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LOS ANGELES AND SAN FRANCISCO DAILY JOURNAL

Printed and distributed daily, this report includes a summary of the day’s key opinions from the California Courts of Appeal, California Supreme Court, U.S. Court of Appeals for the Ninth Circuit, and the Supreme Court of the United States. The Daily Appellate Report is included in all print and online subscriptions except the Digital Edition. Daily Appellate Report

DAILY APPELLATE REPORT

WEDNESDAY, JUNE 18, 2025

Supplement to the Los Angeles Daily Journal, San Francisco Daily Journal and The Daily Recorder

 9th U.S. Circuit Court of Appeals

 California Courts of Appeal

CRIMINAL LAW AND PROCEDURE U.S. v. Barry Probable cause existed to search non-residence apartment under the parolee-search condition exception where parolee had a key to the apartment and showed intimate familiarity with it. District: USDC Central District of California Pages: ii & 5074 ii

CRIMINAL LAW AND PROCEDURE People v. American Surety Co. Because criminal court failed to forfeit bond after defendant’s initial disappearance, it lost jurisdiction and civil court erred in not vacating forfeiture and exonerating bail.

DAILY APPELLATE REPORT

Wednesday, June 18, 2025

District: 2DCA/6 Pages: ii & 5082 Criminal Law and Procedure

Criminal Law and Procedure

Index to cases features one- sentence synopsis of each opinion

HABEAS CORPUS In re Rogowski  Probable cause existed to search non- residence apartment under the parolee- search condition exception where parolee had a key to the apartment and showed intimate familiarity with it. U.S. v. Barry, || 9th U.S. Circuit Court of Appeals, No. 23-2101, Oral Argument Feb. 11, 2025, Filed Jun. 17, 2025 District: 4DCA/1 Pages: iii & 5085 In 2018, an anonymous tipster reported to the Los Angeles Police Department that a person named “Ryan” with a red Mustang sold drugs out of an apartment on Emelita Avenue in Van Nuys. The officer assigned to the case found that a “Ryan Beau Patrick Barry” was on post-release community supervision for felony firearm and drug convictions. Barry’s terms of supervision included a warrantless search condition, meaning that his person, property, and residence could be searched without a warrant. Barry had registered a residence with his probation officer that was different from the Emelita Avenue address. The officer found Barry near the Emelita Avenue address, driving a red Mustang, and with a “baggie” of what appeared to be meth. The officer handcuffed Barry and told him he would search his apartment on Emelita Avenue. The officer asked who else lived there, and Barry replied that his girlfriend did. When the officer asked Barry for a key to the apartment, Barry showed him the key to the apartment’s front door. The police recovered drugs and firearms at the apartment. Barry later moved to suppress the evidence seized, arguing that the search violated the Fourth Amendment because the officers lacked probable cause to search his non- residence. Affirmed. Generally, warrantless searches are unreasonable under the Fourth Amendment, subject only to a few specific exceptions. One such exception is the search of a parolee that complies with the terms of a valid search condition. For the parolee- search condition exception to apply under California law, law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched. Probable cause exists if an officer of reasonable caution would believe, based on the totality of the circumstances, that the parolee lives at a particular residence. Here, the officer reasonably believed that Barry lived at the Emelita residence, given that the anonymous tip tied Barry to the apartment, Barry showed intimate familiarity with the apartment, and Barry even had a key to the apartment. Because probable cause existed, the search was reasonable. Opinion by Patrick J. Bumatay Concurring: J. Clifford Wallace Concurring: Susan P. Graber The full text of this case appears in the Daily Appellate Report on page 5074. — Christie Bahna 5074

 Because criminal court failed to forfeit bond after defendant’s initial disappearance, it lost jurisdiction and civil court erred in not vacating forfeiture and exonerating bail. People v. American Surety Co. , 2DCA/6 || California Courts of Appeal, No. B338852, Case Fully Briefed Jan. 27, 2025, Oral Argument Apr. 9, 2025, Filed Jun. 17, 2025 American Surety Company posted a bond for defendant Marlon Valle-Mejia. At the first hearing, Defendant appeared remotely with his counsel. During that time, the criminal court continued the bail bond, only forfeiting it after Defendant’s third absence. American was notified and requested an extension to bring in Defendant. However, Defendant remained missing and American filed to vacate the forfeiture and exonerate bail, arguing that the criminal court lost jurisdiction to order the forfeiture when it failed to order so after Defendant’s initial truancy. American made this request twice, with the criminal court denying it both times. After American was served with a summary judgment notice regarding the bond in civil court, American moved to vacate the previous criminal court’s rulings discharge the forfeiture, and exonerate bail. The civil court denied the motion based on issue preclusion. American appealed. Reversed in full. Under Penal Code section 1305, trial courts “shall” forfeit bail when the defendant, “without sufficient excuse,” fails to appear in court “if the defendant’s presence in court is lawfully required.” And, if section 1305 requisites are not followed, criminal courts lose jurisdiction. Where courts lack jurisdiction, issue preclusion is inapplicable. Here, the criminal court, in not forfeiting bail when Defendant first failed to appear without excuse, lost jurisdiction. By losing its jurisdiction, the criminal court’s later decisions forfeiting the bond were void, making issue preclusion a nonissue in this case. Accordingly, the summary judgment against the bond was also void. Opinion by Hernaldo J. Baltodano The full text of this case appears in the Daily Appellate Report on page 5082. — Antoneth Dizon Fong

Governor’s reversal of parole granted to inmate serving indeterminate life sentence was upheld because the inmate’s inconsistent statements regarding his crime demonstrated a material lack of insight.

Attorney- written case briefs

DAILY APPELLATE REPORT

Wednesday, June 18, 2025

CRIMINAL LAW & PROCEDURE

OPINION

BUMATAY, Circuit Judge:

Probable cause existed to search non- residence apartment under the parolee- search condition exception where parolee had a key to the apartment and showed intimate familiarity with it.

At issue here is whether police officers had probable cause to believe that Ryan Barry, a probationer who was subject to warrantless search conditions, resided at an apartment they searched. Barry appeals from the district court’s denial of his motion to suppress the evidence found in this search. Because the search was consistent with the Fourth Amendment and with our holding in United States v. Grandberry , 730 F.3d 968 (9th Cir. 2013), we affirm.

Full opinions with concurrences and dissents

Cite as 2025 DJDAR 5074

UNITED STATES OF AMERICA, Plaintiff - Appellee , v. RYAN BEAU PATRICK BARRY, Defendant - Appellant . No. 23-2101 D.C. No. 2:19-cr-00334-MWF-1 United States Court of Appeal Ninth Circuit Filed June 17, 2025

I.

In November 2018, an anonymous tipster called the Los Angeles Police Department (“LAPD”) to report that a person named “Ryan” sold drugs out of an apartment at 14436 Emelita Avenue, Apartment B, in Van Nuys, California (“Emelita apartment”). The caller added that “Ryan” drove a red convertible Ford Mustang. The LAPD assigned Officer Giovanni Espinoza to investigate the tip. After searching several databases, Officer Espinoza learned about a “Ryan Beau Patrick Barry” who was on post-release community supervision for felony firearm and drug convictions. Barry’s terms of supervision included a warrantless search condition, meaning that his person, property, and residence could be searched without a warrant. Officer Espinoza found that Barry had registered a different residential address with his probation officer---not the Emelita apartment. He also discovered that Barry possessed no valid driver’s license and that he could not drive a motor vehicle legally at the time. Later, Officer Espinoza decided to surveil the Emelita apartment. When Officer Espinoza arrived, he observed a red convertible Mustang parked close to a walkway that led to the Emelita apartment. He then saw Barry appear in the walkway and approach the Mustang. Barry got into the car and drove to a nearby gas station; Officer Espinoza followed. At the gas station, Barry parked and sat in the driver’s seat for five to ten minutes. Officer Espinoza then approached, identified himself as law enforcement, and directed Barry to get out of the car. When

The DAR is a stand-alone section, published every weekday

OPINION

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted February 11, 2025 Pasadena, California

Before: J. Clifford Wallace, Susan P. Graber, and Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Bumatay; Concurrence by Judge Wallace; Concurrence by Judge Graber

COUNSEL

Jenna W. Long (argued), Assistant United States Attorney, Terrorism and Export Crimes Section; Elizabeth S.P. Douglas, and David R. Friedman, Assistant United States Attorneys; Cameron L. Schroeder, Assistant United States Attorney, Chief, National Security Division; E. Martin Estrada, United States Attorney; Office of the United States Attorney, United States Department of Justice, Los Angeles, California; for Plaintiff-Appellee. Alexis Haller (argued), Law Office of Alexis Haller, Aptos, California, for Defendant- Appellant.

Minimum Continuing Legal Education (MCLE)

PAGE 4 • THURSDAY, JUNE 19, 2025

LOS ANGELES DAILY JOURNAL

MCLE Don’t let an adverse party commit to producing ‘relevant’ documents

because lawyers are untrustworthy. It is false because our system does not run on trust. It works because we have a set of procedural rules that apply equally to all parties, and those rules yield trustworthy results (even if we don’t like them) because they are the product of a transpar- ent, objective, and verifiable pro- cess. Trust has place, to be sure, but trust is always moderated with “but verify,” and there’s no way to verify an opaque process. It is not hard to set up a transpar- ent process for securing discovery of only relevant documents. All ques- tions of relevance must be resolved at the document request level, either by agreement of the parties or by court order. The operative question is, “Does this request seek relevant information?” If it does, producing parties only need to worry about whether a particular document is responsive to the request. Docu- ment-by-document determinations of relevance have essentially no place in discovery. The distinction between “relevant requests” and “responsive docu- ments” is key to ensuring the discov- ery process functions transparently. Reserving relevance determinations for the court as a threshold inquiry ensures both parties operate under the same rules. Relevant will mean whatever the court, in the exercise of its sound discretion, determines its means. Once that rule is in place, ex- ecuting the command to locate and produce responsive documents is fine to leave to producing party’s dis- cretion because, unlike determining relevance, locating responsive docu- ments requires making an objective determination. A document is either responsive to a request or it is not. If a party cannot tell whether a doc- ument is responsive, then there is a vagueness problem with the request itself that must be corrected. By putting relevance and respon- siveness in their proper places, the process of producing discovery is

fully transparent because all parties operate under the same rule for what is discoverable. The party receiving discovery can be assured they’re re- ceiving what they deserve, nothing more, and nothing less. That assur- ance simply doesn’t exist when one party takes it upon itself to make a blind determination of what is rele- vant to the case. Although there is little case law addressing this exact issue, there is ample case law addressing the anal- ogous issue of unilaterally redacting documents to scrub them of purport- edly irrelevant information. The gen- eral rule in those cases is that parties must produce responsive documents in their entirety even if those docu- ments contain some information that might ultimately be irrelevant under the discovery rules. See, e.g. , Coe v. Cross-Lines Ret. Ctr., Inc. , 342 F.R.D. 539, 548 (D. Kan. 2022). The logic of the redaction cases applies to rele- vance-qualified responses—courts determine relevancy at the request level, not the document level, and if the request seeks relevant infor- mation, the producing party has no discretion to pick and choose what gets produced on relevancy grounds or for any other reason. Transparent process, trustworthy results, and a lot less anxiety over whether the other side is secretly withholding discovery.

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tics. Attorney ethical guidelines and the requirement of signing and certi- fying discovery responses establish some guardrails that could curb the worst potential abuses of such liber- ty-taking; but the vast outer bound- aries of what is ethically permissible leave ample room to frustrate an ad- verse party’s discovery goals. Many lawyers will argue our sys- tem is based on trust, and an attor- ney seeking discovery needs to trust opposing counsel to produce all the relevant documents. Some judges will even repeat this reasoning. See, e.g. , UAB “Planner5D” v. Meta Plat- forms, Inc. , 746 F. Supp. 3d 806, 808 (N.D. Cal. 2024). This line of think- ing, however charitable about the scruples of litigators, is false. But not

tle more than giving the requesting party what it deserves. Makes sense, right? Not so fast. This argument begs an important question: Who decides what’s relevant, and how? Should it be a responding party? A requesting party? The court? The wrong answer makes for mischief. A commitment to produce only relevant documents implies the pro- ducing party will decide whether an individual document is or is not rele- vant and therefore subject to produc- tion. The problem is obvious if you stop to think about it for more than a moment. Giving one lawyer unsu- pervised discretion to interpret the scope of another lawyer’s discovery request is an invitation to sharp tac-

lists of annoying discovery games. But it’s a sneaky little trick, partly because it seems innocuous. Includ- ing a qualifier about producing only “relevant” documents in a discovery response rests on the half-truth that a party has no obligation to produce “irrelevant” documents. This has a ring of common sense. After all, the concept of relevance is central to civil discovery because the scope of discovery itself, in both state and federal court, is limited to material relevant to the issues in the case. See Fed. R. Civ. P. 26(b)(1); Cal. Civ. Proc. Code § 2017.010. Thus, by op- eration of law, anything that is not relevant is per se not discoverable, and a commitment to produce only relevant documents amounts to lit-

esponses to Requests for Production (RFPs) vary widely between extreme candor and obfuscation.

Ian Pike is a law clerk.

Between those poles are the re- sponses that look something like the following: “Responding Party will produce relevant, responsive docu- ments within its possession, custody or control.” That almost looks like a commitment to produce documents within the scope of the request at is- sue. Hooray! But they say the devil is in the details, and the devilish detail lurking in this particular response is that one, innocuous little word: Rel- evant. This response might not even make the top five on most attorneys’

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in discovery.

1. The inclusion of the word “rele- vant” in a discovery response is usu- ally an honest and harmless choice. True  False  2. A responding party’s decision to withhold a document because they deem it irrelevant is appropriate. True  False  3. A document-by-document deter- mination of relevance is acceptable in the discovery process. True  False  4. The process of determining whether a document is relevant to a case is inherently subjective. True  False  5. Federal and state discovery rules limit the scope of discovery to only relevant materials. True  False  6. Trust in opposing counsel’s commitment to produce relevant documents is the primary safeguard

11. Transparency in the discovery process ensures that both parties have equal access to all relevant doc- uments. True  False  12. The inclusion of irrelevant doc- uments in discovery responses does not necessarily compromise the fair- ness of the process, as long as they are disclosed. True  False  13. A party can provide documents in response to a request, even if some parts of the document may be irrele- vant, as long as they provide the re- sponsive parts True  False  14. A requesting party must ask the court to resolve disputes over what is relevant in discovery. True  False  15. Discovery responses should only include facts that support the requesting party’s argument. True  False 

True  False 

16. In the discovery process, rel- evance is determined by the party making the request. True  False  17. A response that commits to pro- ducing only “relevant” documents is not a clear and transparent way to fulfill a discovery request. True  False  18. Responses to Requests for Pro- duction (RFPs) don’t always clearly specify that only “relevant” docu- ments will be produced. True  False  19. The producing party has the discretion to redact documents that they deem irrelevant, even if the doc- ument is otherwise responsive. True  False  20. The rules governing the pro- duction of relevant documents are designed to create a transparent pro- cess in discovery. True  False 

7. A discovery response that only commits to producing “relevant” documents might actually be less helpful than one that clearly lists the documents to be produced. True  False  8. If a document request seeks relevant information, the producing party has no discretion to withhold documents based on relevance. True  False  9. Ethical guidelines and discovery certifications ensure that lawyers do not abuse their discretion in decid- ing what documents to produce. True  False  10. A party may decide whether a document is responsive to a discov- ery request, but not whether it is rel- evant. True  False 

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