The Merchant of Tennis v. Superior Court (Cal. Ct. App. - March 23, 2026)

One of the (many, many) suboptimal things about becoming an older lawyer is that you forget whether the rule you're thinking about is an old rule and whether there's a newer rule that's taken its place.

I was reminded of this reality when I read Justice Miller's modification of his opinion this afternoon. It reads, in full:

"On the court’s own motion, the majority opinion filed in this matter on January 14, 2026, is modified as follows: 

To the “Disposition,” we add the following sentence: “Each side is to bear their own costs on appeal.”

Except for this modification, the majority opinion remains unchanged. The modification does not effect a change in the judgment."

Here was my thought. With a reminder that perhaps I'm thinking about an old rule, or maybe I'm simply mistaken on the merits. Nonetheless, this was definitely my internal thought:

"Wait. Deciding not to award costs does effect a change in a change in the judgment. Doesn't it?"

Well? Doesn't it?

It seems like it does change the judgment to me. Before, because the opinion was silent, the prevailing party was entitled to costs. That's money. Now, after the modification, they're not. So as a result of the change, they're entitled to less money. I would think that's a change in the judgment. (As well as one that might potentially have practical effects. Maybe you were fine with the opinion because even though it didn't give you everything you wanted, at least you got your costs, which maybe were huge. But then once you didn't get costs, maybe you wanted to seek review or something like that.)

I understand -- or at least think I understand -- why Justice Miller wants to say it doesn't effect a change in the judgment. As a practical matter, it probably doesn't, in fact, matter that much. And the underlying opinion was issued way back in January, over 60 days ago, so the Court of Appeal probably does not want to restart the clock vis-a-vis the finality of its decision at this point.

But I can't help still thinking that it does, in fact, change the judgment. And think, though perhaps I'm remembering incorrectly, that other opinions that have done exactly the same thing have said that such changes do, in fact, effect a change in the judgment.

I read what I believe is the underlying rule, which doesn't provide a precise answer to the question. One might perhaps read Rule 8.264(c)(2) to say that the Court of Appeal can decide for itself whether or not to say that a change modifies the judgment. But that surely can't be what it actually means, can it? If so, couldn't the Court of Appeal issue an opinion, wait for a while, and then eventually say "We hereby modify the appeal; in the original opinion we held that plaintiff won, but now we amend the opinion to say that defendant wins, and we hereby insert the word 'not' before every verb in the prior version. This does not effect a change in the judgment. Ha!" Or change "affirmed" to "reversed," change "We hereby instruct the court to enter a judgment for $10" to "$10 million," etc. That can't be right.

So I think that this is, in fact, actually a change. FWIW.

P.S. - I also wonder, parenthetically, what made the Court of Appeal go back and revisit the cost award after so long? The docket doesn't reflect that anyone ever filed anything in the interim. Did the panel really just wake up one day and randomly think "Geeze, you know what, now that I think of it, I don't feel like awarding costs to the prevailing party in that appeal that I decided two months ago?"

People v. Taft (Cal. Ct. App. - March 20, 2026)

Is this entire appeal about whether or not the appellant is entitled to two additional days of presentence custody credit (and thus two fewer days in prison) on his four-year sentence -- basically, as a result of a rounding error?

Yes, it is.

P.S. - He is indeed entitled to the two days. As the Attorney General concedes and Justice Stone explains in a dozen pages.

Sheerer v. Panas (Cal. Ct. App. - March 19, 2026)

Are you kidding me?!

Thomas Panas is in San Mateo county, working (presumably) for a tech company making nearly $20,000/month in salary, another $26,000/month in commissions/bonuses, and getting additional stock grants worth over $120,000 in the first three months of the year. In short, he's rich.

But he's also engaged in contentious divorce proceedings with his ex-wife over child support obligations for his two children (over whom they share custody 50/50). There's a lot of money at stake, mostly over how much the child support payments should be increased over the baseline given his expansive bonus and stock payments.

Notwithstanding what's at stake, Mr. Panas (1) represents himself pro per on appeal (despite Covington & Burling on the other side), (2) write his pro per brief with a.i., and (3) doesn't bother to check the citations or factual record cites hallucinated by the computer, or even write a table of contents, follow the rules with respect to formatting, etc.

Seriously?

Because the Court of Appeal is incredibly nice, Mr. Panas avoids getting sanctioned. But geeze.

Get a lawyer, my friend.

P.S. - He also loses the appeal.

People v. Perez (Cal. Ct. App. - March 19, 2026)

Would you retry this one?

Eric Perez gets pulled over in a traffic stop. It turns out he's been driving on a suspended license since 1993. (!) Mr. Perez could be arrested, but the officer doesn't feel like it, and cites him instead. But the officer doesn't want him driving, so has the car towed. They conduct an inventory search, find some drugs and a firearm (which, as a felon, he's not allowed to have), and charge him accordingly.

Mr. Perez says the search was illegal and moves to suppress, the trial court denies the motion, but the Court of Appeal reverses. Since the vehicle was parked legally, and the driver not arrested, there's no reasonable basis to tow. So Mr. Perez wins, and he gets to withdraw his conditional no contest plea on remand if he wants.

Here's the thing, though.

Mr. Perez was sentenced to two years probation. That was roughly a year ago -- and his offense was nearly four years ago. So he's pretty much done already, even under the original deal.

So, on the one hand, why would Mr. Perez withdraw the plea? He's pretty much done with the sentence already. Just a little more probation left. Why withdraw the plea, which was pursuant to a deal, and risk getting convicted at trial and potentially subjected to a much more serious sentence?

On the other hand, assuming that Mr. Perez withdraws his plea, why even retry the guy in the first place? Presumably he's done a fine job during his previous year of probation, and doesn't have any additional offenses in the last four years. The government thought that two years of probation was a reasonable sentence previously. Why spend the time and money on a retrial just to keep the guy on probation for another year?

This opinion is important from a policy perspective. It matters a lot whether the police are allowed to tow your car.

But practically, for Mr. Perez? Tough to really justify doing much more on remand in this particular case.

Dion v. Weber (Cal. Ct. App. - March 18, 2026)

Are you sure about this?

When you get a fraud judgment against a California corporation that doesn't pay it, you can get up to $50,000 of it from the Victims of Corporate Fraud Compensation Fund.

Plaintiffs here get a default judgment for fraud and file an application for compensation from the Fund, but their application is denied on the grounds that their claim was outside the statute of limitations. The Court of Appeal holds that's not okay; that since the plaintiffs prevailed in court (where the defendant defaulted and hence didn't raise the limitations defense), that's the end of things. Pay 'em.

The opinion says numerous times that "[a]llowing the Secretary to relitigate the merits of the underlying causes of action" would be permissible; e.g., that it "undermines the judicial goals of fostering finality and would create a significant possibility of inconsistent judgments." But the underlying statute clearly allows precisely such relitigation. Section 2288(b)(1) says: "The Secretary of State may defend any action on behalf of the fund and shall have recourse to all appropriate means of defense and review, including examination of witnesses and the right to relitigate any issues that are material and relevant in the proceeding against the fund." The underlying judgment only creates a presumption, according to the statute: "The claimant’s judgment shall create a rebuttable presumption of the fraud, misrepresentation, or deceit by the corporation, which presumption shall affect the burden of producing evidence."

The Court of Appeal responds that (b)(1) only applies to contested judgments, and that the statute purportedly creates a "dual track" such that for default judgments (like here), only subsection (b)(2) applies. (That subsection reads: "If the civil judgment, arbitration award, or criminal restitution order in the underlying action on which the final judgment in favor of the petitioner was by default, stipulation, consent, or pursuant to Section 594 of the Code of Civil Procedure, or if the action against the corporation or its agent was defended by a trustee in bankruptcy, the petitioner shall have the burden of proving that the cause of action against the corporation or its agent was for fraud, misrepresentation, or deceit.")

That's not the way I read those sections. Paragraph (b)(1) says nothing about being applicable only to "contested" actions. The word's not even in there. I read (b)(1) as saying that the Fund can relitigate anything. Period. With the proviso that there's a rebuttable presumption that the underlying judgment is correct. Paragraph (b)(2) cuts back on that, in my view, only by saying that in default cases, there's no such presumption, and the burden of proof in those cases is instead on the plaintiff (unlike in non-default cases, where it's on the Fund).

Wholly beyond the words of the statute, it seems strange to be that there'd effectively be NO statute of limitations on claims against the Fund. Can I really get a default judgment against a 1870s corporation today (because they don't show up) and get $50,000 from the Fund? That would just seem weird. Not the way things usually work.

I get the desire to compensate victims of fraud. But we've got that desire in regular lawsuits as well, yet still have limitations periods. I'm just not sure the statute here operates in the way the Court of Appeal thinks it does.

But, hey, for victims of fraud: a good opinion for ya.

People v. Jones (Cal. Ct. App. - March 17, 2026)

Justice Yegan begins this opinion by essentially summarizing it, saying:

"A defendant confined in jail in county one, cannot willfully fail to appear, as ordered, in county two. Such a defendant does not “fail” to appear. He cannot appear. He should not suffer a penalty for not appearing."

That's not really accurate, I think. For example, if county one was about to transport the defendant to county two for sentencing, and the defendant successfully resisted and refused to come out of his cell, I would think that's more than sufficient to establish a willful failure to appear. And it happens.

Perhaps a better summary of this very short opinion would be: "If a court orders someone to not commit any crimes in the interim and to appear for sentencing, it's not enough for the prosecutor to try to introduce uncertified court records to establish that he committed a crime in the interim and was incarcerated as a result. You've got to have admissible evidence."

That seems fairly self-evidently true.

People v. Riggs (Cal. Ct. App. - March 16, 2026)

Criminal cases are often depressing. You often see people at their worst. And, obviously, there are often horrific acts at issue.

This opinion involves a serious crime: assault with a semiautomatic firearm. But what struck me as most depressing was the reaction of the victim, "Jane Doe".

Jane was dating "John" (another pseudonym) but had previously dated the defendant, Riggs. Jane and John were riding together on a quad when Riggs came to the house looking for Jane. Stuff then happens:

"Father and Jane’s two brothers were at home. Riggs was angry and “talking shit” about Jane to her brother. Riggs left the house toward the street.

Riggs then saw John and Jane riding the motor bike together. Father, still in his home, heard gunshots outside. At some point, John fled on foot.

Father next heard Riggs and Jane screaming as they approached the house. Both came inside, and Father saw Jane had blood on her face. Riggs grabbed Jane’s hair and hit her multiple times. Riggs pointed the gun at Father and Brother and threatened to shoot them.

Brother ran out of the room to hide and called Mother to ask her to call the police. Mother called 911, and the 911 operator called Brother. During the call, Brother sounded scared. Brother reported Riggs was in the house with a gun, breaking things and hitting his sister. Earlier, he heard shots fired outside the house toward the street.

Riggs called the family “snitches” for calling the police. He then grabbed Jane and pulled her outside the house into the backyard.

When Jane and Riggs were outside, a Riverside County Sheriff’s Department helicopter arrived in response to a 911 call reporting a man with a gun. The helicopter’s video camera captured Riggs hitting Jane in the abdomen with his hand and then with the handle of a shovel. Sheriff’s deputies soon arrived. When they did, Riggs appeared to be lifting the shovel to hit Jane again, but he dropped the shovel on the deputies’ orders. Deputies took Riggs into custody. He had a bag of methamphetamine in his shoe.

After the incident, Jane’s face was covered in blood and swollen, and she had bruising on her face, scalp, neck, and arm. She was bleeding from her nose and mouth, and she was upset and crying. At the scene, Jane told police her ex-boyfriend, Riggs, hit her with his fist multiple times. She accepted some medical treatment but refused to go to the hospital.

Sheriff’s deputies examined the scene. Inside Jane’s residence, there was blood on the floor and the furniture. In the backyard, investigators found a semiautomatic firearm in a metal shed near where they contacted Riggs. The firearm was wrapped in a towel that had blood on it. The magazine was empty, and the slide of the gun was locked to the rear of the empty chamber, which indicated all bullets had been fired from the firearm. The firearm was capable of firing only 9-millimeter bullets.

Just north of the front of Jane’s home, law enforcement found four spent 9-millimeter cartridge cases. Further north, 75 to 100 yards from the home, they found the motor bike and three additional spent 9-millimeter cartridge cases nearby. The motor bike’s engine had been hit by two bullets, leaving one bullet hole and one strike mark.

Riggs had gunshot residue on both hands. His DNA was on the trigger, trigger guard, and slide of the gun found in the metal shed."

That's a serious offense, right? And poor Jane. She's the victim of a serious crime. You rightly feel incredibly bad for her. She has to deal with all this stuff, and God knows what she's had to deal with in the past.

What is perhaps most depressing, however, is how she elects to live her live after this whole ordeal:

"Two days later, Jane went to the hospital for her injuries. She was with John. She reported that she was injured falling off a bicycle. Medical professionals found the injuries inconsistent with her story and called law enforcement. When a Sheriff’s investigator came to the hospital, Jane was defensive and did not want to talk to him. She refused to let him take pictures of her injuries.

At the time of trial, Riggs was Jane’s boyfriend again. Although Jane testified at trial, she was an uncooperative witness for the prosecution and denied her earlier statements to the deputies. She testified that John “tried to . . . hit [Riggs] off the road” with the motor bike and she “flew off the bike” as it “wrecked”. She stated the scrapes and bruises on her face came from falling off the motor bike face-first onto dirt and pavement."

Jeeze.

Fortunately, the jury understands what's going on here, and convicts Riggs, who's sentenced to over 25 years in prison. So his personal relationship with Jane has, for all practical purposes, essentially ended. Thankfully.

Still. After all this, going back to Riggs and testifying on his behalf. A classic reaction, I know. But nonetheless profoundly distressing.

I'm a tiny reminded of the classic film noir ending: "Forget it, Jake. It's Chinatown."

Here, it's Riverside.

Olympus Spa v. Armstrong (9th Cir. - March 12, 2026)

Oh my God.

Combs v. Broomfield (9th Cir. - March 12, 2026)

You've got to slog through nearly a hundred single-spaced pages of this opinion to get a complete sense of what's going on. That, I recognize, is a difficult sell. If only because it involves a habeas appeal in a death penalty case in California. Which means you'd be spending an hour or two of your busy life reading about a sentence that, as a practical matter, will never actually occur.

I'll nonetheless attempt to direct your potential attention to pages 82 through 87 of the opinion.

The opinion's author is Judge Bade. She's joined by Judges Callahan and Bumatay. I think that we can all agree that's not the panel you want if you're the person sentenced to death.

Defendant claims that a juror lied during voir dire to get on the panel, and that but for this lie, the biased juror would have been validly challenged for cause. Under Supreme Court precedent, that's a valid Sixth Amendment claim. You're constitutionally entitled to relief if you can establish such a claim.

Defendant submits some evidence to support this claim, based upon statements that the juror at issue made to a defense investigator during two interviews in May 2006. He says that, at a minimum, this establishes a prima facie case.

The Ninth Circuit disagrees. It says that the court could validly disregard this evidence because it's inadmissible hearsay. Since it's not the declaration of a party opponent, it can be entirely ignored. No investigation, no discovery, nothing.

So let's make the resulting rule clear. Imagine that all twelve jurors go out to a restaurant to celebrate after sentencing someone to death. At the restaurant are a hundred people -- other patrons and staff -- alongside fifteen priests and the Pope. Each of the jurors were asked during voir dire if they were current members of the Klu Klux Klan, and each answered "No." During the jurors' celebration, everyone in the restaurant clearly hears each of these twelve jurors repeatedly and loudly declare that they sentenced the defendant to death not because they thought he was guilty, but on the basis of his race, and that they all lied during voir dire about not being members of the KKK because they hoped to be on the jury so they'd have a chance to kill the defendant. All of the hundred-plus people at the restaurant who overhead these statements, including the Pope, submit declarations to that effect.

According to today's opinion, the defendant gets no relief. It's all entirely hearsay. No prima facie case. Not even entitled to discovery to depose the jurors and see if they admit (again) to being members of the Klan and lying during voir dire.

Surely that wasn't the law before today. Right?

The Sixth Amendment right to an unbiased jury when the state seeks to sentence you to death seems fairly hollow if we categorically exclude the only practical way of proving that bias in the first place.

B.B. v. Capistrano USD (9th Cir. - March 10, 2026)

Sometimes, kids are great, and adults suck.

After an elementary school class about Martin Luther King Jr., a first-grade kid named B.B. -- I'm going to call her "Becky" -- "'felt bad' because 'black people were put in a worse position." So little Becky drew a handwritten picture showing "all her friends holding hands" and gives it to her classroom friend, M.C. (I'll call her "Mary"), for comfort. Here's Becky's picture:

Becky didn't know what "Black Lies Mater" [sic] meant, "but included the phrase because it was at the end of the book her teacher read to the class." Becky also didn't know what "any life" might potentially be interpreted to mean, but included that phrase because this first grader thought that “all lives matter.”

Mary looks at the drawing and thanks Becky for it. In a better world, that'd be the end of the matter. A simple and undeniably well-intended interaction between two small children.

But no. Here's where the "adults" come in.

Mary's mother sees the picture when Mary comes home and writes a sharply-worded email to the school's principal saying, in part, "[m]y husband and I will not tolerate any more messages given to our daughter because of her skin color" and that "[a]s the administrator we trust you know the actions that need to be taken to address this issue."

The next day, the principal takes Becky aside, tells her that the drawing is "not appropriate" and makes Becky apologize to Mary (and, although first-grade Becky's memory is unclear on this point, maybe calls the drawing, and by implication Becky, "racist"). Becky also says that she's then prohibited from going to recess for two weeks as a result.

Then, nearly a year later, Becky's mother learns about the principal's interaction with her child, and she escalates the matter in turn, ultimately filing a federal lawsuit against the principal, the school district, and a counselor at Becky's school. There's a plethora of discovery, little Becky gets deposed, etc. 

The district court ultimately dismisses the federal (First Amendment) claim and accordingly declines to resolve the supplemental state law claims, and there's an appeal. At which point yet more adults become involved.

On appeal, plaintiff/appellant is represented by the Pacific Legal Foundation. Amici include many of the usual conservative lawyers seeking to advance their particular agenda: Ilya Shapiro from the Manhattan Institute, Alan Gura from the Institute for Free Speech, Madison Hahn from the YAF, Harmeet Dhillon, etc.

Does any of this actually advance Becky's welfare? I strongly doubt it. She's a first grader: a six or seven year old child. Does it really make sense to drag a six year old through a deposition, years of litigation, and the associated trauma merely to make a point about a heartfelt but overblown picture that this first grader drew to ease the perceived pain of her classmate? Again: I strongly doubt it. That's maybe in the interest of other people, including but not limited to the lawyers. But not the kid. No one should pretend that they're doing her any favors here. Not in the slightest.

But the "adults" in the room. They definitely know better.

And, today, the Ninth Circuit reverses the dismissal, in a per curiam opinion that cogently discusses the underlying legal principles but does not once mention what's best for the child, the result of which is that the underlying litigation continues apace.

Sorry about all this, Becky. Sincerely.

All of it.

U.S. v. Tekola (9th Cir. - March 9, 2026)

With respect for Judge Owens, I would have dissented in this one.

Issac Tekola is a drug dealer in Santa Barbara. Not a huge one, but not a super tiny one either. He doesn't live in a mansion, or have "associates," or even a stash house. He instead lives in an apartment, and since he lives there, that's where he sometimes deals from. Sometimes he goes out and meets people for a sale. Sometimes they come to his apartment where the drugs are stashed in a shoe outside his apartment's back door. (That the drugs fit in an old shoe may give you a sense of the scale of Tekola's operation.) In short, he's your basic neighborhood drug dealer.

Similarly, the goods he sells are located where he lives. He doesn't have an "outside base" of operations, or a stash house, like big-time dealers. That's where he stores the cash he gets from dealing. (He has $13,000 at the time he's arrested.) That's where the drugs are: a pound of cocaine, 867 pills containing fentanyl, and some fake Adderall pills containing methamphetamine. That's also where all the other stuff associated with drug dealing is located: a safe, pay/owe sheets, scales, etc.

So Tekola gets charged with possession with intent to distribute, and he's facing real prison time as a result. Caught, he pleads guilty to everything, even without a plea deal. He throws himself on the mercy of the district court.

Which is not particularly merciful. At all. Judge Garnett sentences Mr. Tekola to an above-guidelines term of almost nine years in prison. And in doing so, bumps up his sentence pursuant to a provision that enhances the penalty for defendants who "maintain[] a premises for the purpose of manufacturing or distributing a controlled substance."

Mr. Tekola appeals, claiming that he didn't do that. Yes, he lived in his apartment, so that's where he stored his stuff. But that wasn't the "purpose" of living there, he says, so his sentence shouldn't have been enhanced.

Judge Owens, joined by Judges VanDyke and Thomas, disagrees, and affirms.

The opinion explains at length how Tekola used his apartment for drug dealing. Stored his cash there. Stored the drugs there. Got messages there. Sometimes put drugs in a shoe there. All that's undoubtedly true. And Judge Owens talks at length about the commentary to the relevant provision, which expressly says that "[m]anufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises." (The opinion even italicizes that last part.) The Ninth Circuit concludes that the district judge got it right; that one of Tekola's "primary or principal uses" of the apartment was to distribute drugs there. In the words of Judge Owens:

"Tekola’s apartment was the hub of his distribution network. It was where he stored his drugs and other tools of the drug-dealing trade, where he processed and recorded the drugs he sold, and a default location where trusted customers picked up drugs. Of course, Tekola also conducted drug deals elsewhere, but that additional trafficking does not change the fact that his apartment was the equivalent of a home office for the illicit drug business he ran."

But here's why I would have dissented.

The opinion repeatedly mentions the part of the guidelines commentary that says that the enhancement is appropriate when one of the "primary or principal purposes" of the residence was to sell drugs. But it only one mentions -- and then, even only in passing -- the last clause of that very same commentary, which notes that the enhancement does not apply if the use of the property for drugs was merely "one of the defendant’s incidental or collateral uses for the premises." In other words, if the reason you're using the property in your drug operation is merely because you live there, the enhancement doesn't apply. A conclusion that's also backed up by Ninth Circuit precedent about a related statutory provision.

In my view, here, the evidence shows that that's exactly what transpired here. Of course Tekola had his drugs, cash, scales, and other drug-related materials in his apartment. That's where he lived. Where else was he going to keep them?! On the street? On the moon? The only other place to keep this stuff one might even contemplate was in a stash house. But that's exactly what the enhancement was designed to punish.

Tekola is the classic example of a garden variety neighborhood drug dealer. Bigger than some, perhaps, and definitely smaller than others. If the enhancement is intended to punish Tekola more severely, then it equally applies to pretty much every single drug dealer, every one of which -- or at least every one of them I've known (or of whom I've personally heard) -- keeps their stuff in their home or apartment.

The goal of this enhancement was to pick out certain drug dealers for increased punishment. The ones with stash houses. The ones with special houses where you deal through iron doors. The dealers who own separate manufacturing facilities where they create or package the drugs. Those are the ones -- the "big" ones -- where we want additional punishment. Not simply every low-level drug dealer who lives in a dingy apartment unit and sells from there. The Ninth Circuit's view of the enhancement simply goes too far, in my view, and is contrary to both its text and purpose.

Avon and Stringer in The Wire are subject to the enhancement. Saul Silver in Pineapple Express is not.

Tekola is Saul, not Avon. By a mile.

(And I say this despite not being sympathetic to fentanyl dealers like Tekola in the slightest.)

People v. Nelson (Cal. Ct. App. - March 5, 2026)

This is a relatively unremarkable opinion. Except for one thing.

Defendant moved for mental health diversion, claiming that his illness was a substantial cause of his criminal acts (which were longstanding and extensive). The trial court found, as a factual matter, that the psychologist's opinion was not credible, and that the defendant's mental health issues did not play a factor in his decision to commit the crimes at issue.

Not surprisingly, the Court of Appeal affirms. The trial court made a factual finding. That's super hard to reverse. There's substantial evidence to support the trial court's decision, so that's that. As a result, the Court of Appeal resolved the appeal in five pages. It's that easy.

The thing that's remarkable, though, is Justice Yegan's four-paragraph concurrence. To his own opinion, no less.

The concurrence cites a recent case from the 4/3 -- People v. Cabalar. That opinion isn't cited anywhere in today's opinion by the 2/6. It doesn't need to be, since the present appeal simply involves a case-specific factual inquiry, not a dispute about the law.

Justice Yegan's concurrence nonetheless reaches out to let the 4/3 know that he thinks that Cabalar was wrongly decided. He's not shy about it, either:

"Cabalar [] is wrong. I disagree with its result and rationale. It does not seem to follow traditional and time-honored rules on appeal. In fact, it seems to retry the facts, and seems to ignore the doctrine of implied findings. (People v. Francis (2002) 98 Cal.App.4th 873, 878.) It also seems to draw inferences away from the order under review. It then substitutes its discretion for that of the trial court and eviscerates the concept of “residual discretion.” . . . .

Cabalar is a convicted felon. His possession of a firearm and ammunition makes it difficult to imagine that he does not pose a risk of danger to public safety. And his participation in an uncharged conspiracy to commit grand theft of $175,000 worth of jewelry from a department store jewelry case in a “smash and grab,” hardly inspires a finding that he is not a risk to the public’s safety. These two observations support the trial court’s exercise of “residual discretion.”"

It's not every day you see a justice reach out to let everyone know that a recent opinion from a different district involving different facts is (allegedly) spot on wrong.

As my kids would say: Shots fired, Justice Delaney.

Pacito v. Trump (9th Cir. - March 5, 2026)

Hours after taking office in 2025, President Trump signed an executive order barring the entry of all refugees, even those who were already approved for admission and in transit to the United States. Plaintiffs sued, and the district court issued a preliminary injunction, holding that this order violated the Immigration and Nationality Act passed by Congress.

Today, the Ninth Circuit reverses almost the entirety of the district court's order. No more refugees, unless and until President Trump feels like it. (Which you know full well ain't gonna be anytime soon.)

I found it interesting that the opinion both begins and ends by empathizing that policy concerns are not relevant to the appeal. At the outset: "Our task is to determine whether the President’s actions were within the statutory authority granted him under the INA. Whether we agree with those actions is beside the point: “The wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 165 (1993)." In the conclusion: "We recognize the enormous practical implications of this decision. There are over one hundred thousand vetted and conditionally approved refugees, many of whom may have spent years completing the USRAP process in a third country only to be turned away on the tarmac. . . . Whether that consequence reflects prudent policy is not a question for this court. To hold otherwise would be to substitute our judgment for Congress’s."

You see this point made in various opinions. It's most powerful, in my view, when the judges who join the opinion are in obvious disagreement with the policy at issue, and yet are compelled by their limited role in our constitutional system to uphold the act at issue.

By contrast, here, the opinion is authored by Judge Bybee, and joined by Judges Clifton and Lee. Two Bush appointees and one appointed by President Trump himself. (Judge Lee even authors a separate opinion to both go further than the majority in reversing the district court's preliminary injunction as well as to decry alleged judicial activism. ("We [] must not be seduced by the temptation of judicial resistance: District courts cannot stand athwart, yelling “stop” just because they genuinely believe they are the last refuge against policies that they deem to be deeply unwise. Otherwise, we risk inching towards an imperial judiciary that lords over the President and Congress.")

The "We're just doing our jobs, even if we don't like it" is a lot less compelling when the underlying policy is one that generally comports with your political position. If Judge McKeown, for example, were to write this particular opinion and make that proclamation, well, that'd mean a lot to me. Or if Judge Bybee were to write an opinion reaffirming Hawaii's right to restrict the open carry of firearms -- which he in fact did -- again, that appeal to ignore a judge's own political preferences would similarly carry a lot of weight.

Today's opinion, written by three conservative Republican appointees on an immigration issue? Not so much.

U.S. v. Boylan (9th Cir. - March 3, 2026)

It's a high-profile case, so Judge Owens knew it would get some attention. It's about the overnight fire on the Conception off the Channel Islands during a scuba diving expedition -- a fire that killed 34 people in horrific circumstances. There was a ton of press about it, and today's appeal concerns the conviction of the ship's captain for "seaman's manslaughter" under federal law.

The Ninth Circuit affirms, and when reciting the fact that thirty four people died, Judge Owens doesn't just delineate the body count. He also mentions their names. In a published opinion. Preserved forever.

A fitting tribute. So I'll do here as well:

"Carol Diana Adamic, Juha-Pekka Ahopelto, Neal Gustav Baltz, Patricia Ann Beitzinger, Vaidehi Devi Campbell Williams, Kendra Moore Chan, Raymond Scott Chan, Adrian Danielle Dahood-Fritz, Sanjeeri Satish Deopujari, Justin Carroll Dignam, Berenice Felipe, Lisa Ann Fiedler, Kristina Oline Finstad, Andrew Aaron Fritz, Daniel Garcia, Marybeth Guiney, Yuko Hatano, Yulia Krashennaya, Alexandra Haley Kurtz, Xiang Lin, Charles Spencer McIlvain, Caroline Annette McLaughlin, Kaustubh Nirmal, Angela Rose Solano Quitasol, EvanMichel Solano Quitasol, Michael Storm Quitasol, Nicole Storm Solano Quitasol, Steven John Salika, Tia Nicole Adamic Salika, Sunil Singh Sandhu, Fernisa June Sison, Ted Stephen Strom, Kristian Marc Takvam, and Wei Tan."