In re Casey (Cal. Ct. App. - Sept. 28, 2023)

The same time-worn story gets played out in many of these "potentially paroled murderers" opinions. There's a murder, Defendant gets convicted, Defendant spends a ton of time (e.g., decades) in prison, Defendant performs super well in prison, and -- for some people -- the Parole Board, after several denials, finally grants parole.

But then, pretty much invariably, whoever the Governor is then overturns the parole grant. Why? Because pretty much every single one of them, of whatever political stripe, doesn't want to be blamed for it if the person granted parole subsequently does anything wrong. That wouldn't look good in a later election, so why risk it? Thank you, Willie Horton.

Then the standard process continues, with the would-be-paroled inmate filing a writ petition, claiming that there's no substantial evidence that supports the Governor's decision, and the subsequent resolution of that issue in the Court of Appeal (regardless of which way the trial court decided). All the while, we pretend that the Governor's decision is "neutral" even though we all know full well that we're really just engaging in Kabuki theatre.

But whatever. That's the play. So everyone does their part.

Today's opinion is yet another iteration. There's a majority opinion and a dissent, so reasonable people could (and do) come out on both sides.

The hard thing for the defendant here, however, is the nature of the underlying offense. Yes, defendant was super young when he committed the crime, which is heavily in his favor, as is the fact that he's now served multiple decades in prison, with a fairly impressive record therein.

But the facts of the murder are sufficiently chilling that you can probably figure out what result ends up being adopted by the majority notwithstanding the dissent. Here they are:

"Royce Casey is serving a life term for the brutal murder of a 15-year-old girl. After Casey served 23 years three months, the parole board granted him parole. The Governor reversed the parole board’s decision and denied Casey parole on the ground that Casey lacks insight into his crime. The superior court granted Casey’s petition for a writ of habeas corpus. The People appeal from the court’s order granting the petition. . . .

In 1995, when Casey was 17 years old, he was infatuated with “death metal” music. He started using drugs. He discussed with Jacob Delashmutt, 17 years old, and Joe Fiorella, 15 years old, sacrificing a virgin as part of a devil-worshipping ritual. The three crime partners planned the murder for several months.

Elyse Pahler, 15 years old, attended the same high school as the three partners. On the evening of July 22, 1995, Delashmutt and Fiorella told Casey that they had lured Pahler into joining them at a remote location in Arroyo Grande. They told her they were going to use drugs with her. Later that evening, Pahler joined them at the remote location to smoke marijuana.

After 15 to 20 minutes, Delashmutt pulled off his belt and began to strangle Pahler. Fiorella pulled out a hunting knife and stabbed her four to six times in her neck. Delashmutt took the knife next and stabbed her four or five more times in her neck. Finally, Casey took the knife and stabbed her four times in her back. As Pahler moaned on the ground, Casey stomped on the back of her neck.

After it was clear Pahler was dead, Delashmutt started to pull off her pants. The boys had discussed having sex with her after she was dead. Instead, Casey said that they should leave. They buried Pahler in a shallow grave and left the area.

About eight months later, with the crime still unsolved, Casey confessed his commission of the crime to a clergyman. The clergyman contacted law enforcement. Casey described the murder to the authorities and led them to Pahler’s body."

You can probably see why the Parole Board eventually voted to grant Casey parole. He was 17. He served 23 years in prison. He confessed and turned himself in to a clergyman. He performed admirably in prison.

The majority nonetheless reverses the habeas grant. In part, I suspect, because the underlying facts of the offense are undeniably chilling.

Doe v. Superior Court (Cal. Ct. App. - Sept. 28, 2023)

I say this with all sincerity: Thank you, Justice Petrou.

(Compare today's modification of the opinion with what I suggested three weeks ago.)

People v. Bingham (Cal. Ct. App. - Sept. 26, 2023)

The key piece of evidence in a domestic violence prosecution is a 911 call from the victim in which she says she was beat up by her boyfriend. As in many domestic violence cases, here, the victim is the only eyewitness besides the alleged perpetrator to the actual crime, and is the only one who can testify as to how she received her injuries.

Despite the fact the key piece of evidence is an (admissible) hearsay statement from the victim's 911 call, the trial court erroneously refuses to allow multiple (admissible) hearsay statements from the victim that contradict her statements in the 911 call and in which she repeatedly tells the police -- as well swears under oath -- that the defendant did not assault her, and was not guilty of the offense.

The Court of Appeal holds that this evidence was wrongfully excluded but that this was . . . harmless error.

Given that the key evidence of the defendant's guilt here is the victim's statement that he was guilty, it's got to be incredibly rare that it's allegedly harmless error to exclude the victim's contrary statements that he's actually innocent.

Harmless error rulings like that on appeal sort of make the actual trial kinda irrelevant, no?

In re Marriage of Simonis (Cal. Ct. App. - Sept. 26, 2023)

I always think of Alpine County, California as a sleepy little rural community. It only has 1,200 (!) residents, and the crime rate doesn't seem that high, so you very rarely see cases come out of there. Moreover, although some farming goes on up there, it's not a rich area: the median family income is $50,000/year.

Given all that, I was surprised to read this opinion, which involves a married couple of 27 years up there going through a divorce. They were farmers and raised cattle, which was not massively surprising. What was, however, somewhat surprising is that the couple were multimillionaires, with extensive holdings and (as a result) somewhat strongly contested divorce proceedings.

That's a lot of money for what I had heretofore thought was a rural community without a large number of really wealthy people.

Kelsey v. Garrett (9th Cir. - Sept. 21, 2023)

There's probably no one more bummed that Judge Watford decided to make more money than Zachary Kelsey.

At a teenage bonfire, Mr. Kelsey got into a fight with another participant and hit the guy in the face a couple of times. The guy died. Kelsey is subsequently tried and convicted of second degree murder at a trial in which his lawyer made no closing argument and didn't consult a forensic pathologist to figure out why the victim died. Kelsey was sentenced to 10 to 25 years in prison, but back in May, the Ninth Circuit reversed the district court's denial of Kelsey's habeas petition on grounds of ineffective assistance of counsel.

So at that point, it was a good 2023 for Kelsey. A chance to maybe get out of prison for a fight that went horribly wrong.

Judge Watford was on the panel that decided Kelsey's case. He'd been on the Ninth Circuit for a little over a decade, and decided it was time to move on. So, exactly a week after the opinion in Kelsey's case, Judge Watford resigned from the Ninth Circuit and joins Wilson Sonsini.

Thereafter, as usual, there's a petition for rehearing. Judge Friedland is drawn to replace Judge Watford. Since the original decision was a split one -- Judge Watford had joined Judge Gould's majority opinion, and Judge Graber dissented -- there's now a chance that the panel reverses its decision.

Which, today, it does. The panel withdraws the original published opinion and replaces it with an unpublished memorandum disposition that affirms the district court and keeps Mr. Kelsey in prison. Indeed, in the memorandum disposition, Judge Gould -- the original author of the opinion granting relief -- doesn't even dissent. So now it's unanimous the other way.

Undoubtedly to Mr. Kelsey's substantial chagrin.

U.S. v. Marschall (9th Cir. - Sept. 20, 2023)

This guy's selling "medicines" that obviously don't work to gullible people. So he gets criminally charged, and I have little problem with that.

Though I suspect that there are a wide, wide variety of people -- including but not limited to people and/or corporations that advertise on television -- who do the exact same thing.

He gets eight months in prison. Not a lot. Fine with me. Just stop doing it, please.

Ditto for everyone else.

Santa Paula Animal Rescue Center v. County of Los Angeles (Cal. Ct. App. - Sept. 18, 2023)

I have no idea why the County of Los Angeles is so desperate to kill dogs in its custody that a no-kill animal shelter wants to take over and keep alive. Much less why LA would want to waste money fighting a lawsuit (and appeal) in an attempt to keep a policy in place that kills dogs that don't need to die.

What whatever its motivation, it loses today's appeal. And I'm glad it does. Because unnecessary killing seems, well, kinda unnecessary.

Plus, given the underlying statute, you'd think that LA would have figured out -- correctly -- that it was likely to lose on appeal. Section 31108 of the statute says: "Except as provided in Section 17006, any stray dog that is impounded pursuant to this division shall, before the euthanasia of that animal, be released to a nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal rescue or adoption organization if requested by the organization before the scheduled euthanasia of that animal." "Shall" probably means, "shall," right? So unless the exception in Section 17006 applies, it seems like LA has to not kill the dog -- i.e., give it to the no-kill shelter -- upon request. Section 17006, in turn, creates only the following exceptions: "Animals that are irremediably suffering from a serious illness or severe injury shall not be held for owner redemption or adoption. Except as provided in subdivision (b) of Section 31108 and subdivision (c) of Section 31752, newborn animals that need maternal care and have been impounded without their mothers may be euthanized without being held for owner redemption or adoption.”" But the two dogs that the approved non-profit here wanted to take over -- Gunnar and Winston -- didn't fall under that exception. They weren't ill or injured or newborns without mothers. They simply had "behavioral problems" that LA County thought meant that they wouldn't be quickly (or perhaps ever) adopted.

But, as Justice Moor rightly holds, that's irrelevant. It's not an exception under the statute. If the approved nonprofit is willing to take them, the County can't kill them. The nonprofit can try to adopt them out and take care of them in the interim. Their call, not the County's.

The trial court held otherwise, which is why (I suspect) the County thought it could win. And, maybe, there is a legitimate reason why a public entity that really cares about stray dogs would rather kill a dog than give it (upon request) to an approved no-kill animal shelter. I just can't think of any offhand.

Regardless, even if I could, that's not what the statute says. So I'd follow it. As the Court of Appeal does here.

At the same time, Justice Moor holds that the statute does not require the County to give up dogs to any nonprofit that makes a request under the statute. I'm fine with that result, but I'm fairly confident that a pure textualist would be compelled to go the other way. The full statute says: "Except as provided in Section 17006, any stray dog that is impounded pursuant to this division shall, before the euthanasia of that animal, be released to a nonprofit, as defined in Section 501(c)(3) of the Internal Revenue Code, animal rescue or adoption organization if requested by the organization before the scheduled euthanasia of that animal. The public or private shelter may enter into cooperative agreements with any animal rescue or adoption organization." That last part -- the "may" section -- nowhere qualifies the first ("shall") part, or says that the "shall" is trumped by the subsequent "may". So I agree with Justice Moor that, as a policy matter, it's kinda silly (and I don't think the Legislature's intent) were the statute to allow any nonprofit -- however abusive or whathaveyou -- a right to divert stray dogs, or to have the IRS be the only determinant of which nonprofit shelters could legitimately divert. Just because I bother to incorporate a nonprofit doesn't mean I should necessarily be entitled to grab -- as some might -- every single dog in the County that would otherwise euthanize. You gotta have space for them, food, blah blah blah.

But, to be clear, that's not the way the statute facially reads. It shall the dog "shall" be released to a nonprofit. Period. So if you're a pure textualist, seems to me like you've got to come out that way.

But I'm not, so I don't.

Garcia v. Gateway Hotel (9th Cir. - Sept. 15, 2023)

A holding by any other name would smell as sweet. But do you have to follow it?

That's the disputed issue in this morning's Ninth Circuit opinion.

Background Truth No. 1: When a prior Ninth Circuit opinion holds X, a subsequent Ninth Circuit panel has to follow X even if the law should actually be Y. Only an en banc court can reverse circuit precedent.

Background Truth No. 2: Background Truth No. 1 doesn't apply if there's an intervening Supreme Court opinion that changes the result. So if Panel 1 holds X, but the Supreme Court later holds Y, Panel 2 can permissibly rule Y instead of X.

Everyone agrees on the above two Truths.

But today's opinion involves a variant.

What's the rule if (1) Panel 1 holds X, (2) the Supreme Court later holds Y, and (3) Panel 2 then holds X, relying on Panel 1 and not discussing the Supreme Court's intervening opinion? Can Panel 4 hold Y, or is it bound to follow Panel 2's holding of X until reversed en banc?

Where do you come out on this one?

Wherever you come out, you've got some support on the Ninth Circuit. Judge Bade says that if, as here, Panel 2 didn't discuss the intervening Supreme Court opinion, then Panel 3 can rely on that opinion to change circuit precedent (even though Panel 2 didn't). Judge Hurwitz disagrees, and says that Panel 2 made a holding that X is still true, so Panel 3 is bound to follow that holding until reversed en banc.

For now, the rule is the one articulated by Judge Bade, since Judge Tashima agrees with her. It's all kind of silly, akin to (in the present case, anyway) discussing how many angels can dance on the head of a pin, because all three judges on the panel here agree -- as would (I strongly suspect) an en banc Ninth Circuit -- that the rule here should be Y instead of X. So if the Ninth Circuit wanted to take this opinion en banc, I'm sure it could easily dispense with the particular issue here by saying that regardless of whether the majority or dissenting opinion here is correct, the proper rule is Y, so the issue of what a panel is allowed to do is moot.

But it nonetheless remains an important procedural issue. What exactly is the power of a Ninth Circuit panel in the face of (allegedly) conflicting precedent?

For now, at least, that power is fairly expansive.

Rudnitskyy v Garland (9th Cir. - Sept. 14, 2023)

Sometimes the summary at the outset of the opinion (helpfully) tells you pretty much all you need to know. Like this opinion by Judge VanDyke this morning:

"Petitioner has been a lawful permanent resident (LPR) of the United States since 2003. Since that time, he has been convicted of various crimes, including theft, criminal trespass, a DUI, and, as relevant here, possession of heroin in violation of Oregon law. After he received a notice to appear (NTA) initiating removal proceedings, Petitioner applied for cancellation of removal. Such discretionary relief is available to noncitizens who establish a continuous residence in the United States for seven years, subject to a “stop-time rule.” This case turns on the interpretation of the stop-time rule because Petitioner committed the heroin offense within the seven-year period but was convicted after the period ended.

We conclude that the agency did not err in deciding that the stop-time rule is calculated from the date Petitioner committed a criminal offense that rendered him removable, rather than the date he was convicted. We do so because: (i) the text of the stop-time rule set forth in 8 U.S.C. § 1229b(d)(1)(B) provides that once a conviction renders a noncitizen removable, the commission of an underlying offense is deemed to terminate the seven years of continuous residence required to be eligible for cancellation of removal; (ii) the Supreme Court adopted this interpretation in Barton v. Barr, 140 S. Ct. 1442, 1449–50 (2020); and (iii) every other circuit to decide the question (as well as the Board of Immigration Appeals (BIA)) agrees."

You can, of course, read the other 18 pages of the opinion. But it's pretty much more of the same.

Impossible Foods Inc. v. Impossible X LLC (9th Cir. - Sept. 12, 2023)

It's a case involving the scope of specific personal jurisdiction in a particular trademark context, so it's not an issue that you'd think would generate much heat. Moreover, although Judge Bress authors the majority opinion and Judge VanDyke dissents, these jurists agree with each other in a wide variety of cases, so even though their respective styles often differ, you'd otherwise expect them to be somewhat simpatico.

Judge Bress has nice things to say about Judge Freeman's decision below -- even though he ultimately disagrees with her -- saying things like "In a thoughtful opinion, the district court acknowledged that the personal jurisdiction question was 'a close one.'"

By contrast, check out the type of language that Judge Bress repeatedly employs to describe Judge VanDyke's dissent:

"Impossible Foods did not waive its argument that Impossible X’s trademark building activities in California supply a basis for personal jurisdiction. The dissent belabors this point, but it is clearly wrong."

"The dissent is thus quite plainly mistaken . . . ."

"Although we agree with the dissent that the questions presented in this case are difficult, we are duty-bound to resolve them. We cannot avoid them through an inaccurate accounting of the proceedings below."

"[I]t is hardly novel to say that a company that operated from California for years availed itself of that state’s privileges and directed its activities there. The dissent’s hyperbolic assertion that we have engaged in “potentially the most radical reimagining and expansion of specific jurisdiction in decades” is obviously false."

"The dissent is thus clearly wrong in suggesting that under our decision today, a plaintiff like Impossible Foods could bring a declaratory judgment action like this one without any material threat of an enforcement action by the defendant. We of course hold no such thing."

Strong stuff. (Lots of adverbs.)

In re Marriage of C.D. and G.D. (Cal. Ct. App. - Sept. 11, 2023)

Justice Baltodano's opinion earlier today says, in part:

"Father failed to appear for his court-ordered deposition. In response, the trial court sanctioned Father by prohibiting him from: (1) introducing evidence and testimony at trial, (2) cross-examining most witnesses, and (3) making objections on child custody and visitation issues. The only exception to these sanctions permitted Father to 'cross-examine medical professionals, representatives of Child Protective Services[,] and representatives of law enforcement agencies.' Father concedes these sanctions were 'imminently reasonable.'"

Since it's a family law case (and one in which the trial court found that Father repeatedly molested the kids), I can't find most of the briefs online. But since the parties were represented by counsel, I'm hoping that the concession was that these sanctions were "eminently" reasonable (rather than imminent).

But I could see someone making that mistake. In a brief or otherwise.

Peralta v. Sanchez (Cal. Ct. App. - Sept. 8, 2023)

You might perhaps be very skilled, and able to institute legal proceedings and write legal briefs as well as some attorneys. But if you're a layperson, one of the things that you often cannot do either competently or legally is to represent an estate in civil proceedings outside the probate court.

First, as the Court of Appeal holds, you're not allowed to. Second, even if you were allowed to, it's generally not a good idea. If only because, among other things, you generally don't know what you don't know, which in turn can be fatal to your petition.

Get a lawyer.

Doe v. Superior Court (Cal. Ct. App. - Aug. 8, 2023)

We've all heard the saying: "The check is in the mail." Which, as a trope, generally means: "I have not, in fact, paid you yet, and the check is not actually in the mail."

But what if the check is, in fact, in the mail? Have you been paid yet?

The Court of Appeal today says: "No."

It's in the context here of a pretty substantial fubar by the company and, presumably, its lawyers. The company (Na Hoku) gets sued in San Francisco for sexual harassment, moves to compel arbitration, and prevails. So now the company is in arbitration. It pays its initial AAA arbitration fees, but six months later, on September 1, the AAA sends it a bill for the arbitrator's fees ($22,500). The AAA tells the company it can pay those fees online (via credit card, echeck or online) or via a physical check, but either way, the fees are due on September 1 (the day of the letter), and have got to be received within 30 days to avoid dismissal of the arbitration. The AAA also tells the company: You've got to pay the bill within 30 days, and we can't give you an extension, since the CCP expressly says you've only got 30 days to pay before the arbitration gets bounced and the plaintiff can refile in court.

So if you were the company (or lawyer), you'd make sure to pretty quickly pay, right? Maybe on September 2 (that Friday), maybe the next week, or whatever. Definitely sometime that month -- i.e., within the 30 days deadline -- right?

The company kind of did that. It paid in September, before the 30 day deadline. But only if by "paid" one means "sent a check." Did it write a check within 30 days? Yes. Did it put it in the mail within 30 days? Yes. On September 30, that's exactly what it did.

But the AAA didn't receive the check until October 5, which everyone admits is over 30 days past the September 1 due date stated in the letter.

At which point plaintiff says: "Now I get to sue, since you didn't pay within 30 days." The trial court says: "Nope. The company paid by sending the check within 30 days, so you can't sue." Plaintiff files a writ and the Court of Appeal reverses.

"Paid" within 30 days means actually paid. Simply putting a check in the mail during that period doesn't count. So holds the Court of Appeal.

Which is, in truth, a fairly straightforward and common sense interpretation of how we generally do things. We all routinely pay credit card bills, for example. If your payment is due on the 10th, it's not enough to say (or even prove) that you put a check in the mail on that day. What matters is when the check is received. If it's not received until after the 10th, you didn't pay on time. Sorry.

Ditto for arbitration fees.

It's also a mistake that's easily avoided. Why wait until the very last day to pay the bill here? You know it's a statutory deadline, and you also know there are severe consequences for missing it. Just pay it. On time. With time to spare, even. It's like lawyers who deliberately wait until the very last day before the statute of limitations expires before filing suit. As I routinely tell my students, unless there's a darn good reason, don't do that. Just file a week early. It avoids so much potential trouble. Why take the risk?

So too the lesson from today's opinion. When you get a bill for arbitration fees, pay it. Pronto. And go ahead and either pay it online or send in the check with plenty of time to spare.

Why take the risk doing anything else?

One final thing. Even though I'm on board with the result (and resulting rule) here, can I respectfully suggest to Justice Petrou that she remove the citation and quote from Navrides v. Zurich Ins. Co.  on page 16 of the opinion? That portion of the opinion reads: "Our construction and rejection of real parties’ interpretation is also in line with the general principle that the depositing a check in the mail does not constitute payment. See Navrides v. Zurich Ins. Co. (1971) 5 Cal.3d 698, 706 [“the mere giving of a check payable to the agent does not constitute payment”]. . . ."

Yes, that quote exists in Navrides, but it doesn't actually stand for the proposition for which Justice Petrou cites it. The holding in Navrides was about agency principles, which is why the quote says that giving a check "payable to the agent" does not necessarily constitute payment. The check in that case was made payable to two people (a lawyer and client), and the question there was whether that check constituted payment to the one person (the client) who was owed money. Whereas in the current case, there's no agency question, and the check was clearly written to the correct person.

Plus, even if the quote meant to hold what Justice Petrou suggests -- and, again, I'm fine with the truth of the general principle, and the other cases she cites for the point do indeed say precisely that -- it's at least a bit deceptive to omit the next two sentences from the Navrides quote, which make clear that the giving of a check does constitute payment if it is cashed. (Which matters, because, here, the AAA did indeed cash the check.) So, yes, the California Supreme Court did indeed utter the line in Navrides that "the mere giving of a check payable to the agent does not constitute payment," but after the very next sentence, also said "But once the check is paid, the payment of the underlying debt which was theretofore conditional becomes absolute and relates back to the date of the delivery of the check." (emphasis added). You see how the omitted "relation back" stuff totally matters here, whereas the "agency" stuff (from the quote) really doesn't.

So I'd take that citation out. Doesn't add much, and purports to stands for a proposition that's not true. If you hand a person a check on the 10th, it counts as paying them on the 10th, even if they only cash the check (and get the money) on the 13th. So saying, without elaboration, that “the mere giving of a check payable to the agent does not constitute payment” isn't really responsive to what we're talking about in the present case, and might well be misinterpreted (or, worse, relied upon in future cases).

Baird v. Bonta (9th Cir. - Sept. 7, 2023)

Imagine that you brought a Second Amendment lawsuit that said that you had a constitutional right to carry a gun openly in public in California, but the district court denied you a preliminary injunction. Would your dream panel on appeal in the Ninth Circuit consist of Judges Lee, VanDyke and Randy Smith?

Yes, it would.

Sometimes its even more important to be lucky (in the draw) than good. (Of course, it's best to be both.)

United Aeronautical Corp. v. US Air Force (9th Cir. - Sept. 7, 2023)

A company think that the Air Force is wrongfully using some of its trade secrets, but the Air Force says it has a contractual right to do so. So the company files a lawsuit.

You wouldn't think that such a dispute would likely give rise to a profoundly split opinion in the Ninth Circuit, but it does.

Here's a summary of Judge Collins' dissent, which also accurately represents the tenor of the thing:

"The majority affirms the district court’s dismissal of this action for lack of subject matter jurisdiction, holding that the Contract Disputes Act (“CDA”) “impliedly forbids” Plaintiffs from bringing an APA action in federal district court. But the CDA does not impliedly forbid reliance on the APA where, as here, Plaintiffs’ claims and relief are based, not on a Government contract, but rather on Plaintiffs’ independent statutory rights under the Trade Secrets Act. The majority’s contrary decision misconstrues the CDA, contravenes Ninth Circuit precedent, creates a split with four other circuits, and undermines the ability of contractors to obtain injunctive relief in federal court against Government violation of their statutory rights. Accordingly, I respectfully dissent."

People v. Perez-Robles (Cal. Ct. App. - Sept. 6, 2023)

Let me say it clearly, and in advance: Some readers might find the following post NSFW. There are no pictures, but I'm going to mention, in some detail, portions of female anatomy. So if that's something you don't want to read, just skip on over this post and move on to the next.

Okay?

This opinion by Justice Earl involves one of the all-too-typical "massage that turns into a sexual one without the patient's consent" prosecutions. The massage therapist conducts "normal" massages with customers but allegedly touches things he's not supposed to touch with a wide variety of female patients. He's charged with numerous counts of sexual assault, gets convicted, and is sentenced to 15 years in prison.

You can read all 47 pages if you'd like. But the opinion largely consists of what you'd think it would consist.

I only want to talk about a single sentence; one that spans pages seven and eight of the opinion.

Backstory facts first. Counts 3 and 4 concern one of the massages that turned nonconsensually sexual, so the particular details are relevant. (With a trigger warning that they're distinctly sexual.) Here they are:

"The second massage started the same way the first one did. Defendant left the room while R.B. got undressed, lay facedown on the table, and covered herself with a sheet. Defendant came back into the room and began massaging R.B. from her shoulders to her lower back. While massaging her arms, he lifted them in a way that exposed her breasts, and she could feel air on her nipple area. Defendant then moved to her legs. R.B. testified that when he moved the sheet to the inside of her legs, it did not feel as secure as it had during the first massage. He massaged up and down each leg several times and touched her labia. He then put his left hand underneath her pelvis and placed one of his fingers directly on her clitoris. He started moving his fingers back and forth on her clitoris. He did this about five times before R.B. realized she had gotten excited and “wet down there.” She testified she “blanked for maybe one or two rubs, and then I kind of came to and was like, wait a minute, I’m getting aroused in a professional massage. This has to stop.” She said, “Okay,” and defendant stopped."

Based on these facts, Count 3 alleged sexual penetration by force, violence or fear, which is a more serious offense than pure sexual assault. Among other things, that offense requires a sexual penetration, whereas sexual assault does not.

In a typical case, the sexual penetration occurs because the perpetrator allegedly penetrates into the woman's vaginal opening. But that didn't happen here. Instead, the defendant touched the victim's labia and placed his finger "directly on her clitoris" began "moving his fingers back and forth" thereupon.

Does that constitute "penetration" under the statute? Here's what Justice Earl says about that:

"Count 3 was based on R.B.’s testimony that defendant touched her clitoris, and defendant does not challenge the sexual penetration element of that count. Nor could he, because case law teaches that contact with the clitoris, which is located inside the labia, constitutes sexual penetration within the meaning of section 289. (People v. Quintana, supra, 89 Cal.App.4th at p. 1371.)."

I will readily admit that I am not a medical expert, and further, that I do not personally possess the relevant body parts.

But I don't think that second sentence is correct. Either doctrinally nor anatomically.

Anatomically -- and I welcome the views of anyone with more expertise than mine in this area -- while I believe that it is generally accurate to state that "the clitoris [] is located inside the labia," that is not a statement that I believe to be categorically true. This anatomy is relevant because Justice Earl believes that touching a clitoris necessarily constitutes penetration because (1) the penetration statute includes penetration of the folds of the labia, and (2) the clitoris is always located inside the labia, which in turn means that touching the clitoris necessarily involves penetrating the labia. 

I agree with the first (legal) predicate, but not the second (factual) one, which in turn invalidates the conclusion.

My (admittedly) limited understanding -- which I've attempted to confirm on the internet, albeit within the confines of the fact that I'm at work and don't exactly want my browser history filled with all of the relevant searches or resulting web sites -- is that a clitoris may well be, and often is, located inside the folds of the labia, but need not be. Either in particular women (e.g., women with a relatively outsized clitoris, in which it may extend outside of the labia) and/or in particular settings (e.g., after arousal, in circumstances in which a clitoris may become engorged and extend outside the folds). If those facts are anatomically accurate, then it's not true, as a categorical matter, that -- as here -- the fact that the victim testified that the perpetrator placed his finger "directly on her clitoris" is necessarily proof (much less proof beyond a reasonable doubt) that either the inner or outer labia was penetrated. We'd need to know more to establish penetration. (This is unlike penetration of the vagina, which is the classic way in which most defendants are found guilty under the statute.)

Wholly beyond anatomy, I also don't think that the case that Justice Earl cites for that proposition, People v. Quintana, in fact says what Justice Earl thinks it says. That case involved a defendant who digitally penetrated a five-year old girl, and involved direct penetration confirmed by a medical exam that showed "blunt force penetration of hymenal tissue" and "irritation of the perihymenal tissue," "a laceration and broken capillaries at the posterior fourchette," and an "abnormal shape of the border of the hymen [] indicative of a recent injury." In short, there, the little girl was clearly digitally penetrated; it wasn't just that the perpetrator touched her clitoris.

Yes, in the very final sentence of the opinion, the Court of Appeal utter the line: "[C]ontact with the hymen as well as the clitoris and the other genitalia inside the exterior of the labia majoris constitutes 'sexual penetration' within the meaning of section 289." But not only was that statement unabashed (and unexplained) conclusionary dicta, but the underlying case didn't even involve a clitoris (nor touching thereof). Touching the hymen of a four-year old is, anatomically and otherwise, not the same vis-a-vis "penetration" as touching the clitoris of an adult.

So I'd take out the last sentence on page 7 of today's opinion. I don't think it's right. Not categorically, anyway. It's sexual assault, for sure. And, in lots of cases, it might also constitute penetration. But I do not believe that it's true that the touching of a clitoris necessarily involves penetration of the labia. So no need to say so here, especially since defendant -- rightly or wrongly -- conceded penetration here.

It's a theme in the literature that every woman's body is different, there's no "normal," and it's all wonderful. I'd not put in writing that one's clitoris is never outside one's labia unless it's definitely and categorically true.

Law Firm of Fox & Fox v. Chase Bank (Cal. Ct. App. - Sept. 5, 2023)

The probate court orders the sale of a home in an estate, directs that the money be placed in a bank, and orders the bank not to permit anyone to withdraw the money absent an express order of the court. (These are called "blocked accounts".) Chase Bank agreed to these conditions and accepted the deposit of funds into the blocked account; subsequently, however, it allowed someone -- someone without court approval -- to withdraw all the money in the account. 

As a result, a law firm that would otherwise have gotten money from the estate and blocked account -- someone who was entitled to this money pursuant to a court order -- sued Chase Bank.

It takes the Court of Appeal 34 pages to say that, yes, in such settings, the law firm can sue. 

It's kinda crazy that it takes 34 pages to come to such an obvious (to me) conclusion, no? Or that the trial court came out the other way and dismissed the lawsuit.

Chase Bank shouldn't have let the guy withdraw the money, and the law firm was harmed. Even before law school (or becoming a lawyer or professor), I'd have thought fairly clearly that in such circumstances, the law firm could sue.

Which, after today, is indeed the rule.