Who is the worrrrsssttt?

9 Oct

As Jean Ralphio says, Trump and Carson are the worrrrrssstttt…. Here is a comparison of the worst things I could find said by Trump, Carson and Jeb Bush.  Frankly, if this were a trial I would hang the verdict myself on Trump and Carson.  Bush has said some terrible stupid things, but they pale in comparison to Trump and Carson who are straight up racist morons.


Nice 1538.5 Win!

8 Oct

Lovely 1538.5 case today (People v. Linn).  The Court of Appeal (1st Dist.) held that when the cop took D’s license (among other things he did) he detained her.  It seems so obvious that if a cop takes your ID you are detained right?  I mean who the fuck leaves if a cop has your ID???  It was kinda the rule that taking an ID=a detention.  (People v. Castaneda (1995) 35 Cal.App.4th 1222.)  But, then People v. Leath (2013) 217 Cal.App.4th 344, comes out with a farkakta holding that when a cop took D’s ID and ran him there was no detention because D “voluntarily” handed over his ID.  (WTF?? Isn’t the test submission to exertion of authority? Is the new rule that there is no detention if you “consent” to the cop’s order???).  People v. Terrell (1999) 69 Cal.App.4th 1246 similarly concluded that there was no detention when a cop took D’s license because D “voluntarily” handed the cop his license and did not ask for it back.

Linn held that taking an ID does not per se transform an encounter into a detention.  It is one factor to consider in determining if a detention occurred.  Even though I think taking a person’s license after requesting it should be a detention as a matter of law, at least this case makes it so that Leath and Terrell do not undo Castaneda.

Linn ultimately held that there was a detention, which is great because besides taking the ID there really was not a whole lot of other police ordery conduct (of course there was some).  The encounter began when a cop saw D parked, saw her passenger flick a cigarette ash, and approached D to talk to her about her passenger’s conduct.  D was getting out of her already parked car when the cop approached.

The evidence upon which the court of appeal relied to hold that there was a detention included: 1) the cop spoke with D, not her passenger, when he approached suggesting that she was the subject of his inquiry despite what he said; 2) the cop commanded D to put down her cigarette and soda, indicating that she was not free to do as she pleased; 3) the cop was in uniform and parked his motorcycle within 3 feet of D, standing close to her when she exited her car; 4) he took her license.  Note: he did not block her path, sound sirens, or shine lights.  He did not pull her over.  There is no indication that he told her to exit the car.

This case is great.  Totally minimal exertion of authority besides demanding the ID.   It is always lovely when one fact relied upon in concluding D is detained is that the cop is in his uniform.  Never forget the power of a uniform. Here here.

Juice, Justice and Corgis

8 Oct


Dear Kim Davis, $500k to do lesbian porn…you in?


Sorry for the delay. Robbery conviction reversed by Cal Supremes…pretty interesting.  The Court held that the conviction was based solely on accomplice testimony and it failed to meet the standards in 1111 because there was no corroboration of that testimony.   Basically, the accomplice said that D perpetrated the crime, but the Supremes said this is not enough, you need something independent of that testimony.  Unfortunately, this was only one of the underlying convictions of this defendant so the death sentence remained in effect.

Really interesting gang case.  The Supremes held that “where the prosecution’s case positing the existence of a single ‘criminal street gang’ for purposes of 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connecting uniting those subsets.”  In other words, the prosecutor must prove that the gang the defendant acted to benefit, the gang that committed the predicate offense, and the gang whose primary activities are introduced, are one in the same. Applying that rule to the facts of that case, the Supremes held that the prosecution did not connect two Nortenos subsets that committed the offense  with the larger gang in which the defendant committed his crime to benefit.   What sickens me about this otherwise awesome opinion is that in paragraph after paragraph the Court provides a roadmap for the DA as to how they can prove their case.  BARF.

Withhold Brady?  See ya and hello state bar!  Kind of nice considering I had a judge tell me that a Brady violation was no big deal because that’s just how it goes in that county since the DAs do not investigate or evaluate a case until they know it is going to trial…

Former NFL player has given 139 homes to single mothers. #heartwarming.

New no no: women have to jump through hoops for abortions and birth control? Men have to see sex therapists and provide  affidavits if they want viagra.  #doublestandard

More proof of racism in the system.

Roadblock for DP in Montana .

Release of 6k federal drug inmates.  #thankyou


Corgi Con: Corgi’s take over da beach in Sf.  Unfortunately, Jane Doe hates the beach…

Can Brooks Ayers be held civilly or criminally liable for forging the PET scan???

8 Oct

A highly speculative article came to my attention today that reports a “rumor” that Newport Imaging is “considering” having Brooks “investigated” for fraud.   As you may or may not recall, Brooks showed Tamra on RHOC a “PET” scan purportedly from Newport Imaging that also purportedly confirmed that he had cancer.  The problem was that Meghan King Edmonds called Newport Imaging, and they said that they do not do PET scans for that type of cancer.  The analysis of Brooks’ potential liability assumes, without deciding, that the record is fake.

Issue:  Can Brooks be held civilly or criminally liable if he falsified a PET Scan from a particular medical establishment?

Short Answer:  Probably not….it’d be a stretch.

Criminal Liability

Cal. Pen. Code section 471.5 provides:  Any person who . . . with fraudulent intent, creates any false medical record, is guilty of a misdemeanor.

According to CALCRIM: Someone intends to defraud if he or she intends to deceive another person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/ [or] something [else] of value), or to cause damage to, a legal, financial, or property right.

I cannot imagine how you could even support a “hunch” that Brooks falsified the record for money or to financially damage someone.  Of course, as I previously blogged, he might lie so he can swindle Vicki into financially supporting him or to restore his reputation with RHOCNation, but reaching these conclusions would be highly speculative.  Verdict: Not Guilty.

Civil Liability

I am no civil lawyer.  I am told that these are the elements of the fraud tort:

(1) a representation; (2) falsity of the representation;  (3) materiality of the representation; (4) speaker’s knowledge of the falsity of the representation;   (5) the speaker’s intent it should be relied upon; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance on the representation;(8) the hearer’s right to rely on the representation;  and (9) the hearer’s consequent and proximate injury caused by reliance on the representation.

This is even weaker than criminal fraud.  Who is the victim?  According to the article above, it would presumably be Newport Imaging.  Brooks did not make the representation to Newport Imaging.  So elements (5)-(8) are out.   Even if the victim were Tamra, how is the misrepresentation material without the exchange of money?  Tamra did not really seem ignorant of the falsity and did not appear to have relied on the representation.  Neither is there a compelling argument that she had the right to rely on it.  And, of course, no injury.

Verdict: Not liable.

What about negligence? (1) duty; (2) breach; (3) causation; (4) damages.

This seems more on par.  Everyone has a duty to act reasonably so as to not harm others.  It is fair to say that if you fake a medical record you are not acting reasonably, especially when naming the place who purportedly produced the record on national television.  Producing the fake record is the only, and certainly proximate, cause of any subsequent injury.  Newport Imaging might be able show damages from interference with their business by the bombardment of phone calls and damage to their reputation because the record itself looked super unprofessional.  Of course, these damage are foreseeable from making a shitty false record, naming where it is from, and presenting it on national television.  Can anyone think of any other damages?  Again, seems weak but more possible than other theories.

Verdict: Who the hell knows.

6th Dist. Reports DA to da bar

2 Oct

Pretty interesting and somewhat unusual–the Sixth District Court of Appeal is reporting Santa Cruz County DA Ross Taylor (they named names) to the bar for 3 acts of prosecutorial misconduct which they held did not warrant a reversal.  Apparently, when the misconduct does not warrant a reversal they have no obligation to report the da to the bar (bullshit).  His misconduct: 1) Brady violation; 2) attempting to elicit inadmissible testimony; and 3) being a dick to the judge . Also, he violated Griffin in my opinion but they said he did not.  Honestly, it seemed like they were most upset about him being a dick to the judge.  It is kind of barfworthy that (some?) prosecutor’s go around trampling on the constitution and overall demonstrate a lack of human decency but unless they target that bullshit to a judge it’s a-ok.  Anyway, I am not one to qualm with a report to the bar when a prosecutor withholds evidence, tries to prejudice the jury, and then whines when things don’t go his way. bravo.

Either way, Brooks Ayers has a disease

26 Sep

If you haven’t heard by now that Brook Ayers (bf to Vicki Gunvalson RHOC) may or may not be faking cancer I have no respect for what you do with your time.

It is terrible if someone fakes cancer, but probably just as bad to accuse someone of faking cancer. At the end of the day, it is not a good practice to accuse someone of faking a brutally terminal disease.

Having said that (sidebar: this is an asshole phrase), many people have asked “why would you fake cancer?”  This is an attempt to answer that question.  If you will be offended by a hypothesis as to why someone might fake cancer, stop reading now.

People usually lie for the most basic human reason: self-interest.   Let’s recall two things about Brooks’ history on this show: 1) everyone thinks he was dating Vicki for $  [valid?] . . .she’s a millionaire and he has gone to jail for failing to pay child support; and 2) everyone hated him (for many valid reasons including that he (admittedly) told Vicki’s son in law to beat Vicki’s daughter.)

Hypothetically, Brooks would be motivated to lie about cancer to nip these things in the bud: 1) no one would think it was bad that Vicki was supporting him financially if he had cancer; 2) no one would villainize  someone with cancer.

#1 is what it is; if we are admitting propensity evidence he is a little sketchy.

#2 is not so unusual.  In fact, lying about a disease for sympathy is a recognized pathology known as “Factitious disorder.”   I am surprised Megan King Edmonds (“MKE”), who has relentlessly pursued justice for realhousewives-nation, has not investigated that.  Considering that many people on the RH shows have pathological disorders(e.g. body dysmorphic disorder; narcissismpseudologia fantastica), maybe it is not so much of a stretch? Of course, if he is doing this for gain, he doesn’t have the disorder… Also, am I the only one who remembers that Kim Zolciak essentially faked cancer on the reunion when Andy Cohen asked her about why she wore wigs? She said that her hair had been falling out and her doctor friend told her he thought that she had cancer. Then Andy Cohen had to ask her if she did have cancer and she was like “no.”  She told people in 2008: “I’ll tell you that the hair comment has been pretty difficult for me. I’ll leave it for the reunion show. It’s discussed and it’s been incredibly traumatic for me. Wearing hair extensions wasn’t by choice.”  Where was MKE then?! (Sidebar: When I tried to look for the clip to post, I couldn’t find it because it happened in 2008.  SO PROUD I have been watching this show for more than 7 years and recollect the episodes to this day.)


Really good sex case (not really good sex; really good case reversing a sex crime conviction and merging a sentence)

14 Sep

Excellent decision today.  D was convicted of a bunch of sex crimes and sentenced to 29 years in prison.  At issue here was:  was there was insufficient evidence of rape by force or fear?  Do the sentences for rape of an unconscious person and rape by intoxication merge?  Short answer: Yes. and Yes.  When all was said and done, D’s sentence was reduced to 8 years, with double jeopardy barring retrial on the rape by force or fear count.

There was a rape in the bedroom by more than one person which was accomplished by force/fear and a rape in the vacant building which was not accomplished by force or fear because the cw was passed out before penetration.  Even though there was sufficient proof that D raped cw in the bedroom with force, the prosecutor’s closing argument was that D was guilty of the rape solely in the vacant building.  If he were guilty only of that rape, he could not have been guilty of rape by force or fear.  On appeal, the government argued that the jury could have found D guilty by agreeing on the evidence that he raped cw in the house, even though that was not the prosecutor’s argument.  The appellate court rejected this argument stating that for it to prevail the jury would have needed an unanimity instruction.  Otherwise, the prosecutor’s elected theory of the case in closing is the theory on which the jury convicted and the only theory upon which D can be liable.  Interestingly, the court said that double jeopardy would also bar retrial on the rape in the bedroom, even though the court held that there was sufficient evidence for rape by force on that theory.

The court also held that D’s sentence for rape of an intoxicated person and rape of an unconscious person for a single act of sexual intercourse merged. This seem obvious.  But, apparently, there is a terrible case (Gonzalez, 60 Cal.4th 533) that says D could be punished separately for oral copulation of an intoxicated person and oral copulation of an unconscious person even though the convictions were for the same act.  (Gonzalez distinguished a case called Craig, 17 Cal.2d 453, that came to the opposite conclusion when interpreting separate punishments for statutory rape and rape by force or fear from one sex act.)

The difference between D’s case here and Gonzalez, according to the court, is that the oral cop subdivisions have different punishments where the rape subdivisions do not.  Seems like an odd distinction because the issue is whether the crimes have the same elements, not whether they have the same punishments.   If there was another distinction discussed, I couldn’t understand it. I really don’t understand the distinction in light of the fact that Gonzalez said that oral cop of an intoxicated person and an unconscious person are different crimes  because if you copped an unconscious person doesn’t necessarily mean you that you copped an intoxicated person .  Isn’t that the same thing here? You can have sex with an intoxicated person (subd. 3) or an unconscious person (subd. 4) without having sex with someone who is both intoxicated and unconscious? In both cases, the Ds did, in fact, have sex with both intoxicated and unconscious people.  What am I missing?  Anyway, good for D that is a huge decrease in sentence.

Hammon now applies to social media SDTs (barf)

8 Sep

This decision is BONKERS.  Hammon is the world’s most stupidest case ever. It says that you cannot get psych records until trial because the trial court is the best entity to determine their relevance and to weigh the competing rights.

Now, the First District has come out to say that this rule applies to SDT’d facebook records.  I.e. you may be entitled to the records at trial but not pretrial.  Perhaps the stupidest part of this opinion is that in a footnote the court recognizes that at oral argument the defense pointed out that the motion was made the day before trial, and the court said that this was not considered “trial.”  Practically speaking, this means that  mid-trial, after a witness testifies, the court has to review thousands of pages of records for relevant messages/posts, and you have to do the same for those disclosed.  Then what, the jury takes weeks off while you do this? This decision demonstrates  the problem with having appellate court judges (read: inexperienced law clerks) decide discovery issues when they have no idea how the mechanics and practicalities of trial work.

I also think that anyone challenging Hammon/this case should argue that even if the right does not attach “pretrial” generally, it should attach when you are in the px court.  You have the right to cross-examine and impeach a witness at px.  The documents would be necessary to perfect that right.  The recent Brady-right-at-px case (People v. Gutierrez (2013) 214 Cal.App.4th 343) further supports the idea that you should be entitled to discovery to enjoy your constitutional rights at px because if you have the right to exculpatory evidence from a prosecutor at px, you have the right to exculpatory evidence in the hands of a third party at a px.  A px judge is in the same posture to weigh the interests as a trial court judge.


This made it to the 9th Circuit with a published opinion?

3 Sep

I feel like I am missing something.  Someone gets a speeding ticket in D’s name.  D does not show up to court then gets arrested on the warrant. D testifies that he was not the person driving.  The Court agrees and acquits him.  Though the cop was not 100% sure it was D when he testified, he later says he was sure it was D after the cop spoke with him in the hallway and D was as arrogant as the person he stopped.  6 months later, 9 or 10 police officers execute a SEARCH WARRANT at D’s house with GUNS DRAWN! There is no indication that this was for anything other than seizing evidence of perjury (on the theory that D lied about not being the driver).  What tha what?!?!?!

D then gets convicted of perjury for lying about being the driver in traffic court.  He gets sentenced to 45 days in jail!  What tha figity what??!

He petitions the 9th Circuit. The district court grants the writ, finding that the perjury action was barred by double jeopardy/collateral estoppel.  The state APPEALS that.  WHAT??! Then, the 9th Circuit APPOINTS D counsel.  And affirms the District Court’s ruling.  The merits seem straightforward.  But who sentences someone to 45 days in jail for lying in traffic court (don’t cops do this every day?) Who executes a search warrant for a perjury investigation stemming from a traffic court incident?  Who does that at gun point?

There has to be more going on here than what is in the opinion because this shit is bananas!  P.S. This is Orange County.  Don’t they have better things to do, i.e. fabricate evidence and trample the constitution against people charged with life cases, than execute search warrants for perjury and fill up the jail with people convicted of a crime related to a traffic incident???

You shouldda took the fifth!!

25 Aug

rhonyc Kirsten’s husband — who always has to “work late” on the show– was the latest d list celeb to be linked to Ashley Madison.  Here is his initial statement: “I don’t understand. There’s not a shot in hell that I’m a subscriber. I have no knowledge of that. This is the first I’ve ever heard of it. . .This is crazy. I saw it on the TV the other day about the security breach and we were laughing about it. It is what it is but somebody is definitely fraudulently using my name and number.”

Then the next day he says: “I signed up for the site foolishly and ignorantly with a group of friends and I deeply apologize for any embarrassment or pain I have brought to my wife and family . . .We both look forward to moving past this and getting on with our lives.”

1) the fact that he lied undermines his defense–consciousness of guilt BIG TIME

2) but why? Why admit?  My theories are:

  • he would have had to commit fraud to report his cc stolen which obviously his wife would have said he should do, but he could pretend he was doing that and not actually do it so this probably isn’t the reason.
  • Someone called him out on the fact that it would be odd that someone would steal his identity solely to use on that site ie the story is too farkakta.  most lies are a little farkakta so this probably didn’t sway him toward the truth.
  • Someone linked the IP address to his company which people have been doing to show that government workers were checking the site at work.  This seems to most likely reason but no one reported this.

I think his new explanation is redonkulous.  He paid $1k. You only pay that much to buy “credits” to send messages to people. (So I’ve heard 😉 ) Really? The joke went so far as to send messages to people?  YIKES.

The fifth amendment is there for a reason!  Invoke mfer!!!