Update on Trump’s Coup: Do Not Think That This Is Guaranteed to End Well

NEIL H. BUCHANAN

UF Levin College of Law professor Neil H. Buchanan explains why “being patient with Trump” is a recipe for disaster, why there are still reasons to be guardedly optimistic, and why this all could still end very badly. Buchanan argues that the present situation is not guaranteed end badly, but he cautions that a Trump coup is eminently possible.

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County of Monterey v. Bosler

Docket: C085041(Third Appellate District)

Opinion Date: November 16, 2020

Judge: Elena J. Duarte

Areas of Law: Civil Procedure, Government & Administrative Law, Government Contracts, Zoning, Planning & Land Use

Plaintiff County of Monterey (County) appealed when the trial court denied its petition for writ of mandate and complaint for declaratory and injunctive relief. The County was the successor agency for its former redevelopment agency ("RDA"), and challenged decisions by the Department of Finance (Department) relating to a development known as the East Garrison Project, which was part of the Fort Ord Redevelopment Project located on a closed military base in Monterey. The County claimed the trial court erroneously determined that a written agreement entered into between its former RDA and a private developer (real party in interest, UCP East Garrison, LLC) was not an enforceable obligation within the meaning of the dissolution law because the former RDA did not have the authority to approve the agreement on the date the governor signed the 2011 dissolution legislation. The County further contended the trial court erred in determining the County failed to show the Department abused its discretion in disapproving two separate requests for funding related to administration of the East Garrison Project. The County claimed these administrative costs were expended to complete an enforceable obligation within the meaning of the dissolution law, and therefore the Department should have approved its requests for payment of such costs. Finally, the County argued the Department’s application of the dissolution law improperly impaired UCP’s contractual rights. The Court of Appeal rejected each of the County's contentions and affirmed judgment.

In re Williams

Docket: B303744(Second Appellate District)

Opinion Date: November 16, 2020

Judge: Laurence D. Rubin

Areas of Law: Criminal Law, Juvenile Law

Petitioner filed a petition for writ of habeas corpus, asserting that the denial of a youth offender parole hearing under Penal Code section 3051 violates his right to equal protection of the laws and constitutes cruel and unusual punishment. Petitioner, who was 21 years old at the time of the offense, was convicted of two counts of first degree murder and the jury found true the allegation that he personally used a firearm in the commission of the robbery. The jury also found true the special circumstance allegations that he committed multiple murders and murder during the commission of robbery. Petitioner was sentenced to two consecutive terms of life without the possibility of parole (LWOP). The Court of Appeal held that the amendment to section 3051 did not provide any relief to petitioner who had committed an LWOP offense after he had attained 18 years of age. The court rejected petitioner's equal protection argument, disagreeing that youth offenders sentenced to LWOP and those youth offenders sentenced to parole-eligible life terms are similarly situated with respect to the Legislature's first goal, which is to calibrate sentences in accordance with youthful offenders' diminished culpability. Furthermore, even if the court assumed petitioner is similarly situated to non-LWOP indeterminately-sentenced youth offenders aged 18 to 25, the court still would find no equal protection violation. Finally, the court held that petitioner's LWOP sentence did not constitute cruel and unusual punishment in violation of the Eighth Amendment.

People v. Bankers Insurance Co.

Docket: A157152(First Appellate District)

Opinion Date: November 16, 2020

Judge: Pollak

Areas of Law: Criminal Law

Bankers posted a bond for the release of Al-Zetawi, who was in custody on felony animal-cruelty charges. Al-Zetawi did not execute a waiver of his right to personally attend all proceedings. He appeared at nine proceedings before the court scheduled trial for June 4, 2018. On March 8, Al-Zetawi sought a continuance; he appeared at the March 13 hearing, stating he planned to travel to Jordan for surgery. The court denied the motion. Al-Zetawi appeared at a March 20 pretrial conference; the court ordered him to return on June 4th. On May 31, Al-Zetawi moved to continue the trial date. Al-Zetawi did not appear at the June 1 hearing. His attorney stated that he was supposed to return the day before but was detained in Jordan because of medical issues. The court denied the request. On June 4, Al-Zetawi did not appear. The court forfeited his bail, issued a warrant, denied Bankers’ motions to toll the six-month bail-forfeiture period to secure Al-Zetawi’s appearance, and entered summary judgment on the bond. Bankers argued that the court lost jurisdiction of the bond when Al-Zetawi failed to appear on May 29 and June 1 and the court neither declared a forfeiture of the bail nor found sufficient excuse for his absences. The court of appeal affirmed. While the judge did not state explicitly that she considered Al-Zetawi’s non-attendance at the hearings to be sufficiently excused, she clearly considered the failure to have ordered him to be present to provide an excuse.

People v. Lopez

Docket: H046618(Sixth Appellate District)

Opinion Date: November 16, 2020

Judge: Grover

Areas of Law: Criminal Law

Lopez pleaded guilty in 2011 to transporting a controlled substance (Health & Saf. Code, 11352(a)), a felony. Lopez was granted probation, which he violated in 2014; the court terminated probation and imposed an eight-month sentence, suspended execution of that sentence, and placed Lopez on mandatory supervision. Lopez violated the terms of mandatory supervision in February 2016. The court increased the sentence to two years but again suspended execution to reinstate supervision. Lopez again violated supervision in October 2016. He failed to appear at the violation hearing, and a bench warrant issued. Lopez was brought to court in 2018 and moved to vacate his conviction. In 2013—two years after his guilty plea—Health and Safety Code section 11352 had been amended to make transportation of a controlled substance a felony only where the transportation was for the purpose of sale, not for personal use. Lopez claims his offense involved personal use. The court found the statutory amendment inapplicable because Lopez’s judgment was final. The court of appeal reversed. Where execution of sentence is suspended to place a defendant on mandatory supervision, there is no final judgment for purposes of retroactively applying an ameliorative statutory amendment. Sentencing was not actually complete; Lopez is entitled to retroactive application of the amendment that made transporting a controlled substance for personal use a misdemeanor.

Moore v. Superior Court

Docket: G058609(Fourth Appellate District)

Opinion Date: November 16, 2020

Judge: Goethals

Areas of Law: Legal Ethics, Professional Malpractice & Ethics

While representing a client at a mandatory settlement conference (MSC) before a temporary judge, petitioner Kevin Moore was rude and unprofessional. Among other things, Moore: (1) persistently yelled at and interrupted other participants; (2) accused opposing counsel of lying while providing no evidence to support his accusation; (3) refused to engage in settlement discussions; and (4) effectively prevented the settlement officer from invoking the aid and authority of the supervising judge by asserting this would unlawfully divulge settlement information. To make matters worse, Moore later acknowledged that his contemptuous behavior was the result of a tactical decision he had made to act in such a manner in advance of the MSC. After a hearing, respondent court convicted Moore of four counts of civil contempt, imposed a $900 fine for each count ($3,600 total), and ordered the payment of attorney fees and costs to the opposing party. Moore challenged all four contempt convictions and the associated sanctions. After review, the Court of Appeal concluded the record and applicable law required that three of Moore’s convictions be overturned; the Court affirmed one conviction and the punishment required for that offense. The clerk of the appeallate court was ordered to make the required notification to the State Bar for whatever additional action the Bar may consider appropriate. The award of attorney fees and costs here was precluded by statute.