Patterico has gotten results once again. This time, he has forced an amendment to a high-profile Ninth Circuit opinion.
Regular readers will recall that the Ninth Circuit filed an opinion on April 19, 2004 striking down a California “Three Strikes” sentence as unconstitutional. That same day, I observed on this blog that the court had made a fundamental error regarding the maximum potential sentence for a felony conviction for petty theft with a prior. I also noted that the panel had criticized the parties and the sentencing court for supposedly having gotten this point wrong — although, in fact, it was the panel that had gotten it wrong.
The following morning, my post about the Ninth Circuit’s errors was linked on Howard Bashman’s invaluable “How Appealing” blog. Within hours, the post got multiple hits from the federal courts — including from the Supreme Court of the United States. (I have to tell you, it’s pretty cool to see that on your Site Meter!)
On April 27, 2004, the Ninth Circuit panel quietly amended its opinion to conform to Patterico’s criticisms. (See the extended entry for details.)
I can’t claim to be the first blogger who ever prompted a change to a published federal appellate decision. That honor belongs to Howard Bashman, for an error noted in this post regarding a faulty citation in a Fifth Circuit opinion. (The correction was noted in this post.) I may be the second such blogger, but I’m clearly not the first.
However, when Bashman noted the error, the Fifth Circuit judge who had authored the opinion graciously wrote Bashman to thank him for having caught the error. I have received no such e-mail. So, if I have any claim to a “first,” it may be that I am the first blogger who ever prompted a change to a published federal appellate decision where the author of the opinion didn’t bother to thank the blogger for the correction. (Perhaps that is due to the acerbic manner in which I pointed out the error — although I doubt it.)
Don’t mention it, guys. Oh, that’s right — you didn’t.
The details regarding the error are available in the extended entry below.
P.S. A correspondent writes to ask whether the word “forced” in the title of the post is the right word. Technically, no — of course. If the judges from the Ninth Circuit panel had wished to leave this blatant error on the books, they certainly could have done so. I recognize this.
Then why did I use the word “forced”? The word is consistent with the sort of mock chest-beating tone that I
sometimes generally adopt when I discuss the power and influence that I like to pretend this blog wields. (Examples here and here.) (My wife continually reminds me that this tone — which I intend as ironic and humorous — is difficult to distinguish from a truly arrogant and self-aggrandizing tone. She’s right — but usually, I just can’t help myself.)
UPDATE: Thanks to Howard Bashman for linking to this post. I hope new visitors will overlook the faux self-congratulatory tone of the post, and bookmark the site!
UPDATE x2: Thanks also to Glenn Reynolds for linking to this! There’s nothing like having thousands of people reading one of your more obnoxious posts to make you think: hmm, maybe my wife is right — maybe I should tone it down.
Anyway, I hope you all enjoy the site.
Here are the details of the correction. As I noted in my original post, the panel erroneously observed:
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.)
As I noted in my post, the maximum sentence for a felony petty theft offense is in fact three years in state prison — not one year. This is a function of Penal Code section 18, which provides that such felonies are
punishable by imprisonment in any of the state prisons for 16 months, or two or three years . . .
The amended opinion amends the above quotation to reflect the fact that the maximum sentence is three years — just as I said. Also, the opinion now contains a reference to Penal Code section 18 — the very section I cited:
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 six years in prison. See §§ 18, 666.
Moreover, in the original opinion, the panel went on to say in a footnote (footnote 4):
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.
In my post, I observed that this footnote was completely off base, as the court was incorrectly speculating as to the reasons that the parties got the maximum sentence wrong — although they hadn’t, because the maximum is indeed six years. The amended opinion omits former footnote 4 entirely.
In my post, I also noted that the panel opinion started its intrajurisdictional analysis (Part IV.B) with a reference to the incorrect maximum sentence:
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. § 666.
I observed that assertions that are “worth noting” in a published opinion are worth double-checking to make sure you’re right — especially when you know that the opinion will be closely scrutinized.
The amended opinion corrects this quote (again with a reference to Penal Code section 18) to state:
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 county jail or up to three years in prison for his petty theft with a prior theft-related conviction. §§ 18, 666.
I regret that the other problems I noted with the opinion were not corrected. These, however, were not blatant factual errors, but rather analytical errors that are not as objectively and demonstrably incorrect as the errors I have just discussed. Nevertheless, I firmly believe that these analytical errors are every bit as mistaken as the panel’s errors regarding the maximum sentence. Unfortunately, due to Bill Lockyer’s decision to abandon any further appeals in this case, we will never see these analytical errors corrected.