Kansas v. Glover and Conditional Irrelevance

SHERRY F. COLB

Cornell law professor Sherry F. Colb discusses the concept of “conditional irrelevance”—which she first identified in a law review article in 2001—and explains why the concept is useful for understanding the arguments before the U.S. Supreme Court in Kansas v. Glover. Through the lens of conditional irrelevance, Colb explains why the knowledge of one fact (that the owner of the vehicle in that case lacked a valid license) should not itself provide police reasonable suspicion to stop the vehicle.

Read More

George v. Shams-Shirazi

Docket: A155158(First Appellate District)

Opinion Date: February 11, 2020

Judge: Sanchez

Areas of Law: Civil Procedure, Family Law, Legal Ethics

Following a child custody hearing in January 2017, the trial court entered an order giving Mother sole custody. In June 2017, Father filed an unsuccessful request to set aside that order. Weeks later, he filed a second unsuccessful request to modify the order. The trial court denied Mother’s request for section 271 sanctions. Months later, she again sought sanctions relating to the June 2017 motion. Father filed an objection but did not challenge the motion on the basis of timeliness. The court ordered Father to pay $10,000 in section 271 sanctions. Father sought reconsideration, arguing for the first time that the sanction request was untimely under California Rules of Court, rule 3.1702(b). The trial court denied the motion and awarded Mother $3,000 in attorney fee sanctions for having to defend the ex parte motion for reconsideration. The court of appeal affirmed. Rule 3.1702(b) states: “A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court—including attorney’s fees on an appeal before the rendition of judgment in the trial court—must be served and filed within the time for filing a notice of appeal.” The timing of a notice of appeal is based on the entry of judgment. The sanctions at issue were awarded for attorney fees incurred after entry of the January 2017 judgment; rule 3.1702 does not apply.

California v. Johnson

Docket: E069732(Fourth Appellate District)

Opinion Date: February 11, 2020

Judge: Menetrez

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

Tajay Johnson and Kevin Hairston were both convicted by jury of one count of second degree robbery, one count of carjacking, one count of kidnapping to commit robbery, and one count of kidnapping for the purpose of carjacking. Johnson was 17 years old when he committed the offenses. Charges were originally filed against him in criminal court. However, after voters enacted Proposition 57, the Public Safety and Rehabilitation Act of 2016 during the pendency of the criminal proceeding, Johnson’s case was transferred to juvenile court to determine whether he was fit to proceed as a juvenile or should be tried as an adult. Both defendants were ultimately sentenced to life with the possibility of parole for each of the kidnapping offenses. The sentences for robbery and carjacking were stayed under Penal Code section 654. The Court of Appeal agreed with defendants and the State that carjacking was a necessarily included lesser offense of kidnapping for the purpose of carjacking, and therefore reversed defendants’ convictions for carjacking. The Court further agreed with both parties that the abstracts of judgment had to be amended and that defendants’ sentences needed to be clarified. Defendants also challenged the imposition of various fines and fees as due process violations under California v. Dueñas, 30 Cal.App.5th 1157 (2019). The Court concluded some of those claims were forfeited, and as to the remainder any error was harmless. A $40 crime prevention fine was stricken as unauthorized. Johnson singly argued that with respect to his being tried as an adult, he had a statutory right to a waive the juvenile fitness hearing, and his attorney could not do so in his behalf. The Court disagreed with Johnson's contention. The matter was remanded for correction of abstract, and for imposition of a statutorily mandated $10 fine instead.

California v. Strike

Docket: G056949(Fourth Appellate District)

Opinion Date: February 11, 2020

Judge: Raymond J. Ikola

Areas of Law: Constitutional Law, Criminal Law

The sole issue on appeal is whether defendant Christopher Strike’s prior gang participation conviction qualified as a strike under California's "Three Strikes" law. The State alleged defendant was convicted in 2007 of violating Penal Code section 186.22(a), and that this conviction was a prior serious felony under the Three Strikes law. Defendant waived his right to a jury trial on the prior conviction allegation. On appeal, defendant contended the trial court engaged in impermissible “judicial factfinding” in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution by finding facts that established his prior conviction qualified as a strike. The Court of Appeal found that at the time defendant entered his plea, an individual could be convicted of violating section 186.22(a) as a sole perpetrator. Five years later, in California v. Rodriguez, 55 Cal.4th 1125 (2012), the California Supreme Court clarified section 186.22(a) was not violated by a gang member acting alone but is violated only when an active gang member commits a felony offense with one or more members of his or her gang. During the trial proceedings in 2017, the court was tasked with determining whether defendant had admitted all the elements of section 186.22(a) as now understood, when, in 2007, he pleaded guilty to violating section 186.22(a); specifically, whether defendant had admitted committing a felony offense with at least one other member of his gang. The trial court considered not only the facts defendant admitted as the factual basis for his 2007 guilty plea, but also factual allegations in the 2007 charging document concerning the prior gang participation offense. Based on allegations in the charging document that the codefendant was a member of defendant’s gang, the court found defendant’s prior conviction constituted a strike. The Court of Appeal found that the record did not show that defendant admitted the factual allegations contained in the 2007 charging document as part of the factual basis for his guilty plea, therefore the trial court did indeed engage in impermissible judicial factfinding. Accordingly, defendant’s prior strike had to be stricken, his sentence vacated, and the matter remanded for further proceedings.

Herpel v. County of Riverside

Docket: E070618(Fourth Appellate District)

Opinion Date: February 10, 2020

Judge: Raphael

Areas of Law: Government & Administrative Law, Native American Law, Tax Law, Zoning, Planning & Land Use

At issue before the Court of Appeal was whether Riverside County, California could impose a tax on possessory interests in federally owned land set aside for the Agua Caliente Band of Cahuilla Indians or its members. In 1971, Court held that it could, holding in part that federal law did not preempt the tax. The tax was also upheld that year by the Ninth Circuit. Since then, the United States Supreme Court articulated a new preemption framework in considering whether states may tax Indian interests, and the Department of the Interior promulgated new Indian leasing regulations, the preamble of which stated that state taxation was precluded. Nevertheless, the Court of Appeal concluded, as it did in 1971, this possessory interest tax was valid.