People v. Ismaeil (Cal. Ct. App. - Dec. 15, 2025)

When you're charged with soliciting a minor, you're not guilty if you thought the person was actually old enough to consent. Moreover, since it's a crime with mens rea, your mistake of fact doesn't necessarily have to be reasonable. Even if most people would think that she was only 16, for example, if you in fact thought she was 19, that's a defense. In this opinion, the trial court gave an erroneous instruction that the defendant's mistake had to be reasonable, the prosecutor harped on this issue at closing argument, and so Mr. Ismaeil gets a new trial. That's the rule.

At the same time, I'm not sure that the reversal is going to help Mr. Ismaeil that much. He was only sentenced to two years of probation. Now he's going to have to endure a new trial. Moreover, I strongly doubt the result of that trial is going to be any different than the earlier one at which he was convicted. Here's are the basic facts:

"In April 2018, Senior Inspector Darryl Holcombe of the Contra Costa County District Attorney’s Office was conducting an investigation through the Internet Crimes Against Children Task Force. In that role, Holcombe had a profile on Whisper, a smartphone application. Holcombe set up a Whisper profile in which his persona was a female user between the ages of 15 and 17 (the only age category for minors). He pretended to be a 14-year-old girl named Lizzy, who was a sexually inexperienced high school freshman with separated parents. . . . Appellant—as a Whisper user calling himself Eddy— contacted “Iconsborn” through a direct message. After some initial back and forth, “Iconsborn” identified herself as Lizzy and asked appellant how old he was; appellant responded that he was 28. Lizzy said she was 14; appellant responded, “Ah lol.” . . .

After appellant sent Iconsborn a photo of his cat, Iconsborn responded by sending a photo she identified as herself with her dog. The photo was actually of a Homeland Security agent from New York when she was 14. Appellant complained about having to drive to Modesto the next day and Iconsborn responded, “I can’t wait to drive.” Appellant said he taught his sister how to drive, and Iconsborn said, “I wanna learn.” Appellant said that he could teach Iconsborn but added, “You’re supposed to have a permit before you get trained though.”

Iconsborn asked appellant, “Do u have a gf,” and he responded, “Nope,” and asked, “You have a bf?” Iconsborn said, “No,” and added, “I’m not really allowed to.” She explained that her mom was “weird about it” and, in response to appellant’s questions, denied that it was “like one of those arranged marriage things” or “a religious thing.” She continued, “I mean I’ve liked guys and hung out with them she just is protective.” Iconsborn said she had gone out on a couple dates and to a “school dance” with a guy. Appellant asked, “Anything after that?” and Iconsborn responded, “Kissing.” Appellant said, “That’s it?” and Iconsborn said, “Yeah that’s all I’ve done.” Appellant questioned further, asking, “Is it because you didn’t want to?” Iconsborn responded, “I do I just got nervous.” Appellant then said, “You’re missing out,” and “It’s the best thing ever lol.” Iconsborn responded, “Lol. Probably. Plus he would just tell everyone at school.” Appellant said, “So you need it to be a secret,” and added, “I can keep secrets.” Iconsborn wrote, “That cause u r older,” and appellant responded, “That’s true[.] . . . Things are more private when you’re older.”

Iconsborn asked appellant what he looked like and he sent her two photos—in one, he had a bare torso and a towel on the lower half of his body. Iconsborn responded, “Wow. Hot.” Appellant wrote that he had “other gifts too” and that he was “much more well equipped than most guys lol.” Iconsborn sent another photo, again of a law enforcement officer when she was 14. Appellant responded, “You’re on fire,” “You woke up my other half,” “Down below,” and “You better take responsibility for waking him up.”

Appellant then asked Iconsborn if she was “allowed to leave the house whenever you want or does your parents not let you?” She answered, “I live with my mom she usually works until 8,” and added that she and her sister sometimes had dinner with her dad. Appellant then wrote, “[I]f you want we can mess around this week.” Iconsborn answered, “Let me see if I can ditch my sister in the afternoon,” and appellant said he would get a “[h]otel room” so they could “mess around.”

 The next morning, appellant sent Iconsborn two photos with the camera pointed at his groin area; in one, he was wearing only underwear. Iconsborn said she was going to the “mall with mom for a bit.” Appellant asked about meeting up in the afternoon, offering again to give a driving lesson and adding, “Then we can have fun after.” Appellant commented, “But it’s your first time,” and Iconsborn wrote, “I might not be good at it,” and “I don’t wanna get preggo cause yeah that would sux.” Appellant responded, “You won’t trust me lol,” and “I have very good self control and I know when to pull out.” Appellant offered to pick Iconsborn up but she said not at her house “[c]aus my older sis may be there.”

Appellant and Iconsborn continued to text and made plans to meet up in downtown Pleasant Hill. Appellant promised to have her home by 8:00 p.m. The final text in the thread is appellant announcing his arrival at the meeting place. He was met by law enforcement and detained. A search of his car revealed a brown bag containing a box of condoms and a container of lubricant, purchased about 30 minutes earlier."

Yeah. You're pretty much 100% getting found guilty again, dude.

I would just plead guilty and get it over with, personally.

Pham v. Superior Court (Cal. Ct. App. - Dec. 16, 2025)

I certainly understand why Justice Gooding published this opinion today. It's definitely an important topic: When frozen fertilized embryos are jointly owned during a marriage, is one spouse entitled to possess (and potentially use) those embryos after a divorce even over the objection of the former spouse? There is also apparently a "case of apparent first impression in California appellate courts," so I can readily see why the Court of Appeal might want to resolve this issue in a published opinion.

Today's opinion holds that when the parties have contractually agreed (while married) that one spouse may use the embryos, if s/he wishes, in the event of a divorce, the California courts will enforce that provision notwithstanding the changed consent of the other (now former) spouse. As a result, even though someone no longer consents to being a parent, their prior consent to being a parent is sufficient.

That might perhaps be the right rule. At least at present, I don't have unalterably strong feelings about it one way or the other. I see the argument for it, though at the same time, readily understand the arguments the other way as well. It's definitely not an easy issue.

But what struck me about today's published opinion is that it's rendered in a case in which both parties are representing themselves pro per. I'm confident that the Court of Appeal was fully aware of the arguments that both sides raised. But, to be honest, on an issue that's this important, I would personally be reluctant to decide the thing -- especially in a published opinion that's binding on trial courts -- without informed briefing from lawyers, (potentially) amici, and the like. None of which transpires here.

It'd be one thing if all the states agreed that contractual provisions like these are enforced. But that's most definitely not the case. Some states enforce them. Other states adopt a balancing test instead. And other states -- perhaps even a majority (at least according to one of the pro per briefs) -- don't enforce these types of contractual provisions at all, holding that consent is instead required at the time the person is proposed to become a parent. (Kinda like sex itself.)

Particularly given these conflicting judicial views, I might be hesitant to decide -- or at least publish -- an opinion that resolves this dispute without the (presumptively helpful and informative) input of lawyers and other interested persons, rather than relying solely on the briefs of pro per litigants.

I understand the contrary view, and I'm confident that the Court of Appeal thought that it could correctly adjudicate this issue based upon the limited materials already available to it.

But I can very much see the other side as well.

California v. Federal Contempt (Apps - Dec. 11-12, 2025)

It's serendipitous that these two opinions -- one federal, and one state -- came out within days of each other, and were also published.

Both involve contempt charges against a litigant, but they take very different approaches.

The first opinion was published yesterday, and arose out of the high-profile Epic v. Apple dispute. There, Epic (the maker of Fortnite) sued Apple, claiming that was an antitrust violation for Apple to prohibit Epic from allowing users to purchase game-related content outside of Apple's own store (for which Apple took a hefty commission). The trial court agreed, and granted an injunction that barred Apple from stopping Epic from making sales outside of Apple's platform.

Thereafter, Apple, with the advice of sophisticated counsel, circumvented the injunction while technically complying with its terms. Consistent with the injunction, after the injunction, Apple allowed Epic to sell content on its own. But Apple instituted a mandatory royalty rate that was essentially the exact same as the commission that it had previously obtained from Epic on the earlier Apple-mandated internal sales.

The district court said: "No dice. Contempt." And the Ninth Circuit largely affirmed. Apple's conduct admittedly followed the literal terms of the injunction, but the Ninth Circuit held that the finding of contempt was proper because there was, as here, "a violation of the spirit of the injunction, even though its strict letter may not have been disregarded."

Then, today, the California Court of Appeal publishes an opinion in a different, but doctrinally very similar, contempt case. There, a couple had nasty divorce proceedings, and the trial court granted joint custody over the child, with one of the parents (who lived hundreds of miles away) to have weekend visitation. In order to permit meaningful visitation, the trial court also ordered: "Neither parent shall schedule any school events, extracurricular or religious events, medical or therapeutic appointments, or other events during the other parent’s custodial time without approval of the other parent."

Notwithstanding this order, one of the parents -- the one with primary physical custody -- signed the child up for various sports activities that occurred during the other parent's weekend visitation period. A school mountain bike competition. The ski team, with weekend ski competitions. The basketball team, which had (again) weekend games. The other former spouse objected, saying that this conduct, which was performed without her input or consent, interfered with her visitation period and violated the trial court's order, since it meant that she'd fly up from Orange County (to Nevada City) for her weekend only to have it taken up by activities that the other parent had unilaterally set. The trial court agreed, found the parent in contempt, and imposed a $2,000 per violation penalty. 

But the Court of Appeal reversed. Taking the exactly opposite approach of the Ninth Circuit, the Court of Appeal held that even if the parent's conduct conflicted with the spirit and intent of the trial court's order, since it didn't violate the "literal words" of the order, there was no basis for a contempt penalty. Since the order only prohibited the parent from "scheduling . . . any events," and since it was technically the school who "scheduled" the underlying events for any particular weekend, the Court of Appeal held that the trial court couldn't permissibly find contempt. "[W]hile the sports teams did result in some of Xander’s activities occurring during Larsen’s parenting time, Houser did not schedule those events, the teams did, and thus she did not violate the letter of the order." (emphasis in original)

Again, interesting that these two opinions are published within 24 hours of each other.

U.S. v. Kittson (9th Cir. - Dec. 10, 2025)

Judge Owens' opinion this morning crushes Judge VanDyke's dissent.

Or at least that's my opinion. Read both of them, if you wish, to see if you disagree.

For sake of brevity, here's just a snippet of what Judge Owens says:

"Without citing a single case, Kittson demands that we sweep away decades of case law and logic and hold that there is nothing illegal about transferring machineguns to undercover agents posing as the most odious criminals. . . . If Congress had intended to disrupt the history and tradition of law enforcement using undercover agents to stop arms traffickers from peddling exceedingly dangerous, military grade automatic weapons, it could have easily done so by inserting such language into § 922(o). It never did, and we are not in the business of doing so, especially when it would lead to the absurd result of trying to catch arms traffickers after they have transferred the weapon to a mass killer, rather than stopping them before the carnage ensues. . . .

The dissent’s many arguments, ranging from speed limit hypotheticals to unwell uncles, branch from the same thought tree—that Congress would care deeply about someone possessing a machinegun, but couldn’t care less about someone who wanted to transfer that same machinegun to the vilest of criminals.

The dissent’s explanation for this logical disconnect? That “[i]n the vast majority of cases involving an undercover sting, that distinction doesn’t matter much because the defendant will inevitably have both transferred the machinegun and necessarily possessed it when he personally handled it before transferring it.” In other words, the transfer language of 922(o) vanishes from the statute when undercover agents are involved.

The dissent never explains why we should erase transfer liability from section 922(o). It presents no support for its claim that the “vast majority” of undercover sting cases will involve a defendant who both transfers and personally possesses a machinegun. One can easily conjure up countless examples of when someone would be guilty of transferring firearms even if they did not possess them—a sophisticated arms dealer who uses a third party to transfer the machinegun to a terrorist organization who will attack a Veterans Day Parade, the cartel leader who orders his foot soldiers to transfer a machinegun to the sicario, a white supremacist who commands his new recruit to trade the machinegun for fentanyl, and so on. Or a simpler case, like this one, where Kittson caused the transfer of a machinegun to someone he thought was a drug dealer.

But what the dissent cannot conjure up is why Congress would ever intend for this Legion of Doom to avoid prosecution. Much like Kittson, the dissent cannot cite a single case, law review article, or even scrap of legislative history to prop up its reading of Section 922. Instead, it speculates that “[b]y granting immunity to individuals who transfer machineguns to the federal government, Congress encourages the central goal of § 922(o): limiting machineguns in private ownership and stopping the interstate transfer of those weapons.” But it is hard to see how immunizing defendants like Kittson could help stem the interstate transfer of machineguns. A defendant in Kittson’s position, looking to transfer a machinegun to someone he believes to be an arms trafficker, should reasonably feel emboldened under the dissent’s interpretation of Section 922. If the buyer is in fact an arms trafficker, then he has avoided capture in a government sting operation. If the buyer is an undercover officer, he is home free under the dissent’s reading of § 922(o)(2)(A). On the other hand, the dissent’s interpretation does nothing to promote lawful transfers to government. Merely excluding defendants caught in sting operations from the razor-thin ambit of § 922(o)(2)(A) immunity, as the majority does here, has no effect on individuals intending to make lawful machinegun transfers to the government." 

Peterson v. Zhang (Cal. Ct. App. - Dec. 8, 2025)

Today's opinion makes clear -- or at least provides yet another example of -- something that was decently clear already:

Protracted litigation between neighbors in a rich neighborhood -- here, Palos Verdes Estates -- is (at least amongst) the worst.

Morgan v. Ygrene Energy Fund (Cal. Supreme Ct. - Dec. 4, 2025)

The California Supreme Court does it again. This time, in an opinion by Justice Kruger. Another opinion that begins by cogently summarizing both what the case is about and how it gets resolved. It reads (with citations omitted):

Under California law, a person who wants to challenge a tax ordinarily must first pay the tax and then seek available relief from tax authorities; if that effort is unsuccessful, the person may then file a tax refund action in court. Here we consider how these tax-challenge procedures apply in a dispute concerning a unique financing arrangement in which individuals repay funds in the form of taxes.

The arrangements at issue owe their existence to California’s Property Assessed Clean Energy (PACE) program, a program that allows local governments to provide homeowners with financing for energy efficiency home improvements in exchange for a voluntary special assessment added to their property taxes and secured by a lien on their real property. Although many local governments have adopted the PACE program, few run the program themselves; most have contracted with private companies. Plaintiffs are homeowners who have entered into PACE contracts administered by private entities. Plaintiffs allege that these private PACE administrators should have, but did not, comply with consumer protection and other regulatory requirements applicable to consumer lenders. Plaintiffs filed suit under the Unfair Competition Law (UCL), seeking various restitutionary and injunctive remedies, including an order requiring the PACE administrators to return PACE assessment monies received and prohibiting them from collecting delinquent assessments, unless and until the assessments are lifted from their properties.

At this stage of the proceedings, the sole question is whether plaintiffs were required to follow the statutory procedures for challenging taxes — meaning that they should have started not by filing suit in court, but by paying the PACE assessments and then seeking administrative tax relief from local authorities. The answer depends on the nature of plaintiffs’ claims and the relief they seek. By statute, PACE assessments are collected at the same time and in the same manner as local taxes, and so are subject to the same correction, cancellation, and refund rules as other taxes. Because plaintiffs’ central claims for relief effectively seek to invalidate the PACE assessments and prevent their future collection, plaintiffs are required to follow the applicable statutory procedures for challenging taxes. But plaintiffs are not required to follow the statutory tax relief procedures in order to pursue other, nontax-related, remedies concerning the administration of the PACE loans. We affirm in part, reverse in part, and remand for further consideration of whether plaintiffs should be granted leave to amend their complaints to plead only claims for relief that neither directly nor indirectly challenge a tax."

I'm not really sure that the PACE programs, or underlying legal issues, were really worth the rare grant of review by the California Supreme Court. But given that review was indeed granted, it's nice to see a great three-paragraph introduction at the outset.

Let's hope it becomes a trend.

Arroyo v. Pacific Ridge HOA (Cal. Ct. App. - Dec. 2, 2025)

Justice O'Rourke decides to publish this opinion, which involves a condo complex, alongside its associated homeowner's association, that's literally across the street from the University at which I work. As a result, I was keenly interested in learning about the various goings-on there.

In brief, it sounds like a nightmare.

Basically, it's a fight between one of the condo owners, who is/was on the board of the HOA, and the rest of the HOA. A fight that involves a plethora of lawsuits, a contested recall election, etc.

The condo owner, Rachel Arroyo, wins -- in part -- this round in the Court of Appeal, which holds that she was wrongfully excluded from various election-related materials distributed by the HOA.

So nice win for her.

But I nonetheless think she's losing in the end. Because while the Court of Appeal holds (in part) for her, it concludes its opinion by stating: "The judgment is reversed. On remand, the trial court is directed to conduct further proceedings so as to give Association the opportunity to establish, by a preponderance of the evidence, that its noncompliance with section 5105 did not affect the results of the election, and state its findings in writing as part of the record."

I'm fairly certain that the HOA will, in fact, be able to prove that fact on remand. Because the result of the prior election was 369 votes to recall Ms. Arroyo from the board of directors versus only 6 votes to retain her.

So I'm pretty sure she's going to lose on remand.

And, quite frankly, that she's probably not especially well-liked by her neighbors.

Doyle v. Royal (9th Cir. - Dec. 2, 2025)

I understand contemporary politics. If you're a conservative federal appellate judge -- especially one who's relatively young -- and looking to potentially "move up" to the Supreme Court, you may perhaps want to make your mark by decrying the purportedly absurdly liberal jurisprudential world in which we now live. That'll attract attention. Maybe it'll make you famous, or advance your career. And, perhaps, a lot of what you say is even something that part of you may in fact believe.

Those are my thoughts, anyway, after reading Judge Lee's partial dissent in this death penalty case.

Judge Lee bemoans the fact that this federal habeas case reaches the Ninth Circuit a full thirty years after the state court trial. He's not the only one, of course, to discuss the lengthy delays in habeas death penalty cases. I've said the same thing, for example, on a plethora of occasions. This is not a novel observation.

These delays happen for a plethora of reasons. AEDPA. The Supreme Court's convoluted exhaustion rules. Underfunded -- or entirely unavailable -- habeas defense counsel. Briefing extensions repeatedly requested by the prosecution. All of which are inventions of conservative (not liberal) institutions.

Liberal practices -- defense requests for extensions, for example -- obviously result in substantial delay as well. But it's a systemic problem. One that neither side of the political spectrum, conservative or liberal, is justifiably positioned to politically exploit.

That aside, the point that Judge Lee makes today in his partial dissent seems particularly unpersuasive. He argues that habeas delays result in -- and I'm using his words here -- "a get out of jail card" for prisoners. Because the delays take so long, he argues, even people that are clearly guilty get to go free, since the delay means that memories have faded, witnesses have disappeared, etc.

That seems to me a uniquely cynical, and untrue, argument.

For starters, during the entire period of delay, the defendant is in prison. Often, as here, on death row; hardly a place that's particularly comfortable, even compared to usual (deploring) prison standards. The principal, and facial, result of habeas delay is thus not to get people out of prison, but to keep them in prison -- even if their habeas petition will eventually be successful and they don't deserve to be there.

So rather than a "get out of jail free" card, it might better be argued that habeas delays instead are a "wrongfully stay in jail" card. The exact opposite of Judge Lee's point.

And, to be clear, the overwhelming majority of habeas petitions accomplish nothing but precisely such continued incarceration. Study after study has found that only one percent of federal habeas challenges to state convictions are successful. And pretty much every single one of those studies was conducted before the Supreme Court made it, though repeated (and continuing) opinions, much harder to win federal habeas petitions.

But, for argument's sake, let's take that incredibly small number of cases where a habeas petition is granted. Where, despite the plethora of limitation on granting habeas relief, the defendant is able to jump through all of the relevant hoops, and establishes -- as required by the writ -- that his confinement in prison does, in fact, violate the most sacred of our legal documents: the Constitution.

What then?

Judge Lee contends that it's a get out of jail free card. Balderdash. Almost invariably, the guy gets retried and convicted again. Especially in those cases, like Judge Lee describes this one, in which the defendant is "obviously guilty". Judge Lee's dissent doesn't reference even a single case in which the federal courts granted a habeas petition in which the guy was obviously guilty (or admitted his guilt) and the granting of the petition resulted in the guy going free, rather than simply being found guilty at a retrial that satisfies the requirements of the Constitution.

Now, in the 250-year history of our great Republic, have there perhaps been instances in which someone has gone free as a result of a federal habeas grant? Assuredly so. But particularly given the infinitesimal rate of habeas grants, I strongly doubt it's a substantial number, or one that would in any universe allow someone to credibly call federal habeas review a "get out of jail free" card.

I would write more, but I fear I'm belaboring the point. Which is that, yes, particularly in death penalty cases, I'm on board for the proposition that 30-year delays are entirely suboptimal. We should work to change that system. Totally agree.

But "get out of jail free" card? No. Not in the slightest. Simply untrue.

In re S.R. (Cal. Supreme Court - Dec. 1, 2025)

I really appreciate it when an opinion -- especially a California Supreme Court opinion -- explains at the outset (1) what the case is about, and (2) why, briefly, the opinion comes out the way it does. In truth, I'm going to read the whole thing regardless. But I like the roadmap. And, for different readers, including such an introduction may perhaps allow them to skip (or at least only peruse) the subsequent dozens of detailed pages.

For example, here's how Justice Liu begins his opinion today (with most citations omitted):

"California’s Child Abuse Central Index (CACI) is a database comprised of substantiated reports of “child abuse or severe neglect.” Certain state agencies are required to forward qualifying reports to the California Department of Justice (DOJ) for inclusion in the CACI. “[I]nformation included in the CACI is available to a wide variety of state agencies, employers, and law enforcement,” and inclusion of a parent’s conduct in the CACI carries significant consequences for the parent. (In re D.P. (2023) 14 Cal.5th 266, 279.) Once listed in the CACI, an individual remains listed until the age of 100, at which point the listing is removed.

The issue here is one we left open in In re D.P.: Whether a parent’s appeal from a juvenile court’s jurisdictional finding survives a mootness challenge where the parent shows that an agency must report the allegation underlying the court’s finding for inclusion in the CACI. The answer is yes. As the Los Angeles County Department of Children and Family Services (the Department) concedes, it is proper for a court to presume an agency will fulfill its reporting duty. Reversal of a jurisdictional finding can redress that harm by prompting removal of the parent from the CACI or by preserving a parent’s right to a grievance hearing to challenge an agency’s failure to reclassify the report as unsubstantiated. Thus, a parent demonstrates “a specific legal or practical consequence that would be avoided upon reversal of the jurisdictional findings” (In re D.P., supra, 14 Cal.5th at p. 273) when the parent shows that the challenged allegation is one that an agency must report for inclusion in the CACI.

Here, the Department acknowledges that it is required to report the allegation against S.F. (Mother) to the DOJ for inclusion in the CACI. There is also no genuine dispute that Mother will suffer harm from being included in the CACI. Because Mother has demonstrated that this specific consequence could be rectified or avoided if she prevails in challenging the allegation on appeal, “the case is not moot, and merits review is required.” (In re D.P., supra, 14 Cal.5th at p. 283.) Accordingly, we reverse the order dismissing Mother’s appeal and remand to the Court of Appeal for further proceedings."

Beautiful. Love it.