The Equal Rights Amendment and Article V

MICHAEL C. DORF

Cornell law professor Michael C. Dorf discusses the possible consequences of the Virginia legislature’s ratification of the Equal Rights Amendment (ERA) just last week, becoming the 38th state to do so. Dorf explains why there remains a question as to the validity of Virginia’s ratification, given the Amendment’s purported deadline, and explains why both liberals and conservatives alike should urge Congress to deem the ERA now valid.

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The Framers Would Want You to Know: Alan Dershowitz Is Wrong About Impeachment, and So Is the President

MARCI A. HAMILTON

Marci A. Hamilton, a professor at the University of Pennsylvania, argues that abuse of power is a sufficient ground for presidential impeachment, notwithstanding the argument to the contrary by President Trump’s impeachment defense lawyer, Alan Dershowitz. Hamilton explains that abuse of power by the President was the very fear of the Framers of the Constitution, and to reject it as an impeachable offense would subvert the spirit of the Constitution, as evidenced by the Framers’ debates at the Constitutional Convention.

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Techno Lite, Inc. v. Emcod, LLC

Docket: B284989(Second Appellate District)

Opinion Date: January 21, 2020

Judge: Nora M. Manella

Areas of Law: Business Law

Techno Lite filed suit against defendants, alleging claims for breach of fiduciary duty, misappropriation of trade secrets, interference with contractual relationships, intentional and negligent interference with prospective economic advantage, conversion, injunctive relief, and constructive trust. Defendants cross-complained against Techno Lite and several others. In the published portion of the opinion, the Court of Appeal rejected defendants' argument that they could not be found liable for fraud because their promise not to compete against their current employer was void under Business and Professions Code section 16600. In this case, a promise not to compete with an employer while employed is not void, and defendants had a duty of disclosure.

California v. Robins

Docket: G057291(Fourth Appellate District)

Opinion Date: January 21, 2020

Judge: Raymond J. Ikola

Areas of Law: Constitutional Law, Criminal Law

Defendant Wesley Robins was alleged to have aided and abetted in what started out as a shoplifting, but turned into an "Estes" robbery, recklessly evading authorities. He was convicted of attempted second-degree robbery (count 1) and felony reckless evading (count 2). Defendant admitted a prior strike, a prior prison term, and a prior serious felony. The court sentenced defendant to 32 months in prison on count 1, which was double the low term because of the prior strike. It sentenced defendant to a concurrent 32 months in prison on count 2, which was also double the low term. The court imposed but immediately struck a five-year enhancement for the prior serious felony and a one-year enhancement for the prior prison term. The result was a total prison sentence of 32 months. On appeal, defendant argued: (1) he could not be convicted of an attempted Estes robbery because there was no such crime; and (2) and (3) both the attempted robbery conviction and the reckless evading conviction were on the theory that these were natural and probable consequences of aiding and abetting the theft. Defendant was neither the thief, nor the getaway driver. Defendant contended there was insufficient evidence to support the theory in either case. The Court of Appeal determined that the gist of defendant’s argument was that the concept of an attempted Estes robbery was incoherent: when someone takes clothes from a retail store and uses force to get away, it does not matter if a store employee successfully retrieves the property; the instant force is used, the Estes robbery is complete. There is no possibility of a mere attempt, according to defendant. "While this is a clever argument," the Court of Appeal rejected it. The Court disagreed the evidence was insufficient to support the robbery and evading convictions, and affirmed all convictions.

California v. Yanez

Docket: E070556(Fourth Appellate District)

Opinion Date: January 21, 2020

Judge: Fields

Areas of Law: Constitutional Law, Criminal Law

In 2015, Gilbert Lopez died from gunshot wounds following a verbal argument with defendant-appellant, Salvador Yanez IV. Defendant was charged and convicted by a jury of the second degree murder of Lopez and being a felon in possession of a firearm. The jury also found true special allegations that defendant discharged a firearm and caused great bodily injury or death in the commission of the murder. In a bifurcated proceeding, the trial court found defendant had suffered a prior conviction for a serious or violent felony pursuant to Penal Code section 667(a) and a prior strike conviction pursuant to section 667(b)-(i). Defendant was sentenced to a total of 60 years to life in state prison: 30 years to life for the murder conviction, an additional 25 years to life for the firearm enhancement, and an additional consecutive five years for the prior serious felony conviction. On appeal, defendant contended: (1) the trial court abused its discretion in admitting expert gang testimony which should have been excluded as unduly prejudicial under Evidence Code section 352; (2) the prosecutor engaged in misconduct warranting reversal by referencing jury deliberations during argument on defendant’s motion to strike his firearm enhancement conviction; (3) defendant was not given constitutionally adequate advisement when waiving his right to a jury trial on his prior conviction and prior strike allegations; (4) the matter should be remanded to allow the trial court to exercise discretion to impose a lesser, uncharged firearm enhancement pursuant to Penal Code section 12022.53(h); and (5) the matter should have been remanded to allow the trial court to exercise its discretion to strike a five-year enhancement pursuant to recent amendments made to Penal Code sections 667 and 1385. The Court of Appeal remanded the matter for resentencing pursuant to amended Pena Code sections 667 and 1385. In all other respects, it affirmed the judgment.

In re Duval

Docket: G056247(Fourth Appellate District)

Opinion Date: January 21, 2020

Judge: Thompson

Areas of Law: Constitutional Law, Criminal Law

The State appealed an order that vacated defendant Jeffrey Duval's five-year jail sentence for a conviction to which he pled guilty to the possession for sale and transportation of methamphetamine, receiving stolen property, and unlawful possession of a stun gun. Defendant entered a Cruz1 waiver, agreeing that if he failed to appear at his sentencing hearing the trial court would not be bound by the negotiated two-year term and could sentence him up to the maximum term in his absence. Defendant failed to appear for his sentencing. In absentia, the court imposed a prison sentence of nine years, eight months. Defendant’s trial counsel did not object to the sentence, did not ask for a hearing on whether defendant’s violation of the Cruz waiver was willful, and did not present any evidence for why defendant failed to appear. The following court day defendant appeared and was taken into custody. The next day, at the request of defense counsel, the court recalled and vacated defendant’s prison sentence, and instead imposed a five-year county jail term. Defendant then filed a habeas corpus petition contending he received ineffective assistance of counsel because his attorney failed to argue or present evidence he did not willfully violate his Cruz agreement. The Court of Appeal summarily denied that petition. But then the California Supreme Court directed the Court of Appeal to vacate its summary dismissal, and remand to the trial court for a hearing on why defendant wasn't entitled to habeas relief. Back in the superior court, a hearing was held on the 83rd day after the appeals court order. In the interim, the State did not file a return—or any other response—to to the appellate court's order to show cause. Notwithstanding the State's objections, the trial court ultimately granted relief by vacating the five-year sentence and reduced it to four. After review, the Court of Appeal concluded the trial court had no need to hold an evidentiary hearing when the State failed to file a return to defendant’s writ petition after being ordered to show cause why habeas corpus relief should not have been granted. In addition, the Court of Appeal found the court did not exceed its authority by vacating defendant’s previously imposed sentence and resentencing him in the manner it did. As such, the court did not err and the sentence was therefore affirmed.

Nolte Sheet Metal v. Occupational Safety and Health Appeals Board

Docket: F076389(Fifth Appellate District)

Opinion Date: January 21, 2020

Judge: Jennifer R.S. Detjen

Areas of Law: Labor & Employment Law

The Court of Appeal affirmed the superior court's denial of administrative mandamus relief in an action stemming from the Appeals Board's decision finding that the company violated various state regulations. The court held that the superior court properly applied the substantial evidence standard of review. The court also held that, based on an examination of the administrative record, substantial evidence supported the Appeals Board's findings that the company freely and voluntarily consented to the inspection; Cal/OSHA's failure to preserve the original inspection file did not deprive the company of due process; and the violations underlying the four contested citations were properly classified.

Gamerberg v. 3000 E. 11th Street, LLC

Docket: B290755(Second Appellate District)

Opinion Date: January 21, 2020

Judge: Dennis M. Perluss

Areas of Law: Real Estate & Property Law

The LLC, the successor in interest to the first landowner, appealed from the judgment upholding the unrecorded parking affidavit as an irrevocable license in favor of plaintiff, the successor in interest to the second property owner. The LLC claimed that the trial court erred as a matter of law by upholding the parking affidavit even though there was no actual or constructive notice of the parking affidavit when the property was purchased. The Court of Appeal held that an irrevocable license is not binding on a subsequent purchaser who takes without notice. The court held that Noronha v. Stewart, (1988) 199 Cal.App.3d 485, does not accurately characterize the assignability of an irrevocable license; to the extent an irrevocable license functions as an easement, it must be recorded to bind subsequent purchasers without actual notice; and, in this case, the Los Angeles Department of Building and Safety's failure to require recording of the 1950 parking affidavit and its present belief the parking affidavit was binding on subsequent purchasers are irrelevant.