Patterico's Pontifications


Note to Self: Check Clerks’ Work in Future

Filed under: Court Decisions,Judiciary — Patterico @ 11:48 pm

Memo to Ninth Circuit judges Kim Wardlaw and John T. Noonan: if you are going to write a controversial opinion that seems to fly in the face of a recent U.S. Supreme Court decision, read it carefully before you publish it. Specifically, if the opinion deals with California criminal sentencing statutes, try not to screw up a basic sentencing rule that is familiar to any first-year criminal lawyer in the state.

The error occurs in a 2-1 panel decision issued today, holding unconstitutional a 25-to-life “Three Strikes” sentence for petty theft. The opinion (which I learned about through the How Appealing blog) is certain to be controversial because its holding appears at odds with recent decisions of the U.S. Supreme Court in Ewing and Andrade. (Read more about these decisions here.)

It is not my purpose here to defend the prison sentence described in the opinion. As the dissenting judge says, the sentence sounds inappropriately harsh — assuming that the majority is accurately representing the facts of the case. (More about this in the extended entry below.)

However, the analysis is unforgivably sloppy — even for the Ninth Circus.

Most obviously, the panel makes a blatant error in its sentencing analysis — an error so obvious that any competent criminal practitioner in the state of California could easily spot it. Speaking of the defendant’s “petty theft with a prior” offense, the panel opinion states:

Were the court to strike one of [the defendant’s] priors, his maximum sentence for the instant offense would have been “twice the term otherwise provided as punishment for the current felony conviction,” § 667(e)(1), or two years in prison. See § 666 (petty theft with a prior theft-related conviction punishable by one year in county jail or state prison).

(All emphasis in this post is mine.)

The above-quoted language is flatly wrong. Petty theft with a prior is punishable by up to three years in state prison, not one. Twice that term is six years, not two. (For those of you who want to review the statutory authority for my assertion, I have provided it in the extended entry at the end of this post. The rest of you can take my word for it. For readers with a surfeit of patience, I have also pointed out other problems with the panel opinion in the extended entry.)

The panel’s erroneous view of the maximum sentence is not trivial. Indeed, it provides the starting point for the panel’s intrajurisdictional analysis:

First, it is worth noting that but for the Three Strikes enhancement, Ramirez would have been subject to a maximum sentence of one year in prison or county jail for his petty theft with a prior theft-related conviction.

My advice for judges: if an assertion is “worth noting” in a published opinion, it’s worth making sure you’re right. That goes double for an opinion that you know will be closely scrutinized.

Why am I being so hard on these judges? After all, everyone makes mistakes, right? Even if federal judges make mistakes in a high-profile opinion, does that truly justify such harsh criticism?

In this case, the answer is “yes.” Here’s why: everybody else in the case got it right — including the sentencing judge, the parties in the case, and the federal magistrate who initially heard the federal case. Nevertheless, the judges on the panel simply rejected the parties’ analysis without even asking the parties what their reasoning was.

The judges on the panel clearly possessed no state law experience in the field of criminal law, but they possessed something far more important: the infinite wisdom that comes with being a federal judge. And so the panel imperiously proclaims in footnote 4 of the opinion:

The parties and the sentencing court appear to have erroneously believed that Ramirez’s sentence would be six years if the court struck one of his priors. This was likely based upon an incorrect application of § 667(a)(1), which provides for a five-year sentence enhancement for a person presently convicted of a serious felony who has previously been convicted of a serious felony. However, Ramirez would have been ineligible for this enhancement because petty theft with a prior theft-related offense is not a “serious” felony under § 1192.7.

Bizarrely, the judges on the panel are trying to guess why the parties supposedly misstated the maximum potential sentence for petty theft with a prior. The panel’s guess (a reference to an irrelevant sentencing statute) is off the mark — because the real reason is that the parties weren’t wrong, the panel judges were.

An obvious question presents itself: if the panel was so convinced that the parties (and the sentencing judge) had gotten this basic point wrong, why didn’t the panel judges simply ask the parties about this at oral argument? Why did the panel decide instead to cite some completely irrelevant statute as the “likely” basis for the parties’ supposed mistake?

This is especially galling because the rule is not obscure. The rule I discuss here is used daily in criminal courts throughout the state, and is well known to any competent prosecutor or defense lawyer who has litigated felonies in the state of California.

There is a broader lesson here, which I have previously alluded to in another context: it’s often a good idea to think twice when you’re the only one in the world with an amazing insight. This rule applies even when you’re a federal appellate judge. If everyone around you seems to be dead convinced of a certain point, why not just ask them their reasoning before you decide they’re wrong?

P.S. For a discussion of other problems with the opinion, and a citation to the applicable statutes, read the extended entry below.

P.P.S. Welcome to “How Appealing” readers, and thanks to Howard Bashman for the link. I hope you bookmark the site and return soon!


Wanted: Competent Editor (Part 4)

Filed under: Dog Trainer — Patterico @ 8:22 pm

Our local Dog Trainer hasn’t taken my recent advice to get a spell-checking program. The sub-headline to this story on the front page of the California section today reads:

Two supervisers contend that the sheriff, who seeks a tax hike, may be undercharging 40 cities that contract with the county for deputies.

The best you can say is that they’re still keeping the typos off of the front page of section A (unlike this one and this one). But still . . . spell checkers are so cheap nowadays!

P.S. The error has been corrected in the internet version of the story, but you can see it (for a limited time only) in this .pdf file.

Hamas’s Bold New Leader, Mr. X

Filed under: Terrorism — Patterico @ 6:59 am

I’m told that the new head of Hamas is a hard-liner, who is utterly committed to the Palestinian cause, and welcomes martyrdom.

Unfortunately, I can’t confirm this, because his name is being withheld for security reasons.

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