Legal News and Appellate Tips

Do not forget to have the jury make all the required findings. Once the jury is discharged, as happened in People v. Jones (D1d5 Apr. 4, 2023) No. A163558, the court loses control of the jury, and so the jury cannot be reconvened.

The prosecutor in Jones had charged an enhancement based on a prior serious felony. The jury returned a guilty verdict, but did not make a finding that the defendant had committed a prior serious felony before the trial judge thanked and released the jurors from their duties.

By the time the jurors were brought back in, four hours had passed.

A jury that has been released may be reconvened, but only if the jury has remained in the court’s control. The court did note that the jurors had not left the courthouse. But the record was silent whether the jurors had abided by the admonitions (from which they had been released). “Given such a paucity of evidence, we cannot conclude that the jury remained within the court's control.”

The Upshot: The operative statute in Jones is Penal Code section 1164. There does not appear to be an analogous civil statute, but the rule is likely to be the same or similar. So in your next jury trial, have a checklist of all the findings the jury needs to make, and do not let the judge discharge the jury until its work is done.

A good practice is to have thorough verdict forms prepared before beginning trial.

Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly: if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection.

Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial continued. (Might be a backdoor strategy to continuing trial dates.)

And a trial court abused its discretion in hearing a SLAPP motion before a restraining-order motion. The SLAPP ruling meant the case was stayed and the restraining-order issue couldn’t be heard. That’s not right. Trial courts need to make sure those issues are heard with or before SLAPP motions.

Reviewing some 9th Circuit and California appellate cases of note from early 2022, Jeff Lewis and I discuss these juicy issues:

💡 Can the 6th Amendment right to speedy trial be indefinitely postponed due to Covid? (Yes, if the defendant is not incarcerated, says the 9th Circuit in *United States v. Olsen*.)

💡 Can the statutory right to a timely conservatorship jury trial be waived? (Yes, even if the judge kind of pushes you around, so stiffen up that spine!)

💡 Can the Church of Scientology compel arbitration of a dispute arising after members leave the church and allege Scientologist actor Danny Masterson rapes them? (No, but the Supreme Court had to step in and tell the Court of Appeal to take a little more time with the writ petition.)

💡 Can a pre-litigation demand cross the line into extortion, and thus fail to qualify for protection under Civil Code section 47’s litigation privilege? (Yes, if the attorney threatens to disclose the allegations to blow up the defendant’s potential merger.)

What do judges think about the Covid impacts on court proceedings? Jury trials were put on hold in the early months, and only resumed in fits and starts. In-person appearances began again last year, but are being tabled again.

At least as it concerns criminal jury trials, you can get a good sampling of judges’ disparate feelings in *United States v. Olsen*, 21 F.4th 1036 (9th Cir. Jan. 6, 2022), where the Ninth Circuit recently denied en banc review of a panel decision reversing a dismissal for failing to comply with the Speedy Trial Act.

Tensions run high in each of the four opinions: the majority per curiam decision reversing the district court and reinstating the case, two concurrences by Judges Murguia and Bumatay, and a dissent by Judge Collins. There is too much going on to fairly summarize all of it. So in the article I only cover a few things that jumped off the page at me, including:

- No 6th Amendment analysis at all in the majority opinion;
- The 9th was displeased with the unseemly collateral dispute among judges of the Central District;
- “Impossibility” of jury trials was denied by a “General Order” in which the defendant had no input — is this constitutionally problematic? (Judge Collins thinks so);
- Should a Speedy Trial be denied because the defendant obtained prior continuance? What if it was to review the voluminous evidence the government amassed in six years of pre-indictment investigation?

Ultimately, while I agree with Judge Bumatay that this is a close call, I am persuaded by Judge Collins’ dissent. At a minimum, the Ninth Circuit should have granted *en banc* review here.

This one seems wrong to me.

This is a published case in *[Conservatorship of Joanne R.] (D2d7 Dec. 17, 2021 no. B310906) 72 Cal.App.5th 1009. The appellant was put under a year-long conservatorship. Under the Lanterman-Petris-Short Act governing conservatorships, the appellant was entitled to a jury trial, to commence within 10 days of demand, challenging the establishment or extension of the conservatorship. (Welf. & Inst. Code, § 5350.) So she invoked that right.

But here is what the trial judge says about the appellant’s right to commence a jury trial in 10 days: “if you would like to have a court trial with the judge making the decision we can do that today. If you would like to have a jury trial then we can do that as well, but we won't be able to do it today. We can reschedule and do that in November.”

This is in early February. That’s nine months into a 12-month conservatorship.

The appellant responds “I would prefer a jury trial, but I don’t want to wait until November.” Then after a short colloquy, says, “I think I want to go ahead today and do it.”

Is that a voluntary waiver of the appellant’s right to a jury trial? The Second District Court of Appeal says yes (but with reservations).

I think that is wrong, as I explain in the article. If the Legislature affords a right, it ought to honor it. The fact that the pandemic has made it difficult is not an excuse. Unless and until the Legislature decides to abrogate the right, the courts’ duty is to enforce it.