People v. Marquez (Cal. Ct. App. - March 30, 2023)

You have to be a true law geek to find this opinion interesting. Because it comes to a common sense conclusion that everyone in the universe would likely understand is a sensible an eminently just result.

Yet, doctrinally, I think it's probably wrong.

Let's first just set the stage, though. Generally, the prosecution has to prove the elements of an offense. So if, for example, a statute says that it's a crime to steal property "worth over $950," then the prosecution has to prove that fact. Ditto if a statute says that you can't molest someone who's "under 12 years of age" or to steal from a bank that's "insured by the FDIC." It doesn't matter that we all know that pretty much every bank is insured by the FDIC or that a particular child is super young; that state still has to introduce some sort of minimal evidence that establishes that these elements are met. That's unambiguously the law.

So say, to take another example, that a statute says that you get two years in prison if you commit arson of an "inhabited" dwelling. We'll all agree that the prosecution has to introduce evidence that the dwelling was indeed inhabited, right? That's similarly true, I think we'll agree, if the statute instead says that you get one year in prison if you burn an "uninhabited" structure, right?

The point is this: if there's a statute that says that you're guilty if you do X in settings involving Y and Z, the state's required to prove each of X, Y and Z. Regardless of whether these things are positive states of events (e.g., that a building was "inhabited") or negative (e.g., that a building was "uninhabited" or that a victim "was not yet twelve years of age").

In the actual case decided today, the relevant statute (Section 368(d) of the Penal Code) says that you get two, three or four years in prison if you're (a) "not a caretaker" of an elder or dependent adult, but (b) embezzle, steal or do other bad stuff to the property of an elder or dependent adult. In the present case, the prosecution established that Ms. Marquez stole around $100,000 from her 80-year old brother in law, who was living with her. But it never introduced any evidence at all about whether or not Ms. Marquez was her brother-in-law's caretaker. Remember: Ms. Marquez is only guilty under Section 368(d) -- the only statute under which she was charged -- if she was not his caretaker. Given this omission, was Ms. Marquez properly convicted of violating Section 368(d)? Did the evidence at trial establish the elements of the offense?

The Court of Appeal says: Yes.

Justice Moore holds that the part of the statute that says you have to "not" be a caretaker in order to be guilty is only a "charging" qualification that's only a hint to the prosecution as to which statute it might want to select in a given case.  I can't agree, and before today's opinion, I don't think I'd ever read any other case in which a substantive portion of a criminal statute was held be be essentially purely advisory and not an actual element. Section 368(d) couldn't be more straightforward: it says that "A person who is not a caretaker who violates any provision of law proscribing theft [etc.] . . . with respect to the property or personal identifying information of an elder or dependent adult" violates that section and can be punished accordingly. Those first seven words are as meaningful -- and equally as elements -- as any other seven words in the statute. If you're a caretaker, you're not guilty of violating Section 368(d).

Sure, you might be guilty of violating a different statute. Just like you might be guilty of violating a different statute (e.g., embezzlement) if you steal from a competent 40 year old rather than an 80-year old. But that doesn't mean you're guilty under Section 368(d). Similarly, here, if Ms. Marquez was in fact the caretaker for her 80-year old brother-in-law who lived with her -- and for all I know, she in fact might perhaps be -- then she's not guilty of the crime for which she was charged. The state has to prove that stuff, and it undeniably didn't do so here.

I'm sure that Justice Moore is right that the Legislature enacted Section 368 because it wanted to punish elder abuse crimes more severely. But that's not dispositive at all as to the meaning of Section 368(d), which applies only to noncaretakers. Similarly, I'm confident that the Legislature probably wanted to make it easier to convict caretakers who commit elder abuse more than noncaretakers, which is why it also enacted Section 368(e), which punishes caretakers who commit elder abuse. (Justice Moore says that "caretakers [] are subject to increased penalties under section 368(e)," but as far as I can tell, that's not actually true, since the penalties for caretakers and noncaretakers are exactly the same in paragraphs (d) and (e); two, three or four years, with the exact same fines etc.)

But here's the rub: you're not guilty of violating Section 368(d) if you're a caretaker. Just like you're not guilty of violating Section 368(e) if you aren't a caretaker. Just like being a caretaker is an element of guilt under (e), so too is not being a caretaker an element of guilt under (e). Just like it's an element of a particular arson offense that a structure not be inhabited, even if there's a different statute that covers arson of structures that are inhabited. And just like it's an element of Section 368(d) that the theft be from an elder even though there are other statutes that cover thefts from non-elders.

It's not that I don't get the foundational common sense principles that underlie the position that the Court of Appeal takes here. Ms. Marquez is surely guilty of some offense, whether it's 368(d) or (e). If she's a caretaker, it's (e), and if she's not, it's (d). 

But that's not how our system works. You actually gotta be charged with the offense for which you're guilty, and if you're charged with an offense and the state doesn't prove the elements of that offense, we gotta find you not guilty. Even if you totally robbed that bank and we're darn well certain that it's FDIC insured. If the state didn't put on evidence of that insurance, end of story: not guilty.

One I started thinking more deeply about this case, I thought there might perhaps be a way out. Maybe we should invent a doctrine that's somewhat similar to the various doctrines involving lesser included offenses. If, say, a person is charged with X, but there's a bigger crime (Y) of which the facts show that she's guilty, and if X is necessarily a lesser included offense of Y, then maybe should be able to uphold a conviction on X given the proof of Y. Sorta the same way that the Court of Appeal sometimes vacates convictions on greater offenses but reduces the crime (or allows retrial on remand) for a lesser included offense.

You see the analogy, right? Here, Ms. Marquez would be guilty of the "greater" crime (Section 368(e)) if she were in fact her brother-in-law's caretaker, so maybe we're okay with her being convicted of the "lesser" crime?

That's definitely not the way the Court of Appeal goes, though. Moreover, the present case involves at least a couple of complexities in that regard. First, the "greater" crime, as far as I can tell, actually is not in fact "greater". The punishment is instead actually the same. Second, the "lesser" offense here has a slightly higher mens rea, since Section 368(d) (unlike (e)) requires that the defendant know or should know that the victim is an elder or dependent adult, whereas (e) imposes strict liability on that element. Now, the greater mens rea might still constitute a "lesser" offense, since if you have the higher mens rea you necessarily also violate the strict liability offense that requires no such showing. It just gets a tiny bit messy.

Or maybe the Court of Appeal could say something instead that's entirely unique to the particular statute at issue here. Since, as I've said, Sections 368(d) and (e) appear to me, anyway, to impose the exact same punishment on caretakers and noncaretakers, perhaps we could create a rule that just says that in such settings, it's not a fatal variance from the charging document to charge (d) even if the facts might otherwise suggest (e). Particularly since the only difference is a lower mens rea, which the jury necessarily found when it decided to convict.

Or maybe we just bite the bullet and say that the prosecution screwed up and omitted an element and leave it at that. It happens sometimes. We're okay with that. Maybe ditto here.

Otherwise, it seems to me we're in a world of hurt trying to figure out what elements of a statute are "really" elements as opposed to merely "directory" and the like. Imagine you're in a state, for example, where Section 15 says that you get three years in prison if you burn a house "owned by another person" and Section 22 says that you get two years if you burn a house "owned by the defendant himself." Let's say I burn a house and am charged under Section 22 and the prosecution never proves it's mine. Am I still guilty? What if the house is not, in fact, mine? Still guilty there too? Does the answer change if I make Section 15 the "lesser" offense; e.g., if burning your own house gets you two years in prison but burning other people's houses only gets you one? (Maybe the Legislature was super concerned about insurance fraud.) Figuring out stuff like that seems a nightmare.

The fact that a statute imposes a "negative" condition on liability -- e.g., "not inhabited" or "not a caretaker" -- doesn't seem relevant. It's still an element. Or at least always seems to have been until today.

People v. Shkrabak (Cal. Ct. App. - March 28, 2023)

This opinion does not exemplify the type of cooperative and loving family dynamic that you'll see in, say, 1950s television shows:

"On the day of the offense, defendant was angry at his mother, saying she was “evil” and deserved to die. She left the house with defendant’s younger brother, who was 12 or 13 years old at the time. She returned an hour later, and defendant said, “Oh, you’re back. You didn’t kill yourself. Aren’t you strong enough to kill yourself?” She went to the kitchen to call 911. Defendant put her in a chokehold and the two struggled. As they struggled, defendant “body-slammed” his mother through a sliding glass door."

An episode of Leave It To Beaver it ain't.

People v. Myles (Cal. Ct. App. - March 23, 2023)

A mother who lived in a house in Oceanside (down here in San Diego) died, and her son in Los Angeles (Jake) occasionally visited it while the thing was in probate; otherwise, it was vacant. Meanwhile, down in San Diego, there's this homeless guy (Andre Myles) who's got serious mental illness issue that, not at all surprisingly, aren't made any better by the guy smoking meth. 

One day, the homeless guy (Myles) is in the area and, whether due to his mental illness -- he thinks that Jake's house was "given to him by the Archangel Michael" because Myles is "Jesus Christ reincarnated -- or simply because he's cold and hungry, Myles breaks into the vacant house. While he's there, Myles drinks a juice box and eats some ice cream that's in the fridge. Meanwhile, Jake (up in LA) is getting these text messages from the security system installed in the house. So early the next morning, Jake drives down to Oceanside and puts his key in the front door to check out what's up. At which point the doorknob turns and standing there inside the house is Myles.

"Surprised, Jake asks Myles, “[W]ho are you? What are you doing here?” Myles told Jake “he lived there and that it was his house.” Myles “seemed serious [to Jake], . . . he said that he lived there, that was his house.” Jake stepped back from the doorway and called 911. When Jake told Myles, “ ‘this is my house homeboy, you’re going to have to leave,’ ” Myles asked him, “this is your house?” Myles also asked, “Are you Jake?” “There was some back and forth regarding whose house it actually belonged to.” Myles then said he would leave if Jake showed him “some form of identification” so “he could confirm that it is, in fact, Jake.” Jake, who was now inside the house, showed Myles his identification. Upon seeing Jake’s identification, Myles went to gather “his stuff" . . . . [and shortly thereafter] two police officers arrived at the home and arrested Myles."

Okay. This stuff happens. Myles broke in and drank a juice box and ate some ice cream. Let's assume that's burglary. Oh, and a year and a half later, Myles tries to get back in to "his" house and hits a window of the house with a rock -- which doesn't break the window -- and all of this is caught on a Ring system, so Myles is charged with attempted burglary for that as well.

What sentence, you think? For a crazy homeless guy breaking into a vacant house that he thinks is "his" and stealing a juice box and some ice cream?

15 years. That's 14 years for the first burglary ("consisting of the upper term of six years . . . doubled to 12 years due to the strike prior, plus two years for the out-on-bail enhancement") plus another 16 months for the second attempt.

My overall reaction: Doesn't that seem, eh, socially excessive to you? I mean, sure, we want to stop crazy homeless people from going into houses that aren't *actually* theirs and drinking juice boxes and the like. But spending all the money to house them in a prison for 15 years? Is that really the most efficient way to solve this problem? That's really the best we can do? Really?

The Court of Appeal reverses this particular conviction on some hypertechnical instructional grounds. But I suspect that Mr. Myles will just be convicted again on remand. Or, failing that, that he'll just be busted yet again for doing it another time, or for entering someone else's house instead.

Fifteen years in prison seems a really long time. Which, I know, I've said before. But really? That's where we're at these days? That's our solution to the problem?

People v. Villalba (Cal. Ct. App. - March 22, 2023)

Respectfully, I'm not at all sure that this opinion does justice to the reason for the trial court's contrary decision.

I fully understand the equities. Mr. Villalba has been in the United States for 30 years -- since he came here from Mexico when he was 13 years old -- and has a wife and six kids here (two of his, three of hers, and one of theirs). He's been a legal permanent resident since 2014. To deport him to Mexico would surely radically disrupt his life, as well as the lives of his family.

But he has a conviction for domestic violence, to which he pled no contest in 2017. Which makes him subject to mandatory removal. So, pursuant to California law, in 2022 he filed a motion to withdraw his plea, on the theory that he wouldn't have pled guilty if he knew he was subject to being deported as a result.

The prosecution didn't oppose his motion, but the trial court denied it anyway. The Court of Appeal reverses and orders that Mr. Villalba be permitted to withdraw his plea.

I agree with the Court of Appeal that the evidence shows fairly strongly that Mr. Villalba was not given awesome advice by his attorney with regard to the immigration consequences of the plea. His attorney seems to have told him that he might be able to avoid being deported if he retroactively got his sentence reduced, which isn't really true; the guy was basically definitely going to be deported.

On that basis, the Court of Appeal holds that Mr. Villalba gets to withdraw his plea. The Court of Appeal hold that given the bad advice he got from his attorney alongside "the sentencing court’s confusing and contradictory advisement" about the consequences of the plea, Mr. Villalba did not, in fact, know that he would be subject to deportation on the basis of his plea.

Okay. I get it.

But here's the thing: The trial court's advisement was not, in my view, "confusing and contradictory" at all.

The trial court told him he'd be deported. For sure. The only thing that was "conditional" about that was that he'd only be deported if he wasn't a U.S. citizen. Which Mr. Villalba indisputably wasn't. Here's the exact thing that the trial court said at the time when taking his plea:

"I don’t know if this applies to you or not. I don’t need to know. I just need to advise you that if you’re not a citizen of the United States, your plea of no contest will result in your deportation, denial of naturalization, denial of citizenship, denial of reentry into the country.” The court then asked, “Do you understand that?” and defendant replied, “Yes, Your Honor.”"

It's fairly clear to me what the trial court expressly told him. It said: "Look, I don't know if you're a US citizen, and I don't need or want to know; it won't affect my sentence. But what I'm telling you is this: if you're not a citizen, as a result of your plea, you're getting deported. Do you get that?" To which Mr. Villalba said: "Yes."

That's not "confusing and contradictory" to me. It's instead fairly clear.

Now, if the Court of Appeal wanted to, I could see them saying that the contradiction between what Mr. Villalba was told by his lawyer (i.e., that he might not be deported) versus what he was told by the court (i.e., that he would be deported), Mr. Villalba didn't necessarily understand the full consequences of his plea. That I could see. It'd then be a question of fact on remand; what, in fact, did Mr. Villalba think at the time? 

The trial court thought that, whatever Mr. Villalba was told by his attorney, he was definitely told by the court that he'd be deported, so as a factual matter, Mr. Villalba knew -- notwithstanding his denials to the contrary. That seems like a factual determination, as to which we generally give the trial court some deference. It's hard for me to see the Court of Appeal saying that as a matter of law that when your attorney tells you one thing (as here) but the trial court tells you a directly different thing (as here) that you necessarily thought that your lawyer was right and the judge was wrong. It is possible? Sure. But not definite. It's a fact issue. Or so I'd have thought.

So, look, maybe Mr. Villalba should be allowed to stay. Again, I see the equities. And, if it were me, I suspect that, as a factfinder, I might well find that Mr. Villalba would not, in fact, have pled no contest if he knew for sure that he'd be deported. Because he had lots of ties to the US, and might have been willing to roll the dice.

But maybe not. The truth is, he drunkenly punched his wife in a restaurant parking lot, and there were plenty of witnesses. That's almost certainly going to get you convicted regardless. Deportation was thus almost certain however he pled, so he might well have thought that a no context plea at least gives him some favor with the judge and reduces his sentence.

Maybe not, of course. But it's a factual question. One that I could see going either way.

But the Court of Appeal sees it otherwise. I'm just not 100% sure that's right. Or really gives sufficient credence to why the trial court here did what it did, or what the trial court in the underlying case meant when it told Mr. Villalba that his plea meant he'd be deported if he wasn't a U.S. citizen.

In re Marriage of Sullivan (Cal. Ct. App. - March 21, 2023)

Two lawyers are getting divorced in San Diego. Both of them are in the Navy; one on active duty, one in the reserves. They have two children. The resulting divorce could be a lot messier than it is, but the big fight is whether California has jurisdiction to divide the wife's military pension.

Justice Buchanan's opinion says "Yes," and its reasoning appears sound. I particularly liked footnote four, which reads:

"In Tucker, the court ruled that a service member “may both agree California has jurisdiction over nonpension issues and at the same time argue California has no power to divide his or her military pension.” (Tucker, supra, 226 Cal.App.3d at p. 1256.) Although this may be so when the service member is the responding party in a dissolution proceeding, as in Tucker, it is questionable whether a service member who files for dissolution in a California court may simultaneously withhold consent to the court’s exercise of jurisdiction over her military pension. This would be contrary to the usual rule that the plaintiff who chooses the forum impliedly consents to personal jurisdiction in related matters. (Sea Foods, supra, 150 Cal.App.4th at p. 786; Nobel Farms, supra, 106 Cal.App.4th at pp. 658–659.) Moreover, Congress’s concern about forum-shopping does not apply to a service member like Lisa, who is the petitioner and voluntarily chose the forum herself. We need not decide this question, however, because Lisa did not withhold her consent to the court’s jurisdiction over her military pension when she filed her dissolution petition and specifically requested judicial confirmation of her separate property and her interest in any community property."

That sounds right to me too.

A.H. v. Superior Court (Cal. Ct. App. - March 17, 2023)

This is doctrinally merely a case about jurisdiction; in particular, whether California retains jurisdiction over dependency matters when it initially exercises jurisdiction (without objection by another state) even though the other state (here, Texas) says that it might reassert jurisdiction if the parents subsequently move back to that state. The answer is: Yes.

But factually, the case provides an insight into what sometimes happens behind closed doors. Here, in a motel in Buena Park.

The facts are as follows, with a trigger warning that it's about how some parents punished their kids:

"On Monday, August 24, 2020, at about 1:21 a.m., Buena Park police were dispatched to a motel room for a child abuse investigation. The police saw bruising and welts on the boy’s face, as well as on his arms and shoulders. The pattern of bruises indicated he had been hit with the studded side of a belt. The boy said he had fallen off a swing three weeks earlier; he later said he had fallen while running. The boy initially did not want to show his back to police, who eventually saw bruises on his back, legs, and torso. It was later discovered the older girl had multiple bruises on her legs. 

Mother said she had “whooped” her son two nights ago, but nothing had happened that night. Mother said she disciplined her son for being disrespectful. Mother said she was so enraged that while she was hitting the boy with the belt, she wasn’t paying attention to the marks on his body. When asked about the injuries to his face, Mother said she did not know about those injuries, and she was “just seeing that.” Husband told police the boy was playing outside and fell, causing the injuries to his arms and face. The family had been staying at the motel since August 1, 2020. . . .

During his CAST interview, the boy initially stated he sustained the injuries when he fell and was “nervous” about speaking about what happened. He explained he was instructed “not to say what goes on in the house cause they don’t want to go to court.” The boy said when he gets hit with a belt, “I can’t scream cause the people next door will call the police.” During the “worse whooping” a few weeks earlier, he was hit in the leg with a belt until blood came out. The boy explained that if Mother or Husband ever found he was talking about the whoopings: “They might whoop me.” The boy eventually admitted the marks on his face were from Mother hitting him with a belt. When shown a picture of the marks on his back, he teared up. The boy said Mother had hit him with a belt on his back until Husband grabbed her and told her “that’s enough.” Mother told him that if the police ever came to speak to him that she and Husband need “to be present because bad things can happen when the police are there.”

During her CAST interview, the older girl said she was asleep when her brother got whooped that night. She stated someone called the police because they saw he “had owies everywhere.” The older girl said there were things she had been told not to say. She stated that if she disclosed what happened, “Momma is going to whoop me some more.” The older girl disclosed she would scream when she gets whooped. She said Mother hits the children with a black jump rope that she twists in her hand. The older girl had marks on her legs, back, behind and forehead.

The boy later disclosed to Caregiver other multiple instances of abuse. The boy said that he and the older girl “had to take their whoopings in silence. They were both made to stand in the comer for hours at a time and not permitted to sit. They were withheld food if they were on punishment.” He disclosed “this went on for days at a time.” The boy stated “his mom would whip him so hard on his hamstrings that he couldn’t lay down to sleep at night.”

The boy talked about one incident where he “was hurting really bad and he moved his foot so she taped his feet to the floor. She continued to whoop him but he said that he broke free and started running. He said he was going to run to his grandma[’]s house but his mom got in the car and caught him.” The boy said Mother went to the store and bought “super glue. She put it on my feet [and] my hands and stuck all of them to the floor and then whoooped me. She used a knife to free one of my hands and then gave me the knife to free my other hand and my feet.” He disclosed another incident where Mother “strapped him to the couch with tape, knocked down the curtains and rod . . . and then proceeded to whoop him with the rod.” The boy said this punishment “‘was the worst one ever’” because Mother “laid him flat out on the couch face down and sat on him for one hour.” The boy disclosed that “he couldn’t breathe.” 

The boy disclosed that on the night of the parent’s arrest, Mother “started off trying to whoop him but he was moving around too much. She told him that she was going to kill him. The mother instructed [Husband] to take over and stated ‘now you’re really going to die.’ The boy said that [Husband] was taking it too far and he was screaming to his mom ‘help me he’s going to kill me’ but she was ‘just standing there watching.’ He said that he could feel his hits ‘all the way to my bones.’”

The boy was eight years old. The girl was five.

Notice all the classic attributes: the kids are super reluctant to tell what happened, the parents have told them to be silent, etc. etc.

Different people can (and do) have different takes on corporal punishment. For example, my practices as a parent differs from those of my parents. Nonetheless, one advantage of a bright-line rule is the lack of a need to figure out how much hitting is too much. Clearly, we'd all agree that the hitting here went way too far, whether in California, Texas, or anywhere else. Having to not make those decisions on the fly is at least one advantage of a categorical approach on the subject.

You generally hate to see kids taken away from their parents. But here, not so much.

Kirschmeyer v. Helios Psychiatry (Cal. Ct. App. - March 15, 2023)

I'm certain that many doctors prescribe various medications to their friends and family members. I have no doubt about that. At some level, I also don't have a problem with it. It's a ton easier and cheaper to talk to your relative than it is to make an appointment, schlep to a doctor, pay the co-pay or deductible, etc. So if the doctor her was prescribing, say, antibiotics, I'd say that this dispute was a big nothingburger.

But she wasn't. First off, the doctor here -- Jennifer Dore -- was prescribing Adderall and Klonopin, which are drugs with a serious abuse potential. Second, she's a psychiatrist, not a regular old "say ah" doctor. Psychiatrists shouldn't (generally) be treating family members. You need more distance. Third, there's an underlying dispute about whether some Ketamine -- another potentially abused drug -- was perhaps diverted as well.

Given those facts, I have zero problem with the Medical Board of California issuing a subpoena to obtain the medical records of the family member to whom Dr. Dore gave these prescriptions. If there are in fact no medical records -- or insufficient medical records -- to show a valid reason to prescribe these drugs to the relevant family member, that's worth knowing. For sure.

Would I pull the medical license of any doctor who prescribed Adderall and/or Klonopin to a family member without a ton of backup medical records? Nope. Probably not. I could potentially see reasons for doing so, and even if I didn't, I might not think that it was such an egregious violation that it called for bouncing a person entirely from her chosen profession.

But issuing a subpoena to get at the underlying records? That's entirely proper. Inquiring minds totally legitimately want to know.

Which is precisely what the Court of Appeal holds here. 

People v. Ngo (Cal. Ct. App. - March 13, 2023)

I just want to republish two quotes from this opinion by Justice Ramirez:

(1) "Defendant My Ngo was a “shotcaller” in a Vietnamese gang. In 2000, when he was 19, he committed murder for hire; for $2,000, he shot the victim in the head." (The victim died.) My reaction: Seriously?! It only costs $2,000 to get someone killed? Wow.

(2) "Defendant, a gang shot-caller, committed murder for hire in cold blood. The likelihood that a future district attorney would recommend reducing his conviction to manslaughter is infinitesimal. Even if this fantasy materialized, almost certainly the district attorney would recommend a sentence and insist that defendant agree to it." My reaction: Uh, yeah. I'm kinda agreeing with you on that one, Justice Ramirez. At least in San Bernardino county, where this case arises. Though in, say, San Francisco? Hmmmm.

Seaview Trading v. CIR (9th Cir. - March 10, 2023)

I get it. You author an opinion in a tax dispute and think that the IRS acted too late, so find in favor of the taxpayer. One of your Ninth Circuit colleagues dissents, but you prevail because the district judge that is sitting by designation from Vermont is on your side. But even though it's just a tax dispute, the court takes the case en banc, and despite the fact that you're drawn for the en banc panel (yay!), you lose (boo!).

So, understandably, you file a dissent from the en banc opinion, which in you argue your side, with the same arguments that you already made in your now-vacated panel opinion. But you also up the ante a bit, telling the world that the en banc opinion will totally screw things up and is supremely wrong on the merits. You start your dissent with the following line: "Today, our court throws our tax system into disarray." And then get into more detail on just how wrong you think today's decision is. Claiming that the en banc opinion is not only "perplexing" but also conflicts with both "the Tax Code and common sense," and that the correct resolution of the case is "straightforward" and not at all complicated.

All that rhetoric is perhaps understandable. But I must say that it's a little strange coming from an en banc decision in which Judge Bumatay's opinion on the matter gets outvoted 10-1, without a single judge on the en banc panel -- even those judges who typically vote alongside Judge Bumatay -- adopting his position in this one.

Sometimes you're totally convinced you're right even though the rest of the world, including some very bright people, says you're wrong. Other times, a bit more modesty is perhaps warranted.

People v. Arreguin (Cal. Ct. App. - March 9, 2023)

The majority opinion by Justice Gilbert says relatively nice things about the concurrence. To wit, it says: "We are sympathetic to the views expressed by our colleague Justice Yegan in his well-reasoned concurring opinion." 

In turn, Justice Yegan is somewhat sympathetic to -- and complies with -- his duty to follow controlling California Supreme Court precedent.

But Justice Yegan isn't shy about expressing his opinion on the matter. Saying, in part: "I concur under compulsion of People v. Strong (2022) 13 Cal.5th 698 (Strong). The Court of Appeal is bound to apply the holdings of the California Supreme Court. . . . I reserve my right First Amendment right to express disagreement. (People v. Musante (l980) 102 Cal.App.3d 156, 159, conc. opn. of Gardner, P.J. [“I fully recognize that under the doctrine of stare decisis, I must follow the rulings of the Supreme Court, and if that court wishes to jump off of a figurative Pali, I, lemming-like, must leap right after it. However, I reserve my First Amendment right to kick and scream on my way down to the rocks below”]; see also Witkin, Manual on Appellate Court Opinions (1977) at pp. 168- 169 [just because the Court of Appeal is bound does not mean it is gagged].)"

Everyone gets to say what they think. That's one of the great things about America.

Even if you're on the Court of Appeal.

People v. Oliva (Cal. Ct. App. - March 9, 2023)

I discussed yesterday a lawsuit against In-N-Out Burger. Today, Justice Miller issued this opinion, the first line of which is: "David Bustamante (the victim) was shot and killed in the parking lot of an In-N-Out restaurant on Christmas Day in 2015." This leads me to the tentative conclusion that, in a creative (but fairly shocking) use of guerilla marketing, In-N-Out Burger is now the official sponsor of the opinions in the California Appellate Reports.

I might add that the first couple of sentences of the opinion were perhaps slightly confusing. They read: "David Bustamante (the victim) was shot and killed in the parking lot of an In-N-Out restaurant on Christmas Day in 2015. The victim was giving a tattoo to Nancy A. when he told her he had to go out to meet a friend, who he was going to give tamales that his mother had made." Which led me to say to myself: "Wait. Why was someone giving a tattoo to someone in the In-N-Out parking lot?"

As I read further, I finally understood that, oh, he was giving her a tattoo in his home, and then later drove with her to the In-N-Out, where he was shot.

Which makes sense. I mean, you could give someone a tattoo in the In-N-Out parking lot. Sort of like a prison tattoo. But that's not what was going down here.

Before the murder, anyway.

Piplack v. In-N-Out Burgers (Cal. Ct. App. - March 7, 2023)

I was keenly interested in reading this opinion at the outset because it involves a lawsuit against In-N-Out Burgers, which has a fair amount of cachet in the youthful fast food world. Who's suing such an esteemed burger joint, and for what?

Alas, it's just another one of these post-Viking PAGA arbitration cases. On the one hand, California says that you don't generally have to arbitrate PAGA claims since they're representative actions. On the other hand, the Supreme Court recently said that the FAA requires the plaintiff to arbitrate his individual PAGA claim. So what do you do with the representative claims when the individual has to arbitrate his own? Can the plaintiff still sue in court in a representative capacity -- e.g., with standing -- even though he's not go claims of his own in court?

The Supreme Court said "No." Since the individual can't bring his own claims in court, he can't still have his representative claims in court either.

But the Court of Appeal says: "Uh, actually, Supreme Court, you're wrong. I know you think you know what California law is on this issue. But, respectfully, you're not the last word on that one. We're going to still let the employee sue in court for his representative claims."

Which is pretty darn bold. Yet entirely within the province of a state court, which has the final word on the contours of state law, including but not limited to standing under state law (which may be -- and is -- different than federal standing principles).

So, in the end, an interesting opinion less because of who the defendant is and more for what the Court of Appeal actually holds.

Twitter v. Garland (9th Cir. - March 6, 2023)

We teach law students that prior restraints on speech imposed by the government are so dangerous that we don't generally allow them. But the Ninth Circuit today holds that this particular prior restraint is just fine.

Twitter wants to let the public know generally how many subpoenas it receives from the government each year that allegedly relate to national security (as well as what type). The federal government doesn't allow that, and instead calls this information "classified." So Twitter -- and its employees -- know full well how many subpoenas are received, but can't tell anyone. Under penalty of imprisonment.

That's a prior restraint. One that the Ninth Circuit holds is just fine, since "national security" would be allegedly harmed if the public knew what a plethora of Twitter (and Google, Microsoft, Yahoo!, etc.) employees already know. We have to make sure that the public isn't aware of how many subpoenas tech companies get each year, because our "enemies" could use that information to harm our country.

It's definitely about that, not simply a desire to keep the public in the dark. Because there's no precedent for the government using alleged national security concerns as a means of hiding things from the public.

If the controlling question at issue was whether the existing regulation -- which allows some disclosure -- allows enough disclosure, I could see reasonable arguments on both sides. But the opinion by Judge Bress goes much further than that, and is extremely deferential to the government's alleged interest in keeping these things secret. (Judge VanDyke's concurring opinion is even more deferential.)

Were the question limited to whether the government can stop Twitter from telling people that it didn't receive, say, any subpoenas in a particular category, I could see how that might be legitimately classified. But I would think that, particularly in the context of a prior restraint, it wouldn't be permissible for the government to try to hide, say, that 4500 subpoenas (rather than 450) were issued annually to Twitter. I'd think that the public would legitimately want to know that, and that the disclosure of that fact outside of Twitter employees themselves wouldn't harm national security pretty much at all, much less at a level that authorizes a prior restraint.

But what do I know? It's a Brave New World these days.

Breathe Southern California v. American Lung Ass'n (Cal. Ct. App. - March 3, 2023)

When considered rationally, I imagine that any litigation between any two entities should normally be viewed as something "sad to see," since it necessarily involves substantial deadweight losses to all of the parties and they pay their lawyers instead of doing something more productive with the money.

That said, I still think that this opinion is sad to see. Not because the Court of Appeal necessarily decides the case the wrong way, but rather because it's a fight between two nonprofit organizations that do public interest work (Breathe Southern California, on the one hand, and the American Lung Association on the other) as to which entity is entitled to various bequests made -- but not yet funded -- during the period in which these two nonprofits were affiliated.

You just gotta feel bad that instead of working the dispute out informally, the two organizations had to sue each other. Particularly since the litigation spanned quite a period of time, including multiple trips to the Court of Appeal. Too bad that money was spent on lawyers rather than on something more productive, right?

But, again, you could say the same thing about pretty much every other lawsuit in the universe as well.

Still.

People v. Ung (Cal. Ct. App. - Feb. 28, 2023)

Justice Greenwood is a lot nicer than I would have been in this opinion.

Kalvin Ung stole a ton of cryptocurrency from various people back in 2018 -- roughly $1.6 million worth of the stuff. He was convicted and sentenced to ten years in prison.

In late 2021, the court ordered Mr. Ung to give restitution to the people he stole from; namely, that he give 'em back the crypto he stole. Mr. Ung (and his lawyers) contended both below and on appeal that such an order was improper. According to Mr. Ung, the value of the crypto back when it was stolen was only $1.6 million, so even though it's worth almost $16 million now (!), he can only be ordered to return the original valuation of $1.6 million. Apparently Mr. Ung thinks he gets to keep the remaining $14 million he stole.

There's a word for that; chutzpah.

The argument doesn't work. Below as well as on appeal. When you steal an item with a fluctuating value, you can be ordered to give the stolen property back as restitution. The restitution order doesn't need to be a set dollar figure. It can simply be -- as here -- the thing you stole.

Which not only is the law, but totally, 100% makes sense. You don't get a $14 million bonus just because the stuff you stole is worth a lot more now than when you originally stole it.

Mr. Ung's argument to the contrary borders on the frivolous. It's not frivolous, mind you; not legally, anyway. It's just clearly, unambiguously, and indisputably totally one thousand percent wrong.

Not even an argument, in my mind, worth making.