of appellate review: H. Edwards and L. Elliot, Edwards and Elliott’s Federal Courts – Standards of Review: Appellate Court Review of District Court Decisions and Agency Actions (West 2007). Here’s the description from the book’s page at the West website: This sophisticated but easy to understand exposition of the standards of review offers an invaluable resource for law students, law clerks, and practitioners. Decisions of the U.S. Courts of Appeals invariably are shaped by the applicable standards of review. “Fill[ing] a huge gap in the literature,” Standards of Review masterfully explains the standards controlling appellate review of district court decisions and…

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  • Appellate Procedure,  California Procedure,  Contracts,  Real Estate,  Standard of Review

    Beware the Statute of Frauds

    October 26, 2007

    As I think many lawyers are, I am constantly amazed at the relationships people are willing to enter into on little more than a handshake.  As every first-year law student knows, the Statute of Frauds can prevent the enforcement of a certain contracts not in writing, and in Elias Real Estate, LLC v. Tseng, case no. B192857 (2d Dist. Oct. 25, 2007), it rears its ugly head and gives us a rare example of reversal due (in part) to insufficiency of the evidence. If your looking for a company you can trust then I highly recommend Mission real estate. The four defendant Tseng brothers own some real property as tenants…

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  • Appellate Procedure,  Briefing,  California Procedure,  Family Law,  Standard of Review

    Failure to Brief and the Bounds of Discretion

    October 24, 2007

    Two interesting, though not new, appellate angles in Nakamura v. Parker, case no. A115626 (1st Dist. Oct. 22, 2007). It’s an appeal from the summary denial of a temporary restraining order sought under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.), which had the effect of dismissing the appellant’s entire action. First Issue: Respondent did not file a brief in the appeal. Automatic reversal, right? Wrong. While many people — at least among those who don’t practice in appeals — assume that failure to file a respondent’s brief will mean an automatic win for the appellant, that’s not the case. Appeals are all about reviewing for error.…

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  • Appellate Procedure,  Criminal Procedure,  Federal Procedure,  Standard of Review

    Vindictive Prosecution Dismissal Gets De Novo Review

    September 25, 2007

    If you had been stopped twice at the U.S. – Mexican border trying to smuggle in illegal immigrants, told the customs officer both times that you had been paid to drive the vehicle across the border — and in one case admitted that you knew the compensation was for alien smuggling — and you weren’t prosecuted in either instance, you might figure that when you are prosecuted — this time, for trying to bring marijuana across the border — you’re better off explaining that you thought you were smuggling aliens instead of marijuana. That’s exactly how Sharon Ann Jenkins testified in her own defense at trial. While the jury was…

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  • Appellate Procedure,  Standard of Review,  Torts

    Elder Abuse Act Protective Orders Reviewed for Abuse of Discretion

    September 4, 2007

    In Bookout v. Nielsen, case no. G037727 (4th Dist. August 31, 2007), the Court of Appeal was faced for the first time with the question of the proper standard of review on appeal from an Elder Abuse Act protective order.  (Welf. & Inst. Code, § 15657.03.) Citing to the statutory language that allows an Elder Abuse Act protective order to issue upon proof “to the satisfaction of the court,” and noting that the Domestic Violence Protection Act contains identical language for the standard for issuing the order, the Court of Appeal adopts the standard of review applicable to appeals of DVPA protective orders: abuse of discretion.  Of course, the factual…

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  • Appellate Procedure,  Federal Procedure,  Standard of Review

    Review for Abuse of Discretion Impossible when Record Fails to Disclose Reasons for Decision

    August 22, 2007

    Gomez v. Gonzales, case no. 06-70941 (9th Cir. August 22, 2007) demonstrates how the abuse of discretion standard of review can be undermined by a weak record.  The weak record in this case results in remand instead of a decision on the merits. The Board of Immigration Appeals denied a motion by the Garcias for leave to file a late brief.  The grant or denial of such a motion is within the BIA’s discretion. Here, however, the BIA’s order offered no “reasoned explanation” for its denial of the motion: Denying the Garcias’ motion, the BIA conclusorily reasoned: “We find the reason stated by the respondents insufficient for us to accept…

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  • Appellate Procedure,  California Procedure,  California Supreme Court,  Federal Courts,  Federal Procedure,  Ninth Circuit,  Standard of Review

    Adult Bookstore Case Results in Certified Question to State Supreme Court

    August 8, 2007

    Under rule 8.548(a), California Rules of Court, a Federal Court of Appeals, the U.S. Supreme Court, or the court of last resort of another state may ask the California Supreme Court to answer a question of California law where “(1) The decision could determine the outcome of a matter pending in the requesting court; and (2) There is no controlling precedent.”  Most lawyers are already familiar with this procedure, at least in principle. What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026  (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to…

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  • Appellate Procedure,  California Procedure,  Family Law,  Sanctions,  Standard of Review

    Court of Appeal Adopts Abuse of Discreton Standard for Review of Family Code Section 2107 Sanctions Award

    August 7, 2007

    In Marriage of Feldman, case no. D047896 (4th Dist. July 20, 2007, certified for publication August 7, 2007), the Court of Appeal upholds a whopping $250,000 in sanctions and $140,000 in attorney fees against a husband who failed to disclose material assets in the course of divorce proceedings.  The sanctions were awarded pursuant to Family Code section 2107, subdivision (c) and Family Code section 271, subdivision (a). Section 271 sanction orders are reviewed for abuse of discretion, but the court had no precedent for the standard of review to apply to awards under Section 2107, subdivision (c).  The court determines that abuse of discretion applies here as well, since “the…

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  • Appeals,  Appellate Procedure,  Criminal Procedure,  Ninth Circuit,  Standard of Review

    En Banc Ninth Circuit Resolves Intra-Circuit Split on Standard of Review in Confrontation Clause Challenges

    August 1, 2007

    In United States v. Larson, case no. 05-30076 (August 1, 2007), an en banc Ninth Circuit court resolves a 3-way intra-circuit split on the standard of review to apply in Confrontation Clause challenges. Citing one line of Ninth Circuit cases applying de novo review, another reviewing for abuse of discretion, and a third applying a “combination” of these two standards, the courts states that it is adopting the last of these, but its analysis seems less than clear to this reader . . .

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  • Appellate Procedure,  Attorney Fees,  California Court of Appeal,  California Procedure,  Post-Trial Practice,  Standard of Review

    Of Walnut Trees and Attorney Fees

    July 11, 2007

    Two interesting and “bloggable” issues are raised and decided by the Third District Court of Appeal in Brittalia Ventures v. Stuke Nursery Co., Inc., case no. C0478374 (July 10, 2007).  One regards the proper standard of review when the terms of a contract are disputed.  The second, and more interesting, concerns post-trial motions for attorney fees. Brittalia purchased walnut trees from Stuke and later sued for breach of warranty and other causes of action based on allegations that many of the trees were either the wrong variety or diseased.  There was no single, clearly identified written contract governing the sale.  The parties had a course of dealing during which they…

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  • California Procedure,  California Supreme Court,  New Trials,  Post-Trial Practice,  Standard of Review

    Raiders Lose on Independent Review of Order Granting New Trial

    July 3, 2007

    Congratulations!  The court has granted your motion for a new trial! Now, just pray the trial judge doesn’t screw it up. Yesterday’s Supreme Court opinion in The Oakland Raiders v. National Football League, case no. S132814 (July 2, 2007) demonstrates again that no winner of a new trial can have confidence in the order granting the new trial unless the court specifies its reasons in the order or files its specification of reasons within 10 days of the order, as required by Code of Civil Procedure section 657.  In this case, the court’s failure to specify its reasons results in a different standard of review on appeal that effectively shifts…

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  • Appellate Procedure,  Post-Trial Practice,  Standard of Review,  Statement of Decision

    The Doctrine of Implied Findings is Serious Business

    June 25, 2007

    Under the doctrine of implied findings, the Court of Appeal will presume that the trial court made all findings necessary to support the judgment.  The only way for the appellant to avoid that presumption is to request a statement of decision pursuant to Code of Civil Procedure section 632, and then to object, pursuant to Code of Civil Procedure section 634 (either by objection prior to entry of judgment or by statutory motion for new trial or motion to vacate the judgment), to any statement that omits necessary findings or contains ambiguous findings. There is a lot that can be written about this process, but this post is limited to…

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