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2020-12-02 18:02:43.909537+00

http://www.courts.ca.gov/opinions/documents/B290805A.PDF

Filed 12/2/20; On remand CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX Conservatorship of the Person 2d Civil No. B290805 of O.B. (Super. Ct. No. 17PR00325) (Santa Barbara County) T.B. et al., as Coconservators, etc., OPINION ON REMAND Petitioners and Respondents, v. O.B., Objector and Appellant. In Conservatorship of O.B. (2020) 9 Cal.5th 989 , 1012, the California Supreme Court reversed the judgment rendered in our prior opinion filed on February 26, 2019. The court remanded the cause to us with directions “to reevaluate the sufficiency of the evidence in light of [its] clarification” of how an appellate court should review a “finding made by the trier of fact pursuant to the clear and convincing standard.” (Id., at pp. 995, 1012.) As directed, we have reevaluated the sufficiency of the evidence in accordance with the Supreme Court’s clarification of the standard of review. We conclude that the evidence is sufficient. O.B. is a person with autism spectrum disorder (autism).1 She appeals from an order establishing a limited conservatorship of her person and appointing respondents T.B., her mother (mother), and C.B., her elder sister, as conservators. Appellant’s principal contentions are (1) the probate court acted in excess of its jurisdiction by modifying her special education plan, and (2) the evidence is insufficient to support the probate court’s findings. A person with autism is not automatically a candidate for a limited conservatorship. Each case requires a fact-specific inquiry by the probate court. “Autism is known as a ‘spectrum’ disorder because there is wide variation in the type and severity of symptoms people experience.” [as of Nov. 17, 2020], archived at . Based on the facts here, we affirm the order establishing a limited conservatorship of appellant’s person. Factual and Procedural Background The limited conservatorship was imposed after a contested evidentiary hearing (also referred to herein as “trial”). Our 1 “Autism spectrum disorder is characterized by persistent deficits in social communication and social interaction across multiple contexts, including deficits in social reciprocity, nonverbal communicative behaviors used for social interaction, and skills in developing, maintaining, and understanding relationships. In addition to the social communication deficits, the diagnosis of autism spectrum disorder requires the presence of restricted, repetitive patterns of behavior, interests, or activities.” (American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) p. 31.) 2 summary of the facts is based on evidence presented at the trial in the form of testimony and exhibits. We disregard respondents’ summary of the facts based upon reports and declarations that were neither offered nor received in evidence. During the parties’ closing argument, the probate court made clear that it would consider only evidence presented at the trial: “We have had lengthy proceedings outside of the evidentiary proceeding, so you need to limit your arguments to the record inside of the evidentiary proceeding.” (See also Prob. Code, § 1046 [“The court shall hear and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders” (italics added)].)2 Moreover, because the evidentiary hearing was contested, declarations were inadmissible pursuant to section 1022. 3 2Unless otherwise stated, all statutory references are to the Probate Code. 3 Section 1022 provides, “An affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under this code.” “[S]ection 1022 authorizes the use of declarations only in an ‘uncontested proceeding.’” (Estate of Bennett (2008) 163 Cal.App.4th 1303 , 1309.) “When a petition is contested, as it was here, . . . absent a stipulation among the parties to the contrary, each allegation in a verified petition and each fact set forth in a supporting affidavit must be established by competent evidence. [Citations.]” (Estate of Lensch (2009) 177 Cal.App.4th 667 , 676.) On the other hand, a declaration or report received in evidence without objection at a contested hearing may properly be considered as competent evidence. (See Estate of Nicholas (1986) 177 Cal.App.3d 1071 , 1088.) Here, no one objected to the exhibits received in evidence. 3  In August 2017 respondents filed a verified petition requesting that they be appointed limited conservators of appellant’s person. The petition alleged that appellant had been diagnosed with autism and “is unable to properly provide for . . . her personal needs for physical health, food, clothing, or shelter.” When the petition was filed, appellant was 18 years old. She was living with her great-grandmother in Lompoc, County of Santa Barbara, and was repeating the 12th grade at Cabrillo High School. She had been living with her great-grandmother since she was three or four years old. Mother resided in Orange County. An expert witness, Dr. Kathy Khoie, testified on appellant’s behalf. Khoie, a psychologist, opined that appellant “is not a candidate for conservatorship.” Khoie explained: “My opinion is based on her intellectual functioning level. I believe that [she] has at least average intelligence. She’s high average in her non- verbal functioning.” “[S]he is verbal. She’s able to talk about her likes and dislikes.” In her report, Khoie concluded that although appellant “has a diagnosis of Autism Spectrum Disorder,” she “has the potential to live independently with support. She does not require a high level of supervision and decision making by a conservator.” In her report Khoie said she had reviewed the “Conservator Evaluation” report of the “Tri-Counties Regional Center.” The regional center report, which was neither offered nor received in evidence, was prepared by David Jacobs, Ph.D. Section 1827.5, subdivision (a) provides that the proposed limited conservatee, “with his or her consent, shall be assessed at a regional 4 center . . . . The regional center shall submit a written report of its findings and recommendations to the court.”4 Khoie stated: “Dr. Jacobs recommended limited conservatorship concerning habilitation, education/training, medical and psychological services; access to confidential records, and the right to enter into a contract. Recommended power for education and medical treatment were reiterated. Dr. Jacobs did not recommend conservatorship for decision regarding place of residence.” Since Dr. Khoie’s report was received in evidence without objection, we may consider her report’s reference to Dr. Jacobs’ recommendations even though Dr. Jacobs’ report was not received in evidence. (See Estate of Nicholas, supra, 177 Cal.App.3d at p. 1088.) Appellant’s other expert witness, Christopher Donati, is the probate investigator for the Santa Barbara County Public Guardian’s Office. Pursuant to a “non-court ordered” referral, he met with appellant and evaluated her “to determine if conservatorship was appropriate.” Appellant said she “was opposed to the idea of a conservatorship.” She wanted to continue living with her great-grandmother in Lompoc and continue attending Cabrillo High School. Donati spoke to 4See Cal. Conservatorship Practice (Cont.Ed.Bar 2018 update) § 22.7 D. Role of Regional Center: “The regional center plays a very significant role in the establishment of a limited conservatorship. Before a limited conservatorship is created, the regional center performs an assessment of the proposed limited conservatee and submits a written report of its findings and recommendations to the court. [Citations.]” “[T]he regional center report is required before the court can proceed to decide the petition for a limited conservatorship.” 5 mother, who said “she was hoping to move [appellant] and have her attend a different educational institution and begin regional services where [mother] resides [in Orange County].” Donati opined that he did not “see any . . . way that the conservatorship would benefit [appellant] at this point.” His primary concern was the removal of appellant from her great-grandmother’s home. The removal could cause her to “experience trauma.” Donati reviewed Dr. Jacobs’ regional center report as well as the “capacity declaration by Dr. [Cindy] Blifeld.” Her declaration was neither offered nor received in evidence, but Donati testified that Dr. Blifeld’s declaration contained the required “medical component [for a limited conservatorship] where a medical professional is in support of a conservatorship and [declares] that they feel that the . . . potential conservatee lacks capacity.” Dr. Blifeld “did feel that . . . [appellant] lacked capacity.” Donati continued: “There seemed to be conflicting reports where certain professionals felt . . . that she did lack capacity. And I believe Dr. Khoie was a professional that felt like she did have capacity and the conservatorship was not appropriate. So there seemed to be conflicting information.” L.K. is appellant’s 82-year-old great-grandmother. She testified that, since the conservatorship proceedings began, appellant has been “a nervous wreck.” L.K. opined that appellant does not need a conservatorship and can take care of herself “[a]s much as any teenager can.” She also opined that it was “a bad idea for [appellant] to live with her mom and her dad and her sisters” because “[s]he’s afraid of them. She’s afraid that she won’t be able to come back and see me.” “Her mother yells and swears at her and takes her electronics . . . away from her.” 6  Mother testified: For the past 10 years, she has had “[n]early daily” contact with appellant. Mother lives with appellant’s father and two sisters in a “large five bedroom home” in Orange County. She “filed the petition to basically protect [appellant] from the school [Cabrillo High School in Lompoc] and then long term just [to] protect her.” Appellant “has had . . . like 160 missed class periods, but she still manages to get passing grades, even high grades, in all of her academics.” Mother referred to the grades as “‘get this kid out of my class’ grades.” “[S]he’s not in class to earn the grades. She’s not producing work to earn the grades.” Sometimes the school placed appellant in detention for the entire day. If the requested conservatorship were established, mother said appellant would attend El Modena High School in the Orange County School District. Mother asserted that this school is “one of the highest rated schools in the district and has a really good reputation for their special education program.” Mother spoke to the “special education coordinator of the district.” Mother further testified: Appellant needs guidance in making routine decisions and assistance in performing daily tasks. Appellant “really struggles with taking in information needed to make decisions.” Mother needs to ask her, “‘Are you going to wear a sweater today? Are you putting on clean underwear? Are you going to brush your hair? Did you brush your teeth? Did you take your pills? . . . Is it hot out? Do you need to wear shorts?’” Appellant asks mother, “‘Can you lay my clothes out for me. . . . Can you turn the shower on.’” Mother, appellant’s father, or her great-grandmother “handles her medication.” Appellant cannot cook or do her laundry. Appellant has “behavioral outbursts” where she will “run off or scream and 7 yell.” She “screams and yells and fights and gets her way no matter what she does, . . . and it stresses her out and makes her upset.” Mother also testified that appellant is too trusting of other people. She will trust “people who are just nice to her . . . . She will go off with people she shouldn’t and trust people she shouldn’t. It’s dangerous.” Two years ago, appellant “ran off” to see “Sponge Bob on Hollywood Boulevard.” She trusts Sponge Bob.5 She also trusts “all of her family and anyone at school, anyone she’s seen before, people at restaurants, restaurant staff.” If a person she trusts asks her to sign a document, “she’ll just sign it no matter what.” If “you’re explaining [the document], she doesn’t really care.” Tammi L. Faulks, appellant’s guardian ad litem, filed an action against the Lompoc Unified School District claiming that appellant had not “received the education to which she was entitled.” Faulks sought to “get the school district to either set aside a compensatory education fund [for appellant] or allow [her] to continue to obtain high school services and all of the benefits that go with that until she’s age 22.” Faulks told the court she was “very worried that [school employees] seem to . . . do whatever it takes to push [appellant] out of the school regardless of whether she gets a proper education.” 5Pursuant to Evidence Code sections 452, subdivision (h) and 459, we take judicial notice that “SpongeBob is depicted as being a good-natured, optimistic, naïve, and enthusiastic yellow sea sponge residing in the undersea city of Bikini Bottom alongside an array of anthropomorphic aquatic creatures.” [as of Nov. 17, 2020], archived at . 8  During closing argument, respondents’ counsel stated that appellant “has had 312 unexcused class absences this year, so far, and numerous suspensions.” No one objected to this statement. Appellant’s guardian ad litem said, “[I]t’s true that she’s missed over 300 class periods . . . this school year.” The trial court found that a limited conservatorship “is appropriate” and that appellant “is unable properly to provide for . . . her personal needs for physical health, food, clothing, or shelter.” The court also found that she “lacks the capacity to give informed consent for medical treatment.” The court remarked that appellant’s treatment at Cabrillo High School has “been a failure of the education system for her.” The court characterized this remark as “just dicta because the County of Santa Barbara Education Office” and the “Lompoc Unified School District [are] not . . . part[ies] to this action.” None of the parties requested a statement of decision. Limited Conservatorship “A limited conservator of the person . . . may be appointed for a developmentally disabled adult. A limited conservatorship may be utilized only as necessary to promote and protect the well-being of the individual, shall be designed to encourage the development of maximum self-reliance and independence of the individual, and shall be ordered only to the extent necessitated by the individual’s proven mental and adaptive limitations. The conservatee of the limited conservator shall not be presumed to be incompetent and shall retain all legal and civil rights except those which by court order have been designated as legal disabilities and have been specifically granted to the limited conservator.” (§ 1801, subd. (d).) 9  Court’s Alleged Lack of Jurisdiction to Modify Appellant’s Educational Plan Section 2351.5, subdivision (b)(7) provides that, “in its order appointing the limited conservator,” the probate court may grant to the conservator the power to make “[d]ecisions concerning the education of the limited conservatee.” The probate court expressly granted this power to respondents. Appellant argues: The probate court’s “jurisdiction was preempted by the Federal and State Education Statutes.” (Bold and capitalization omitted.) “[T]he [probate] court . . . lacked the ability to modify or alter the special education plan instituted by the local school district under requirements established under federal and state education statutes.” “As a result, . . . the [probate] court’s order granting [respondents’] petition, which prevented [appellant] from . . . graduating from Cabrillo High School, and resulted in the removal of [appellant] from both her school and her home, exceeded the court’s jurisdiction and was legally invalid.” Appellant’s argument lacks merit. The probate court did not modify her special education plan. As authorized by section 2351.5, subdivision (b)(7), the court merely granted to the limited conservators the power to make decisions concerning her education. The court stated, “I’m not involved in her education, really, at all, except to the extent that if I impose the . . . limited conservatorship, . . . that might affect who gets to talk about her education.” Appellant has not cited authority prohibiting the establishment of a limited conservatorship solely because it may result in an adult student’s transfer from a school that has failed to meet her educational needs. “‘It is a fundamental rule of 10 appellate review that the judgment appealed from is presumed correct and “‘“all intendments and presumptions are indulged in favor of its correctness.”’ [Citation.]” [Citation.] An appellant must provide an argument and legal authority to support his contentions. . . .’” (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771 , 799.) Substantial Evidence Supports the Establishment of a Limited Conservatorship of Appellant’s Person At the hearing on a petition for appointment of a limited conservator of the person, the court shall make the appointment “[i]f the court finds that the proposed limited conservatee lacks the capacity to perform some, but not all, of the tasks necessary to provide properly for his or her own personal needs for physical health, food, clothing, or shelter, or to manage his or her own financial resources . . . .” (§ 1828.5, subd. (c), italics added.) Appellant contends that the evidence is insufficient to support the required findings. The “clear and convincing” standard of proof applies to the appointment of a limited conservator. (§ 1801, subd. (e).) “[A]n appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in 11 the evidence, and drawn reasonable inferences from the evidence.” (Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011- 1012. The record as a whole contains substantial evidence, in the form of mother’s testimony, from which a reasonable factfinder could have found it highly probable that appellant “lacks the capacity to perform some . . . of the tasks necessary to provide properly for . . . her own personal needs for physical health, food, clothing, or shelter, or to manage . . . her own financial resources . . . .” (§ 1828.5, subd. (c), italics added.) “The testimony of one witness may be sufficient to support the findings.” (Conservatorship of B.C. (2016) 6 Cal.App.5th 1028 , 1034.) We recognize that appellant’s experts, Dr. Khoie and Donati, opined that a limited conservatorship is inappropriate. But “[a]n appellate court . . . will sustain the trial court’s factual findings if there is [the requisite] substantial evidence to support those findings [under the clear and convincing standard of proof], even if there exists evidence to the contrary. [Citation.]” (Conservatorship of Amanda B. (2007) 149 Cal.App.4th 342 , 347.) Because mother was in nearly daily contact with appellant for the past 10 years, mother was in a far better position than Dr. Khoie and Donati to evaluate appellant’s capacity to function independently. Although mother’s testimony alone is sufficient, additional evidence supports the trial court’s findings. Dr. Khoie’s and Donati’s opinions conflict with the regional center evaluation prepared by Dr. Jacobs, who recommended a limited conservatorship. Their opinions also conflict with Dr. Blifeld’s evaluation of appellant. Donati testified that Dr. Blifeld had provided the required “medical component [for a limited 12 conservatorship] where a medical professional is in support of a conservatorship and [declares] that they feel that the . . . potential conservatee lacks capacity.” Moreover, in deciding to appoint a limited conservator of appellant’s person, the probate court took into account its personal observations of appellant during the proceedings. The court stated: “I’ve been involved in numerous hearings, and [appellant] has been at all of them or most of them. So in addition to some of the different witnesses[,] I am entitled to base my decision . . . in part on my own observation of [appellant] at the proceedings.” We reject appellant’s assertion that “[t]he fact that the trial court ‘observed’ [appellant] - who was sitting right in front of him - over a ten month period [citation], proves nothing.” The court’s personal observations of appellant contribute to the substantial evidence in support of its findings. (See People v. Rodas (2018) 6 Cal.5th 219 , 234 [“when a competency hearing has already been held, [in determining whether to conduct a second competency hearing] ‘the trial court may appropriately take its personal observations into account in determining whether there has been some significant change in the defendant’s mental state,’ particularly if the defendant has ‘actively participated in the trial’ and the trial court has had the opportunity to observe and converse with the defendant”].) The probate court had the opportunity to observe and converse with appellant. (See also People v. Fairbank (1997) 16 Cal.4th 1223 , 1254 [“substantial evidence, including the trial court’s own observations of defendant, supports the court's factual determination that defendant was not intoxicated at the time he entered his guilty plea and that his plea was knowing, intelligent, and voluntary”].) 13  The Probate Court Did Not Violate Principles of Conservatorship Law Appellant claims that the probate “court’s actions and orders violated basic principles under the State Conservatorship Statute.” (Bold and capitalization omitted.) “[O]f particular significance, the [probate] court’s conservatorship order ignored or disregarded the wishes and desires of [appellant] herself, contrary to both the letter and the spirit of conservatorship statutes.” The probate court considered appellant’s personal preferences. Although appellant did not testify, the court permitted her to explain at length in open court why she wanted to stay in Lompoc and attend Cabrillo High School. The court was not required to accede to her wishes. Appellant argues that the probate court “failed to consider the clear availability of less restrictive alternatives to a conservatorship.” (Bold and capitalization omitted.) “No conservatorship of the person . . . shall be granted by the court unless the court makes an express finding that the granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.” (§ 1800.3, subd. (b).) The probate court expressly made this exact finding. Appellant does not cite authority requiring the court to set forth on the record the less restrictive alternatives to a conservatorship that it considered. “Because such express findings are not required, we presume the court followed the law in making its determination [citation], including a consideration of [less restrictive alternatives].” (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691 , 698-699; see also Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554 , 563 [“it is presumed that the 14 court followed the law. . . . The mere fact that the court did not explicitly refer to [Cal. Rules of Court,] rule 203.5(e), when the statute contains no such requirement does not support the conclusion that it was ignored”].) The Probate Court Did Not Prejudge the Case Appellant contends, “[T]he statements and actions by the [probate] court demonstrate that it had already prejudged the case, and the purported need for a conservatorship.” In support of her contention, appellant refers to the court’s remarks at a pretrial hearing concerning “[a] placement decision,” i.e., “whether or not [appellant] stays at Cabrillo [High School] or she goes down to a high school in Orange County.” The court said appellant’s counsel should “be prepared to show cause why I shouldn’t impose a permanent conservatorship on the date of the [upcoming trial] because . . . . I believe that the mother has shown a prima facie case [at the pretrial hearing] of why a permanent conservatorship is probably appropriate.” “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 , 851.) The court continued, “So . . . you need to make sure that if you object to that, . . . you make it clear to both sides and to the Court on that day [the day of trial] that you don’t want a conservatorship because when that day is over, I’m going to probably impose one, unless you change my mind.” Appellant’s counsel replied, “Understood, Your Honor.” The probate court’s statements do not demonstrate that it prejudged the limited conservatorship issue before hearing the evidence at trial. As a courtesy to appellant, the court informed her counsel that at the pretrial hearing mother had made a prima facie case that a limited conservatorship “is probably 15 appropriate.” (Italics added.) Thus, the court warned counsel that at trial she should be prepared to present evidence showing that a limited conservatorship is not appropriate. The court made clear that it would not make up its mind until it had heard all of the evidence. Disposition The order establishing a limited conservatorship of appellant’s person and appointing respondents as conservators is affirmed. The parties shall bear their own costs on appeal. CERTIFIED FOR PUBLICATION. YEGAN, J. We concur: GILBERT, P. J. PERREN, J. 16  James Rigali, Judge Superior Court County of Santa Barbara ______________________________ Gerald J. Miller, under appointment by the Court of Appeal for Appellant. Law Offices of Laura Hoffman King and Laura Hoffman King; Tardiff Law Offices and Neil S. Tardiff for Respondents. 17

2015-10-16 04:41:46.666664+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=3159&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa08%5cOpinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS           IN RE:  STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,   §   §   §   §   §   §         08-12-00176-CV   AN ORIGINIAL PROCEEDING   IN MANDAMUS     OPINION ON MOTION FOR REHEARING             In this original proceeding, State Farm Mutual Automobile Insurance Company seeks mandamus relief from the trial court’s order denying its motion to sever Rosa and Alfonso Durans’ breach of contract claim from their extra-contractual claims and abate the extra-contractual claims pending resolution of the breach of contract claim.  We previously issued an opinion and judgment denying mandamus relief with respect to the portion of the trial court’s order denying abatement, but conditionally granting mandamus relief with respect to the portion of the trial court’s order denying severance.  Arguing that our decision to deny mandamus relief with respect to the portion of the trial court’s order denying abatement is contrary to well-established authority considering abatement in uninsured/underinsured cases, State Farm has moved for rehearing only as to that portion of our opinion.  After reviewing the arguments and authorities cited in the motion for rehearing, we agree with State Farm.  Accordingly, we grant the motion for rehearing, withdraw our prior opinion and judgment dated August 8, 2012, and substitute the following in their stead. Factual and Procedural Background             In the underlying action, Rosa Duran was injured when struck by an underinsured motorist while walking through the parking lot of a shopping center.  In settling her claim with the underinsured motorist, Rosa accepted from the motorist the full amount of liability insurance the motorist had in force at the time of the accident – $25,000.  Asserting that the $25,000 she recovered was insufficient compensation, Rosa made a claim on two separate State Farm policies, one issued to her husband Alfonso Duran and the other to her daughter Cecilia Duran.  State Farm offered Rosa $7,500 to settle both claims. Dissatisfied, the Durans sued State Farm for breach of the insurance policy, violations of Section 17.46 of the Deceptive Trade Practices Act and the prompt payment provisions of Chapter 542 of the Insurance Code, and violations of the common-law duty of good faith and fair dealing.  The Durans sought $50,000 in damages – $25,000 from each policy – for Rosa’s injuries and for Alfonso’s claims of loss of consortium and of household services.  Arguing that severance of the Durans’ extra-contractual claims from their contract claim and abatement of the extra-contractual claims pending resolution of the contract claim was necessary to avoid the prejudice it would suffer in defending both claims in a single trial, State Farm moved to sever and abate.  The trial court denied State Farm’s motion.   MANDAMUS             To obtain mandamus relief from the order denying its motion to sever and abate, State Farm must meet two requirements.  State Farm must show that the trial court clearly abused its discretion and that the benefits of mandamus outweigh the detriments to the extent that an appellate remedy is inadequate.  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004)(orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law.  In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)(orig. proceeding).  When reviewing the trial court’s decision for an abuse of discretion, we may not substitute our judgment for that of the trial court with respect to resolution of factual issues or matters committed to the trial court’s discretion.  See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).  However, we are much less deferential when reviewing the trial court’s determination of the legal principles controlling its ruling.  See Walker, 827 S.W.2d at 840.  A trial court has no discretion in determining what the law is or applying the law to the facts, even when the law is unsettled.  Prudential, 148 S.W.3d at 135.  A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.  Walker, 827 S.W.2d at 840. Absent extraordinary circumstances, mandamus will not issue unless the relator lacks an adequate remedy by appeal.  In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 210-11 (Tex. 2004)(orig. proceeding).  Whether a clear abuse of discretion can be adequately remedied by appeal depends on a careful analysis of costs and benefits of interlocutory review.  In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008)(orig. proceeding).  Because it depends heavily on circumstances, such a cost-benefit analysis must be guided by principles rather than by simple rules that treat cases as categories.  See id.  In addition, we must consider whether mandamus will spare the litigants and the public “the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.”  In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008)(orig. proceeding), quoting Prudential, 148 S.W.3d at 136. MOTION TO SEVER AND ABATE             State Farm argues that because it offered to settle the Durans’ entire contract claim, the trial court should have severed the Durans’ extra-contractual claims from their contract claim and abated the Durans’ extra-contractual claims pending resolution of the contract claim, and, by failing to do so, abused its discretion.  State Farm further contends that, without severance and abatement, it has no adequate remedy by appeal because it “stands to lose substantial rights by being required to prepare for extra contractual claims that may be rendered moot, and may have not even yet accrued.” Standard of Review We review an order denying the severance of extra-contractual claims from contract claims and abatement of extra-contractual claims pending resolution of contract claims for an abuse of discretion.  Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996). SEVERANCE 1.  Applicable Law A trial court abuses its discretion if it fails to order a severance “[w]hen all of the facts and circumstances of the case unquestionably require a separate trial to prevent manifest injustice, and there is no fact or circumstance supporting or tending to support a contrary conclusion, and the legal rights of the parties will not be prejudiced thereby, there is no room for the exercise of discretion.”  Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 683 (1956)(orig. proceeding).  Prejudice is not presumed simply because contract claims and extra-contractual claims are joined in the same action; accordingly, severance is not always mandatory.  Allstate Ins. Co. v. Hunter, 865 S.W.2d 189, 193-94 (Tex.App.--Corpus Christi 1993, orig. proceeding); Progressive County Mut. Ins. Co. v. Parks, 856 S.W.2d 776, 778 (Tex.App.--El Paso 1993, orig. proceeding).  However, when an insurer moves to sever an insured’s extra-contractual claims from a contract claim following its offer to settle the insured’s entire contract claim, the trial court must sever the insured’s extra-contractual claims from the contract claim because evidence of a settlement offer creates prejudice.  Akin, 927 S.W.2d at 630; Tex. Farmers Ins. Co. v. Cooper, 916 S.W.2d 698, 701, 702 (Tex.App.--El Paso 1996, orig. proceeding)(holding that severance of contract claim from extra-contractual claims is necessary when evidence of a settlement offer is relevant to the extra-contractual claim). Absent severance, an insurer is presented with a “Catch-22” in that its decision to admit or exclude evidence of a settlement offer jeopardizes the successful defense of the other claim.  For instance, in defending against a contract claim, the insurer will insist on exercising its right to exclude evidence of a settlement offer to negate liability.  See Akin, 927 S.W.2d at 630; see also Tex.R.Evid. 408.  Conversely, in defending against extra-contractual claims, an insurer will insist on exercising its right to admit evidence of a settlement offer to negate liability.  See Akin, 927 S.W.2d at 630.  Thus, by having to defend against these two types of claims simultaneously and before the same jury absent severance, an insurer is prejudiced to such an extent that a fair trial is unlikely.  Akin, 927 S.W.2d at 630.  Under such a scenario, the trial court has no choice but to sever in order to protect the fairness of the proceedings and the interests of the parties.  See State Farm Mut. Auto. Ins. Co. v. Wilborn, 835 S.W.2d 260, 262 (Tex.App.--Houston [14th Dist.] 1992, orig. proceeding). Discussion 1.  Abuse of Discretion State Farm asserts that the trial court’s order denying severance is contrary to the principles of law set forth above.  We agree. As established above, severance is required when an insurer offers to settle the entire contract claim so as to avoid the unfair and prejudicial dilemma an insurer faces in simultaneously defending against a contract claim and extra-contractual claims.  Akin, 927 S.W.2d at 630; Cooper, 916 S.W.2d at 701, 702.  Here, State Farm asserted in its motion and reply, and provided proof to the trial court in the form of letters and affidavits from its claims representative, that it was offering to settle in full each of Rosa’s “claim[s] for Underinsured Bodily Injured benefits” and “all damages Rosa … claim[ed].”[1]  Because State Farm offered to settle in full Rosa’s contract claims and the resulting damages therefrom, severance is required to avoid the unfair and prejudicial dilemma State Farm would face in simultaneously defending against the Durans’ contract claim and their extra-contractual claims.  See Akin, 927 S.W.2d at 630; Cooper, 916 S.W.2d at 701, 702. The Durans respond that severance is improper because their claims brought pursuant to Chapter 542 of the Insurance Code are not separate causes of action subject to severance, but are instead a single cause of action combining an insurer’s contractual and statutory liability.  In support of their argument, the Durans refer to Lusk v. Puryear, 896 S.W.2d 377, 379 (Tex.App.--Amarillo 1995, orig. proceeding).  However, the Durans’ reliance on Lusk is misplaced. In Lusk, the insured alleged that, by failing to pay benefits timely, the insurer breached the insurance contract and violated the prompt payment provisions of Article 21.55 of the Insurance Code.[2]  Lusk, 896 S.W.2d at 380.  The court held that severance and abatement were improper.  Id.  In so holding, the court reasoned that because damages for untimely payment authorized by Article 21.55 were recoverable for the insurer’s failure to pay a claim for which it would be liable under the contract, the insurer’s entire liability, both contractually and statutorily, “was put in issue as one cause of action.”  Lusk, 896 S.W.2d at 380. But this situation is not present here.  First, because the claims asserted in this case are different and broader than those brought in Lusk, they are distinct claims.  In Lusk, there was no underlying coverage dispute; rather, the insured alleged that the insurer breached its insurance contract solely by failing to pay benefits timely.  Here, the Durans alleged in their petition that State Farm violated Chapter 542 not only by failing to pay their claim promptly, but also by engaging in various acts constituting unfair claim settlement practices, and, furthermore, that State Farm breached its contract by failing to compensate them adequately for their loss.  Second, unlike the insurer in Lusk, State Farm offered to settle the Durans’ contract claim, a fact so significant that it renders Lusk inapplicable and mandates resolution of this case pursuant to the authorities cited above. The Durans also contend that State Farm’s settlement offer is so insufficient that it does not entitle State Farm to severance.  First, the Durans argue that State Farm is not entitled to severance because by failing to offer to settle their Chapter 542 prompt payment claims and Alfonso’s loss of consortium claims, State Farm did not offer to settle “the entire dispute.”  Contrary to the Durans’ assertion, however, determining whether a coverage claim must be severed from a bad faith claim does not hinge on an insurer’s offer to settle the “entire dispute,” but rather on an insurer’s offer to settle the contract claim.  See Akin, 927 S.W.2d at 630 (“In the absence of a settlement offer on the entire contract claim, or other compelling circumstances, severance is not required.”)[Emphasis added]; In re Republic Lloyds, 104 S.W.3d 354, 358 (Tex.App.--Houston [14th Dist.] 2003, orig. proceeding)(“Thus, pursuant to Akin, a severance is required when the insurer has made a settlement offer on the entire breach of contract claim.”) [Emphasis added]. Second, citing to In re Republics Lloyds, the Durans argue that State Farm failed to prove that it was entitled to severance because the affidavits and letters from its claims representative do not affirmatively establish that it made an offer to settle the entire contract claim.  In In re Republics Lloyds, the court held that the insurer’s reliance on the insured’s proof of loss statement and the check purportedly tendered to them for the amount set out in the statement did not conclusively establish that the insurers offered to settle the entire breach of contract claim.  104 S.W.3d at 359-60.  In so holding, the court concluded, in significant part, that the insurers did not meet their evidentiary burden because the check neither contained any release language nor indicated that it was payment in full and because no cover letter accompanied the check to establish that the check was tendered, and, if so, in response to the insured’s claims.  Id. at 359.  Here, in contrast, State Farm met its evidentiary burden by providing the trial court with letters and affidavits from its claims representative that conclusively proved that State Farm offered to settle each of Rosa’s contractual claims and the resulting damages therefrom.[3] Because we agree with State Farm that severance of the Durans’ contract claim from their extra-contractual claims is necessary based on the existence of an offer to settle the entire contract claim, we hold that the trial court abused its discretion in denying State Farm’s motion to sever. 2.  Inadequate Remedy             It is undisputed that because an order denying severance is not a final judgment, it is not appealable.  Beckham Group, P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex.App.--Dallas 2010, no pet.).  Mandamus is therefore the appropriate avenue by which a party may seek review of a trial court’s order denying severance.  In re Liu, 290 S.W.3d 515, 518 (Tex.App.--Texarkana 2009, orig. proceeding). In this case, mandamus relief is appropriate because its benefits outweigh its detriments.  As established above, State Farm has a substantial right to have its liability decided without any mention of a settlement offer.  See, e.g., Akin, 927 S.W.2d at 630; Cooper, 916 S.W.2d at 701, 702; Willborn, 835 S.W.2d at 262.  Severance of the Durans’ contract claims from their extra-contractual claims is necessary to preserve that right, and an appeal is insufficient to protect State Farm’s right.  If State Farm obtains judgment on a favorable jury verdict, it cannot appeal.  If the Durans obtain a judgment against State Farm on an unfavorable jury verdict, State Farm could not obtain reversal for the incorrect denial of severance unless the court of appeals concludes that the trial court’s error “probably caused the rendition of an improper judgment . . . .”  Tex.R.App.P. 44.1(a)(1).  There is no guarantee that State Farm can do so.  Even if State Farm were to obtain a reversal, its substantial right will have been lost, in part, because only by a second trial will the right be available to it.  Accordingly, we hold that State Farm has no adequate remedy by appeal. ABATEMENT Applicable Law             No rule of law mandates that a trial court abate extra-contractual claims when it orders severance of such claims from a contract claim.  See Akin, 927 S.W.2d at 631 (“Regardless of which party prevails on the contract claim, we disagree than an abatement of the bad faith claim until all appeals of the contract claim are exhausted is required.”); Cooper, 916 S.W.2d at 702 (“Even where settlement evidence requires separation of contract and bad faith claims, we see no need to create an ironclad rule mandating abatement at any given time.”).  Rather, in determining whether extra-contractual claims should be abated until a contract claim becomes final, the trial court should abate if abatement will:  (1) promote justice; (2) avoid prejudice; and (3) promote judicial economy.  Cooper, 916 S.W.2d at 701.  “It is and remains movant’s burden to shown [sic] specifically how it will be prejudiced if abatement is not ordered, and to show concrete evidence of how defending against plaintiff’s contract claims clashes with defending against plaintiff’s bad faith claims.”  Cooper, 916 S.W.2d at 701. In a case where an insured asserts a claim for uninsured/underinsured benefits, abatement of the extra-contractual claims is required in most instances.  See In re United Fire Lloyds, 327 S.W.3d 250, 257 (Tex.App.--San Antonio 2010, orig. proceeding); U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668, 675 (Tex.App.--Houston [1st Dist.] 1993, orig. proceeding).  Abatement is required because of the unique nature of an uninsured/underinsured case.  In such a case, an insurer’s contractual duty to pay damages to an insured arises only if the insured is “legally entitled to recover” from the uninsured/underinsured motorist.  See Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 815 (Tex. 2006), citing Henson v. S. Farm Bureau Cas. Ins. Co., 17 S.W.3d 652, 653-54 (Tex.2000). An insured is “legally entitled to recover” from the uninsured/underinsured motorist only if the insured establishes the liability and underinsured status of the other motorist and the amount of damages suffered by the insured.  Id., citing Henson, 17 S.W.3d at 653-54.  If an insured is unable to so establish, an insurer “should not be required to put forth the effort and expense of conducting discovery, preparing for a trial, and conducting voir dire on bad faith claims that could be rendered moot by the portion of the trial relating to UIM benefits.”  In re United Fire Lloyds, 327 S.W.3d at 256.  “Texas insurance law generally conditions recovery for bad faith and extracontractual claims on a recovery for breach of the insurance contract itself.”  Smith v. Allstate Ins., No. H-03-0651, 2007 WL 677992, at *5 (S.D. Tex. Feb. 27, 2007), citing Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 922 (Tex. 2005); Liberty Nat'l Fire Ins. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996). Discussion 1.  Abuse of Discretion             State Farm asserts that the trial court abused its discretion by failing to abate the Durans’ extra-contractual cause of action because “State Farm is under no contractual duty to pay UM/UIM benefits until the [Durans] establish the liability and underinsured status of the other motorist.”  We agree.             As noted above, abatement of the Durans’ extra-contractual claim is required if State Farm establishes that the Durans are not “legally entitled to recover” from the uninsured/underinsured motorist.  See In re United Fire Lloyds, 327 S.W.3d at 257 (citing Brainard); see also In re Old Am. County Mut. Ins. Co., No. 13-11-00412-CV, 2012 WL 506570, *5 (Tex.App.--Corpus Christi Feb. 16, 2012, orig. proceeding)(mem. op.).  In their petition, the Durans allege that, with State Farm’s consent, Rosa accepted, from the underinsured motorist who struck her, the full amount of liability insurance the motorist had in force at the time of the accident.  However, as State Farm correctly points out in its motion for rehearing, a settlement or admission of liability from an uninsured/underinsured motorist does not constitute a judicial determination that the uninsured/underinsured motorist was both at fault and underinsured.  See Brainard, 216 S.W.3d at 818; In re State Auto Prop. & Cas. Ins. Co., 348 S.W.3d 499, 502 (Tex.App.--Dallas 2011, orig. proceeding).  A judicial determination of negligence and damages is what is required to trigger an insurer’s duty to pay contractual benefits.  See Brainard, 216 S.W.3d at 818; In re State Auto Prop. & Cas. Ins. Co., 348 S.W.3d at 502.  There has been no judicial determination in this case that the underinsured motorist who struck Rosa was both at fault and underinsured.  Because no such determination has been made, it has not been established that the Durans are “legally entitled to recover” from the underinsured motorist.  Until the Durans establish that they are legally entitled to recover from the underinsured motorist who struck Rosa, State Farm is under no contractual duty to pay uninsured/underinsured benefits to them.  Accordingly, abatement of the Durans’ extra-contractual claims is required.             The Durans contend that “State Farm’s reliance on . . . Brainard . . . for the proposition that abatement is required for all extra-contractual claims is unfounded” and urge us instead to follow our decision in Cooper wherein we refused to create an ironclad rule mandating abatement at any given time, even if severance of contract and bad faith claims was required.  However, we again decline to create an ironclad rule depriving the trial court of discretion to deny abatement, regardless of the facts and circumstances, in every case.  Under the facts of this case, State Farm has specifically shown, as required by Cooper, that it would be immediately prejudiced if the Durans' extra-contractual claims are not abated.  See Cooper, 916 S.W.2d at 700-03.  As noted above, the Durans’ pleadings inadequately allege that State Farm had a previous contractual duty to pay them underinsured damages, and absent State Farm's liability under the policy, the Durans cannot maintain their extra-contractual claims.  See Boyd, 177 S.W.3d at 922 (holding that an insured’s recovery for extra-contractual claims is conditioned on recovery for breach of the insurance contract itself).  Accordingly, it would be unjust, prejudicial, and inconvenient to require State Farm to defend against the Durans’ extra-contractual claims until State Farm’s liability under the policy has been determined.  It is therefore appropriate to abate the Durans’ extra-contractual claims until such a determination has been made.             Because we agree with State Farm that abatement of the Durans’ extra-contractual claims is required, we hold that the trial court abused its discretion in denying State Farm’s motion to abate. 2.  Inadequate Remedy             Mandamus relief is appropriate in this case because its benefits outweigh its detriments.  As established above, State Farm has a substantial right not to be required to put forth the expense of conducting discovery, preparing for a trial, and conducting voir dire on the Durans’ extra-contractual claims that ultimately may be disposed of by their failure to prevail on their contractual claim.  See In re United Fire Lloyds, 327 S.W.3d at 257; In re Old Am. County Mut. Ins. Co., 2012 WL 506570, at *5.  To require that State Farm undertake such action and bear the costs associated with such action would be unjust, prejudicial, and inconvenient.  Abatement of the Durans’ extra-contractual claims is therefore necessary to preserve that right, and, for the same reasons articulated in our discussion regarding severance, an appeal is insufficient to protect State Farm’s right.  Accordingly, we hold that State Farm has no adequate remedy by appeal. CONCLUSION             For the reasons set forth above, we conclude that State Farm has shown that:  (1) the trial court abused its discretion in denying severance of the Durans’ extra-contractual claims from their contractual claims and in denying abatement of the extra-contractual claims pending the determination of their contract claim; and (2) it has no adequate remedy by appeal.  State Farm is therefore entitled to mandamus relief.  Accordingly, we conditionally grant State Farm’s petition for writ of mandamus.  We hereby direct the trial court to vacate its order denying State Farm’s motion for severance and abatement and issue an order severing the Durans’ contract claim from their extra-contractual claims and abating their extra-contractual claims pending the determination of their contract claim.  Mandamus will issue only if the trial court fails to act within ten days from the date of this opinion.     September 19, 2012                                                                         CHRISTOPHER ANTCLIFF, Justice   Before McClure, C.J., Rivera, and Antcliff, JJ. [1] The claims representative executed two affidavits.  One was attached to State Farm’s amended motion to sever and abate.  The other, expanded and revised, was attached to State Farm’s reply to the Durans’ response to its motion.   [2] Article 21.55 is the statutory predecessor to Chapter 542. [3] The Durans posit that because State Farm failed to present and offer the second and revised affidavit from its claims representative at the hearing on the motion and instead attached it to a reply submitted after the hearing, it has failed to preserve for appeal its claim that the revised affidavit proves that its “offers were in ‘settlement of all damages.’”  In support, the Durans cite to In re Farmers Tex. County Mut. Ins. Co., No. 07-11-00396-CV, 2011 WL 4916303 (Tex.App.--Amarillo Oct. 17, 2011, orig. proceeding).  However, In re Farmers is distinguishable.   There, the insurer filed a plea in abatement requesting the trial court abate all extra-contractual claims until after resolution of the underinsured motorist claim.  2011 WL 4916303, at *1.  After holding a hearing on the plea in abatement, the trial court denied the plea on the record.  Id.  One month later, the insurer notified the trial court in a letter that it had made a settlement offer to conclude the entire contract claim.  Id.  Notably, the letter did not request the trial court reconsider its denial of the plea in light of its settlement offer.  Id., at *1-2.  The court held that the insurer was not entitled to mandamus relief on the ground that it raised on appeal – abatement was necessary after a settlement offer – because this was not the ground it had raised at trial – abatement was necessary after resolution of the underinsured motorist claim.  Id., at *2.  In other words, the insurer failed to preserve its claim on appeal.   Here, unlike the trial court in In re Farmers, the trial court never ruled on the motion to sever and abate at the conclusion of the hearing on the motion; rather, it denied the motion approximately six weeks after considering additional briefing from the parties.  It was in this additional briefing that State Farm included the affidavit about which the Durans complain on appeal and which the trial court presumably considered in denying the motion.  Thus, unlike the insurer in In re Farmers, State Farm is not relying upon new evidence it never introduced at trial in support of an argument on appeal that does not comport with its argument at trial.  Rather, on appeal, State Farm relies upon the same ground it raised at trial arguing why severance and abatement were necessary – because it made a settlement offer.  Accordingly, State Farm has preserved its claim on appeal.

2020-01-17 22:01:51.906482+00

Green

*272OPINION. Green : The petition alleges and the answer admits that “ the taxes in controversy are income taxes for the calendar years 1922 and 1923, and amount to the sum of $16,492.48.” The respondent has proposed no deficiency for the year 1923. Neither has he rejected an abatement claim for that year. We must, therefore, on our own motion, dismiss the petition for lack of jurisdiction as far as it pertains to the year 1923. Cornelius Cotton Mills, 4 B. T. A. 255. The question involved in this proceeding is whether the petitioner should report, as taxable income for the year 1922, the allowed amount of a general claim filed by the petitioner against the receivers of the Willys Corporation and allowed by the latter during the year 1922, as contended for by the respondent, or whether the petitioner should only report the dividends on the claim as income as and when they were paid by the receivers, as contended for by the petitioner. The circumstances surrounding the contract and its breach, have been set out fully in the findings of fact. The claim as originally filed with the receivers amounted to $943,025.24 and was based, in part, upon certain expenditures made by the petitioner in anticipation of the execution of the contract. The balance of the claim and the major portion thereof was based upon the alleged loss of profits, which the petitioner contended it would have earned had the contract not been breached. After negotiations, the receivers offered to compromise petitioner’s claim for the sum of $500,000. The court authorized the receivers to allow the claim, provided that $50,000 thereof should be applied against the cancellation and the transfer to the petitioner of any interest which the Willys Corporation or the receivers had in the $237,500 preferred stock of the petitioner then outstanding. The balance of the $450,000 was allowed as a general claim and represented only a settlement for loss of anticipated profits arising out of the breach of the contract. It did not include any sum for the expenditures claimed to have been made by the petitioner in getting ready to perform the contract. Upon the allowance of the claim the petitioner was paid, during 1922, the same percentage that had been previously paid to the general creditors, namely, 57 per cent, amounting to $256,500. The petitioner, in its tax return for 1922, reported as income the sum of $306,500, which represented $50,000 fixed as a consideration upon the preferred stock redeemed by the petitioner, in accordance with the terms of the settlement with the receivers, and the $256,500 representing the 57 per cent dividend paid in 1922. *273On December 31,1922, the petitioner had received 57 per cent of its claim as allowed. The liquid assets then remaining in the hands of the receivers amounted to approximately half the amount of the claims filed and the expenses of the receivership. If full credence were given to the receivers’ estimates of the value of all assets, it would not then have appeared that more than 75 per cent of the amount of the claim would be recovered. The receivers made no promises or forecasts, and were unwilling and unable to say when and if further dividends would be paid. The petitioner reported as income only the amount of the cash dividends received. The petitioner at all times kept its accounts and filed its income-tax returns upon the accrual basis. The general rule is that a taxpayer reporting on an accrual basis must report items of income at the time they accrue, without regard to the time they are paid. Appeal of Schock, 1 B. T. A. 528; Appeal of Butler, 1 B. T. A. 1105; and Appeal of Harris, 2 B. T. A. 933. A taxpayer who keeps its books and reports its income on the accrual basis is not, however, required to report as income that which in all probability it may never receive. Great Northern Railway Co., 8 B. T. A. 225, 265. In the latter case, the Great Northern Railway Co. kept its books upon an accrual basis, in accordance with the requirements of the Interstate Commerce Commission. It did not, however, in accordance with section 20 of the Act to Regulate Commerce, effective July 1, 1914, accrue certain interest on certain debts owing it by certain nonaffiliated subsidiaries, for the reason that it was very doubtful whether it would ever be able to collect such interest on account of the financial condition of the debtor companies. The Commissioner contended that, notwithstanding the requirements of the Interstate Commerce Commission, the Great Northern Railway Co. should, for income-tax purposes, report the interest as income for the years in which it accrued. In rejecting the Commissioner’s determination on that point, we said in part: As indicated by tbe income-taxing statutes, corporations keeping books of account may make their returns upon the basis of actual receipts and disbursements or upon some other basis which truly reflects income. There are two methods of accounting in general use, (1) the cash basis commonly used by individuals and small concerns, and (2) the so-called “accrual basis.” Both methods have for their object the same purpose, which is the recording of the financial transactions of a business and the summarizing of the results so as to show the effect of these transactions upon the business. The principal difference between them is the period of time to which a given transaction is allocated. Under either method the taxpayer must have before him some definitely ascertained item of income to record before it can be reported and if a given transaction does not correspond to the definition of income then there is no income to record whether the taxpayer keeps its books on a cash or an accrual *274basis. Where boohs are hept on the accrual basis there is no requirement that there shall be accrued as income that which may never be received. The position of the respondent in this ease carried to its logical conclusion would retire a taxpayer keeping its books of account upon the accrual basis to accrue as income interest on bonds held as an investment which it did not collect and which in all probability it never would collect. If the theory of the respondent is correct an insolvent corporation keeping its books of account upon the accrual basis might merely by the purchase of bonds of insolvent corporations upon which interest was neither being earned or paid, easily show a large income. (Italics added.) In cases of sales where part of the consideration received has no fair market value, a taxpayer on the accrual basis is not required to report all of the profit from the sale that may eventually be realized but is entitled to report on the “ return of capital ” theory, which contemplates the receipt by the taxpayer of its entire cost or other basis before there can be any taxable income. See Joliet-Norfolk Farm Corporation, 8 B. T. A. 824; and Garber et al., 11 B. T. A. 979. In the instant case, we are of the opinion that the probable amount of recovery on the bankruptcy claim was so uncertain that either an accrual in part or in full would not properly reflect income. The deficiency should be recomputed by excluding from gross income, as determined by the respondent, the amount of $193,500, representing the difference between the $500,000 claim allowed and the dividends paid during the year of $306,500. No evidence was offered with respect to the deductions of $13,798.65 and on this point the respondent’s determination is approved. Reviewed by the Board. Judgment will be entered under Rule 50. SteRNHageN dissents.

2020-12-02 18:02:49.941438+00

https://www.courts.ca.gov/opinions/nonpub/E073607.PDF

Filed 12/2/20 P. v. Valenzuela CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E073607 v. (Super.Ct.No. FWV19001112) ISIAH RAY VALENZUELA, OPINION Defendant and Appellant. APPEAL from the Superior Court of San Bernardino County. Katrina West, Judge. Affirmed as modified. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent. 1  STATEMENT OF THE CASE1 On April 17, 2019, an information charged defendant and appellant Isiah Ray Valenzuela with attempted carjacking under Penal Code2 sections 664 and 215, subdivision (a) (count 1), and assault with a deadly weapon under section 245, subdivision (a)(1) (count 2). The information also alleged that defendant (1) had personally used a deadly and dangerous weapon under section 12022, subdivision (b)(1); (2) had committed a prior serious felony under section 667, subdivision (a)(1); and (3) had two prior convictions for which he served prior prison terms under sections 667.5, subdivision (b), and 1170.12. On June 14, 2019, a jury convicted defendant of assault with a deadly weapon (count 2), and found true an allegation that he personally used a dangerous weapon, a screwdriver, in the commission of the offense. The day prior, the parties stipulated that defendant had committed a prior strike, suffered a prior serious felony conviction, and two prior prison terms. On July 16, 2019, the trial court sentenced defendant to 10 years in prison as follows: low term of two years, doubled, for count 1, for a total of four years; one year for the personal use of a dangerous weapon; and five years for the prior serious felony conviction. The court also imposed an additional two years for defendant’s two prior 1 The facts are not relevant to this appeal. 2 All further statutory references are to the Penal Code unless otherwise indicated. 2 convictions, but stayed the sentence on the enhancements. Thereafter, the court awarded defendant 699 days of credit, and imposed various fines and fees. On August 29, 2019, defendant filed a timely notice of appeal. DISCUSSION A. DEFENDANT’S ENHANCEMENT FOR PERSONAL USE OF A WEAPON SHOULD BE STRICKEN In this case, the People charged defendant with assault with a deadly weapon under section 245, subdivision (a)(1), and also separately alleged that defendant personally used a dangerous and deadly weapon under section 12022, subdivision (b)(1). The jury found the enhancement to be true, and the court imposed an additional year to defendant’s sentence under section 12022, subdivision (b)(1). Defendant contends that “the section 12022 enhancement must be stricken because use of a dangerous or deadly weapon is an element of assault with a deadly weapon.” The People agree. We agree with the parties and strike the section 12022 enhancement. Section 245, subdivision (a)(1), provides that “any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment.” (§ 245, subd. (a)(1).) Section 12022, subdivision (b)(1), provides as follows: “A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” (Italics added.) 3  The plain language of section 12022, subdivision (b), clearly states that a conviction for assault with a deadly weapon under section 245, subdivision (a)(1), cannot be enhanced under section 12022, subdivision (b), because use of a deadly weapon is an element under section 245, subdivision (a)(1). (People v. Summersville (1995) 34 Cal.App.4th 1062 , 1070; People v. McGee (1993) 15 Cal.App.4th 107 , 110, 112.) Therefore, the section 12022, subdivision (b), enhancement must be stricken. B. DEFENDANT’S ENHANCEMENTS FOR HIS PRIOR PRISON TERMS SHOULD BE STRICKEN UNDER SENATE BILL NO. 136 (SB 136) Defendant contends that “the enactment of Senate Bill No. 136 requires striking the two one-year enhancements imposed on [defendant]’s sentence under Penal Code section 667.5, subdivision (b).” The People agree with defendant. For the reasons set forth post, we agree with the parties and strike the prior prison term enhancements. In this case, defendant admitted the truth of two prior-prison-term enhancement allegations under section 667.5, subdivision (b), based on his prior convictions under sections 459 (burglary) and 30305, subdivision (a)(1) (persons prohibited from owning a firearm). The court imposed a one-year term for each of defendant’s prior-prison-term enhancements. On July 16, 2019, when defendant was sentenced, trial courts had the discretion to impose an additional one-year enhancement for each separate prior prison term served by a defendant when that defendant has not remained free of prison custody for at least five years prior to committing the current offense. (§ 667.5, subd. (a); see People v. Bradley 4 (1998) 64 Cal.App.4th 386 , 392-396 [trial courts retain discretion to strike prior-prison- term enhancements in the interests of justice].) On October 8, 2019, the Governor signed SB 136, effective January 1, 2020. SB 136 amended Penal Code section 667.5, subdivision (b). Under SB 136, Penal Code section 667.5, subdivision (b), now limits one-year enhancements for prior convictions to cases where the prior conviction was for a sexually violent offense, as defined in subdivision (b), of section 6600 of the Welfare and Institutions Code. Both parties agree that defendant is entitled to the benefit of the change in the law. (People v. Jennings (2019) 42 Cal.App.5th 664 , 680-681.) In In re Estrada (1965) 63 Cal.2d 740 , the California Supreme Court held that absent evidence to the contrary, the Legislature intended amendments to statutes that reduce the punishment for a particular crime to apply to all defendants whose judgments are not yet final on the amendments’ operative dates. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299 , 306-308 [discussing Estrada]; People v. Brown (2012) 54 Cal.4th 314 , 323 [same].) In an analogous situation in which new legislation ended the statutory prohibition on a trial court’s ability to strike firearm enhancements under sections 12022.5 and 12022.53, courts of appeal have held that the new statutory amendment applies retroactively to all nonfinal judgments. (See People v. Chavez (2018) 22 Cal.App.5th 663 , 708-712; People v. Arredondo (2018) 21 Cal.App.5th 493 , 506-507; People v. Woods (2018) 19 Cal.App.5th 1080 , 1089-1091; People v. Robbins (2018) 19 Cal.App.5th 660 , 678-679.) Moreover, courts of appeal have held that the newly founded discretionary authority to strike five-year enhancements under section 667, subdivision (a), is also retroactive. 5 (People v. Jones (2019) 32 Cal.App.5th 267 , 273; People v. Garcia (2018) 28 Cal.App.5th 961 , 971-972.) The reasoning in those cases applies in this case because SB 136 is an ameliorative change in the law that provides for a reduced sentence. In this case, defendant’s judgment was not final when SB 136 went into effect on January 1, 2020. (See People v. Vieira (2005) 35 Cal.4th 264 , 306 [finality includes the 90-day period in which an appellant could seek certiorari in the United States Supreme Court after the California Supreme Court denies review]; People v. Nasalga (1996) 12 Cal.4th 784 , 789, fn. 5.) As a result, the change in section 667.5, subdivision (b), applies to defendant retroactively. Moreover, because the bases for defendant’s prior-prison- term enhancements were not for a specified sexually violent offenses, the enhancements under section 667.5, subdivision (b), should be stricken. DISPOSITION The judgment is modified by striking the Penal Code section 12022, subdivision (b), and Penal Code section 667.5, subdivision (b), enhancements. The trial court is ordered to prepare a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS MILLER J. We concur: RAMIREZ P. J. FIELDS J. 6

2020-12-02 18:02:50.155896+00

https://www.courts.ca.gov/opinions/nonpub/G058360.PDF

Filed 12/2/20 P. v. Martin CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G058360 v. (Super. Ct. No. 17NF2781) DOUGLAS MARTIN, OPINION Defendant and Appellant. Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.  Appellant Douglas Martin was convicted of aggravated assault on a police officer, recklessly evading the police and unlawfully taking or driving a vehicle. (Pen. 1 Code, § 245, subd. (c); Veh. Code, §§ 2008.2, 10851, subd. (a).) He contends the trial court violated section 654 by imposing sentence for the assault because that offense was part and parcel of his reckless evading. He also seeks independent review of the records the trial court examined in connection with his Pitchess motion. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) Finding no basis to review those records, or otherwise disturb the judgment, we affirm. FACTS On the afternoon of October 5, 2017, Brea Police Officer David Wearp was driving an unmarked police vehicle north on the I-5 Freeway when he saw a white van weaving in and out of traffic. Appellant was driving the van, and there was a woman in the front passenger seat. After running the van’s license plate number and learning the vehicle was stolen, Wearp radioed for backup, and several marked police cars arrived in the area and began following the van along with Wearp. Appellant exited the freeway at Katella Avenue and stopped for a red light. When the light turned green, the officers activated their lights and sirens in order to get appellant to pull over. Instead, he drove back onto the freeway, and the officers followed him in hot pursuit. Appellant then exited the freeway again at Ball Road. Largely oblivious to traffic lights, crosswalks and speed limits, he crossed over the overpass and reentered the freeway heading south. Santa Ana Police Officer Jonathan Ridge trailed appellant in an adjacent lane on the freeway, and Officer Wearp followed closely behind Ridge. Suddenly, appellant hit the brakes, and when Ridge’s squad car came up alongside him, he rammed his van into it. The force of the collision drove both vehicles across several lanes of 1 Unless noted otherwise, all further statutory references are to the Penal Code. 2 traffic, onto the shoulder of the freeway. It also caused Wearp to lose control of his vehicle and crash into the guardrail. When the dust settled, appellant’s van was roughly perpendicular to the front of Ridge’s squad car, and Wearp’s vehicle was slightly behind them. Ridge exited his vehicle and took up a position in the fold of his door with his gun drawn. He told appellant to surrender, but appellant did not comply. Instead, he backed up his van about 15 feet, shifted into forward gear, and began driving directly toward Ridge at a rapid rate of speed. At that point, Wearp fired several unsuccessful shots at appellant. Anaheim Police Sergeant Darrin Lee had arrived at the scene by that time, and, seeing appellant’s van headed toward Ridge’s squad car, he plowed his car into it, narrowly preventing Ridge from being hit. His van disabled, appellant was taken into custody and charged with car theft, recklessly evading the police and assaulting Ridge. He also faced a great bodily injury enhancement on the assault charge, because, as a result of the freeway collision, Ridge suffered debilitating neck, back and shoulder pain and needed surgery to repair severe damage to his left wrist. At trial, the only disputed charge was the alleged assault on Ridge. The prosecution argued that, from a factual standpoint, there were two possible bases for that offense: 1) appellant’s act of ramming his van into Ridge’s squad car on the freeway, and 2) appellant’s act of driving toward Ridge on the shoulder before Lee plowed into him. The defense presented testimony from an accident reconstructionist to refute the first theory. He testified the freeway collision was caused by Ridge driving into appellant, not the other way around. As for the second theory, defense counsel did not have much to work with. In closing argument, she simply asserted that appellant “didn’t act to run over Ridge.” In the end, the jury convicted appellant on all three counts, but it found the great bodily injury allegation not true. The trial court sentenced appellant to six years 3 and four months in prison, comprising five years for the assault and eight months on each of the remaining counts. DISCUSSSION Sentencing Issue Relying on the multiple punishment prohibition in section 654, appellant contends the trial court should have stayed sentence on the assault count because it was inseparable from the reckless evading count. His argument is premised on the notion that he had but one objective – to get away from the police – in committing those two offenses. However, given how the crimes occurred, the trial court could reasonably conclude appellant assaulted Officer Ridge with the goal of injuring him, not just getting away from him, and that appellant had ample opportunity to reflect on his actions during the course of his offenses. We therefore uphold the trial court’s sentencing decision. Under section 654, a defendant cannot receive multiple punishment for a single act or an indivisible course of conduct that results in multiple offenses. (§ 654, subd. (a); People v. Deloza (1998) 18 Cal.4th 585 , 591.) Whether a course of conduct is indivisible depends on the intent and objective of the defendant. (People v. Harrison (1989) 48 Cal.3d 321 , 335.) Generally, if the defendant’s crimes reflect multiple criminal objectives, they will be considered divisible, and multiple punishment is permitted. (People v. Beamon (1973) 8 Cal.3d 625 , 639; People v. Blake (1998) 68 Cal.App.4th 509 , 512.) But if the defendant’s crimes were “merely incidental to, or were the means of accomplishing or facilitating one objective,” they will be considered indivisible, and he may be punished only once. (People v. Harrison, supra, 48 Cal.3d at p. 335.) As explained in People v. Jimenez (2019) 32 Cal.App.5th 409 (Jimenez), section 654 has been further refined in another respect: “[E]ven if a course of conduct is ‘directed to one objective,’ it may ‘give rise to multiple violations and punishment’ if it is ‘divisible in time.’ [Citation.] ‘[A] course of conduct divisible in time, though directed to one objective, may give rise to multiple convictions and multiple punishment “where 4 the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.”’ [Citation.] Section 654’s purpose is to ensure ‘“‘that a defendant’s punishment will be commensurate with his culpability.’”’ [Citation.] “Whether a defendant had multiple intents or objectives in committing multiple crimes is generally a question of fact for the sentencing court. [Citation.] ‘When[, as here,] a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective.’ [Citation.] Such findings will be upheld on appeal if supported by substantial evidence. [Citation.]” (Jimenez, supra, 32 Cal.App.5th at pp. 424-425.) The Jimenez court upheld the imposition of separate sentences on facts that were similar to those before us now. In that case, Jimenez was being chased from behind by one police car when a second, up ahead of them, began driving toward Jimenez from the opposite direction. Rather than trying to avoid the second officer, Jimenez drove directly into his lane and forced him to swerve out of the way to avoid a head-on collision. He was convicted of both recklessly evading the first officer and assaulting the second officer. Like appellant, Jimenez argued section 654 precluded separate punishment for his assault because he committed it solely to effectuate his escape from the police. However, Jimenez rejected this argument for two reasons. First, “Apart from evading the first vehicle, Jimenez drove on the wrong side of the road heading directly toward the second vehicle, resulting in the commission of the assault. The evidence was sufficient to support the court’s implied finding that Jimenez had two objectives — he was both intending to evade and trying to assault the deputies in the second vehicle. [Citation.]” (Jimenez, supra, 32 Cal.App.5th at p. 425.) 5  Secondly, “The trial court also could reasonably have found that Jimenez had time to reflect before committing the assault. Jimenez could have driven on his side of the road or moved rather than driving head on toward [the second] vehicle. He chose not to do so, aggravating the severity of the situation. Jimenez’s initial efforts trying to evade the first vehicle, and his subsequent assaultive conduct, ‘were volitional and calculated, and were separated by periods of time during which reflection was possible.’ [Citation.]” (Jimenez, supra, 32 Cal.App.5th at p. 426.) Both rationales apply equally in this case. During the course of the high- speed pursuit of appellant, his van somehow collided with Ridge’s squad car, and their vehicles ended up together on the shoulder of the freeway. Since Ridge suffered severe injuries as a result of the collision, and the jury found the great bodily injury allegation not true, the jury likely looked to appellant’s conduct after the collision in finding him guilty of assaulting Ridge. As we have explained, once appellant’s and Ridge’s vehicles came to rest on the shoulder of the freeway, Ridge ordered appellant to surrender. However, appellant backed up his van, shifted into forward gear, and came barreling toward Ridge, which clearly constituted an assault. Appellant contends he was simply maneuvering his vehicle in a manner that would allow him to escape from the scene and avoid apprehension but his van was only a few feet away from Ridge when Lee rammed into it, a measure that Lee felt was necessary to prevent Ridge from getting hit. The fact Officer Wearp fired his gun at appellant several times also shows Ridge was in grave danger by virtue of appellant’s actions. On these facts, the trial court could reasonably conclude appellant intended to harm Ridge, and was not just trying to flee the scene, when he drove his van toward him on the shoulder of the freeway. In addition, the record shows appellant had ample opportunity to reflect on his actions at that time. By then, the chase had come to a halt due to the collision. Appellant was sitting behind the wheel of his van, and Ridge was positioned in the fold 6 of his front door. Ridge ordered appellant to surrender, but instead of giving up the fight, appellant started driving again. Even if we assume appellant was simply trying to maneuver his way back onto the freeway to get away from the police, this decision was divisible in time from the earlier part of the chase. Because he made a conscious decision to continue his criminal behavior, thus aggravating the situation even further, his punishment was commensurate with his culpability. The trial court did not violate section 654 by imposing sentence on both the reckless evading count and the assault 2 count. Pitchess Claim Appellant also asks that we review the materials the trial court examined in connection with his discovery motion under Pitchess. We decline the invitation. In Pitchess, our Supreme Court held a criminal defendant has a right to discovery of the personnel records of peace officers to ensure “a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.” (Pitchess, supra, 11 Cal.3d at p. 535.) However, the right is not unlimited; only those records material to the pending litigation are subject to release. (Warrick v. Superior Court (2005) 35 Cal.4th 1011 , 1019; §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.) In this case, appellant made a Pitchess motion with respect to several of the police officers who were involved in the high-speed chase that led to his arrest. Appellant was seeking information about any acts of dishonesty or excessive use of force the officers may have engaged in while performing their official duties. In response, the trial judge conducted several in-camera hearings to review the officers’ personnel records, which included their internal affair files. Ultimately, the court ordered the disclosure of only a limited amount of the information in the records. 2 Appellant additionally contends the trial court violated his due process rights by failing to comply with section 654. Having found no section 654 violation, we necessarily reject this contention. For the same reason, we need not address respondent’s backup theory that appellant’s sentence was justified under the multiple victim exception to section 654. (See generally People v. Newman (2015) 238 Cal.App.4th 103 , 117.) 7  Appellant requests that we independently review the officers’ personnel files to ensure no relevant materials were omitted from the trial court’s disclosure order. Respondent does not oppose the request, and we agree independent review would be the most effective way to assess the propriety of the court’s order. (See People v. Nguyen (2017) 12 Cal.App.5th 44 , 49-51 (unanimous conc. opn. of Bedsworth, Acting P.J.).) However, our Supreme Court has determined that, in the context of a Pitchess motion, meaningful appellate review can be accomplished by examining the sealed transcript of the trial court’s in-camera review proceedings. (People v. Myles (2012) 53 Cal.4th 1181 , 1209; People v. Mooc (2001) 26 Cal.4th 1216 , 1229.) Therefore, we have no basis for examining the officers’ files ourselves. (Ibid.) Having reviewed the sealed transcript of the hearings on appellant’s discovery motion, we find nothing to suggest the trial court failed to fulfill its duties under Pitchess by making a record of the documents it examined and explaining the basis for its decision. (See People v. Mooc, supra, 26 Cal.4th at p. 1229 [in ruling on Pitchess motion, the trial court should make a record of the documents it examined by describing them on the record].) We therefore have no reason to disturb the court’s disclosure order. DISPOSITION The judgment is affirmed. BEDSWORTH, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J. 8

2020-12-02 18:02:50.397147+00

https://www.courts.ca.gov/opinions/nonpub/A157331.PDF

Filed 12/2/20 P. v. Black CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, A157331 v. RANDY D. BLACK, (San Francisco County Super. Ct. No. SCN225591) Defendant and Appellant. A jury convicted appellant Randy D. Black of one count of robbery and one count of attempted robbery. On appeal, he argues that the trial court abused its discretion in denying his motion for a mistrial after a sheriff’s deputy disclosed to the jury during deliberations that appellant was being housed in a “psych unit.” He also contests the court’s partial denial of his motion to strike two prior felony convictions under our “Three Strikes” law. We find no merit to these claims and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND A. The Underlying Offense On the evening of February 7, 2016, Co Lu left his work in San Francisco and walked to a nearby bus stop on Bryant Street. Lu was carrying his backpack, which contained no valuables. As he approached the bus stop, Lu noticed a man already seated on the bench inside the bus shelter. The man was much larger than Lu, who is five feet three inches tall 1 and weighs around 110 pounds. Lu sat a few seats away and placed his backpack on the ground. He took his cell phone from his pocket and began checking his messages. At some point, he raised his hand to his face and coughed. As Lu perused his phone, the larger man suddenly approached and started punching him on the head, neck and shoulder. Lu tried to run away but fell face down on the sidewalk as the man continued to hit him. While on the ground, Lu felt the man reaching for his wallet in his left front pants pocket. Lu clasped his own hand over his pocket to maintain control of his wallet as he struggled to get up. The man managed to remove from Lu’s rear pockets some small pieces of paper, which he threw to the ground. Douglas Daily was driving down Bryant Street when he saw the attack in progress. Daily honked his horn while his passenger yelled out and motioned for Lu to get in the car. Lu ran to the car and got inside. The attacker picked up Lu’s backpack and swung it at the car, leaving a large dent. The assailant then opened the backpack and dumped everything on the ground. Daily drove off while his passenger called 911. As he made a U-turn, he saw the attacker strike another man who then ran away. Officer George Tano was dispatched to the crime scene. Another witness pointed out the suspect, who was later identified as appellant. A video of the incident captured by a nearby surveillance camera was played for the jury. Lu later recovered his backpack and the papers taken from his pockets. Following the incident, appellant was charged in a second amended information with second degree robbery (Pen. Code,1 § 211; count one), attempted second degree robbery (§§ 664/211; count two), assault with force 1 All further statutory references are to the Penal Code. 2 likely to cause great bodily injury (§ 245, subd. (a)(4); counts three and four), and misdemeanor vandalism (§ 594, subd. (b)(2)(A).) The information also alleged that appellant was ineligible for probation (§ 1203, subd. (e)(4)), that he had suffered two prior strike convictions (§§ 667, subds. (d) &(e), 1170.12, subd. (c)), and that he had two serious prior felony convictions (§ 667, subd. (a)(1)). B. Appellant’s Competency and First Trial In July 2016, the trial court suspended proceedings and ordered a competency evaluation. Appellant was found incompetent to stand trial and was committed to Napa State Hospital in December 2016. In March 2017, the trial court found competency had been restored and reinstated criminal proceedings. Appellant pleaded not guilty to all counts. Appellant was tried twice in this matter. His first trial commenced in May 2017, resulting in guilty verdicts on counts three, four, and five. The trial court declared a mistrial as to counts one and two after the jury was unable to reach a verdict. A retrial on counts one and two commenced in June 2018. C. Appellant’s Second Trial The prosecution presented evidence of the underlying offense described above. Appellant did not offer evidence in his defense. Defense counsel argued in closing that appellant was not guilty of robbery or attempted robbery because he lacked the specific intent to permanently deprive Lu of his property. He suggested that appellant’s assault on the victim was prompted by his underlying emotional issues and a delusional perception that Lu had intruded on his space and behaved disrespectfully when he coughed. Counsel also asserted that appellant did not steal Lu’s backpack, arguing he only used it to hit Daily’s car. 3  On July 11, 2018, the jury found appellant guilty as charged on counts one and two. The trial court found the charged enhancements true at a subsequent bench trial. On May 17, 2019, the trial court granted appellant’s Romero2 motion to dismiss a 1990 conviction for first degree robbery, but denied his request to dismiss a 2005 conviction for armed bank robbery. Appellant was sentenced to an aggregate term of 17 years in state prison. This appeal followed. DISCUSSION I. Jury Misconduct Claim During deliberations, the trial court learned through a jury note that a sheriff’s deputy had relayed to the jury that appellant was being held in a “psych unit.” Appellant contends that the trial court prejudicially mishandled the proceedings by failing to interview individual jurors to determine whether any juror was affected by the misconduct and by denying his motion for mistrial. He further asserts that the court’s limited inquiry into the matter and corrective action failed to dispel the “presumption of prejudice.” We find no error in the trial court’s handling of the jury note or the denial of mistrial. a. Relevant Proceedings During deliberations, the sheriff’s deputy charged with supervising the jury relayed to the jurors that appellant was housed in the “psych unit.” Shortly thereafter, the jury sent a note to the court stating: “We have become aware that the defendant is being held in a psych unit. We have taken a poll of the room and don’t believe that this changes any of our minds because we all feel capable of ignoring it.” 2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). 4  When questioned by the trial court, the sheriff’s deputy stated that he had entered the jury room to answer a question about the cutoff time for deliberations and returning a verdict. The deputy reported to the court that he told the jurors, “ ‘You know, it takes a long time to get a person down. This guy is kind of a mental person and he’s in the psych unit,’ which I should not have stated.” The deputy expressed embarrassment about what he had said and he informed the court that appellant was not housed in a psych unit but was rather in an administrative segregation unit. He explained that administrative segregation is not a psych unit, although “there are people with mental problems in custody that are housed in [that unit.]” After discussing the jury’s note with the prosecutor and defense counsel off the record, the court sent the following written response to the jury: “The defendant is not ‘being held in a psych unit.’ You’re not to consider anything that is not in evidence, including the defendant’s custodial status.” The next day, defense counsel objected to the court’s response and moved for a mistrial. Counsel asserted that the trial court’s response had impermissibly introduced extrinsic evidence, namely, that appellant was not being held in a psych unit. Seemingly in contradiction to his objection, counsel asked the court to clarify to the jury that appellant was being held “in administrative segregation alone in a single cell.” The court overruled the objection, noting that defense counsel had acceded to the proposed answer before the response was sent. The trial court also denied the motion for a mistrial, stating: “I think one of the main reasons why the Court has quite a bit less concern than what would have been apparent is in the actual statement read to the Court on the question, they did specifically indicate that the jurors felt that they were 5 capable of setting aside the statement and not using it against the defense. Or against anyone. [¶] So that gives some alleviation to the Court with regards to any prejudice to either side with regards to the statement and that I—and in connection with the response the Court gave and their own response that the Court doesn’t believe that there’s any prejudice to either party based on the jury’s ability to set it aside and listen to the instructions by the Court.” The jury reached its verdict, finding appellant guilty of robbery and attempted robbery. b. The Trial Court Appropriately Addressed the Jury’s Note Appellant asserts that the trial court erred in failing to interview individual jurors to determine whether any of them were affected by the deputy’s statement that appellant was a “mental person” being held in a “psych unit.” He claims the statement constituted extrinsic evidence that was potentially prejudicial, arguing the jury “may have been afraid that if appellant was a ‘mental case,’ the failure to convict him would turn loose a dangerous person capable of committing more violent attacks.” He also contends that the court’s response to the jury’s note exacerbated the misconduct because the response introduced facts that were outside the record while simultaneously directing the jury not to consider anything that was not in evidence, thus leaving open the possibility the jury might still believe that appellant was being held in a psych unit. i. Applicable Legal Principals “ ‘An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is “ ‘capable and willing 6 to decide the case solely on the evidence before it.’ ” ’ ” (People v. Hensley (2014) 59 Cal.4th 788 , 824.) A juror’s receipt of information about a party or the case that is not a part of the evidence received at trial is misconduct that raises a presumption of prejudice, even if such information was received passively or involuntarily. (People v. Cowan (2010) 50 Cal.4th 401 , 507 (Cowan).) The trial court has a duty to investigate when it becomes aware of the possibility a juror has committed misconduct or has been exposed to improper influences. (People v. Linton (2013) 56 Cal.4th 1146 , 1213.) The court must make whatever inquiry is reasonably necessary to determine whether to discharge the juror and whether the impartiality of other jurors has been affected. (Ibid.; People v. Davis (1995) 10 Cal.4th 463 , 535.) “However, ‘ “not every incident involving a juror’s conduct requires or warrants further investigation.” ’ ” (Cowan, supra, 50 Cal.4th at p. 506; see People v. Williams (2013) 58 Cal.4th 197 , 290 (Williams).) “ ‘ “ ‘The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.’ ” [Citation.] A hearing is required only where the court possesses information which, if proved to be true, would constitute “good cause” to doubt a juror’s ability to perform his or her duties and would justify his or her removal from the case.’ ” (Williams, at pp. 289–290.) ii. Discussion We conclude the trial court took reasonable measures to investigate and address the misconduct. The jury note made clear that the jurors had 7 been exposed to extrinsic information from the sheriff’s deputy about appellant’s custodial status that might bear upon his mental health. The trial court called the deputy sheriff to testify concerning what information he had specifically conveyed to the jury. Although the jury had already stated in its note that it was prepared to ignore this information, the trial court’s written response—crafted in consultation with both counsel—informed the jurors that appellant was not “being held in a psych unit” and they were not to consider anything that is not in evidence, including defendant’s custodial status. The court was justifiably reassured that the jury would follow its instructions and acted within its discretion in deciding not to interview individual jurors. The jury note reflected that the jurors themselves had recognized that the deputy’s remarks were inappropriate, and they had taken the initiative to discuss the matter and confirm that the information would not influence their deliberations. There was no information that would cast doubt on the jury’s ability to remain impartial, and therefore no good cause basis for further investigation into the matter. (Williams, supra, 58 Cal.4th at pp. 289–291.) We also disagree with appellant’s assertion that the trial court’s response to the jury was confusing or inconsistent. The trial court concluded that it was more important to correct the false impression that appellant was being housed in a “psych unit” than to leave the remark unaddressed and risk the possibility that the jury might find the statement to be true. At the same time, the court reminded the jury that it was not to consider evidence outside the record, including appellant’s custodial status. Under the circumstances, the trial court struck an appropriate balance between 8 correcting an inaccuracy and reminding the jury of its obligations. We find the court’s actions reasonable, and certainly not an abuse of discretion.3 iii. Any Error Was Harmless Even if the trial court erred in its handling of the jury note, we find that the error is harmless. Appellant contends the deputy’s “psych unit” statement was “intrinsically prejudicial” because it fatally tainted the jury. He further asserts the error is subject to automatic reversal as a structural defect. We disagree with both contentions. “[O]nly a ‘very limited class of cases’ are subject to per se reversal.” (People v. Aranda (2012) 55 Cal.4th 342 , 363 (Aranda), quoting Johnson v. United States (1997) 520 U.S. 461 , 468.) Most errors “are ‘ “trial error[s],” ’ occurring ‘during the presentation of the case to the jury.’ [Citation] They are amenable to harmless error review because they can be ‘quantitatively assessed in the context of other evidence presented in order to determine whether [their] admission was harmless beyond a reasonable doubt.’ [Citation.] ‘Structural defects,’ on the other hand, ‘defy analysis by “harmless-error” standards’ [citation] because they are not ‘simply an error in 3 To the extent a “presumption of prejudice” has been raised by the misconduct in this matter, we conclude there is no reasonable probability of prejudice. (See In re Hamilton (1999) 20 Cal.4th 273 , 296 [“Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.”].) As discussed above, appellant has not pointed to any evidence in the record indicating actual bias by the jury or an inability to follow the court’s instructions and remain impartial. On the contrary, the jury brought the matter to the court’s attention, assured the court that it could ignore the extrinsic information, and raised no further concerns with the court’s written response, indicating it understood and applied the court’s instructions. 9 the trial process,’ but rather an error ‘affecting the framework within which the trial proceeds.’ ” (Aranda, at pp. 363–364, quoting Arizona v. Fulminante (1991) 499 U.S. 279 .) Here, even if the deputy sheriff’s statement to the jury introduced extrinsic evidence of appellant’s mental health status that was potentially inflammatory, this affected only the information received by the jury, which is an error amenable to assessment in light of the other evidence presented. That the misconduct occurred during deliberations, rather than during the presentation of evidence, is of no consequence. The deputy’s remark constituted “an error in the trial process,” and is readily distinguishable from errors that have been viewed as structural, such as “denial of counsel or of self-representation, racial discrimination in jury selection, and trial before a biased judge.” (Aranda, supra, 54 Cal.4th at p. 364.) Nor does appellant demonstrate that any error was prejudicial under either Chapman v. California (1967) 386 U.S. 18 , 24 [harmless beyond a reasonable doubt standard] or People v. Watson (1956) 46 Cal.2d 818 , 836 [reasonable probability that the error did not affect the outcome standard]. “[W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment 10 must be set aside if the court finds prejudice under either test.” (In re Carpenter (1995) 9 Cal.4th 634 , 653 (Carpenter).) We conclude that the deputy sheriff’s statement about appellant being “kind of a mental person” who is housed in the “psych unit” was clearly misguided but not so inherently prejudicial that it fatally tainted the jury’s view of appellant. The statement itself does not suggest that appellant is violent or has harmed others, and the jury assured the court that it could continue deliberating in an impartial manner. Additionally, nothing in the surrounding circumstances demonstrates that the deputy’s statement resulted in actual bias. The jury did not seek out this prohibited information. Rather, the offhand statement was offered in response to an unrelated question about the cutoff time for jury deliberations, and the jury promptly informed the court about the deputy’s statement. (See Carpenter, supra, 9 Cal.4th at p. 656 [“But to the extent [juror’s inadvertent receipt of outside information] was misconduct, it was also passive” and was not indicative of actual bias].) Moreover, the jury was admonished by the trial court that the deputy’s statement was inaccurate and that the jury was not to consider appellant’s custodial status. We presume jurors followed the trial court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834 , 852.) The admonition was sufficient to cure any potential prejudice. (People v. Price (1991) 1 Cal.4th 324 , 428.) “It is only in the exceptional case that ‘the improper subject matter is of such a character that its effect . . . cannot be removed by the court’s admonitions.’ ” (People v. Allen (1978) 77 Cal.App.3d 924 , 935.) Appellant argues the deputy’s statements were prejudicial because they raised the specter of turning loose a dangerous, mentally ill person if the jury did not return guilty verdicts. The cases appellant relies upon in support of 11 his claim of prejudicial error, however, are distinguishable because they address prosecutorial misconduct in cases involving a defense of not guilty by reason of insanity. For example, in People v. Mallette (1940) 39 Cal.App.2d 294 , 299, the prosecutor argued at the sanity phase that “it is a theory of our law that an insane person cannot commit a crime, so the crime requires the operation of a sane mind, and therefore [the defendant] will walk out free if you find she was insane at the time of the commission of the offense.” The appellate court reversed the defendant’s conviction, holding it was prejudicial misconduct to suggest that the criminally insane, however violent, are immediately set free to prey upon society. (Id. at pp. 299–300.) Similarly, in People v. Modesto (1967) 66 Cal.2d 695 , disapproved on another ground in Maine v. Superior Court (1968) 68 Cal.2d 375 , 383, fn. 8, our Supreme Court called it “obvious misconduct” for the prosecution, in reference to a defendant’s plea of not guilty by reason of insanity, to tell the jury “that, if the defendant were found insane at the time he committed the offense, he would be ‘turned loose’ ” (Modesto, at p. 708.) This appeal involves neither a claim of prosecutorial misconduct nor a defense of not guilty by reason of insanity. And as noted above, the deputy sheriff’s statement makes no mention of appellant being turned loose or of his propensity for violence. In short, we conclude that any error in the trial court’s handling of the misconduct was harmless under any standard because there is no substantial likelihood that any juror was actually biased against appellant. c. The Denial of the Motion for Mistrial Was Not an Abuse of Discretion For the same reasons, we conclude that the trial court did not abuse its discretion in denying appellant’s motion for a mistrial. Appellant makes no showing that the deputy’s comment violated his due process rights or irreparably damaged his chances of receiving a fair trial. (See People v. 12 Bolden (2002) 29 Cal.4th 515 , 555 [mistrial denied based on brief reference to defendant’s parole status; no due process violation].) “A court should grant a mistrial ‘ “only when a party’s chances of receiving a fair trial have been irreparably damaged.” ’ [Citation.] This generally occurs when ‘ “ ‘ “the court is apprised of prejudice that it judges incurable by admonition or instruction.” ’ ” ’ ” (People v. Johnson (2018) 6 Cal.5th 541 , 581.) “Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841 , 854; see People v. Dement (2011) 53 Cal.4th 1 , 39–40, disapproved on another point in People v. Rangel (2016) 62 Cal.4th 1192 , 1216.) “ ‘Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured.’ ” (People v. McNally (2015) 236 Cal.App.4th 1419 , 1428–1429.) “We review the trial court’s refusal to grant a mistrial for abuse of discretion.” (Johnson, at p. 581.) As discussed above, any prejudice resulting from the deputy sheriff’s misguided comment that appellant was being held in a “psych unit” was cured by the trial court’s admonishment to the jury that it should disregard any information regarding appellant’s custodial status and base its deliberations solely on the evidence presented at trial. Because any potential for prejudice had been abated, the court did not err in denying appellant’s motion for mistrial. 13 II. The Trial Court Did Not Abuse Its Discretion in Denying Appellant’s Romero Motion a. Background Appellant was charged with having suffered two prior strike convictions. The first stemmed from a 1990 robbery conviction in which appellant robbed a taxicab driver at gunpoint and shot at the taxi as it drove away. He was sentenced to four years in state prison. The second strike was a result of a 2005 federal bank robbery conviction. In that case, appellant held a bank teller at gunpoint and threatened to kill her unless she turned over the money in her drawer. He escaped with $2,265. He pleaded guilty and was sentenced to 81 months in federal prison. Before sentencing, appellant filed a Romero motion, inviting the court to exercise its discretion to strike (or dismiss) both of his prior strike convictions. (Romero, supra, 13 Cal.4th 497 ; § 1385, subd. (a).) He argued that he did not have an extensive criminal history because the two strikes were his only convictions. He also stressed that the convictions were remote in time, were, in part, attributable to an undiagnosed mental health condition, and that the offenses did not result in serious bodily injury. He also noted he faced a long sentence even if the court exercised its discretion to strike the priors. The prosecution opposed the motion, noting that appellant had suffered several other arrests for violent and assaultive crimes. Additionally, he had committed multiple assaults on corrections officers while in custody on the present matter, and his future prospects were poor. After reviewing the pleadings and hearing argument, the trial court elected to strike appellant’s 1990 conviction for armed robbery and dismiss the associated five-year prior (§ 667, subd. (a)), while retaining the 2005 federal bank robbery conviction as a strike for sentencing purposes. The court concluded that appellant fell outside the spirit of the Three Strike law, 14 but only in part. The court observed that the 1990 strike was almost 30 years old and occurred when appellant was just 19 years old, circumstances that weighed in favor of dismissing that conviction. In contrast, appellant was a mature adult of 34 years at the time of the bank robbery in 2005, and he committed the present offense in 2016 when he was 45 years old. While the court declined to dismiss the 2005 felony strike conviction, the court noted appellant did not use a weapon in the commission of the current offense and agreed he did not cause injury to either of the victims in the prior cases, although Lu did suffer a minor injury in the present case. The court also found that his criminal conduct was partially excusable due to his mental health condition, while also noting that he had consistently refused treatment, medication, or any assistance to address his mental health issues. Following its analysis, the trial court sentenced appellant to 17 years in state prison, comprised of the upper term of five years on count one, doubled to 10 years due to the 2005 prior strike (§ 667, subds. (d) & (e)), a consecutive terms of one year on count four, doubled to two years (ibid.), and a consecutive five-year term imposed for the 2005 prior serious felony conviction. (§ 667, subd. (a)(1).) Sentencing on counts two and three was stayed pursuant to section 654. Appellant was also sentenced to one year in county jail on count five, with credit for time served. On appeal, appellant claims the trial court abused its discretion in failing to dismiss the 2005 prior strike conviction. We find no abuse of discretion. b. Analysis A trial court has the discretion to grant a motion to dismiss a strike allegation. (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148 , 162.) In deciding whether to exercise that discretion, the court is to “ ‘consider 15 whether, in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ ” (People v. Carmony (2004) 33 Cal.4th 367 , 377 (Carmony).) We review a trial court’s denial of such a motion for an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 373.) Where the record demonstrates that the trial court balanced the relevant factors and reached an impartial decision in conformity with the spirit of the law, we shall affirm the court’s ruling, even if we might have ruled differently in the first instance. (People v. Myers (1999) 69 Cal.App.4th 305 , 310 (Myers).) We conclude the trial court did not abuse its discretion in denying appellant’s Romero motion. The court applied the correct legal standard, fairly considered appellant’s arguments, and thoughtfully exercised its discretion in partially denying the motion. Appellant urges us to reverse the trial court because it did not give sufficient weight to several ameliorative factors, including that the 2005 strike conviction was remote in time, that none of his prior offenses resulted in serious injuries, that no weapon was used in the current offense, and that his mental illness significantly contributed the instant proceedings. He also asserts that all the factors that the trial court relied upon to strike his 1990 robbery conviction should have been applied to strike the 2005 conviction. Because the trial court considered all of these factors, appellant is essentially asking us to reweigh the factors and come to a different conclusion. This we cannot do. (Myers, supra, 69 Cal.App.4th at pp. 309–310 [“It is not enough to 16 show that reasonable people might disagree about whether to strike one or more of [a defendant’s] prior convictions.”].) Appellant also cites to People v. Banks (1997) 59 Cal.App.4th 20 , In re Saldana (1997) 57 Cal.App.4th 620 , and People v. Bishop (1997) 56 Cal.App.4th 1245 . But all three cases are distinguishable: Banks reversed the denial of a motion to strike because the trial court misunderstood that it had discretion to grant relief (Banks, at pp. 23–24), and Saldana and Bishop affirmed the grant of a motion to strike (Saldana, at pp. 626–627; Bishop, at pp. 1248–1251). If anything, these cases emphasize the limited nature of our review when a trial court exercises its discretion. Given those limits, we have no basis to disturb the court’s ruling in this case. DISPOSITION The judgment is affirmed. 17  _________________________ Sanchez, J. WE CONCUR: _________________________ Margulies, Acting P.J. _________________________ Banke, J. A157331 People v. Black 18

2020-12-02 18:02:50.615092+00

https://www.courts.ca.gov/opinions/nonpub/G058030.PDF

Filed 12/2/20 Marriage of Clark CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE In re Marriage of DEBORAH and EDWARD L. CLARK. DEBORAH CLARK, G058030 Respondent, (Consol. with G058284) v. (Super. Ct. No. 05D000275) EDWARD L. CLARK, OPINION Appellant. Appeals from orders of the Superior Court of Orange County, Barry S. Michaelson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Law Offices of Thomas M. McIntosh and Thomas M. McIntosh for Appellant. No appearance for Respondent.  INTRODUCTION Edward Clark appeals from an order denying his motion made pursuant to Code of Civil Procedure section 473 (section 473), to set aside an order requiring him to resume equalization installment payments to his ex-wife, Deborah Clark. He has identified 13 issues on appeal, some of which duplicate each other. We affirm the order. Edward has profoundly mistaken the purpose of a discretionary motion under section 473. It is to relieve a party or his counsel from the adverse consequences of mistake, inadvertence, surprise, or neglect. It is not to point out to the trial court where it has erred. Edward has failed to explain how the trial court abused its discretion in denying his motion. Furthermore, Edward has for the most part failed to observe some basic principles of appellate review, in some cases with fatal results. Only one issue survives: whether the family court had jurisdiction to hear and adjudicate the dispute between Edward and Deborah. We hold that it did. The rest of the issues relating to the set aside motion are not reviewable in this court. Edward has also appealed from an order from the same day granting Deborah $3,000 in attorney fees under Family Code section 271. We affirm that order as well, as we are unable to find that the family court abused its discretion in making the award. FACTS As we are required to do, we recite the facts in the manner most favorable to the judgment. (In re Marriage of Hokanson (1998) 68 Cal.App.4th 987 , 990, fn. 1.) Edward and Deborah were divorced in 2007. The marital settlement agreement, which became part of the judgment in 2006, provided that, in lieu of a lump- sum equalization payment to Deborah, Edward would pay her $250,000 at the time and the rest ($1.7 million) in installments of $9,227 per month over 30 years, at five percent 2 interest. The parties waived spousal support. Deborah later testified that the monthly payment was her sole source of income. Edward presented the court with an acknowledgement of satisfaction of judgment (full) ostensibly signed by Deborah on January 14, 2013, and recorded the same day. The register of actions in the divorce case does not reflect the filing of an acknowledgement of satisfaction of judgment or a demand for the filing of an 1 acknowledgement. Notwithstanding the acknowledgement of satisfaction of judgment, Edward continued to make the monthly payments mandated by the marital settlement agreement/judgment until 2016. In 2016, Edward still owed Deborah $1.3 million in equalization payments. He told Deborah he could no longer make the monthly payments because he found himself in financial difficulties. If she would sign some papers, he could take $1 million in equity out of his house and put it in her bank account, then use $150,000 of it to pay his taxes. She could live on the remaining $850,000 for the estimated two years that it would take Edward to reorganize his finances. He would then resume the monthly payments until the balance – some $300,000 plus the $150,000 he took for taxes – was finally paid off. Deborah agreed, largely because Edward told her that if she did not, she would get nothing. Deborah signed a debt settlement agreement on March 21, 2016. Under the terms of the debt settlement agreement, Deborah was supposed to receive the entire $1 million. Edward nevertheless took $150,000 of that amount, pursuant to the previously made oral agreement. He sent two text messages to Deborah acknowledging the agreement to pay her the balance of the equalization payment. In 2017, Deborah called Edward to find out when he was going to resume the monthly payments, assuming that his financial problems would be on the way to 1 At trial in September 2018, Deborah testified that she had no memory of the document. In fact, it was recorded but never filed. 3 resolution. Edward told Deborah he was not going to pay her. He might repay her the $150,000 he took for his taxes, but nothing else. Deborah filed a request for order (RFO) on April 17, 2018, in the divorce case, asking for an order to enforce the judgment – in particular the remaining monthly payments. The moving papers included the debt settlement agreement and the acknowledgement of satisfaction of judgment as exhibits and a declaration from Deborah explaining how she had come to sign them. The RFO was personally served on Edward on May 7, 2018. Edward filed an opposition on August 22, 2018, denying that he owed Deborah any more money and giving his version of events. The case was tried to a family law commissioner over two days, September 18 and October 12, 2018. Both Edward and Deborah testified. At the end of trial, the court ruled in Deborah’s favor. It found that she had been due $488,500 as of April 30, 2016, per the marital settlement agreement. The components of this amount were (1) the balance of the monthly payments due under the marital settlement agreement/judgment of 2006 ($388,500) and (2) the $150,000 that Edward had taken from the $1 million to pay his taxes. In other words, Edward had to pay the full amount agreed to in the marital settlement agreement/judgment and was not entitled to discount that amount by means of 2 the debt settlement agreement and the satisfaction of judgment. He received a credit for the $850,000 Deborah received from the home equity loan. But he had to pay the rest ($525,137, including interest as of October 2018) in monthly installments, as mandated 3 by the original judgment. The court’s judgment – right or wrong – was fairly straightforward. It did not believe Edward’s version of events, which was that Deborah was so desperate for 2 The court noted that the amount Edward proposed as his final payoff, $850,000, was an unreasonable 35.8 percent discount on the balance still owing, and even the total amount borrowed, $1 million, was a 24.5 percent discount, also unreasonable. 3 The ruling included a payment amortization schedule for monthly payments beginning November 1, 2018. 4 money that she was willing to forego $488,000 over time if she could get $850,000 immediately. On December 10, 2018, Edward filed an RFO styled “motion to vacate order,” that is, the October 12 order. The memorandum of points and authorities referred to section 473, subdivision (b), as the basis for the motion, although no supporting case 4 law was cited. The motion also referred to section 473, subdivision (d), the procedure for setting aside a void judgment, in this case for failing to serve Edward with a summons and complaint. The motion had a large number of issues to support the request to vacate the order of October 12. These can be grouped into three categories. First, Edward asserted the court had no jurisdiction to hear the matter because the satisfaction of judgment ended the divorce case as of 2013. Any subsequent complaint Deborah had would have to be adjudicated in a civil court, not as part of the divorce. Second, Edward did not know that the debt settlement agreement would be at issue at the trial. Finally, he 5 had 17 issues concerning the evidence presented at trial. The matter was heard on March 8, and the court issued the order denying the motion to vacate on April 15, 2019. At the same time, the court assessed $3,000 in attorney fees to pay Deborah’s counsel for opposing the motion. Edward filed a notice of appeal from the April 15 order denying his motion to vacate on July 17, 2019. He then filed a notice of appeal from the attorney fee award, also ordered on April 15, on September 6, 2019. The two appeals have been 6 consolidated. 4 Edward’s counsel declared that she and Edward were surprised when they received an adverse ruling. 5 It is not easy to keep track of these issues because they are identified rather haphazardly. Edward begins with issues A through F, then switches to c. through h., then begins over again with a, b., c., d., and i. 6 Some proceedings took place after the entry of the April 15 order, but we have not considered them because the notices of appeal are restricted to the orders of April 15. 5  DISCUSSION Before we discuss the 13 issues Edward has raised in this appeal, some basic features of appellate review need to be addressed. First, we rely entirely on the written record, the completeness of which is the appellant’s responsibility; error is never presumed. (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476 , 483; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130 , 1133.) The appellant has the burden of demonstrating error. (In re Marriage of Gray (2002) 103 Cal.App.4th 974 , 978.) There are two corollaries to this principle. One is that if it is not in the record, it did not happen. (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362 , 364 [“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.”]) The other is that when the appellant refers to a matter in the record at any point in a brief, he or she must give the citation to the place in the record where the reference can be found. (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958 , 970.) Otherwise, we would have to search the record ourselves for corroboration, and that is not our job. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229 , 1246.) Another feature of appellate review is that we review only the judgment or appealable order identified in the notice of appeal. We can review prior nonappealable orders on an appeal from a judgment or an appealable order. But we cannot review subsequent orders not mentioned in the notice of appeal. A notice of appeal that fails to specify the judgment or order appealed from is insufficient to confer jurisdiction on a reviewing court. (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212 , 239, 240; Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77 , 89-90; Faunce v. Cate (2013) 222 Cal.App.4th 166 , 170 [“‘Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.’ [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal”]; Shiver, 6 McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041 , 1045 [“Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed.”].) In this case, the only order identified in the notices of appeal is the order denying Edward’s motion to vacate, entered on April 15, 2019, and the order imposing attorney fees on Edward, also entered on April 15. We cannot review orders entered after that one. The notices of appeal filed on July 17 and September 6, 2019, identify only the April 15 order as the relevant one, and our review is restricted to that order. Still another feature of appellate review is that, for the most part, for an issue to be preserved for appeal, it must have first been raised in the trial court. As a general rule, we do not review issues raised for the first time on appeal. (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982 , 997.) And we review only those issues that are raised in the opening brief. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674 , 836.) As error must be demonstrated, we assume that if the appellant did not identify a ruling as erroneous, he or she does not dispute the court’s decision on that issue. Finally, as a reviewing court we do not reweigh evidence, and we do not reassess credibility. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613 , 622.) These matters are entrusted to the trial court. A challenge to the evidence supporting an order or a judgment must take into account the substantial evidence standard of review, under which we must affirm if any substantial evidence supports the trial court’s decision, and we must disregard contrary evidence. (Orange County Employees Assn. v. County of Orange (1988) 205 Cal.App.3d 1289 , 1293.) Edward’s motion to vacate raised the following issues: the court lacked jurisdiction because (a) the family law case no longer existed after the satisfaction of judgment and (b) Deborah did not serve Edward with a summons and complaint; Edward 7 did not know one of the issues would be fraud, so he was surprised when this turned out to be an issue; the debt settlement agreement was integrated and thus precluded 7 consideration of parol evidence. In his reply brief, Edward also complained that the court had refused to accept a written version of his oral motion for judgment under Code of Civil Procedure section 631.8. Edward made the motion orally after Deborah rested; 8 he offered a written version at the end of trial, just before the court rendered its decision. On appeal, Edward has attempted to expand the issues to be considered. The new issues include Edward’s purported failure to stipulate to a commissioner to hear the RFO, the court’s purported entry of an order for spousal support after the parties had waived spousal support in the judgment, and several objections to the court’s rulings on evidence at trial. Edward also argues several issues pertinent to the proceedings that took place after April 15, 2019, proceedings that we cannot consider because the relevant orders are not identified in the notices of appeal. I. Stipulation to a Commissioner Edward contends he never signed a stipulation to allow Commissioner Michaelson to hear his case and the court therefore lacked jurisdiction to issue the order of October 12 enforcing the judgment. Jurisdiction is a question of law that we review independently. (In re Marriage of Jensen (2003) 114 Cal.App.4th 587 , 592 (Jensen).) The minute orders of September 18 and October 12, 2018 (the two days of trial), do not record any objection by Edward to proceeding before a commissioner. Likewise, the reporter’s transcripts for those two days do not reflect any objection. Instead, the parties appeared for trial, and Edward himself testified for part of the first day and most of the second. 7 On appeal, however, Edward argues that the court “abused its discretion in its ruling to disregard any parol evidence as to the 2016 written contract . . . .” 8 Although Edward included this issue in his list of 13 appellate issues, he presented no supporting argument or authority in his opening brief. An issue that is raised but not argued is deemed waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779 , 784-785 (Badie).) 8  Edward claims he refused to stipulate to a commissioner at a pretrial hearing on August 22, 2018. The minute order reflects no such objection. The reporter’s transcript likewise includes no objection to the commissioner; on the contrary, Edward’s counsel announced ready for trial and agreed to a September 18 trial date. The continuance was necessary because Edward had prepared an opposition to Deborah’s RFO that had not made it into the court’s file by August 22 and that Deborah’s counsel had not had a chance to review. If it is not in the record, it did not happen. A written and signed stipulation is not necessary to confer jurisdiction on a temporary judge. The parties can consent to jurisdiction orally or impliedly by conduct. (In re Richard S. (1991) 54 Cal.3d 857 , 864 [“[I]t would be ‘“‘intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceeding to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.’”’”]; Estate of Fain (1999) 75 Cal.App.4th 973 , 988-989; In re Lamonica H. (1990) 220 Cal.App.3d 634 , 640.) In this case, Edward participated in three pretrial hearings and a two-day trial, without bringing up the lack of a written stipulation. By that time he had consented by conduct to a decision by the commissioner, and he had waived any objection. Edward argues that he objected to the commissioner at a hearing on July 11, 2018, by refusing to sign the stipulation allowing the commissioner to hear his case. The record does not include a reporter’s transcript for a hearing on July 11, and the minute order of that date does not record an objection to the commissioner. Nor could we find such an objection anywhere else. As stated above, if it is not in the record, it did not happen. Edward further argues that he continued to object “often and frequently” to the commissioner, but he presents no citations to these often and frequent objections in the record occurring before April 15, 2019. As stated above, factual assertions must be accompanied by citations to the record wherever they occur. 9 II. Continued Jurisdiction of the Family Court Edward contends the divorce case was over with the 2013 satisfaction of judgment. If Deborah had some subsequent complaint about Edward’s conduct, she had to bring a civil suit for breach of contract. The family court no longer had jurisdiction to hear a matter concerning the divorce. And because Edward was not served with a summons and complaint, the court had no personal jurisdiction over him. This argument raises two issues, both of which are questions of law. (Jensen, supra, 114 Cal.App.4th at p. 592.) First, did the family court have subject matter jurisdiction to try the matter? Second, did the court have personal jurisdiction over Edward, or did he have to receive a summons and a complaint? In other words, was the service of Deborah’s RFO sufficient to bring Edward before the court? This issue is entwined with the first one; if the family court had no subject matter jurisdiction, then Deborah had to bring a civil suit and had to serve Edward with a summons and complaint. Family Code section 290 provides: “A judgment or order made or entered pursuant to this code may be enforced by the court by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary.” In this case, the divorce judgment of 2007 was still executory. Edward and Deborah had agreed that her equalization payments would be paid in installments, over 30 years, and the time period was not over. When Edward ceased paying before the final installment, or, as in this case, indicated that he was not going to keep paying the installments, the family court had jurisdiction to take the necessary measures to enforce the judgment. (See, e.g., In re Marriage of Justice (1984) 157 Cal.App.3d 82 , 86; Brown v. Brown (1971) 22 Cal.App.3d 82 , 84; Code Civ. Proc., § 128, subd. (a)(4).) The 2013 acknowledgement of satisfaction of judgment was not filed with the court. Under Code of Civil Procedure section 724.030, Deborah, as judgment 10 creditor, was supposed to file the acknowledgement. If she did not, Edward was entitled, under Code of Civil Procedure section 724.050, to demand that she do so. This is the sole statutory remedy for making a judgment creditor file an acknowledgement of satisfaction of judgment. (Horath v. Hess (2014) 225 Cal.App.4th 456 , 466.) Edward is, in effect, trying to enforce a satisfaction of judgment outside the statutory procedure set up in the Code of Civil Procedure for that purpose, which he cannot do. In essence, then, the family court ordered Edward to comply with the portion of the judgment of divorce requiring him to pay Deborah the remainder of the 9 monthly equalization payments, after he received credit for $850,000 paid in 2016. Pursuant to Family Code section 290, the court had jurisdiction to enforce that judgment. Edward was served with the moving papers for Deborah’s RFO and responded to them. His answer and appearance were sufficient to confer personal jurisdiction upon the family court. (See ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198 , 210.) The record does not indicate that Edward ever made a motion to quash under Code of Civil Procedure section 418.10, subdivision (a)(1) for lack of jurisdiction. III. Motion to Vacate On appeal, Edward contends his motion to vacate was brought pursuant to 10 section 473, subdivision (b). Section 473, subdivision (b), provides in pertinent part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading 9 Edward erroneously argues on appeal that these payments were for spousal support, an issue not raised in the motion to vacate. The payments were not spousal support. They were Deborah’s equalization payments, which she had agreed to receive over time. 10 The motion to vacate also referred to section 473, subdivision (d), which provides: “The court may, . . . on motion of either party after notice to the other party, set aside any void judgment or order.” Edward contended that the order of October 12, 2018, was void for lack of service of process or notice, i.e., a summons and complaint. He has not pursued this argument on appeal, and we regard it as abandoned. (See Badie, supra, 67 Cal.App.4th at pp. 784-785.) 11 proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” We review a trial court’s decision to grant or deny relief under section 437 for abuse of discretion. (Roberts v. Roberts (1966) 245 Cal.App.2d 637 , 639.) It is Edward’s burden to show how the discretion was abused. (See ibid.) Edward’s explanation of how the trial court abused its discretion in denying his section 473 motion is simply incomprehensible. He cited to and quoted from several cases dealing with mandatory relief under the statute, apparently unaware that mandatory relief applies only in cases in which an attorney has acknowledged mistake, inadvertence, surprise, or neglect. Moreover, in the cases Edward cited the appellate courts reversed a trial court’s grant of relief under the statute, holding that mandatory relief was available only in cases of default and not when other sorts of adverse consequences ensued from mistake and neglect. None of this applies to his case. There was no attorney declaration of fault attached to the motion, there was no default, and the trial court denied the motion. Edward also argues that his motion was timely – the court never said otherwise – and that the court had the power to enlarge the time for filing an answer. How either argument applies to his case is a mystery we have not been able to solve. Edward does not explain how the trial court abused its discretion in denying his motion to vacate, especially since the bulk of the motion dealt with the admission or 12 exclusion of evidence. A section 473 motion is not the vehicle with which to challenge evidence. (Litvinuk v. Litvinuk (1945) 27 Cal.2d 38 , 43-44 [“[I]f the grounds upon which the party sought to have a judgment vacated existed before the entry of judgment and would have been available upon an appeal from the judgment, an appeal will not lie from an order denying the motion.”].) As the court repeatedly told Edward’s counsel, it was not going to retry the case on a motion to set aside for a party’s or counsel’s mistake, surprise, or neglect. IV. Attorney Fees In addition to opposing Edward’s motion to vacate, Deborah asked the court to award $5,625 in attorney fees for opposing the motion. The court awarded $3,000. Family Code section 271 permits a court to award fees when a party’s conduct frustrates the policy of the law to reduce the cost of litigation. We review the award of fees for abuse of discretion. (In re Marriage of Burgard (1999) 72 Cal.App.4th 74 , 82.) Inasmuch as Edward made a motion entirely without statutory foundation, forcing Deborah to oppose it and requiring an appearance of counsel at a hearing, we cannot see that the court abused its discretion in requiring Edward to reimburse Deborah’s attorney fees. Family Code section 271 allows the court to sanction a party for increasing the cost of litigation, and that is what Edward’s motion did. V. Other Issues As stated above, we cannot review the remaining issues. One reason is that a section 473 motion is not the proper procedure for disputing the court’s evidentiary rulings at trial (parol evidence, judicial notice). Another reason is that Edward failed to provide supporting argument and authority (Code of Civil Procedure section 631.8 issue). A third reason is that we cannot review orders subsequent to the ones identified in the 13 notices of appeal (orders issued after April 15, 2018). A final reason is that the issue was not first raised in the trial court (spousal support). DISPOSITION The orders of April 15, 2019, are affirmed. Respondent is to recover her costs on appeal. BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J. 14

2020-12-02 18:02:50.835654+00

https://www.courts.ca.gov/opinions/nonpub/B303351.PDF

Filed 12/2/20 B.Q. v. Mesa Union School Dist. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX B.Q., a Minor, etc., 2d Civ. No. B303351 (Super. Ct. No. 56-2019- Plaintiff and Appellant, 00529221-CU-CR-VTA) (Ventura County) v. MESA UNION SCHOOL DISTRICT, Defendant and Respondent. Plaintiff B.Q., a minor by and through his guardian ad litem, appeals a judgment of dismissal following the sustaining of a demurrer without leave to amend on his lawsuit against the Mesa Union School District (District). He alleged he is a Muslim student and suffered harm due to his teacher’s biased, insulting, and discriminatory attacks on his religion. We conclude, among other things, that the trial court correctly ruled that the Prohibition of Discrimination in 1 Education (PDE) Act (Ed. Code, § 220)1 does not eliminate the requirement that a plaintiff seeking damages against a public school district must first file a government tort claim (Gov. Code, § 905) before filing a PDE action. Here because the plaintiff did not file a government tort claim, the trial court properly sustained a demurrer without leave to amend. We affirm. FACTS In 2017, B.Q. was a seventh grade elementary school student in the District. He was the “only Muslim student” in the District’s seventh grade language arts and social studies classes. B.Q.’s social studies teacher passed out a “worksheet” to his students that contained “false and discriminatory information about Sharia law and Islamic practices.” The worksheet included information the teacher obtained from an “Islamophobic website.” The goal of that website was to “support the growth of Christianity.” The worksheet contained “false and offensive” translations of Sharia law. During one class discussion, B.Q.’s teacher’s “lesson and comments directly informed his classmates that Islam permits Muslims to rape with the blessing of Allah.” After one lesson, B.Q. heard a male student tell a female student that “if he were Muslim, he could rape her if he wanted to and no one would care.” Part of the instructional material the teacher provided taught students that a “[Muslim] man can marry an infant girl and consummate the marriage when she is 9 years old.” “A woman or girl who alleges rape without producing 4 male witnesses is guilty of adultery.” “A woman or girl found guilty of All statutory references are to the Education Code unless 1 otherwise stated. 2. adultery is punishable by death.” “Muslim men have sexual rights to any woman/girl not wearing the Hijab.” In one lesson the teacher asked the students to compare Islamic culture with American culture to “driv[e] home the point that Muslims are different and a disfavored group.” The teacher also showed the students videos with “images of Muslims engaged in violent behavior, fighting with guns, and whipping and enslaving each other with chains.” He depicted Islam “as a violent religion that supports and encourages war.” The teacher had a “personal bias against Islam and Muslims.” He created a “discriminatory and hostile environment toward Islam” and B.Q., a practicing Muslim. After reviewing the teacher’s worksheet, B.Q.’s classmates made comments such as, “ ‘This religion is so messed up’ ” and “ ‘I can’t believe that people actually follow this religion.’ ” B.Q. was offended and concerned about the way his teacher was instructing his classmates to think about his religion. On October 24, 2017, B.Q.’s parents contacted the school to complain about the content of the class. B.Q.’s mother informed the school principal that she wanted her representative from the Council of American-Islamic Relations (CAIR) to meet with the principal and the teacher to “informally resolve the situation.” The principal would not agree to this meeting. He directed her to file “a complaint through the uniform informal complaint process.” On October 26, 2017, CAIR filed an administrative complaint with the District alleging religious discrimination. CAIR noted that B.Q. had been “bullied because of his Islamic faith.” It claimed the District had failed to take action to stop 3. this discrimination. During one incident, a student shouted “Allahu Akbar” at B.Q. in-between classes. From October 25, 2017, to November 1, 2017, B.Q. was absent from school because the District did not take any action on his request to stop the religious discrimination. B.Q. did not attend the language and social studies classes because he believed his teacher “hated all Muslims and may harm him.” When he came back to school, B.Q. sat in the library during the language and social studies classes. On November 27, 2017, the CAIR advocate emailed the District’s legal counsel indicating concerns about B.Q.’s isolation and the ineffectiveness of the District’s alternative individual learning plan for B.Q. On December 13, 2017, the District board held a closed session regarding B.Q.’s complaint entitled “Conference with Legal Counsel - Anticipated Litigation.” CAIR had asked the District to require that the teacher apologize and the lesson plan about Islam be discontinued. The District’s board denied B.Q.’s complaint. The District issued a report noting that it had determined that the teacher’s worksheet was not “improperly motivated by religious discriminatory intent” and it did not create a “hostile environment.” It also decided that the website the teacher relied on was “primary source material.” On January 10, 2018, B.Q.’s attorney filed an appeal to the State Department of Education (SDE). (§ 262.3.) The 10-page appeal described the discriminatory behavior of the teacher, the District, and the harm to B.Q.; counsel made a demand for monetary damages. 4.  The SDE granted the appeal and ordered the District to take corrective action. It ruled that the website selected by the teacher “carried a discriminatory bias against Islam” and that the District board could not approve such educational instruction for elementary school students. It said the “lesson constituted discrimination based on religion in violation of . . . Section 220.” (Italics added.) B.Q. had initially filed a federal civil rights action ( 42 U.S.C. § 1983 ) against the District in December 2018. He subsequently dismissed that action and filed the instant first amended complaint against the District for violation of section 220 and negligence in the Ventura County Superior Court. He sought general and special damages. On September 5, 2019, the District filed a demurrer to the complaint on the ground that the action was “barred for failure to comply with the Government Claims Act [Government Code] §§ 910, 945.4.” The trial court sustained the demurrer without leave to amend. It said, “The underlying facts as alleged in the complaint are deplorable. Nonetheless, this is a claim against a public entity for money damages. Filing a claim before filing a lawsuit is required in virtually all cases against a public entity. This was not done here, and there is no area of exception to avoid that requirement.” DISCUSSION A Government Claims Filing Requirement for PDE Actions? B.Q. contends the trial court erred because he was “not required to file a separate Government Tort Claim” for his PDE cause of action. (§ 220.) He claims: 1) his filing of an administrative appeal under the Education Code’s Uniform 5. Complaint Procedures (§ 262.3) was all that was required, and 2) the Legislature intended to exempt PDE causes of action from the governmental tort claim requirement. We disagree. “Ordinarily, filing a claim with a public entity pursuant to the Claims Act [Gov. Code, §§ 905, 910] is a jurisdictional element of any cause of action for damages against the public entity [citations] that must be satisfied in addition to the exhaustion of any administrative remedies . . . .” (Cornejo v. Lightbourne (2013) 220 Cal.App.4th 932 , 938.) Exceptions to this “[claims] presentation procedure are rarely found.” (Id. at p. 939.) The PDE Act (§ 220) prohibits discrimination based on religion by any “educational institution” that receives state financial assistance. (§ 220.) “[M]oney damages are available in a private enforcement action under section 220.” (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567 , 579.) But this statute does not contain an express exemption from the requirement that a plaintiff suing a school district for damages must initially file a claim under the Government Claims Act. (Gov. Code, §§ 905, 910.) This is some indication that the Legislature did not intend to eliminate this claims filing requirement here. (See, e.g., Gay-Straight Alliance Network v. Visalia Unified School Dist. (E.D.Cal. 2001) 262 F.Supp.2d 1088 , 1110.) “ ‘Exceptions to the filing requirement not specifically enumerated . . . have occasionally been allowed, but only where the claim is based on a statute or statutory scheme that includes a functionally equivalent claim process.’ ” (Bates v. Franchise Tax Board (2004) 124 Cal.App.4th 367 , 383.) These exceptions involved claims made to state agencies that were created to 6. evaluate and determine claims for damages under the statute that created the agency, and the statute contained a detailed investigative and comprehensive damage claim process. One example is the Department of Fair Employment and Housing (DFEH). In Bates, the court noted that the Fair Employment and Housing Act (FEHA) contained a functionally equivalent claims process that allowed litigants to use it in lieu of the Government Claims Act procedure. The court said, “DFEH is empowered to investigate complaints, issue subpoenas, take depositions, and serve written interrogatories.” (Bates, at p. 384.) “Among the remedies DFEH may impose upon a finding of discrimination[] are cease and desist orders, actual damages, hiring, reinstatement, or upgrading employees, backpay or frontpay, and emotional distress damages.” (Ibid.) The DFEH was an agency specifically created to screen and evaluate damage claims and provide a damage remedy. B.Q. contends there is a similar claims process in the Education Code. We disagree. Under section 262.3, subdivision (a), “[a] party to a written complaint of . . . discrimination may appeal the action taken by the governing board of a school district . . . to the [SDE].” (Italics added.) This administrative appeal process is not mandatory. Those who elect to forego this process are not precluded from filing a PDE action. (§ 262.3, subd. (c).) The mere existence of this optional administrative remedy does not mean the administrative participant is automatically excused from complying with the Government Claims Act when he or she decides to sue a district for damages. (Bates v. Franchise Tax Board, supra, 124 Cal.App.4th at p. 385.) 7.  For those who use this administrative appeal process, there is a provision that delays seeking civil damages. Section 262.3, subdivision (d) provides, in relevant part, “[A] person who alleges that he or she is a victim of discrimination may not seek civil remedies pursuant to this section until at least 60 days have elapsed from the filing of an appeal to the [SDE].” But there is no express reference or connection between this time period and the Government Claims Act requirements. This 60-day period allows the SDE time to attempt to mediate disputes by parties to the appeal. (Donovan v. Poway Unified School Dist., supra, 167 Cal.App.4th at p. 608.) B.Q. suggests this legislation was intended to change existing law by eliminating the requirement that a government claim must be filed before filing a PDE damage lawsuit. But the goal was to provide an optional administrative procedure for those who wanted to use it and to declare that this process was not a requirement for filing litigation. Section 262.3, subdivision (c) provides, “Nothing in this chapter shall be construed to require an exhaustion of the administrative complaint process before civil law remedies may be pursued.” (Italics added.) Those “civil law remedies” would include both the government claim and the subsequent lawsuit. Section 262.3 does not specifically address whether a government tort claim is required. But this very short administrative appeal statute does not include the type of requirements that show the Legislature intended it as a substitute for the detailed rules, time requirements, and protections of the Government Claims Act. (Bates v. Franchise Tax Board, supra, 124 Cal.App.4th at p. 385.) 8.  Unlike the Government Claims Act, section 262.3 does not require the appellant to file a claim for damages against a district or require the SDE to decide damage claims. It does not designate the SDE as an expert state agency in evaluating damage claims or awarding damages. As the District notes, the regulations relating to the appeals process refer to the SDE’s ability: 1) to review the actions of the District, and 2) to order future corrective action to make the District comply with state policies. But there is nothing that gives the SDE the authority to consider or decide damage claims or to financially compensate a student. (Cal. Code Regs., tit. 5, §§ 4632, 4633.) Consequently, this appeals process is a review of a district’s compliance with state procedures, not a forum to litigate tort claims. In B.Q.’s appeal, the SDE decided whether a lesson plan violated state education policies on religion and it ordered corrective action by the District. It did not address B.Q.’s damage claims. The SDE’s “corrective action” included granting the appeal, requiring the District to give B.Q. five one-hour counselling sessions, and requiring future training for social studies teachers and students. But there was no monetary compensation for the damage B.Q. suffered. In other words, he could prevail on this appeal, but the SDE could not, and did not, consider a claim for damages. Appellants using this appeals process may not wish to sue a district and may not have a damage claim, and those who have damage claims are not required to use it. The Government Claims Act, by contrast, requires all who seek damages to use the claims filing procedures. Section 262.3 “does not have a claims procedure functionally equivalent to the Government Claims Act.” (Bates v. Franchise Tax Board, supra, 124 Cal.App.4th at 9. p. 385.) It is not a forum equipped to decide damages. Sections 220 and 262.3 contain “no comparable provisions” to DFEH’s extensive damage remedies and damage claim process “and there is, therefore, no reason to exempt actions under those statutes from the claim filing requirement where the primary relief sought . . . is money damages.” (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744 , 764.) B.Q. contends the Legislature intended the Education Code antidiscrimination provisions be interpreted consistent with FEHA. He relies on the general purpose language of section 201, subdivision (g). That provision involving the student’s right to be free from discrimination shows that substantive right shall be consistent with FEHA, the federal Civil Rights Act of 1964, title IX, etc. But, as the District notes, the Legislature did not adopt the claim procedures of the FEHA statute into the Education Code. In Donovan, the court said, “[T]here is little or no support in the legislative history showing the Legislature based the antidiscrimination provisions in the Education Code on FEHA and its statutory framework . . . .” (Donovan v. Poway Unified School Dist., supra, 167 Cal.App.4th at p. 597, italics added.) B.Q. notes that in Cornejo v. Lightbourne, the court ruled Whistleblower Protection Act (WPA) claims were a valid substitute for the Government Claims Act requirements. But for WPA, and FEHA, the statutes and regulations not only authorize those agencies to decide damages, but they also specify the types of damages to be awarded and include comprehensive procedures to determine the damages. The absence of such provisions in section 262.3 shows a legislative intent not to consider it to be a Government Claims Act substitute. The WPA procedure contains “every function of the presentation procedure” for damage claims 10. (Cornejo v. Lightbourne, supra, 220 Cal.App.4th at p. 941); section 262.3, by contrast, does not. Moreover, the Legislature would not change the claims filing requirement without considering the impact on the school districts. (Rubenstein v. Doe. No. 1 (2017) 3 Cal.5th 903 , 916.) But section 262.3 does not provide districts with the procedural protections of the Government Claims Act. Under that act, districts are entitled to pre-litigation notice that a claimant is seeking damages. (Gov. Code, §§ 905, 910.) But section 262.3 does not require appellants to declare whether they are seeking damages against a district. If that were the case, districts would not learn claimants were seeking damages until after the claimants filed a lawsuit. This would deprive districts of their pre-litigation right to investigate claims. (Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139 , 1151.) Section 262.3 is not a replacement for the claims filing requirement. The parties cite Gay-Straight Alliance Network v. Visalia Unified School Dist., supra, 262 F.Supp.2d 1088 and note there the court essentially found section 220 damage actions must be initiated by complying with the Government Claims Act. The court found that even though a plaintiff did not file a standard form government tort claim, he could proceed with his action because he had otherwise “substantially complied with the claims presentation requirement.” (Id. at p. 1110, italics added.) B.Q. claims that this case is distinguishable because there was no indication that the plaintiff had also filed an appeal under section 262.3. But B.Q. has not shown why the Legislature would create two classes of section 220 plaintiffs, with one having to file a claim and the other exempt. Moreover, using or not using the 11. section 262.3 procedure would not change the result because it is not a forum for damage claims. Half of B.Q.’s lawsuit also involves seeking damages for a negligence cause of action. He has made no showing how that cause of action is exempt from the claims filing requirement. Legislative intent may be determined by what the Legislature declined to place in a statute. (Apple Inc. v. Superior Court (2013) 56 Cal.4th 128 , 146.) Had lawmakers intended to make a significant change from the normal claims filing requirement to more easily facilitate a new Education Code cause of action, they would be expected to have expressly made that change in section 220 or 262.3. (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499 , 511 [where the Legislature intends a statute to change the Government Claims Act requirements, it will expressly include that change in the legislation].) The absence of such an Education Code provision supports the District’s position. The Legislature, however, has considered the issue of exceptions to the claims filing requirement in the Government Code. (Gov. Code, § 905.) It is well established that “unless specifically excepted, any action for money or damages . . . may not be maintained until a claim has been filed with the relevant public entity and either the public entity acts on it or it is deemed to have been denied by operation of law.” (Alliance Financial v. City and County of San Francisco (1998) 64 Cal.App.4th 635 , 642, italics added.) The Legislature has specified the exceptions to the claims filing requirement in Government Code section 905, subdivision (a). That section, which was amended in January 2020, contains 15 exceptions to the claims filing requirement. But causes of 12. action under section 220 are not included in that list. The District notes that had the Legislature intended to exempt section 220 causes of action from the claims filing requirement, it could have easily added those cases to the list at any time since 1982. “ ‘The Legislature “is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof.” ’ ” (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263 , 1269.) The Legislature has amended Government Code section 905 numerous times since 1963. The absence of an exception for Education Code section 220 damage causes of action shows an intent that such actions must be initiated after the plaintiff has met the claims filing requirement. (County of Los Angeles, p. 1269.) The purpose of the Government Claims Act “ ‘is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances.’ ” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820 , 829.) The claims presentation requirement is consequently applicable unless the plaintiff can fall within one of the “statutorily enumerated exceptions” in Government Code section 905. (Nasrawi v. Buck Consultants, LLC (2014) 231b Cal.App.4th 328, 338.) Those statutory exceptions “have been narrowly construed.” (Hanson v. Garden Grove Unified School Dist. (1982) 129 Cal.App.3d 942 , 946, italics added.) B.Q. has not shown that his case falls within one of them. “A public entity’s knowledge of an incident and injuries does not excuse the claim requirement.” (Lowry v. Port San Luis Harbor Dist. (2020) 56 Cal.App.5th 211 , 218.) The trial court 13. correctly ruled that B.Q. was not exempt from the claims filing requirement. B.Q. was represented by counsel at all relevant times. Because he did not file a government tort claim, the trial court properly sustained a demurrer without leave to amend. We have reviewed B.Q.’s remaining contentions and we conclude he has not shown grounds for reversal. DISPOSITION The judgment is affirmed. Costs on appeal are awarded to respondent. NOT TO BE PUBLISHED. GILBERT, P. J. We concur: YEGAN, J. TANGEMAN, J. 14.  Henry J. Walsh, Judge Superior Court County of Ventura ______________________________ Pachowicz/Goldenring, Mark Pachowicz and Jonny Russell for Plaintiff and Appellant Minor, by and through his guardian ad litem. Woo Houska, Maureen M. Houska; Greines, Martin, Stein & Richland, Timothy T. Coates and Nadia A. Sarkis for Defendant and Respondent. 15.

2020-12-02 18:13:13.910075+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2020/2020-Ohio-5499.pdf

[Cite as Cotner v. Coey, 2020-Ohio-5499 .] COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT JUDGES: RODNEY COTNER : Hon. William B. Hoffman, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellant : Hon. John W. Wise, J. : -vs- : : Case No. 2020 CA 00007 CARISSA COEY : : Defendant-Appellee : OPINION CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court of Common Pleas, Case No. 2019 PA 00145 JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: December 2, 2020 APPEARANCES: For Plaintiff-Appellant For Defendant-Appellee JASON A. PRICE PRICE LAW GROUP 126 East Chestnut Street Lancaster, OH 43130 [Cite as Cotner v. Coey, 2020-Ohio-5499 .] Gwin, J., {¶1} Appellant Rodney Cotner (“Father”) appeals the January 22, 2020 judgment entry of the Fairfield County Court of Common Pleas, Domestic Relations Division, certifying the matter to the Fairfield County Court of Common Pleas, Juvenile Division. Facts & Procedural History {¶2} On July 25, 2019, Father filed a complaint for parentage and allocation of parental rights and responsibilities against Carissa Coey (“Mother”). Father and Mother have two children, R.C., born on January 13, 2017, and N.C., born on March 9, 2019. {¶3} On January 9, 2020, the parties entered into an agreed judgment entry, in which Mother was named as the residential and custodial parent of the minor children. Father had parenting time with the children each week. {¶4} Father filed a motion for change of parental rights on January 21, 2020, due to Mother’s alleged drug use. On the same day, Father filed a motion for ex parte order of custody. The trial court provided notice to Fairfield County Child Protective Services (“CPS”) that Father filed the motion for emergency custody. {¶5} The magistrate held a hearing on Father’s emergency motion on January 21, 2020, and issued a judgment entry on the same day. The magistrate granted temporary custody of the minor children to Father, but ordered him to comply with all recommendations and requests of CPS. {¶6} The next day, the trial court appointed Sonya Marshall (“Marshall”) as guardian ad litem for the children. Marshall served as the guardian for R.C. and N.C.’s sibling in a companion case since October of 2019. On January 22, 2020, Marshall filed a motion for order certifying the case to juvenile court for further proceedings and motion Fairfield County, Case No. 2020 CA 00007 3 for CPS to seek emergency shelter care custody and temporary custody of the children. She cited R.C. 3109.06 in support of her motion to transfer. Marshall argued it was in the best interest of the children for the case to be transferred to juvenile court due to the domestic violence history between Father and Mother and the history of both Father and Mother with CPS. Marshall believed it was in the best interest of the children for the parents to obtain assistance and services through CPS. {¶7} The magistrate held a hearing on Marshall’s motion on January 22, 2020. Present at the hearing were Marshall and several employees from CPS. Marshall testified she had concerns for R.C. and N.C.’s safety with Father due to a significant history of domestic violence between Father and Mother. Marshall also had concerns about the suitability of Mother to be the legal custodian of R.C. and N.C. She requested the case be certified to Juvenile Court, an emergency shelter care order be issued, and temporary custody be granted to CPS. Heather Stoneberger from CPS testified that CPS became involved in the case approximately a week prior to the hearing, due to drug use by Mother. Stoneberger stated the family had previously been involved with CPS and Father was not cooperative with CPS. {¶8} The trial court issued a judgment entry on January 22, 2020. The trial court took judicial notice of the proceedings on January 21, 2020 and, based upon the testimony presented on January 21 and January 22, found there was probable cause to believe the children are dependent as defined in R.C. 2151.04. Pursuant to R.C. 2151.31 and R.C. 2151.311, the court found it was in the best interest of the children to place them into the shelter care custody of CPS and this removal was necessary to prevent Fairfield County, Case No. 2020 CA 00007 4 immediate threatened physical or emotional harm. The trial court transferred all issues related to the children to Fairfield County Juvenile Court. {¶9} Father appeals the January 22, 2020 judgment entry of the Fairfield County Court of Common Pleas, Domestic Relations Division, and assigns the following as error: {¶10} “I. THE TRIAL COURT ERRED IN TRANSFERRING THE CASE TO JUVENILE COURT. {¶11} “II. THE TRIAL COURT DENIED THE APPELLANT DUE PROCESS.” I. {¶12} In Father’s first assignment of error, he argues the trial court committed error in transferring the case to juvenile court because the requirements for transfer contained in the applicable transfer statutes were not met. We agree with Father. {¶13} In Marshall’s motion, she states that she is requesting transfer to the juvenile court pursuant to R.C. 3109.06. Pursuant to the plain language of R.C. 3109.06, the consent of the juvenile court to transfer is required unless the domestic relations court finds the parents unsuitable to have parental rights and responsibilities for the care of the children and unsuitable to provide the place of residence and be the legal custodian of the children. In this case, the juvenile court did not consent to the transfer prior to the judgment entry of the domestic relations court on January 22, 2020. Further, the domestic relations court did not make a finding of parental unsuitability. Thus, the requirements for transfer under R.C. 3109.06 were not met. {¶14} There are a number of other means by which a juvenile court may acquire jurisdiction over custody matters. Relevant to this case are the transfer mechanisms in R.C. 3109.04(D)(2) and R.C. 2151.23(A)(1). Fairfield County, Case No. 2020 CA 00007 5 {¶15} R.C. 3109.04, entitled allocating and modifying parental rights and responsibilities, authorizes a domestic relations court to certify a case to the juvenile court for further proceedings, “if the court finds * * * that it is in the best interest of the child for neither parent to be designated the residential parent and legal custodian of the child.” R.C. 3109.04(D)(2). In this case, while the trial court found it was in the best interest of the children to place them into shelter care, the trial court did not find it was in the best interest of the children for neither parent to be the designated residential parent and legal custodian of the children. Thus, the trial court did not make the required finding for transfer pursuant to R.C. 3109.04(D)(2). {¶16} The trial court found there was probable cause to believe the children were dependent pursuant to R.C. 2151.04. R.C. 2151.23 provides that the juvenile court has exclusive original jurisdiction, “concerning any child who on or about the date specified in the complaint, indictment, or information is alleged * * * to be a * * * delinquent, unruly, abused, neglected, or dependent child * * *.” R.C. 2151.23(A)(1). In the instant case, allegations of abuse, neglect, or dependency were not contained in an indictment or information, as the record does not indicate the allegations were conveyed by a grand jury or prosecutor without a grand jury. Further, in this case, there was no complaint filed alleging abuse, neglect, or dependency on or about January 22. Instead, the trial court based its findings on testimony presented to the magistrate at the January 22nd hearing. While CPS did file a complaint requesting a dependency finding due to Mother’s substance abuse and Father’s unwillingness to allow the agency to assess their concerns, this complaint was not filed until February 7, 2020, over two weeks after the trial court issued the transfer judgment entry. Accordingly, the statutory requirements for transfer Fairfield County, Case No. 2020 CA 00007 6 pursuant to R.C. 2151.23(A)(1) were not met. Thompson v. Valentine, 189 Ohio App.3d 661 , 2010-Ohio-4075 , 939 N.E.2d 1289 (12th Dist. Butler); State ex rel. Richland Cty. Children Services v. Richland Cty. Court of Common Pleas, 152 Ohio St.3d 421 , 2017- Ohio-9160, 97 N.E.3d 429 . {¶17} In this case, the record indicates the trial court did not properly transfer the case to juvenile court under R.C. 2151.23(A)(1), 3109.04(D)(2), or 3109.06. Appellant’s first assignment of error is sustained. II. {¶18} Due to our disposition of Father’s first assignment of error, we find Father’s second assignment of error is moot. {¶19} Based on the foregoing, appellant’s first assignment of error is sustained. Therefore, his second assignment of error is moot. Fairfield County, Case No. 2020 CA 00007 7 {¶20} The January 22, 2020, judgment entry of the Fairfield County Court of Common Pleas, Domestic Relations Division, transferring the case to the Juvenile Division, is reversed and remanded to the Domestic Relations Division for further proceedings in accordance with this opinion. By Gwin, J., Hoffman, P.J., and Wise, John J., concur

2020-12-02 18:13:14.286859+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2020/2020-Ohio-5500.pdf

[Cite as Bunta v. Mast, 2020-Ohio-5500 .] COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT VASILE BUNTA : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 20CA006 : FIRMAN D. MAST : : : Defendant-Appellant : OPINION CHARACTER OF PROCEEDING: Appeal from the Holmes County Court of Common Pleas, Case No. 2017 CV 030 JUDGMENT: AFFIRMED DATE OF JUDGMENT ENTRY: December 2, 2020 APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: THOMAS D. WHITE GRANT A. MASON MATTHEW A. KEARNEY The Lincoln Building 209 N. Washington St. 88 S. Monroe St. Millersburg, OH 44654 Millersburg, OH 44654 Holmes County, Case No. 20CA006 2 Delaney, J. {¶1} Defendant-Appellant Firman D. Mast appeals the February 21, 2020 judgment entry of the Holmes County Court of Common Pleas journalizing the jury verdict in favor of Plaintiff-Appellee Vasile Bunta. FACTS AND PROCEDURAL HISTORY Creation of Superior VacuPress, LLC {¶2} In December 2013, Plaintiff-Appellee Vasile Bunta and Defendant- Appellant Firman D. Mast were introduced during a long car trip to Kansas. Firman Mast owned a successful roofing business located in Holmes County, Ohio. Bunta, an electrical engineer, worked for Mt. Eaton Lumber company and operated his own lumber exporting business named Dim X-Port, LLC. Dim X-Port purchased lumber from companies in Ohio and sold the lumber to foreign markets. During the car ride, Bunta explained to Firman Mast the concept of drying lumber with vacuum kilns. When trees are cut for lumber, they are full of moisture. To prevent the cut lumber from splitting and warping, it is dried. The lumber can be air dried which can take months and can lead to increased splitting and warping. If the cut lumber is placed in a vacuum kiln, the heat and vacuum from the kiln pulls the moisture from the lumber, requiring less drying time and less warping or splitting. {¶3} In January 2014, Bunta and Firman Mast entered into an oral agreement to purchase a vacuum kiln and start a wood drying business named Superior VacuPress, LLC (“VacuPress”). Bunta did most of the planning, which included the plant layout, electrical design, and business plan. Bunta introduced Firman Mast to Jim Parker, Bunta’s contact at Vacutherm, where VacuPress was going to purchase the vacuum kiln. The Holmes County, Case No. 20CA006 3 VacuPress building was going to be built on the property of Defendant Dennis Mast, Firman Mast’s father. {¶4} Firman Mast and Bunta consulted with Commercial and Savings Bank to obtain financing. The bank recommended that Bunta not be a partner in VacuPress due to his credit issues. Bunta was a Romanian immigrant, educated in the United States and a green card holder. As Bunta was working on establishing VacuPress, he did not focus on Dim X-Port. In 2015, Dim X-Port experienced financial difficulties due to foreign market instability in lumber. As a result, Dim X-Port was unable to fully pay its outstanding balances to the lumber companies. One company, DY Lumber, understood the basis for Dim X-Port’s outstanding bills was market instability and allowed it make installments on the balance. {¶5} To secure the bank financing for VacuPress, Dennis Mast co-signed the loans with Firman Mast. Commercial and Savings Bank made five loans totaling $1,433,000 and opened a $200,000 credit line to VacuPress. {¶6} The original operating agreement for VacuPress was signed in April 2014. The initial members of VacuPress were Firman Mast at 85% interest and Dennis Mast for 15% interest (in exchange for his co-signing the loan and providing the land). Firman Mast was the manager of VacuPress. {¶7} The vacuum kiln purchased from Vacutherm was installed from June 2014 to November 2014. The kiln went into operation in December 2014. Dennis Mast was hired by VacuPress to load the vacuum kiln. Mervin Mast, Firman’s brother, was hired as the bookkeeper and salesperson. Both Dennis and Mervin earned a salary from VacuPress. Holmes County, Case No. 20CA006 4 {¶8} In January 2015, Firman Mast and Bunta entered into an agreement that for the first six months of operation, he and Bunta would not be paid. At month 12 and if VacuPress was earning money, Firman Mast and Bunta would draw $2000 per month. At month 18, Firman Mast and Bunta would draw $4000 per month. Operation of Superior VacuPress {¶9} In February 2015, Bunta and Firman Mast formed the Ohio Vacupress Association, dba, Vacutherm Midwest, LLC (“Vacutherm”), based on their relationship with Jim Parker. Bunta was the 51% owner and Firman Mast was the 49% owner. The purpose of Vacutherm Midwest was to receive commissions from the sales of Vacutherm vacuum kilns. {¶10} Firman Mast issued a capital call of $109,000 to the members of VacuPress in September 2015. Bunta was included in the capital call even though he was not a member of VacuPress. On October 19, 2015, Bunta used funds from Dim X-Port and paid VacuPress $10,000. On December 8, 2015, Bunta used his interest from Vacutherm to pay $22,175.90 to VacuPress. {¶11} On January 1, 2016, the members executed an Amended and Restated Operating Agreement for VacuPress that included Bunta as a 30% member. Firman Mast was manager and 45.9% owner, Dennis owned 13.5%, and Mervin owned 10.6%. Based upon Bunta’s 30% interest, he was responsible for 30% of the capital call. {¶12} Bunta paid $3,060 to VacuPress from his interest in Vacutherm on March 2, 2016. Bunta overpaid his portion of the capital call by $1,882.00. {¶13} Firman Mast called a member’s meeting on March 22, 2016. The purpose of the meeting was to discuss the financial difficulties facing VacuPress. Firman Mast, Holmes County, Case No. 20CA006 5 Dennis, and Mervin confronted Bunta about the inability of VacuPress to purchase lumber from local lumber mills. They argued that due to Bunta’s outstanding debts to local lumber mills, the mills would not do business with VacuPress. The Masts encouraged Bunta to settle his debts with the lumber mills. Firman Mast and Bunta had not received any compensation from VacuPress. Prior to the meeting, Bunta told Firman Mast that he wanted to be paid for the work he performed in creating VacuPress in 2014 and 2015. Firman Mast told him to provide invoices so Bunta brought invoices from Dim X-Port totaling $26,000 to the meeting. Bunta issued the invoices from Dim X-Port for tax purposes. The members agreed that VacuPress should pay Bunta $6,000. Bunta admitted at the meeting that he wanted to exit VacuPress. {¶14} After the meeting, Bunta stopped actively working for VacuPress. Firman, Dennis, and Mervin agreed that they needed to move forward with the business without Bunta. {¶15} In June 2016, Firman Mast made a first attempt to remove Bunta from VacuPress when he sent him a letter demanding payment of Bunta’s share of the capital call with a penalty of a 24.9% interest rate. {¶16} Firman Mast and Bunta dissolved Vacutherm Midwest. Firman Mast created FM, LLC to receive commissions from the sales of Vacutherm vacuum kilns. Firman Mast and his wife were the owners of FM, LLC. {¶17} In July 2016, Firman Mast offered Bunta $20,000 as a buyout option. Bunta did not accept. Holmes County, Case No. 20CA006 6 Creation of Superior Lumber {¶18} On August 15, 2016, Firman Mast sent the members of VacuPress a notice of dissolution. On November 1, 2016, Firman Mast created Defendant Superior Lumber, LLC with Firman Mast owning 51% interest, Dennis 15% interest, and Mervin 34% interest. Firman Mast transferred the assets and debts from VacuPress to Superior Lumber. In December 2016, Firman Mast wrote a letter to the shareholders of VacuPress stating that due to financial difficulties, VacuPress would cease operations. On January 19, 2017, the Ohio Secretary of State received notification that VacuPress had been dissolved. Superior Lumber began operations on January 1, 2017. {¶19} The 2017 tax return for Superior Lumber showed its gross receipts were $1,735,752.00 and its gross profits were $347,153. Civil Action {¶20} On June 15, 2017, Bunta filed a complaint against VacuPress, Firman Mast, Mervin, Dennis, and Superior Lumber (“Mast defendants”). Bunta also named Commercial and Savings Bank (“CSB”) as a defendant to the complaint. {¶21} The thrust of Bunta’s argument was that he was not compensated when Firman Mast dissolved VacuPress. Bunta asserted the following counts in his complaint: (1) declaratory judgment against the Mast defendants and Superior Lumber determining the Mast defendants abandoned VacuPress in favor of Superior Lumber with a determination that the parties are no longer bound to the operating agreement of VacuPress; (2) a declaration that VacuPress is dissolved and requiring the Mast defendants to fully account for VacuPress; (3) accounting by VacuPress and the Mast defendants for all monies received and disbursed by them; (4) breach of fiduciary duty by Holmes County, Case No. 20CA006 7 the Mast defendants; (5) civil conspiracy by VacuPress, Superior Lumber, and the Mast defendants to breach the fiduciary duty owed to appellee and/or conversion of appellee’s property; (6) conversion by VacuPress, Superior Lumber, and the Mast defendants; and (7) unjust enrichment by VacuPress, Superior Lumber, and the Mast defendants. Bunta requested the following relief: a declaratory judgment that the Mast defendants abandoned VacuPress and the parties are no longer bound by the operating agreement, judicial dissolution, accounting, and winding up of VacuPress, and an award of compensatory damages. Bunta did not name CSB in any of the counts, nor did he request relief from CSB. Rather, Bunta only asserted that CSB “may have an interest in the subject matter of this case.” {¶22} The Mast defendants filed an answer denying the allegations in the complaint and asserting as their first affirmative defense that the Amended and Reinstated Operating Agreement contained a binding arbitration clause. On July 27, 2017, the Mast defendants filed a motion to stay proceedings and refer the matter to arbitration. On November 17, 2017, the trial court issued a judgment entry denying the motion to stay the proceedings and arbitration request. The Mast defendants appealed the matter to this Court in Vasile Bunta v. Superior VacuPress LLC, 2018-Ohio-2823 , 117 N.E.3d 51 (5th Dist.). On July 13, 2018, we affirmed the trial court’s decision to deny the motion to stay. {¶23} On October 4, 2019, the Mast defendants filed motions for summary judgment. Bunta responded. The trial court held an oral hearing on the motions. {¶24} On November 14, 2019, Bunta dismissed three counts of his complaint: (1) declaratory judgment against the Mast defendants and Superior Lumber determining the Holmes County, Case No. 20CA006 8 Mast defendants abandoned VacuPress in favor of Superior Lumber with a determination that the parties are no longer bound to the operating agreement of VacuPress; (2) a declaration that VacuPress is dissolved and requiring the Mast defendants to fully account for VacuPress; and (3) accounting by VacuPress and the Mast defendants for all monies received and disbursed by them. {¶25} On December 5, 2019, the trial court denied the motions for summary judgment. Bunta voluntarily dismissed VacuPress as a defendant. {¶26} The remaining Mast defendants filed a Motion in Limine on February 4, 2020. The Mast defendants argued Bunta’s expert witness, Michael Oesch should be excluded. Oesch, a certified public account, was to testify as to the financials of VacuPress and Superior Lumber. The trial court held a hearing on the motion on February 10, 2020 and denied the motion. {¶27} The matter proceeded to a three-day jury trial. During the trial, Firman Mast made multiple motions for directed verdict, which the trial court denied. Mervin Mast was dismissed as a defendant. The matter was submitted to the jury with interrogatories. The jury returned verdicts against only Firman Mast on (1) Count Six, Conversion and awarded damages in the amount of $231,854.50 and (2) Count Seven, Unjust Enrichment and awarded damages in the amount of $45,000. The trial court journalized the verdict on February 21, 2020. It is from this judgment Firman Mast now appeals. Holmes County, Case No. 20CA006 9 ASSIGNMENTS OF ERROR {¶28} Firman Mast raises three Assignments of Error: {¶29} “I. THE TRIAL COURT ERRED BY DENYING APPELLANT FIRMAN MAST’S MOTION FOR SUMMARY JUDGMENT AND SUBSEQUENT MOTIONS FOR DIRECTED VERDICT ON APPELLEE’S CLAIM FOR CONVERSION. {¶30} “II. THE TRIAL COURT ERRED BY DENYING APPELLANT FIRMAN MAST’S MOTION FOR SUMMARY JUDGMENT AND SUBSEQUENT MOTIONS FOR DIRECTED VERDICT ON APPELLEE’S CLAIM FOR UNJUST ENRICHMENT. {¶31} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY PERMITTING APPELLEE’S EXPERT WITNESS TO TESTIFY AND SUBMIT HIS DAMAGES VALUATION REPORT TO THE JURY.” ANALYSIS I. CONVERSION {¶32} Bunta claimed that Firman Mast committed the tort of conversion over Bunta’s 30% interest in VacuPress when Firman Mast dissolved VacuPress and created Superior Lumber. Firman Mast contends in his first Assignment of Error that the trial court erred when it failed to find as a matter of law, through summary judgment or directed verdict, that Bunta had no claim for conversion. We disagree. Standard of Review {¶33} Firman Mast challenged Bunta’s claim for conversion on two fronts: summary judgment and directed verdict. Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 , 36, 506 N.E.2d Holmes County, Case No. 20CA006 10 212 (1987). As such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 , 105, 671 N.E.2d 241 (1996). {¶34} Civ.R. 56 provides summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come to but one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317 , 364 N.E.2d 267 (1977). {¶35} Similar to a Civ.R. 56 motion for summary judgment, a motion for a directed verdict can only be granted if, after construing the evidence most favorably to the nonmoving party, reasonable minds could come to but one conclusion upon the evidence submitted. Civ.R. 50(A)(4); Ohio Cas. Ins. Co. v. D&J Distrib. & Mfg., Inc., 6th Dist. Lucas No. L-08-1104, 2009-Ohio-3806 , ¶ 29. The Tort of Conversion {¶36} The tort of conversion is defined as “the wrongful exercise of dominion over property to the exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights.” Heflin v. Ossman, 5th Dist. Fairfield No. 05CA17, 2005–Ohio–6876, ¶ 20, quoting Joyce v. General Motors Corp., 49 Ohio St.3d 93 , 96, 551 N.E.2d 172 (1990). Thus, the elements required for conversion are: (1) a defendant's exercise of dominion or control; (2) over a plaintiff's property; and (3) in a manner inconsistent with the plaintiff's rights of ownership. Id., citing Cozmyk Ent., Inc. v. Hoy, Franklin App. No. 96APE10–1380, 1997 WL 358816 (June 30, 1997). Holmes County, Case No. 20CA006 11 {¶37} Firman Mast raises two arguments as to why Bunta’s claim for conversion must fail. First, he contends existing Ohio law does not recognize a claim of conversion over intangible assets. Second, assuming arguendo the claim of conversion over intangible assets is not barred as a matter of law, Firman Mast states that Bunta failed in meeting his evidentiary burden to demonstrate his damages. Can Bunta’s Membership Interest be Converted? {¶38} In this case, Bunta claimed that Firman Mast converted his 30% membership interest in VacuPress when Firman created Superior Lumber, dissolved VacuPress, and transferred the VacuPress assets and debts to Superior Lumber. The uncontroverted evidence at trial showed that Bunta was a 30% member of VacuPress, Firman Mast dissolved VacuPress and transferred all the assets and debts from VacuPress to Superior Lumber, and Bunta was not a member of Superior Lumber. In closing arguments, Bunta requested damages in the amount of $516,097.00 for the totality of his claims. Interrogatories were submitted to the jury. On Interrogatory 11, the jury found by a preponderance of the evidence that Firman Mast converted property that was owned by Bunta for which he had the right to possess and Bunta suffered damages in the amount of $231,854.50. {¶39} Firman Mast argues Bunta’s claim for conversion is barred as a matter of law because Ohio law unilaterally limits conversion claims to those based on the taking of tangible, personal property. He states the property allegedly converted by Firman Mast was monies due under the Amended and Restated Operating Agreement, which is not identifiable and tangible personal property. The issue before the Court is whether Bunta’s Holmes County, Case No. 20CA006 12 30% membership interest in VacuPress can be converted. We examine the case law addressing the conversion of intangible assets. {¶40} The Ohio Supreme Court addressed the issue of conversion and intangible property in Zacchini v. Scripps–Howard Broadcasting Co., 47 Ohio St.2d 224 , 227, 351 N.E.2d 454 (1976). The intangible asset at issue in Zacchini was the plaintiff’s image. Zacchini was a “human cannonball” and had been filmed by a television station, which showed the clip during a news program. Zacchini sued, alleging as part of his claims the invasion of privacy by appropriating his professional talents. The trial court granted summary judgment and the appellate court reversed, finding Zacchini stated a claim for conversion. The matter was appealed to the Ohio Supreme Court where it rejected Zacchini’s claims. The Court stated as to conversion: Conversion is a wrongful exercise of dominion over property in exclusion of the right of the owner, or withholding it from his possession under a claim inconsistent with his rights. Railroad Co. v. O'Donnell (1892), 49 Ohio St. 489 , 497, 32 N.E. 476 . Although the original rule at common law was that only tangible chattels could be converted, it is now generally held that intangible rights which are customarily merged in or identified with some document may also be converted. Examples include drafts, bank passbooks, and deeds. See Prosser, The Law of Torts (4th ed. 1971), at pages 81-82. See, generally, Annotation, 44 A.L.R.2d 927 . But conversion does not apply to any intangible right, and certainly it has never been held that one's countenance or image is ‘converted’ by being photographed. The difficulties with any such holding are apparent. ‘Taking’ a photograph of Holmes County, Case No. 20CA006 13 someone does not in fact take anything from that person. If the photograph or film is only a conversion when shown to others, we may well ask to how many others it must be shown, and how often, before it becomes actionable. The distinguishing characteristic of conversion is the forced judicial sale of the chattel or right of which the owner has been wrongfully deprived. In the case of such intangible quasi-proprietary rights as are involved here, a forced sale would be largely absurd, because of the doubtfulness of determining what has been ‘taken.’ Is it the right to perform the act, to view it, to present it on television, to license its filming, or some other right? Judicial ingenuity could perhaps award damages and find a res said to be sold. But to extend the ambit of conversion to rights such as those claimed by plaintiff, which are more appropriately considered under wholly distinct legal principles, is confusing, unnecessary, and improper. (Citations omitted.) Zacchini at 226–27. {¶41} The Second District Court of Appeals reviewed a conversion claim regarding intangible property in Schafer v. RMS Realty, 138 Ohio App.3d 244 , 283, 741 N.E.2d 155 (2000). Schafer involved a partnership wherein a majority of partners had issued a capital call, which they were entitled to do under the terms of the partnership agreement. However, the majority partners had issued the capital call for a wrongful purpose, to reduce the minority partner’s partnership interest and squeeze the him out of the partnership. The minority partner sued the majority partners, claiming in part conversion of his partnership interests. The majority partners argued the claim for conversion was barred because Ohio law did not recognize conversion of intangible Holmes County, Case No. 20CA006 14 assets. The Schafer court concluded the minority partner was entitled to make a claim for conversion of his partnership interest: [C]onversion was an appropriate basis for recovery in the present case. Specifically, Schafer had an undisputed interest of twenty-five percent in [the partnership] before the capital call. * * * Based on the alleged wrongful acts of the defendants, Schafer lost nineteen percent of his property interest and the defendants' asserted control over the property, in opposition to Schafer's claim. Id. at 285 , 741 N.E.2d 155 . {¶42} In its analysis of the case law regarding conversion, the Second District did not find any cases unilaterally prohibiting conversion claims based on intangible assets. Id. at 285. “[T]he Ohio Supreme Court has not rejected conversion as a potential cause of action for all intangible assets.” Id. at 284. The Second District believed “the correct approach is to analyze the particular type of intangible asset, to see if allowing a conversion claim makes sense.” Id. at 285. {¶43} In support of his argument that Bunta’s claim for conversion is barred as a matter of law, Firman Mast cites this Court to Landskroner v. Landskroner, 154 Ohio App.3d 471 , 2003–Ohio–4945, 797 N.E.2d 1002 (8th Dist.). In Landskroner, father and son attorneys had entered into practice together but there was no written agreement between the parties. The father stated he transferred his interest in the law firm to the son contingent upon his receiving fair distributions from the law firm. Subsequently, the son advised the father that he was ending their business relationship and vacated the office space they shared, taking with him all the employees and business equipment. The father Holmes County, Case No. 20CA006 15 filed a lawsuit against the son which included a claim for conversion. The trial court dismissed the case and the Eighth District Court of Appeals affirmed. {¶44} The father claimed the law firm “obtained possession of monies” belonging to him and converted those funds for its own use in contravention of the parties’ agreement. Id. at ¶ 26. The Eighth District noted that “ ‘existing law generally allows actions for conversion to be based only upon the taking of identifiable, tangible personal property.’ “ Id. at ¶ 27, citing Wiltberger v. Davis, 110 Ohio App.3d 46 , 55, 673 N.E.2d 628 (10th Dist.1996). The court then went on to find the father's conversion claim was “not identifiable, personal property but rather comprise[d] monies” the father claims were due and owing him under an agreement. Id. at ¶ 27. {¶45} Upon examination of Zacchini, Schafer, and Landskroner, we do not agree with Firman Mast’s argument that Ohio law unilaterally prohibits conversion claims based on intangible assets. Determining whether the property can be the subject of a conversion action is not a bright line test – the determination is nuanced and to be decided based upon the characteristics of the alleged converted property. Schafer, supra at 285. The appropriate questions to ask are is the property intangible and if so, is the intangible property identifiable? {¶46} In Landskroner, the problem with the father's conversion claim was not that money was the basis of the claim but that the father could not identify any money to which he was due. Heartland Fed. Credit Union v. Horton, 2nd Dist. Montgomery No. 25412, 2013-Ohio-2931 , ¶ 31. This stemmed from his failure to attach to the complaint any contract or agreement which might have specified the sums which he was due. In Holmes County, Case No. 20CA006 16 contrast, the partnership interest that was converted in Schafer was specifically identifiable. {¶47} A conversion claim based on intangible property was permitted in Fifth Third Bank v. Cooker Rest. Corp., 137 Ohio App.3d 329 , 738 N.E.2d 817 (1st Dist.2000). Cooker entered into a Bank Card Merchant Agreement with Fifth Third Bank for it to provide credit-card processing services for its restaurants. Cooker relocated its headquarters and returned the credit-card processing equipment to Fifth Third. Meanwhile, one of Cooker's restaurants accidentally reprogrammed its processing equipment and transmitted over $50,000 in payments to Fifth Third. Fifth Third kept those funds and demanded more as liquidated damages for what it perceived as a breach of the Bank Card Merchant Agreement. Fifth Third sued Cooker for breach of contract and Cooker counterclaimed for conversion. The First District Court of Appeals affirmed a verdict in favor of Cooker on its claim for conversion. The claim was permitted because the money converted was specifically identifiable. Heartland Fed. Credit Union, supra at ¶ 31 . {¶48} In the present case, Bunta claims the conversion of his 30% membership interest in VacuPress when Firman Mast dissolved VacuPress and transferred the assets and debts to Superior Lumber. There is no dispute the property Bunta claims is intangible; therefore, the next question is the property identifiable? Bunta’s expert at trial, Michael Oesch testified that based on the financial records he examined, the assets and debts of VacuPress were transferred to Superior Lumber. John Cook, expert for Firman Mast, testified that Firman did not liquidate VacuPress, he rolled the assets into Superior Lumber. On a personal financial statement prepared by Firman Mast in August 2017 for Holmes County, Case No. 20CA006 17 the Home Loan Savings Bank, Firman Mast stated the value of his share of Superior Lumber was $850,000. Oesch extrapolated from the personal financial statement that the total value of Superior Lumber was $1,670,000. From the value of Superior Lumber as stated in Firman’s personal financial statement, Oesch testified Bunta’s 30% interest would be $500,000. Oesch testified he also conducted an analysis of different financial records and estimated the company value was $1,720,322, wherein the value of Bunta’s portion was $516,097. The jury ultimately awarded Bunta $231,854.50 on his claim for conversion. Firman Mast has not raised an Assignment of Error contesting the amount the jury awarded Bunta on his claim for conversion. {¶49} In this case, we find that Bunta’s claim for conversion is not unilaterally barred as a matter of law. The facts of the case are comparable to Schafer wherein the property claimed, while intangible, was identifiable. Did Bunta Prove All Elements of Conversion? {¶50} Firman Mast next contends that Bunta failed to produce evidence on all elements of conversion. Specifically, Firman argues that Bunta did not produce evidence of damages at the time of the alleged conversion. Firman Mast requested a directed verdict in his favor on this issue at trial. {¶51} A judgment for conversion generally imposes the fiction of a “forced judicial sale” and requires the defendant to pay the full value of the converted property. Schafer v. RMS Realty, Inc., 2nd Dist. Montgomery No. 21869, 2007-Ohio-7155 , ¶ 67 citing Acheson v. Miller, 2 Ohio St. 203 (1853); Conley v. Caudill, 4th Dist. Pike No. 02CA697, 2003-Ohio-2854 , ¶ 8 n. 2. As stated in Acheson: “The party [plaintiff] in effect abandons his property, as of that time, to the wrong-doer, and proceeds for its value; so that, when Holmes County, Case No. 20CA006 18 judgment is obtained and satisfaction made, the property is vested in the defendants, by relation, as of the time of the taking or conversion.” Schafer, supra at ¶ 67 . The measure of damages in a conversion action are thus determined by the value of the property at the time of the conversion. Kademian v. Marger, 2nd Dist. Montgomery No. 24256, 2012- Ohio-962, 2012 WL 762316 , ¶ 84 citing Brumm v. McDonald & Co. Securities, Inc., 78 Ohio App.3d 96 , 104, 603 N.E.2d 1141 (4th Dist.1992). {¶52} Firman Mast notified the members that VacuPress was ceasing operations in 2016. Superior Lumber was formed on November 1, 2016 and the operating agreement signed on December 31, 2016. The dissolution paperwork for VacuPress was filed with the Ohio Secretary of State on January 19, 2017. Firman Mast argues that if acts constituting conversion took place, they took place at the time the Superior Lumber began operating and the transfer of assets and liabilities took place. He states that no valuation of VacuPress as of December 31, 2016 took place. {¶53} Bunta responds that the uncontroverted evidence demonstrated that Firman Mast transferred the assets and liabilities of VacuPress to Superior Lumber. He dissolved VacuPress but he according to Firman’s expert, he did not liquidate VacuPress. Bunta was not claiming a 30% ownership interest in Superior Lumber but argued to the jury that because Firman Mast transferred VacuPress assets to Superior Lumber, Superior Lumber was fundamentally VacuPress. The measure of his conversion damages, therefore, was 30% of the value of Superior Lumber. {¶54} A motion for a directed verdict and summary judgment can only be granted if, after construing the evidence most favorably to the nonmoving party, reasonable minds could come to but one conclusion upon the evidence submitted. Reviewing the facts of Holmes County, Case No. 20CA006 19 this case in a light most favorable to Bunta, the nonmoving party, we find that reasonable minds could come to differing conclusions as to the damages for conversion. Bunta presented evidence at trial demonstrating that Firman Mast transferred the assets and liabilities of VacuPress to Superior Lumber for the purpose of squeezing out Bunta as a member. The only difference between VacuPress and Superior Lumber was that Bunta was not a member. {¶55} Upon our de novo review, we find that Bunta’s claim for conversion was not barred as a matter of law and he presented genuine issues for the finders of fact to consider. The jury found Bunta’s arguments persuasive that Firman Mast exercised dominion or control over Bunta’s 30% membership interest in a manner inconsistent with the Bunta’s rights of ownership, for which he suffered damages. {¶56} Firman Mast’s first Assignment of Error is overruled. II. UNJUST ENRICHMENT {¶57} Prior to trial, Firman Mast moved for summary judgment on Bunta’s claim for unjust enrichment, which the trial court denied. Firman Mast renewed his argument at trial and moved for directed verdict on the claim, which was likewise denied. The jury found in favor of Bunta on his claim for unjust enrichment and awarded damages in the amount of $45,000. {¶58} Firman Mast contends in his second Assignment of Error that the trial court erred by denying his motions for summary judgment and directed verdict on Bunta’s claim for unjust enrichment. In our analysis of the first Assignment of Error, we outlined the standard of review for considering a motion for summary judgment and directed verdict and we use the same criteria when considering his arguments as to unjust enrichment. Holmes County, Case No. 20CA006 20 Tort of Unjust Enrichment {¶59} To establish an unjust enrichment claim, the plaintiff must demonstrate: (1) a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment. Mun. Services Corp. v. Hall Community Dev. LLC, 5th Dist. Tuscarawas No. 2018 AP 12 0042, 2019-Ohio-3079 , 2019 WL 3458731 , ¶ 25 citing Robinette v. PNC Bank, 5th Dist. Licking No. 15-CA-47, 2016-Ohio-767 , 2016 WL 771319 , ¶ 23 citing Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179 , 183, 465 N.E.2d 1298 (1984). Under Ohio law, unjust enrichment is a claim under quasi-contract law that arises out of the obligation cast by law upon a person in receipt of benefits that he is not justly entitled to retain. FedEx Corp. Services, Inc. v. Heat Surge, LLC, 5th Dist. Stark, 2019-Ohio-217 , 131 N.E.3d 397 , ¶ 1 citing Beatley v. Beatley, 160 Ohio App.3d 600 , 2005-Ohio-1846 , 828 N.E.2d 180 . {¶60} A plaintiff may not recover under the theory of unjust enrichment or quasi- contract when an express contract covers the same subject. Lehmkuhl v. ECR Corp., 5th Dist. Knox No. 06 CA 039, 2008-Ohio-6295 , 2008 WL 5104747 , ¶ 55 citing Ullmann v. May 147 Ohio St. 468 , 72 N.E.2d 63 (1947), syllabus four; City of Cincinnati v. Cincinnati Reds 19 Ohio App.3d 227 , 483 N.E.2d 1181 (1984). However, while a party “may not recover for the same services under both a contractual claim and a claim for quantum meruit, a party is not barred from seeking alternative theories and recovering under a quantum meruit theory if his contractual claim fails.” Mun. Services Corp. v. Hall Holmes County, Case No. 20CA006 21 Community Dev. LLC, 5th Dist. Tuscarawas No. 2018 AP 12 0042, 2019-Ohio-3079 , 2019 WL 3458731 , ¶ 22 quoting FedEx Corp. Services, Inc. v. Heat Surge, LLC, 5th Dist. Stark No. 2018CA00026, 2019-Ohio-217 , 2019 WL 328599 , ¶ 19 citing Building Industry Consultants, Inc. v. 3M Parkway, Inc., 182 Ohio App.3d 39 , 2009-Ohio-1910 , 911 N.E.2d 356 , ¶ 17 (9th Dist.). {¶61} We consider Firman Mast’s assigned errors as to summary judgment and directed verdict together because they are premised on the same argument that he is entitled to judgment as a matter of law on Bunta’s claim for unjust enrichment because Bunta could not set forth any facts entitling him to relief. What were the Alleged Benefits Conferred? {¶62} First, Firman Mast contends Bunta failed to identify any benefits that he conferred upon Firman Mast, VacuPress, or Superior Lumber. Bunta responds that the record shows that Bunta conferred benefits upon Firman Mast in the creation and establishment of VacuPress and later, the creation of Superior Lumber. Reviewing the evidence in a light most favorable to Bunta, we find the jury could conclude that Bunta conferred benefits upon Firman Mast. Before the start of VacuPress, Firman Mast was a roofer and Bunta was an engineer in the lumber business, with his own lumber exporting company. The genesis of VacuPress was a long car trip, where Bunta told Firman about the business of drying lumber with vacuum drying kilns. Prior to Bunta’s introduction, Firman Mast had no knowledge of the vacuum kiln. Bunta introduced Firman to Jim Parker, Bunta’s vacuum drying kiln contact. After deciding to go into business together, Bunta drew up the business plan and the plant layout. VacuPress was formed, which Firman Mast used to create Superior Lumber. Holmes County, Case No. 20CA006 22 {¶63} Prior to the March 22, 2016 meeting, Bunta told Firman Mast that he wanted to be paid for the work he performed for VacuPress in 2014 and 2015. Firman Mast told him to provide invoices, so Bunta brought invoices from Dim X-Port totaling $26,000 to the meeting. Bunta issued the invoices from Dim X-Port for tax purposes. The Mast defendants agreed to pay Bunta $6,000. {¶64} The record in this case shows that Bunta used his technological knowledge and business expertise to assist Firman Mast in the creation of VacuPress, for which Bunta expected future compensation as a member of VacuPress, but received nothing when he was squeezed out of VacuPress. When were the Alleged Benefits Conferred? {¶65} Firman Mast next argues that regardless of the benefits allegedly conferred upon Firman Mast, Bunta’s claims for unjust enrichment are barred because the relationship between the parties was governed by the terms of the Amended and Restated Operating Agreement. {¶66} Bunta and Firman Mast met in December 2013 and they first discussed the concept of vacuum drying lumber and in January 2014, Bunta and Firman Mast began the purchase of a vacuum kiln and start a wood drying business named Superior VacuPress, LLC. The original operating agreement for VacuPress was signed in April 2014 and Bunta was not a member. On January 1, 2016, the members executed an Amended and Restated Operating Agreement for VacuPress and Bunta was a member. {¶67} The evidence in this case could have caused reasonable minds to come to differing conclusions as to whether Bunta conferred some benefits upon Firman Mast before they entered the Amended and Restated Operating Agreement. The jury found in Holmes County, Case No. 20CA006 23 favor of Bunta on his claim for unjust enrichment and valued the benefits conferred upon Firman Mast by Bunta in the amount of $45,000. Firman Mast did not contest the amount of the jury verdict on appeal. {¶68} Firman Mast’s second Assignment of Error is overruled. III. EXPERT WITNESS {¶69} In his third Assignment of Error, Firman Mast argues the trial court abused its discretion when it overruled his motion in limine and objection at trial to exclude the testimony of Bunta’s expert witness, Michael Oesch. We disagree. {¶70} Oesch, an accountant with Veritas Solutions, had a masters degree in accounting and was a certified public account, certified fraud examiner, and private investigator. At trial he testified that he was in the process of applying to be a certified valuation analyst. In preparation for trial, he wrote an expert report (Exhibit KK) and damages summary (Exhibit KK-1) based on the financial documents released in discovery. Firman Mast objected to Oesch’s entire report being admitted into evidence. The trial court sustained the objection in part and allowed only the damages summary to be submitted to the jury. Standards of Review {¶71} “A motion in limine is a motion directed to the inherent discretion of the trial court judge to prevent the injection of prejudicial, irrelevant, inadmissible matters into trial.” State v. Strait, 5th Dist. Delaware No. 14 CAA 12 0081, 2015-Ohio-4264 , 2015 WL 5968655 , ¶ 24 quoting Mason v. Swartz, 76 Ohio App.3d 43 , 55, 600 N.E.2d 1121 (6th Dist.1991). “Generally, the grant or denial of such a motion is not a ruling on the evidence.” Mason, supra at 55. It is a preliminary interlocutory order and the party's Holmes County, Case No. 20CA006 24 objection must be raised again at trial in order to permit the court to consider the admissibility of the evidence in its actual context. Id. {¶72} The granting or denying a motion in limine are reviewed under an abuse of discretion standard of review. Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440 , 2013–Ohio–1507. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). “[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence.” Huth v. Kus, 5th Dist. No. 2017 AP 06 0015, 2018-Ohio-1931 , 113 N.E.3d 140 , 2018 WL 2230727 , ¶ 30 quoting Rigby v. Lake Cty., 58 Ohio St.3d 269 , 271, 569 N.E.2d 1056 (1991). {¶73} Firman Mast contended at the hearing on the motion in limine and during trial that the expert report was inadmissible because Oesch was not qualified to conduct a valuation of VacuPress or Superior Lumber. He further contended that the expert report contained impermissible legal conclusions and extraneous information that would confuse the jury. The trial court overruled the motion in limine. He renewed his objections to Oesch’s testimony at trial as to the other companies. Businesses Not Named as Parties {¶74} Within his expert report, Oesch referred to the multiple businesses owned and operated by Bunta and Firman Mast including Ohio Vacupress Association, dba, Vacutherm Midwest, LLC; FM, LLC; Dim X-Port, LLC; Amish Exteriors, Deutsche Roofing Systems, Deutsche Roofing ComAg. The entities were not parties to the litigation. Holmes County, Case No. 20CA006 25 {¶75} We find no abuse of discretion for the trial court to overrule any objections to Oesch’s mention of these entities because their identification was part of the narrative of the relationship between Bunta, Firman Mast, VacuPress, and Superior Lumber. Prior to Oesch’s testimony, Bunta and Firman Mast testified and clearly identified the companies and their ownership interests. For example, Dim X-Port, LLC, was not a party to the action but was a limited liability corporation owned and operated by Bunta for the purpose of lumber exporting. Bunta testified he invoiced VacuPress for his services through Dim X-Port for tax purposes. As for Ohio Vacupress, Bunta and Firman Mast created the corporation to accept commissions for the sale of vacuum kilns, which came about because of Bunta’s prior relationship with Jim Parker. Bunta used his interest in Ohio VacuPress to fund his portion of the capital call from VacuPress. When analyzing the financial records from VacuPress, the mention of these companies was necessary to explain the flow of funds. The incorporation of the corporations during Oesch’s testimony was not an abuse of discretion. Valuation {¶76} Firman Mast next argues the trial court abused its discretion when it permitted Oesch’s testimony because he performed a valuation of Superior Lumber when Oesch was not qualified to complete a valuation. Oesch was not a certified valuation analyst and Firman alleges that Oesch failed to follow the accounting industry standards for performing a valuation. {¶77} Oesch testified on direct examination there are different methods of conducting a valuation of a business, such as asset-based, income-based, or market- based. He stated he did not and could not conduct a valuation of VacuPress or Superior Holmes County, Case No. 20CA006 26 Lumber because he did not have the financial data to conduct a valuation. He instead conducted an EBITA analysis on VacuPress and Superior Lumber, which he testified was a way to look at a company’s value by adding back interest, taxes, depreciation, and amortization. It gave an economic picture of cash flow and the company’s economic value. He testified that an EBITA analysis was not a valuation but a reasonableness calculation. {¶78} During cross examination, Oesch testified he was a member of the American Institute of Certified Public Accountants and he was aware of the AICPA standards for conducting valuations but he had never read the standards. He stated that he did not perform a valuation in this engagement. He performed an evaluation, which was an estimate of value calculated with a reasonable degree of accounting certainty. {¶79} John Cook, Firman Mast’s expert, testified he conducted a valuation of VacuPress and Superior Lumber using the net asset value method. On December 2, 2016, he testified Bunta’s 30% interest in VacuPress was valued at $2,000. On October 3, 2019, Bunta’s alleged 30% interest in Superior Lumber would be valued at $11,000. {¶80} We find through direct and cross examination, Oesch’s methods for determining Bunta’s damages were clarified for the jury’s scrutiny. Firman Mast’s expert conducted a valuation of VacuPress and Superior Lumber, resulting in an opinion of damages much less than Oesch’s. In this case, we find the trial court did not abuse its discretion in finding Firman Mast’s arguments went to the weight of the evidence, not admissibility. {¶81} The third Assignment of Error is overruled. Holmes County, Case No. 20CA006 27 CONCLUSION {¶82} The judgment of the Holmes County Court of Common Pleas is affirmed. By: Delaney, J., Gwin, P.J. and Hoffman, J., concur.

2020-12-02 18:13:14.796214+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2020/2020-Ohio-5501.pdf

[Cite as State v. Wolfe, 2020-Ohio-5501 .] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Earle E. Wise, Jr. J. : -vs- : : Case No. 2020CA00021 STEPHEN H. WOLFE : : Defendant-Appellant : OPINION CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas, Case No.19CR730 JUDGMENT: Affirmed in part; Reversed in part and Remanded DATE OF JUDGMENT ENTRY: November 30, 2020 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant WILLIAM C. HAYES JAMES A. ANZELMO PROSECUTING ATTORNEY 446 Howland Drive BY: PAULA M. SAWYERS Gahanna, OH 43230 ASSISTANT PROSECUTOR 20 S. Second Street, 4th Floor Newark, OH 43055 [Cite as State v. Wolfe, 2020-Ohio-5501 .] Wise, John, J. {¶1} Defendant-Appellant Stephen H. Wolfe appeals his convictions and sentences after a negotiated guilty plea in the Licking County Court of Common Pleas. STATEMENT OF THE FACTS AND CASE {¶2} On September 16, 2019, Trooper Matthew Stoffer of the Ohio State Highway Patrol attempted to make a traffic stop of a 2013 Peterbuilt Semi-truck on State Route 30 in Wyandot County, Ohio for failing to have license plates or a PUCO number displayed on the commercial vehicle. (T. at 9-10). The vehicle, later determined to be operated by Appellant Stephen Wolfe, did not stop. (T. at 10). The vehicle reached speeds of 100 mph on Route 30 entering into Crawford County, back into Wyandot County, before proceeding South on State Route 23 into Marion County and Delaware County. Id. The vehicle avoided stop strips deployed and ignored multiple cruisers chasing with lights and sirens activated attempting to stop the vehicle. Id. Appellant steered his vehicle toward a Trooper placing stop strips on the roadway forcing the Trooper to move out of the way and injuring himself in the process. Id. {¶3} The semi-truck collided with a 1989 Jeep Comanche operated by Michael Slagle, Jr. on Ohio 16 near Cedar Street in Newark, Licking County, Ohio. Id. As a result of the collision, Slagle suffered serious physical harm requiring his transfer by life flight to Grant Hospital. (T. at 10-11). The semi-truck reached speeds of 105 mph in Licking County. (T. at 11). The vehicle continued through Muskingum County and into Coshocton County. Id. Appellant abandoned the vehicle and was arrested at 1697 Evergreen Park Drive. Id. The chase occurred for more than fifty miles in total. Id. [Cite as State v. Wolfe, 2020-Ohio-5501 .] {¶4} Appellant pled guilty to assault on a peace officer, a fourth degree felony, in violation of R.C. §2903.13(A)(C)(5); felonious assault, a second degree felony, in violation of R.C. §2903.11; failure to comply, a third degree felony, in violation of R.C. §2921.331; receiving stolen property, a fourth degree felony, in violation of R.C. §2913.51; and failure to stop after an accident, a fourth degree felony, in violation of R.C. §4549.02. (T. at 9). {¶5} Appellant's trial counsel argued that the assault on a peace officer offense should merge with the offense of failure to comply. (T. at 18). Trial counsel also argued for merger of the offenses of felonious assault of the motorist, failure to comply, and failure to stop after an accident. (T. at 18). The trial court declined to merge the offenses, and Appellant objected. (T. at 24, 32). {¶6} During the sentencing hearing, Appellant expressed remorse for his conduct. (T. at 24). His trial counsel noted that Appellant was suffering from mental health and drug addiction issues because of injuries he sustained serving in Iraq while in the armed forces. (T. at 20-21). Trial counsel noted that Appellant's life "changes dramatically" after he came home from Iraq. (T. at 19). Trial counsel further mentioned that Appellant was not acting with "malice aforethought," but was merely trying to get to his mother's home. (T. at 19, 21). Thus, Appellant contended that his prison sentences should be run concurrent. (T. at 32). {¶7} The court ordered Appellant to serve consecutive prison sentences. The court noted that Appellant completed a seven-month prison term, and that he has a pending charge from an incident in Kalamazoo, Michigan. (T. at 29-20). {¶8} Specifically, the court ordered Appellant to serve: one (1) year in prison for the assault on a peace officer offense; two (2) years in prison for the failure to comply [Cite as State v. Wolfe, 2020-Ohio-5501 .] offense; nine (9) months in prison for the receiving stolen property offense; and nine (9) months in prison for the failure to stop after an accident offense. For the felonious assault offense, the court ordered Appellant to serve five (5) to seven and one-half (7 ½ ) years in prison. (T. at 30). {¶9} Appellant now appeals, raising the following assignments of error: ASSIGNMENTS OF ERROR {¶10} “I. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE'S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO. {¶11} “II. STEPHEN H. WOLFE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. {¶12} “III. THE TRIAL COURT SENTENCED WOLFE TO AN INDEFINITE PRISON TERM IN CONTRAVENTION OF THE SENTENCING STATUTES, IN VIOLATION OF WOLFE'S RIGHTS TO DUE PROCESS. {¶13} “IV. THE TRIAL COURT ERRED BY FAILING TO MERGE WOLFE'S OFFENSES FOR ALL BUT THE RECEIVING STOLEN PROPERTY COUNT. {¶14} “V. THE TRIAL COURT UNLAWFULLY ORDERED WOLFE TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.” [Cite as State v. Wolfe, 2020-Ohio-5501 .] I. {¶15} In his First Assignment of Error, Appellant argues that the Reagan Tokes Law, specifically the presumptive release feature of R.C. §2967.271, is unconstitutional. {¶16} R.C. §2967.271 provides in pertinent part: (B) When an offender is sentenced to a non-life felony indefinite prison term, there shall be a presumption that the person shall be released from service of the sentence on the expiration of the offender's minimum prison term or on the offender's presumptive earned early release date, whichever is earlier. (C) The presumption established under division (B) of this section is a rebuttable presumption that the department of rehabilitation and correction may rebut as provided in this division. Unless the department rebuts the presumption, the offender shall be released from service of the sentence on the expiration of the offender's minimum prison term or on the offender's presumptive earned early release date, whichever is earlier. The department may rebut the presumption only if the department determines, at a hearing, that one or more of the following applies: (1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply: (a) During the offender's incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of [Cite as State v. Wolfe, 2020-Ohio-5501 .] physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated. (b) The offender's behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society. (2) Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the date of the hearing. (3) At the time of the hearing, the offender is classified by the department as a security level three, four, or five, or at a higher security level. (D)(1) If the department of rehabilitation and correction, pursuant to division (C) of this section, rebuts the presumption established under division (B) of this section, the department may maintain the offender's incarceration in a state correctional institution under the sentence after the expiration of the offender's minimum prison term or, for offenders who have a presumptive earned early release date, after the offender's presumptive earned early release date. The department may maintain the offender's incarceration under this division for an additional period of incarceration determined by the department. The additional period of incarceration shall [Cite as State v. Wolfe, 2020-Ohio-5501 .] be a reasonable period determined by the department, shall be specified by the department, and shall not exceed the offender's maximum prison term. (2) If the department maintains an offender's incarceration for an additional period under division (D)(1) of this section, there shall be a presumption that the offender shall be released on the expiration of the offender's minimum prison term plus the additional period of incarceration specified by the department as provided under that division or, for offenders who have a presumptive earned early release date, on the expiration of the additional period of incarceration to be served after the offender's presumptive earned early release date that is specified by the department as provided under that division. The presumption is a rebuttable presumption that the department may rebut, but only if it conducts a hearing and makes the determinations specified in division (C) of this section, and if the department rebuts the presumption, it may maintain the offender's incarceration in a state correctional institution for an additional period determined as specified in division (D)(1) of this section. Unless the department rebuts the presumption at the hearing, the offender shall be released from service of the sentence on the expiration of the offender's minimum prison term plus the additional period of incarceration specified by the department or, for offenders who have a presumptive earned early release date, on the expiration of the additional period of incarceration to be served after the offender's presumptive earned early release date as specified by the department. [Cite as State v. Wolfe, 2020-Ohio-5501 .] The provisions of this division regarding the establishment of a rebuttable presumption, the department's rebuttal of the presumption, and the department's maintenance of an offender's incarceration for an additional period of incarceration apply, and may be utilized more than one time, during the remainder of the offender's incarceration. If the offender has not been released under division (C) of this section or this division prior to the expiration of the offender's maximum prison term imposed as part of the offender's non-life felony indefinite prison term, the offender shall be released upon the expiration of that maximum term. {¶17} Appellant herein argues the portions of the statute which allow the Department of Rehabilitation and Corrections (DRC) to administratively extend his prison term beyond his presumptive minimum prison term violate the United States and Ohio Constitutions. {¶18} Appellant, however, has not yet been subject to the application of these provisions, as he has not yet served his minimum term, and therefore has not been denied release at the expiration of his minimum term of incarceration. {¶19} This Court recently analyzed an appeal of a sentence imposed pursuant to the Reagan Tokes Act. See State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227 . In Downward, the appellant entered a plea of guilty to robbery, a second-degree felony, and assault on a peace officer, a fourth-degree felony. The trial court sentenced the appellant on September 23, 2019, pursuant to the Reagan Tokes Act. On the robbery conviction, the trial court sentenced the appellant to a stated minimum prison term of eight years. The trial court sentenced the appellant to a stated prison term [Cite as State v. Wolfe, 2020-Ohio-5501 .] of twelve months for assault on a peace officer. The trial court ordered the sentences to be served consecutively, for an aggregate minimum prison term of nine years and an aggregate indefinite maximum prison term of thirteen years. Id. at ¶ 2. The appellant appealed the sentence, arguing the Reagan Tokes Act violated his constitutional rights to due process and trial by jury. Id. at ¶ 5. {¶20} In Downward, we first discussed the legal concept of “ripeness for review”: The Ohio Supreme Court discussed the concept of ripeness for review in State ex rel. Elyria Foundry Co. v. Indus. Comm., 82 Ohio St.3d 88 , 1998-Ohio-366 , 694 N.E.2d 459 : Ripeness “is peculiarly a question of timing.” Regional Rail Reorganization Act Cases (1974), 419 U.S. 102 , 140, 95 S.Ct. 335 , 357, 42 L.Ed.2d 320 , 351. The ripeness doctrine is motivated in part by the desire “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies * * *.” Abbott Laboratories v. Gardner (1967), 387 U.S. 136 , 148, 87 S.Ct. 1507 , 1515, 18 L.Ed.2d 681 , 691. As one writer has observed: The basic principle of ripeness may be derived from the conclusion that ‘judicial machinery should be conserved for problems which are real or present and imminent, not squandered on problems which are abstract or hypothetical or remote.’ * * * [T]he prerequisite of ripeness is a limitation on jurisdiction that is nevertheless basically optimistic as regards the prospects of a day in court: the time for judicial relief is simply not yet arrived, even though the alleged action of the defendant foretells legal injury to the plaintiff. [Cite as State v. Wolfe, 2020-Ohio-5501 .] Comment, Mootness and Ripeness: The Postman Always Rings Twice (1965), 65 Colum. L.Rev. 867, 876. Id. at 89, 694 N.E.2d at 460. {¶21} Downard, at ¶¶ 8-9. {¶22} We next found the Appellant's appeal of the constitutionality of the Reagan Tokes Act was not ripe for review: * * * [W]hile R.C. 2967.271 allows the DRC to rebut the presumption Appellant will be released after serving his nine year minimum sentence and potentially continue his incarceration to a term not exceeding thirteen years, Appellant has not yet been subject to such action by the DRC, and thus the constitutional issue is not yet ripe for our review.” Downard, at ¶ 11. We determined the appropriate action for the Appellant “to challenge the constitutionality of the presumptive release portions of R.C. 2967.271 is by filing a writ of habeas corpus if he is not released at the conclusion of his eight year minimum term of incarceration. {¶23} Downard, at ¶ 12. {¶24} We find that the issues presented in the current case are the same as those raised in Downard. On January 24, 2020, the trial court sentenced Appellant to serve a stated prison year of one year on Count 1, five to seven and one-half years on Count 2, two years Count 3, nine months on Count 4, and nine months on Count 5 at the Orient Reception Center. All counts were ordered to run consecutively for nine and one-half (9) years to twelve (12) years. (T. at 30). {¶25} There is no dispute that Appellant has not yet been subject to R.C. §2967.271, which allows the DRC to rebut the presumption that Appellant will be released [Cite as State v. Wolfe, 2020-Ohio-5501 .] after serving his minimum sentence of nine and one-half years and potentially continuing his incarceration to a term not exceeding twelve years. {¶26} We therefore find that the constitutional issues argued by Appellant, pursuant to Downard, are not yet ripe for review. {¶27} See, also, State v. Clark, 5th Dist. Licking No. 2020 CA 00017, 2020-Ohio- 5013; State v. Manion, 5th Dist. Tuscarawas No. 2020 AP 03 0009, 2020-Ohio-4230 ; State v. Kibler, 5th Dist. Muskingum No. CT2020-0026, 2020-Ohio-4631 (constitutionality of Reagan Tokes Law not ripe for review where defendant was not yet subject to presumptive release provisions). {¶28} Appellant’s First Assignment of Error is overruled. II. {¶29} In his Second Assignment of Error, Appellant contends that he was denied effective assistance of trial counsel because trial counsel failed to challenge the constitutionality of the Reagan Tokes law in the trial court. {¶30} To prevail on a Sixth Amendment claim alleging ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that his counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668 , 694 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must show that “counsel's representation fell below an objective standard of reasonableness.” Id., at 688 , 104 S.Ct. 2052 . And to establish prejudice, a defendant must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id., at 694 , 104 S.Ct. 2052 . See, also, Andrus, v. Texas, U.S.__, 140 S.Ct. 1875 , 1881, 207 L.Ed.2d 335 (June 15, 2020). [Cite as State v. Wolfe, 2020-Ohio-5501 .] {¶31} In the instant case, because the Reagan Tokes Law is not yet ripe for review, the trial court did not err, plain or otherwise, in sentencing Appellant. As the statute is not ripe for review, there is no reasonable probability that, but for counsel’s failure to challenge the constitutionality of the Reagan Tokes Law, the result of the proceeding would have been different. {¶32} Appellant’s Second Assignment of Error is overruled. III. {¶33} In his Third Assignment of Error, Appellant argues that the trial court failed to comply with R.C. §2929.19(B)(2)(c) because the court did not provide the requisite notices at his sentencing hearing, and that the sentence is contrary to law. {¶34} The language of R.C. §2929.19(B)(2)(c) became effective March 22, 2019, and to date its application has not received close scrutiny. The relevant portions of this statute provide that: (B)(1) At the sentencing hearing, the court, before imposing sentence, shall consider the record, any information presented at the hearing by any person pursuant to division (A) of this section, and, if one was prepared, the presentence investigation report made pursuant to section 2951.03 of the Revised Code or Criminal Rule 32.2, and any victim impact statement made pursuant to section 2947.051 of the Revised Code. (2) Subject to division (B)(3) of this section, if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following: (Emphasis added.) [Cite as State v. Wolfe, 2020-Ohio-5501 .] {¶35} Subsection (B)(2)(c) sets out the notifications that are to be provided in accordance with the directive of Subsections (B)(1) and (2) which mandates that the court notify the offender at the sentencing hearing: (c) If the prison term is a non-life felony indefinite prison term, notify the offender of all of the following: (i) That it is rebuttably presumed that the offender will be released from service of the sentence on the expiration of the minimum prison term imposed as part of the sentence or on the offender’s presumptive earned early release date, as defined in section 2967.271 of the Revised Code, whichever is earlier; (ii) That the department of rehabilitation and correction may rebut the presumption described in division (B)(2)(c)(i) of this section if, at a hearing held under section 2967.271 of the Revised Code, the department makes specified determinations regarding the offender’s conduct while confined, the offender’s rehabilitation, the offender’s threat to society, the offender’s restrictive housing, if any, while confined, and the offender’s security classification; (iii) That if, as described in division (B)(2)(c)(ii) of this section, the department at the hearing makes the specified determinations and rebuts the presumption, the department may maintain the offender’s incarceration after the expiration of that minimum term or after that presumptive earned early release date for the length of time the department determines to be [Cite as State v. Wolfe, 2020-Ohio-5501 .] reasonable, subject to the limitation specified in section 2967.271 of the Revised Code; (iv) That the department may make the specified determinations and maintain the offender’s incarceration under the provisions described in divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to the limitation specified in section 2967.271 of the Revised Code; (v) That if the offender has not been released prior to the expiration of the offender’s maximum prison term imposed as part of the sentence, the offender must be released upon the expiration of that term. (d) Notify the offender that the offender will be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced, other than to a sentence of life imprisonment, for a felony of the first degree or second degree, for a felony sex offense, or for a felony of the third degree that is an offense of violence and is not a felony sex offense. This division applies with respect to all prison terms imposed for an offense of a type described in this division, including a non- life felony indefinite prison term and including a term imposed for any offense of a type described in this division that is a risk reduction sentence, as defined in section 2967.28 of the Revised Code. If a court imposes a sentence including a prison term of a type described in division (B)(2)(d) of this section on or after July 11, 2006, the failure of a court to notify the offender pursuant to division (B)(2)(d) of this section that the offender will be supervised under section 2967.28 of the Revised Code after the offender [Cite as State v. Wolfe, 2020-Ohio-5501 .] leaves prison or to include in the judgment of conviction entered on the journal a statement to that effect does not negate, limit, or otherwise affect the mandatory period of supervision that is required for the offender under division (B) of section 2967.28 of the Revised Code. Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a court imposed a sentence including a prison term of a type described in division (B)(2)(d) of this section and failed to notify the offender pursuant to division (B)(2)(d) of this section regarding post-release control or to include in the judgment of conviction entered on the journal or in the sentence a statement regarding post-release control. (e) Notify the offender that the offender may be supervised under section 2967.28 of the Revised Code after the offender leaves prison if the offender is being sentenced for a felony of the third, fourth, or fifth degree that is not subject to division (B)(2)(d) of this section. This division applies with respect to all prison terms imposed for an offense of a type described in this division, including a term imposed for any such offense that is a risk reduction sentence, as defined in section 2967.28 of the Revised Code. Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a court imposed a sentence including a prison term of a type described in division (B)(2)(e) of this section and failed to notify the offender pursuant to division (B)(2)(e) of this section regarding post-release control or to include in the judgment of conviction entered on the journal or in the sentence a statement regarding post-release control. [Cite as State v. Wolfe, 2020-Ohio-5501 .] (f) Notify the offender that, if a period of supervision is imposed following the offender’s release from prison, as described in division (B)(2)(d) or (e) of this section, and if the offender violates that supervision or a condition of post-release control imposed under division (B) of section 2967.131 of the Revised Code, the parole board may impose a prison term, as part of the sentence, of up to one-half of the definite prison term originally imposed upon the offender as the offender’s stated prison term or up to one- half of the minimum prison term originally imposed upon the offender as part of the offender’s stated non-life felony indefinite prison term. If a court imposes a sentence including a prison term on or after July 11, 2006, the failure of a court to notify the offender pursuant to division (B)(2)(f) of this section that the parole board may impose a prison term as described in division (B)(2)(f) of this section for a violation of that supervision or a condition of post-release control imposed under division (B) of section 2967.131 of the Revised Code or to include in the judgment of conviction entered on the journal a statement to that effect does not negate, limit, or otherwise affect the authority of the parole board to so impose a prison term for a violation of that nature if, pursuant to division (D)(1) of section 2967.28 of the Revised Code, the parole board notifies the offender prior to the offender’s release of the board’s authority to so impose a prison term. Section 2929.191 of the Revised Code applies if, prior to July 11, 2006, a court imposed a sentence including a prison term and failed to notify the offender pursuant to division (B)(2)(f) of this section regarding the possibility [Cite as State v. Wolfe, 2020-Ohio-5501 .] of the parole board imposing a prison term for a violation of supervision or a condition of post-release control. (g)(i)1 Determine, notify the offender of, and include in the sentencing entry the total number of days, including the sentencing date but excluding conveyance time, that the offender has been confined for any reason arising out of the offense for which the offender is being sentenced and by which the department of rehabilitation and correction must reduce the definite prison term imposed on the offender as the offender’s stated prison term or, if the offense is an offense for which a non-life felony indefinite prison term is imposed under division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code, the minimum and maximum prison terms imposed on the offender as part of that non-life felony indefinite prison term, under section 2967.191 of the Revised Code. The court’s calculation shall not include the number of days, if any, that the offender served in the custody of the department of rehabilitation and correction arising out of any prior offense for which the prisoner was convicted and sentenced. {¶36} Thus, the trial court must provide the information described in R.C. §2929.19(B)(2)(c) to a defendant at the sentencing hearing to fulfill the requirements of the statute. {¶37} In this case, the court gave no advisement of any of the requirements set forth in R.C. §2929.19(B) at the sentencing hearing held January 24, 2020 and, therefore, we find that the sentence is contrary to law. {¶38} Appellant’s Third Assignment of Error is sustained. [Cite as State v. Wolfe, 2020-Ohio-5501 .] IV. and V. {¶39} Because we reverse and remand the decision of the Licking County Court of Common Pleas for resentencing, we find Appellant’s Fourth and Fifth Assignments of Error to be premature. {¶40} Based on the foregoing, we reverse and remand the decision of the Licking County Court of Common Pleas for resentencing consistent with law and this opinion. By Wise, John, J. Wise, Earle, J., concurs. Gwin, J., concurs in part and dissents in part. JWW/kw 1117  Licking County, Case No. 2020CA00021 19 Gwin, J., concurs in part; dissents in part {¶41} I respectfully dissent from the majority’s opinion concerning ripeness and Appellant’s First and Second Assignments of Error. I concur in the majority’s disposition of Appellant’s Third and Fourth Assignments of Error. I.& II. Ripeness. {¶42} Ripeness reflects constitutional considerations that implicate “Article III limitations on judicial power,” as well as “prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Social Services, Inc., 509 U.S. 43 , 57, n. 18, 113 S.Ct. 2485 , 125 L.Ed.2d 38 (1993). In evaluating a claim to determine whether it is ripe for judicial review, courts should consider both “the fitness of the issues for judicial decision” and “the hardship of withholding court consideration.” National Park Hospitality Assn. v. Department of Interior, 538 U.S. 803 , 808, 123 S.Ct. 2026 , 155 L.Ed.2d 1017 (2003). The Supreme Court has stated that the “basic rationale” of the ripeness doctrine “is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Abbott Laboratories v. Gardner, 387 U.S. 136 , 148, 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967). {¶43} In determining the “likelihood” that an injury will come to pass, the Supreme Court has made clear that “[o]ne does not have to await consummation of threatened injury to obtain preventive relief.” Blum v. Yaretsky, 457 U.S. 991 , 1000, 102 S.Ct. 2777 , 73 L.Ed.2d 534 (1982). For example, in the Regional Rail Reorganization Act Cases, 419 U.S. 102 , 95 S.Ct. 335 , 42 L.Ed.2d 320 (1974), the Court deemed ripe an action brought by eight major railroads challenging the conveyance of their property to Conrail. Although a reorganization plan had not yet been formulated and a special court had not yet ordered the conveyances, the Court reasoned that “where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into  Licking County, Case No. 2020CA00021 20 effect.” Id. at 143 , 95 S.Ct. 335 . Although not requiring “inevitability,” the Court has held that a claim is ripe when it is “highly probable” that the alleged harm or injury will occur. {¶44} “Three factors guide the ripeness inquiry: ‘(1) the likelihood that the harm alleged by the plaintiffs will ever come to pass; (2) whether the factual record is sufficiently developed to produce a fair adjudication of the merits of the parties’ respective claims; and (3) the hardship to the parties if judicial relief is denied at this stage in the proceedings.’ ” Berry v. Schmitt, 688 F.3d 290 , 298 (6th Cir. 2012) (quoting Grace Cmty. Church v. Lenox Twp., 544 F.3d 609 , 615 (6th Cir. 2008)). See also, Reno v. Catholic Social Services, Inc., 509 U.S.43, 71, 113 S.Ct. 2485 , 125 L.Ed.2d 38 (1993)(O’Conner, J. concurring)(“These are just the kinds of factors identified in the two-part, prudential test for ripeness that Abbott Laboratories [v. Gardner, 387 U.S. 136 , 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967)] articulated. “The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” 387 U.S. at 149 , 87 S.Ct. at 1515 . See Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568 , 581–582, 105 S.Ct. 3325 , 3333, 87 L.Ed.2d 409 (1985) (relying upon Abbott Laboratories test); Pacific Gas, supra, 461 U.S. at 200–203, 103 S.Ct., at 1720–1721 (same); National Crushed Stone, supra, 449 U.S. at 72–73, n. 12, 101 S.Ct., at 301–302, n. 12 (same).”). As the court in Riva v. Commonwealth of Massachusetts noted, Although it is a familiar bromide that courts should not labor to protect a party against harm that is merely remote or contingent, see, e.g., Ernst & Young, 45 F.3d at 536; Massachusetts Ass’n of Afro–Am. Police, 973 F.2d at 20; Lincoln House v. Dupre, 903 F.2d 845 , 847 (1st Cir. 1990), there is some play in the joints. For example, even when the direct application of a statute is open to a charge of remoteness by reason of a lengthy, built-in time delay before the statute takes effect, ripeness may be found as long as the statute’s operation is inevitable (or nearly so).  Licking County, Case No. 2020CA00021 21 See, e.g., Regional Rail Reorg. Act Cases, 419 U.S. 102 , 142–43, 95 S.Ct. 335 , 357– 58, 42 L.Ed.2d 320 (1974). And, even when the direct application of such a statute is subject to some degree of contingency, the statute may impose sufficiently serious collateral injuries that an inquiring court will deem the hardship component satisfied. See Erwin Chemerinsky, Federal Jurisdiction § 2.4.2, at 121–22 (2d ed. 1994). In general, collateral effects can rise to this level when a statute indirectly permits private action that causes present harm, or when a party must decide currently whether to expend substantial resources that would be largely or entirely wasted if the issue were later resolved in an unfavorable way. See, e.g., Pacific Gas, 461 U.S. at 201, 103 S.Ct. at 1720–21; Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59 , 81–82, 98 S.Ct. 2620 , 2634–35, 57 L.Ed.2d 595 (1978) 61 F.3d 1003 , 1010(1st Cir. 1995). In United Public Workers v. Mitchell, 330 U.S. 75 , 67 S.Ct. 556 , 91 L.Ed. 754 (1947), the Supreme Court held that review of the Hatch Act, which prohibits federal employees from engaging in certain political activities, was non-justiciable with respect to those plaintiff-employees who had not yet engaged in any of the prohibited activity. Subsequently, however, the Court relaxed Mitchell’s strict approach to justiciability. If the injury is clearly impending, the Court has held that the plaintiffs need not await consummation of the injury to bring their suit. Babbitt v. United Farm Workers National Union, 442 U.S. 289 , 298, 99 S.Ct. 2301 , 2308, 60 L.Ed.2d 895 (1979); Regional Rail Reorganization Act Cases, 419 U.S. 102 , 143, 95 S.Ct. 335 , 358, 42 L.Ed.2d 320 (1974); Steffel v. Thompson, 415 U.S. 452 , 459, 94 S.Ct. 1209 , 1215, 39 L.Ed.2d 505 (1974); Pennsylvania v. West Virginia, 262 U.S. 553 , 593, 43 S.Ct. 658 , 663, 67 L.Ed. 1117 (1923). Signorelli v. Evans, 637 F.2d 853 , 856-857(2nd Cir. 1980).  Licking County, Case No. 2020CA00021 22 {¶45} The Ohio Supreme Court has interpreted a “justiciable matter” to mean the existence of an actual controversy, a genuine dispute between adverse parties. State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas, 74 Ohio St.3d 535 , 542, 660 N.E.2d 458 (1996). In order for a justiciable question to exist, the “threat” to a party’s position “must be actual and genuine and not merely possible or remote.” M6 Motors, Inc. v. Nissan of N. Olmsted, L.L.C., 2014-Ohio-2537 , 14 N.E.3d 1054 , ¶ 17, citing Mid–Am. Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133 , 2007-Ohio-1248 , 863 N.E.2d 142 , ¶ 9. {¶46} In the present case, every individual throughout the State of Ohio who is convicted of a first- or second-degree felony must be sentenced under the Reagan Tokes Law. It is a virtual certainty that a number of those individuals, perhaps a significantly large number, will have the DRC extend his or her incarceration beyond the presumed release date. This is not an abstract or hypothetical case; rather, it is a virtual certainty to occur. Under Reagan Tokes, the question is not if a defendant will be denied his or her presumptive release date; but rather when a defendant’s sentence will be extended. {¶47} The record before this Court is sufficiently developed to allow us to produce a fair adjudication of the merits of the parties’ respective claims. It is not unusual for courts to be asked to pass upon the constitutionality of statute. The constitutional arguments are capable of being addressed in the present appeal. {¶48} I would call attention to the fact that other jurisdictions have implicitly determined the issue to be ripe for review by addressing the constitutional challenge to the Reagan Tokes provisions regarding future, possible extensions of a prison term beyond the presumed minimum term. The Second District Court of Appeals found the law constitutional in State v. Barnes, 2nd Dist. Montgomery No. 28613, 2020-Ohio-4150 , State v. Leet, 2nd Dist. Montgomery No. 28670, 2020-Ohio-4592 , and State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153 . The Third District found the law constitutional in State v. Hacker, 3rd Dist. Logan No. 8-20-01, 2020-Ohio-5048 . The Twelfth District Court of  Licking County, Case No. 2020CA00021 23 Appeals also determined the law was constitutional in State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837 , State v. Rodgers, 12th Dist. Butler No. CA2019-11-194, 2020-Ohio-4102 , and State v. Morris, 12th Dist. Butler No. CA2019-12-205, 2020-Ohio- 4103. I further note that the Sixth District has certified the ripeness issue to the Ohio Supreme Court as being in conflict with the decisions from the Second and Twelfth Districts that have found the law constitutional. State v. Velliquette, 6th Dist. Logan No. L-19-1232, 2020-Ohio-4855 . {¶49} The hardship to the parties if judicial relief is denied at this stage in the proceedings is real and immense. Now, the indigent appellant, who wishes to raise a constitutional challenge to the law in his or her direct appeal as of right has the assistance of appointed counsel. If, for example, the appellant must wait for two years for the DRC to extend his sentence, both the inmate and the courts will face a myriad of legal hurdles. First, how will the inmate inform the court of his or her desire to appeal the constitutionally of the law? Next, is the inmate entitled to appointed counsel to pursue such an appeal? If the inmate is not, then an incarcerated inmate with limited legal resources and acumen will have to cobble together a highly involved constitutional argument without the assistance of counsel and with extremely limited access to legal resources. It will also become evident that the DRC decision extending the inmate’s sentence is not part of the trial court record. In order to establish that the inmate’s sentence was in fact extended, will the trial court be required to order the DRC to file its decision with the clerk of courts for inclusion in the trial and appellate court records. Further, if the law is declared unconstitutional years from now, courts will be inundated with writs of habeas corpus, motions and other request for release or resentencing from the hundreds of inmates who were sentenced under the law and not permitted to appeal the constitutionality of the law in the inmate’s direct appeal. Finally, the inmate could potentially have been incarcerated perhaps years beyond his release date for the time it takes to decide the issue in the event the law is found to be unconstitutional.  Licking County, Case No. 2020CA00021 24 {¶50} In addition, if the law is declared constitutional or unconstitutional, that holding will apply, not just to the single inmate whose appeal is under consideration, but also to all inmates that have been sentenced under the new law. {¶51} It is clear on these facts that Appellant has demonstrated sufficient hardship, and that the question of the constitutionality of the Reagan Tokes Law is fit for our review at this time. I find that nothing is to be gained by postponing for possibly years the unavoidable constitutional challenge to the Reagan Tokes provisions regarding future, possible extensions of a prison term beyond the presumed minimum term. The Reagan Tokes Law. {¶52} The Reagan Tokes Law (S.B. 201) was enacted in 2018 and became effective on March 22, 2019. The Reagan Tokes Law, “significantly altered the sentencing structure for many of Ohio’s most serious felonies’ by implementing an indefinite sentencing system for those non-life felonies of the first and second degree, committed on or after the effective date.” State v. Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-3213 , ¶ 5, fn. 1. {¶53} As with any statute enacted by the General Assembly, the Reagan Tokes Law is entitled to a “strong presumption of constitutionality.” State v. Romage, 138 Ohio St.3d 390 , 2014-Ohio-783 , 7 N.E.3d 1156 , ¶ 7. Thus, “if at all possible, statutes must be construed in conformity with the Ohio and the United States Constitutions.” State v. Collier, 62 Ohio St.3d 267 , 269, 581 N.E.2d 552 (1991). A party challenging the constitutionality of a statute bears the burden of proving that it is unconstitutional beyond a reasonable doubt. State v. Bloomer, 122 Ohio St.3d 200 , 2009-Ohio-2462 , 909 N.E.2d 1254 , ¶ 41, citing State v. Ferguson, 120 Ohio St.3d 7 , 2008-Ohio-4824 , 896 N.E.2d 110 , ¶ 12. {¶54} The power to define criminal offenses and prescribe punishment is vested in the legislative branch of government and courts may only impose sentences as provided by statute. Whalen v. United States, 445 U.S. 684 , 689, 100 S.Ct. 1432 , 63 L.Ed.2d 715  Licking County, Case No. 2020CA00021 25 (1980); Brown v. Ohio, 432 U.S. 161 , 165, 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977). In the case at bar, the legislature has authorized as a sentence for a felony of the first degree, (1)(a) For a felony of the first degree committed on or after the effective date of this amendment, the prison term shall be an indefinite prison term with a stated minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or eleven years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code, except that if the section that criminalizes the conduct constituting the felony specifies a different minimum term or penalty for the offense, the specific language of that section shall control in determining the minimum term or otherwise sentencing the offender but the minimum term or sentence imposed under that specific language shall be considered for purposes of the Revised Code as if it had been imposed under this division. R.C. 2929.14(A)(1)(a). {¶55} The legislature has authorized as a sentence for a felony of the second degree, (2)(a) For a felony of the second degree committed on or after the effective date of this amendment, the prison term shall be an indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code, except that if the section that criminalizes the conduct constituting the felony specifies a different minimum term or penalty for the offense, the specific language of that section shall control in determining the minimum term or otherwise sentencing the offender but the minimum term or sentence imposed under that specific language shall be considered for purposes of the Revised Code as if it had been imposed under this division. (R.C. 2929.14(A)(2)(a)).  Licking County, Case No. 2020CA00021 26 {¶56} Indefinite sentences are not new to Ohio. In fact, the preSB2 sentence for a felony of the first degree, the defendant could have received an indeterminate minimum sentence of five, six, seven, eight, nine or ten years up to a maximum of twenty-five years. See, State v. Davis, 9th Dist. Summit No. 13092, 1987 WL 25743 (Nov. 25, 1987), citing former R.C. 2929.11. The pre-SB2 sentence for a felony of the second degree was as follows, Whoever is convicted of or pleads guilty to a felony other than aggravated murder or murder . . . shall be imprisoned for an indefinite term... (B)(5) For a felony of the second degree, the minimum term shall be two, three, four or five years, and the maximum shall be fifteen years. See, State v. Jenks, 2nd Dist. Montgomery No. 10264, 1987 WL 20267 (Nov. 16, 1987), citing former R.C. 2929.1. What is different from prior law regarding indefinite sentences is that the Reagan Tokes Law has created a presumptive release date. {¶57} The Reagan Tokes Law requires that a court imposing a prison term under R.C. 2929.14(A)(1)(a) or (2)(a) for a first- or second-degree felony committed on or after March 22, 2019, impose a minimum prison term under that provision and a maximum prison term determined under R.C. 2929.144(B); R.C. 2929.144(C). Further, under the Reagan Tokes Law, there is a presumption that the offender “shall be released from service of the sentence on the expiration of the offender’s minimum prison term or on the offender’s presumptive earned early release date, whichever is earlier.” R.C. 2967.271(B) (emphasis added). A presumptive earned early release date is a date determined under procedures described in R.C. 2967.271(F), which allow the sentencing court to reduce the minimum prison term under certain circumstances. R.C. 2967.271(A)(2). The DRC may rebut the presumption if it determines at a hearing that one or more statutorily numerated factors apply. R.C. 2967.271(C). If DRC rebuts the presumption, it may maintain the offender’s incarceration after the expiration of the minimum prison term or presumptive earned early  Licking County, Case No. 2020CA00021 27 release date for a reasonable period of time, determined and specified by DRC that “shall not exceed the offender’s maximum prison term.” R.C. 2967.271(D)(1). Right to a jury trial to determine to rebut the presumptive release. {¶58} Wolfe first argues that Reagan Tokes violates his right to have a jury determine any increase in punishment beyond that authorized by the jury’s verdict and findings, citing Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 238 , 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004). {¶59} In Apprendi, a jury convicted the defendant of a gun crime that carried a maximum prison sentence of 10 years. But then a judge sought to impose a longer sentence pursuant to a statute that authorized him to do so if he found, by a preponderance of the evidence, that the defendant had committed the crime with racial bias. Apprendi held this scheme unconstitutional. “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum,” this Court explained, “must be submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant. 530 U. S. at 490 , 120 S.Ct. 2348 . Nor may a State evade this traditional restraint on the judicial power by simply calling the process of finding new facts and imposing a new punishment a judicial “sentencing enhancement.” Id., at 495 , 120 S.Ct. 2348 . “[T]he relevant inquiry is one not of form, but of effect—does the required [judicial] finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id., at 494 , 120 S.Ct. 2348 . {¶60} In Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151 , 186 L.Ed.2d 314 (2013), the United States Supreme Court address, a case concerning mandatory minimum sentences and the Sixth Amendment. In Alleyne, the jury relied on the testimony of the victim of an armed robbery that one of the perpetrators possessed a gun. The trial court relied on the same testimony to determine that Alleyne or his accomplice brandished a gun. The testimony was the same, but the findings were different. The jury found that Alleyne  Licking County, Case No. 2020CA00021 28 possessed a gun, but made no finding with regard to whether the weapon was brandished. The court, however determined that the gun was brandished. The Supreme Court reviewed the statutory punishment structure, which included a mandatory minimum sentence of five years if a crime of violence was committed while the offender carried a firearm, seven years if the firearm was brandished, and ten years if the firearm was discharged during the crime. 18 U.S.C. 924(c)(1)(A). The crime was otherwise punishable by a term of imprisonment not exceeding 20 years. 18 U.S.C.1951 (a). The court held that where facts were not found by a jury that enhanced the mandatory minimum penalty for a crime, principles of the Sixth Amendment were violated. Alleyne at paragraph one of the syllabus. Specifically, “[b]ecause mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury.” Id. See, State v. Fort, 8th Dist. Cuyahoga No. 100346, 2014-Ohio-3412 , ¶29. However, the majority in Alleyne was careful to declare that, In holding that facts that increase mandatory minimum sentences must be submitted to the jury, we take care to note what our holding does not entail. Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial fact-finding, does not violate the Sixth Amendment. See, e .g., Dillon v. United States, 560 U.S. 817 , ––––, 130 S.Ct. 2683 , 2692, 177 L.Ed.2d 271 (2010) (“[W]ithin established limits [,] ... the exercise of [sentencing] discretion does not contravene the Sixth Amendment even if it is informed by judge-found facts” (emphasis deleted and internal quotation marks omitted)); Apprendi, 530 U.S., at 481 , 120 S.Ct. 2348 (“[N]othing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute”).  Licking County, Case No. 2020CA00021 29 Alleyne, 133 S.Ct. at 2163 , 186 L.Ed.2d 314 . See also, State v. Salim, 5th Dist. Guernsey No. 13 CA 28, 2014-Ohio-357 , ¶19. {¶61} Under the Reagan Tokes Law, the judge imposes both a minimum and a maximum sentence. Judicial fact-finding is not required. In Ohio, “trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” State v. Kalish, 120 Ohio St.3d 23 , 2008–Ohio–4912, 896 N.E.2d 124 paragraphs 1 and 11. The Department of Rehabilitation and Correction (“DRC”) is not permitted to extend a sentence imposed by the trial court beyond the maximum sentence imposed by the trial court. Further, the facts which postpone an inmate’s release date are facts found as a result of prison disciplinary proceedings, not the underlying crime. To extend Wolfe’s argument to its logical end it would be necessary for the courts to invalidate punishment as a result of internal prison disciplinary proceedings entirely, or require all rule infractions to be tried before a jury. {¶62} It is evident that Apprendi and its progeny have no application in a prison disciplinary setting where the DRC does not have the authority to extend the inmate’s sentence beyond the maximum sentence imposed by the trial judge. An incarcerated individual does not have a constitutional right to parole or release before serving his entire sentence. {¶63} An inmate has no constitutional right to parole release before the expiration of his sentence. Greenholtz v. Inmates of the Nebraska Penal & Corr. Complex, 442 U.S. 1 , 7, 99 S.Ct. 2100 , 60 L.Ed.2d 668 (1979). The Ohio Adult Parole Authority has “wide-ranging discretion in parole matters.” Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456 , 2002- Ohio-6719, 780 N.E.2d 548 , ¶ 28. See also, State ex rel. Bailey v. Ohio Parole Board, 152 Ohio St.3d 426 , 2017-Ohio-9202 , 97 N.E.3d 433 , ¶9.  Licking County, Case No. 2020CA00021 30 {¶64} The Supreme Court has made it clear that a mere unilateral hope or expectation of release on parole is not enough to constitute a protected liberty interest; the prisoner “must, instead, have a legitimate claim of entitlement to it.” Greenholtz, 422 U.S. at 7, 99 S.Ct. at 2104 (quoting Board of Regents v. Roth, 408 U.S. 564 , 577, 92 S.Ct. 2701 , 2709, 33 L.Ed.2d 548 (1972)) (emphasis supplied). Moreover, only state law can create this “legitimate claim of entitlement”; the federal constitution protects such claims, but does not create them. “There is no constitutional or inherent right of a convicted person to be conditionally released [i.e., released on parole] before the expiration of a valid sentence.” Greenholtz, 442 U.S. at 7 , 99 S.Ct. at 2104. Accord, Inmates of Orient Correctional Institute v. Ohio State Parole Board, 929 F.2d 233 , 235(6th Cir 1991). {¶65} However, if state law entitles an inmate to release on parole that entitlement is a liberty interest that is not to be taken away without due process. See Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1 , 99 S.Ct. 2100 , 60 L.Ed.2d 668 (1979), where the Supreme Court so held in the context of a statute providing that the Nebraska parole board “shall” release parole-eligible inmates unless one of several factors specified in the statute should be found to exist. {¶66} As relevant here, R.C. 2967.271(B) states: (B) When an offender is sentenced to a non-life felony indefinite prison term, there shall be a presumption that the person shall be released from service of the sentence on the expiration of the offender’s minimum prison term or on the offender’s presumptive earned early release date, whichever is earlier. (Emphasis added). {¶67} Also relevant is R.C. 2967.271(C), which states: (C) The presumption established under division (B) of this section is a rebuttable presumption that the department of rehabilitation and correction may rebut as provided in this division. Unless the department rebuts the presumption, the offender shall be released from service of the sentence on the expiration of the  Licking County, Case No. 2020CA00021 31 offender’s minimum prison term or on the offender’s presumptive earned early release date, whichever is earlier. The department may rebut the presumption only if the department determines, at a hearing, that one or more of the following applies: (1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply: (a) During the offender’s incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated. (b) The offender’s behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society. (2) Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the date of the hearing. (3) At the time of the hearing, the offender is classified by the department as a security level three, four, or five, or at a higher security level. {¶68} The legislature by choosing the language “there shall be a presumption that the person shall be released” and “Unless the department rebuts the presumption, the offender shall be released,” within the Reagan Tokes Law has arguably created enforceable liberty interests in parole. Board of Pardons v. Allen, 482 U.S. 369 , 107 S.Ct. 2415 , 96 L.Ed.2d 303 (1987). See, also, Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authority, 929 F.2d 233 , 236-237(6th Cir. 1991(“Although the power to deny parole  Licking County, Case No. 2020CA00021 32 is purely discretionary as far as Ohio’s statutes are concerned, the state’s administrative regulations must also be considered. If Ohio’s regulations created an explicit presumption of entitlement to release on parole—as Tennessee’s regulations formerly did, see Mayes v. Trammell, 751 F.2d 175 , 178 (6th Cir. 1984)—or if the Ohio regulations otherwise used “‘mandatory language’ in connection with ‘specific substantive predicates’ ” for release on parole, see Beard v. Livesay, 798 F.2d 874 , 877 (6th Cir.1986) (quoting Hewitt v. Helms, 459 U.S. 460 , 472, 103 S.Ct. 864 , 871, 74 L.Ed.2d 675 (1983)), the regulations alone could create a protected liberty interest.”). Cf. State, ex rel. Bailey v. Ohio Parole Board, 152 Ohio St.3d 426 , 2017-Ohio-9202 , 97 N.E.3d 433 , ¶ 10 (“The Revised Code creates an inherent expectation ‘that a criminal offender will receive meaningful consideration for parole.’” (Citing Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456 , 2002-Ohio-6719 , 780 N.E.2d 548 , ¶ 27). {¶69} “As for the Due Process Clause, standard analysis under that provision proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 , 460, 109 S.Ct. 1904 , 104 L.Ed.2d 506 (1989).” Swarthout v. Cooke, 562 U.S. 216 , 219-220, 131 S.Ct. 859 , 178 L.Ed.2d 732 (2011). Assuming arguendo that the language chosen by the legislature has been created an enforceable liberty interest in parole by the express terms of the Reagan Tokes Act, the question now becomes what process is due in the prison setting. Due Process in the prison setting. {¶70} When a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication—and courts will review the application of those constitutionally required procedures. Swarthout v. Cooke, 562 U.S. 216 , 220, 131 S.Ct. 859 , 178 L.Ed.2d 732 (2011).  Licking County, Case No. 2020CA00021 33 {¶71} In the context of parole, the United States Supreme Court has held that the procedures required are minimal. In Greenholtz, the Court found that a prisoner subject to a parole statute received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. Id. at 16, 99 S.Ct. 2100 . “The Constitution,” we held, “does not require more.” Swarthout v. Cooke, 562 U.S. 216 , 220, 131 S.Ct. 859 , 178 L.Ed.2d 732 (2011). {¶72} In Woods v. Telb, the Ohio Supreme Court made the following observation concerning Ohio law, Under the [pre-SB2] system of parole, a sentencing judge, imposing an indefinite sentence with the possibility of parole, had limited power or authority to control the minimum time to be served before the offender’s release on parole; the judge could control the maximum length of the prison sentence, but the judge had no power over when parole might be granted in between those parameters. The judge had no power to control the conditions of parole or the length of the parole supervision. *** But, we observe that for as long as parole has existed in Ohio, the executive branch (the APA1 and its predecessors) has had absolute discretion over that portion of an offender’s sentence. See State ex rel. Atty. Gen. v. Peters (1885), 43 Ohio St. 629 , 4 N.E. 81 . *** Woods v. Telb, 89 Ohio St.3d at 511-512, 733 N.E.2d 1103 . {¶73} Although entitled to the protection under the Due Process Clause, “prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolfe v. McDonnell, 416 U.S. 539 , 1 Adult Parole Authority  Licking County, Case No. 2020CA00021 34 556, 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974) (citations omitted). In Wolfe, the United States Supreme Court observed, In striking the balance that the Due Process Clause demands, however, we think the major consideration militating against adopting the full range of procedures suggested by Morrissey [v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972)] for alleged parole violators is the very different stake the State has in the structure and content of the prison disciplinary hearing. That the revocation of parole be justified and based on an accurate assessment of the facts is a critical matter to the State as well as the parolee; but the procedures by which it is determined whether the conditions of parole have been breached do not themselves threaten other important state interests, parole officers, the police, or witnesses—at least no more so than in the case of the ordinary criminal trial. Prison disciplinary proceedings, on the other hand, take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so. Some are first offenders, but many are recidivists who have repeatedly employed illegal and often very violent means to attain their ends. They may have little regard for the safety of others or their property or for the rules designed to provide an orderly and reasonably safe prison life. Although there are very many varieties of prisons with different degrees of security, we must realize that in many of them the inmates are closely supervised and their activities controlled around the clock. Guards and inmates co-exist in direct and intimate contact. Tension between them is unremitting. Frustration, resentment, and despair are commonplace. Relationships among the inmates are varied and complex and perhaps subject to the unwritten code that exhorts inmates not to inform on a fellow prisoner. 416 U.S. 539 , 561-562, 94 S.Ct. 2963 , 41 L.Ed.2d 935 . Indeed, it has been noted,  Licking County, Case No. 2020CA00021 35 “[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.” [Procunier v. Martinez, 416 U.S. 396 , 405, 94 S.Ct. 1800 , 40 L.Ed.2d 224 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 , 413(1989)]. As the Martinez Court acknowledged, “the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree.” Id., at 404–405, 94 S.Ct. at 1807. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have, as we indicated in Martinez, additional reason to accord deference to the appropriate prison authorities. See id., at 405, 94 S.Ct. at 1807. Turner v. Safley, 482 U.S. 78 , 84-85, 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987). “Viewed in this light it is immediately apparent that one cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a state prison.” Wolfe v. McDonnell, 418 U.S. at 560 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 . {¶74} The Courts have found therefore, that the following procedures should be accorded to prisoners facing prison disciplinary proceedings: 1). a prisoner is entitled to a review unaffected by “arbitrary” decision-making. Wolfe, 418 U.S. at 557-558 ; (See, Ohio Adm. Code 5120-9-08). 2). Advance written notice of the claimed violation. Wolfe, 418 U.S. at 563 . (See, Ohio Adm. Code 5120:1-8-12). 3). A written statement of the fact finders as to the evidence relied upon and the reasons for the disciplinary action taken. Wolfe, 418 U.S. at 563 . (See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120:1-11(G)(1)). 4).  Licking County, Case No. 2020CA00021 36 Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Wolfe, 418 U.S. at 566 . (See, Ohio Adm. Code 5120-9-08(E) (3); Ohio Adm. Code 5120-9-08(F)). 5). Where an illiterate inmate is involved, however, or whether the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff. Wolfe, 418 U.S. at 570 . (See, Ohio Adm. Code 5120-9-07(H)(1)). {¶75} In the case at bar, in order to rebut the presumptive release date, the DRC must conduct a hearing and determine whether any of the following factors are applicable: During the offender’s incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated [and] [t]he offender’s behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society. Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the date of the hearing. At the time of the hearing, the offender is classified by the department as a security level three, four, or five, or at a higher security level.  Licking County, Case No. 2020CA00021 37 R.C. 2967.271(C)(1), (2) and (3). {¶76} “Although the power to deny parole is purely discretionary as far as Ohio’s statutes are concerned, the state’s administrative regulations must also be considered.” Inmates of Orient Correctional Institute v. Ohio State Adult Parole Authority, 929 F.2d 233 , 236-237(6th Cir. 1991). The DRC is required to provide notice of the hearing. R.C. 2967.271(E). Ohio Adm. Code 5120-9-06 sets forth the inmate rules of conduct. Ohio Adm. Code 5120-9-08 sets forth the disciplinary procedures for violations of inmate rules of conduct before the rules infraction board. Ohio Adm. Code 5120-9-10 sets forth the procedures for when and under what circumstances an inmate may be placed in and/or transferred to a restrictive housing assignment. Ohio Adm. Code 5120:1-1-11 sets forth the procedure of release consideration hearings. Thus, an inmate is given notice in advance of the behavior that can contribute or result in an extended sentence and under what circumstance the inmate can be placed or transferred to a restrictive housing assignment. Each procedure employed provides at the least for notice and the opportunity to be heard. {¶77} Under the Reagan Tokes Law, an inmate is afforded notice and a hearing by R.C. 2967.271(E), which states: [DRC] shall provide notices of hearings to be conducted under division (C) or (D) of this section in the same manner, and to the same persons, as specified in section 2967.12 and Chapter 2930 of the Revised Code with respect to hearings to be conducted regarding the possible release on parole of an inmate. See, State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837 , ¶ 11; State v. Leet, 2nd Dist. Montgomery No. 28670, 2020-Ohio-4592 , ¶11 (“Reagan Tokes does not facially violate a defendant’s right to procedural due process.”) Separation of Powers is not violated. {¶78} Nor can it be argued that because the DRC can increase a sentence beyond the minimum given by the trial judge, the Reagan Tokes Law usurps judicial authority. As  Licking County, Case No. 2020CA00021 38 already noted, the DRC may not increase the sentence beyond the maximum sentence imposed by the trial court. The Ohio Supreme Court has made it clear that, when the power to sanction is delegated to the executive branch, a separation-of-powers problem is avoided if the sanction is originally imposed by a court and included in its sentence. See Hernandez v. Kelly, 108 Ohio St.3d 395 , 2006-Ohio-126 , 844 N.E.2d 301 , ¶ 18-20, citing State v. Jordan, 104 Ohio St.3d 21 , 2004-Ohio-6085 , 817 N.E.2d 864 , ¶ 19. Such is the case under the scheme established by the Reagan Tokes Law. State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153 , ¶23. The statute does not permit the DRC to act “’as judge, prosecutor and jury,’ for an action that could be prosecuted as a felony in a court of law.” Woods v. Telb, 89 Ohio St.3d at 512, 733 N.E.2d 1103 , quoting State, ex rel. Bray v. Russell, 89 Ohio St.3d 132 , 135, 729 N.E.2d 359 (2000). It should be noted that Bray was charged with and convicted of drug possession and sentenced to an eight-month prison term. While in prison, Bray allegedly assaulted a prison guard in violation of R.C. 2903.13. Pursuant to R.C. 2967.11(B), the Ohio Parole Board imposed a ninety-day bad-time penalty to be added to Bray’s original term. Bray’s original sentence of eight months for drug possession expired on June 5, 1998, at which time his additional ninety-day penalty began. On June 12, 1998, Bray filed a writ of habeas corpus in the Court of Appeals for Warren County, claiming that Warden Harry Russell was unlawfully restraining him. 89 Ohio St.3d 132 , 133, 729 N.E.2d 359 . Thus, the Parole Board extended Brey’s sentence beyond the maximum sentence the trial court had impose. Wolfe points to nothing within the Reagan Tokes Law that would permit the DRC to extend his sentence beyond the seven and one- half year maximum sentence set by the trial judge. {¶79} Further, as we have noted, under the Reagan Tokes Law an inmate is afford the due process rights accorded to one who is incarcerated before any increase can occur. Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. For as long as parole has  Licking County, Case No. 2020CA00021 39 existed in Ohio, the executive branch (the APA and its predecessors) has had absolute discretion over when parole will be granted. Woods v. Telb, 89 Ohio St.3d at 511-512, 733 N.E.2d 1103 . {¶80} To prevail on a Sixth Amendment claim alleging ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that his counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668 , 694 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must show that “counsel's representation fell below an objective standard of reasonableness.” Id., at 688 , 104 S.Ct. 2052 . And to establish prejudice, a defendant must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id., at 694 , 104 S.Ct. 2052 . See, also, Andrus, v. Texas, __U.S.__, 140 S.Ct. 1875 , 1881, 207 L.Ed.2d 335 (June 15, 2020). {¶81} Because the Reagan Tokes Law is constitutional, there is no reasonable probability that, but for counsel’s failure to challenge the constitutionality of the Reagan Tokes Law the result of the proceeding would have been different. {¶82} I would therefore overrule Appellant’s First and Second Assignments of Error. III., IV. & V. {¶83} I concur with the majority’s disposition of Appellant’s Third, Fourth and Fifth Assignments of Error. {¶84} In this case, the court gave no advisement of any of the requirements set forth in R.C. 2929.19(B) at the sentencing hearing held January 24, 2020 and, therefore, I would agree that the sentence is contrary to law. I would sustain Wolfe’s Third Assignment of Error. Because we reverse and remand the decision of the Licking County Court of Common Pleas for resentencing, I agree Wolfe’s Fourth and Fifth Assignments of Error to be premature.

2020-12-02 18:13:15.152907+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2020/2020-Ohio-5503.pdf

[Cite as State v. Howell, 2020-Ohio-5503 .] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2019CA00165 JOSHUA W. HOWELL Defendant-Appellant O P I N IO N CHARACTER OF PROCEEDINGS: Appeal from the Massillon Municipal Court, Case No. 2019TRD03680 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: November 30, 2020 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant KASSEM AHMED GEORGE URBAN Massillon City Prosecutor 116 Cleveland Avenue, North, Suite #808 2 James Duncan Plaza Canton, Ohio 44702 Massillon, Ohio 44646 Stark County, Case No. 2019CA00165 2 Hoffman, P.J. {¶1} Defendant-appellant Joshua W. Howell appeals the judgment entered by the Massillon Municipal Court convicting him of failure to yield the right of way (R.C. 4511.44(A)) and leaving the scene of an accident (R.C. 4549.02) and sentencing him to 180 days in jail. Appellee is the state of Ohio.1 STATEMENT OF THE FACTS AND CASE {¶2} At around 11:30 a.m. on May 16, 2019, Walter Boney and his wife, Berdella Boney, were traveling on Higbee Avenue, near the intersection of Holiday Street, in Jackson Township. Walter was driving the couple’s Lexus automobile on their way to an appointment when a box truck entered the roadway from a private drive, striking the driver’s front side of the Lexus. The driver of the box truck backed up, then left the scene of the accident. The Lexus was totaled as a result of the damage incurred in the accident, and Mrs. Boney was injured. {¶3} A license plate was found at the scene of the accident. Jackson Police Officer Moderwell traced the license plate to a vehicle owned by American Food and Vending Corporation. Matthew Crago, the operations manager of American Food and Vending, traced the plate to a box truck assigned to Appellant. Crago further confirmed Appellant was the only driver in the area at the time of the accident. {¶4} Crago attempted to reach Appellant by telephone. When Appellant returned Crago’s call, Crago told him to return to the scene of the accident. Appellant maintained he did not know what Crago was talking about, and did not return to the scene. Instead, he returned the truck to the warehouse and relinquished the keys to the warehouse 1 The State has not filed a brief in the instant appeal. Stark County, Case No. 2019CA00165 3 manager. Officer Moderwell examined the box truck at the warehouse and determined the damage to the truck was consistent with the accident. The officer further learned from LEADS that on the day of the accident, Appellant’s driver’s license was suspended. {¶5} The day after the accident, Appellant called Crago to inquire about his final paycheck. Crago told Appellant to return all property belonging to American Food and Vending in order to receive his check. Appellant returned his uniforms, key cards, and other property belonging to the company, picked up his final paycheck, said, “I’m sorry,” and left. {¶6} Appellant was charged with failure to yield the right of way from private property and leaving the scene of an accident. The case proceeded to jury trial in the Massillon Municipal Court. {¶7} At trial, Appellant testified his route for American Food and Vending did go through the area of Higbee and Holiday, but he did not hit a vehicle on the day of the accident. He admitted his license was suspended at the time, but claimed he was unaware of the suspension and only learned of it at a later date. He testified the truck was damaged at the time he began driving for American Food and Vending. {¶8} The jury found Appellant guilty of leaving the scene of an accident. The court found Appellant guilty of failure to yield the right of way, a minor misdemeanor. The court sentenced Appellant to 180 days in jail for leaving the scene and fined him $500, with $250 of the fine suspended. The court fined Appellant $25 for failure to yield the right of way and ordered him to pay court costs. {¶9} It is from the October 24, 2019, judgment of the Massillon Municipal Court Appellant prosecutes this appeal, assigning as error: Stark County, Case No. 2019CA00165 4 I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. II. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO INTRODUCE EVIDENCE REGARDING APPELLANT’S LICENSE SUSPENSION. III. APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. I. {¶10} In his first assignment of error, Appellant argues his convictions are against the manifest weight and sufficiency of the evidence. {¶11} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380 , 387, 1997-Ohio-52 , 678 N.E.2d 541 , quoting State v. Martin, 20 Ohio App. 3d 172 , 175, 485 N.E.2d 717 (1983). {¶12} An appellate court's function when reviewing the sufficiency of the evidence is to determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259 , 574 N.E.2d 492 , paragraph two of the syllabus (1991). Stark County, Case No. 2019CA00165 5 {¶13} Appellant was convicted of leaving the scene of an accident in violation of R.C. 4549.02, which provides: (A)(1) In the case of a motor vehicle accident or collision with persons or property on a public road or highway, the operator of the motor vehicle, having knowledge of the accident or collision, immediately shall stop the operator's motor vehicle at the scene of the accident or collision. The operator shall remain at the scene of the accident or collision until the operator has given the operator's name and address and, if the operator is not the owner, the name and address of the owner of that motor vehicle, together with the registered number of that motor vehicle, to all of the following: (a) Any person injured in the accident or collision; (b) The operator, occupant, owner, or attendant of any motor vehicle damaged in the accident or collision; (c) The police officer at the scene of the accident or collision. {¶14} Appellant was also convicted of failing to yield the right of way in violation of R.C. 4511.44, which provides: (A) The operator of a vehicle, streetcar, or trackless trolley about to enter or cross a highway from any place other than another roadway shall Stark County, Case No. 2019CA00165 6 yield the right of way to all traffic approaching on the roadway to be entered or crossed. {¶15} Appellant argues the State presented insufficient evidence to identify him as the driver of the box truck which entered Higbee Avenue from a private driveway, striking the Boneys’ Lexus. Both of the Boneys described the vehicle which hit them as a box truck. A license plate was found at the scene, registered to a box truck belonging to American Food and Vending. Matthew Crago testified the plate was registered to a truck assigned to Appellant. Crago further testified he confirmed Appellant was in the area on the date and time in question, and testified no other driver would have been in the area. Appellant admitted in his testimony his route took him through the area near Higbee and Holiday. Police examined the truck Appellant had returned to the warehouse, and found damage consistent with the accident. From this evidence, a rational trier of fact could find the State proved Appellant was the driver of the truck which caused the accident. {¶16} Appellant further argues the State presented insufficient evidence he was aware an accident occurred, giving rise to a duty to remain at the scene. He argues Mr. Boney’s testimony demonstrates the accident was not severe, and in fact some of the damage done to the Lexus was caused by the tow truck. {¶17} Mr. Boney testified at the scene of the accident he had to work to open the driver’s side door of the vehicle, but when he went to remove his personal effects from the vehicle after the insurance company declared the vehicle totaled, the door worked Stark County, Case No. 2019CA00165 7 freely. His testimony therefore suggests the tow truck operator might have repaired the door, rather than doing further damage to the vehicle. {¶18} The State presented evidence the Lexus was declared totaled by the insurance company, and Mrs. Boney was treated for injuries from the accident. The collision was of sufficient strength to cause the license plate on the box truck driven by Appellant to detach from the vehicle. Further, both of the Boneys testified the driver of the box truck backed up before leaving the scene. From all of this evidence, a rational trier of fact could have found Appellant was aware of the accident. {¶19} We find the judgment is supported by sufficient evidence. {¶20} As to his manifest weight claim, Appellant argues the testimony of the Boneys is inconsistent as to how the accident occurred, as Walter Boney testified the truck struck the driver’s side front of the vehicle, while Berdella Boney testified the truck hit the front of the vehicle, implying the collision was head-on. Berdella Boney testified as follows: Q: Do you remember what part of your vehicle, when I say your vehicle, your and your husband’s vehicle, do you remember which part of it was struck. A: Yeah, it’d be the front part of the car. Q: On you [sic] side or the driver’s side. A: No, on the driver’s side. {¶21} Tr. 58. Stark County, Case No. 2019CA00165 8 {¶22} We find no material inconsistencies in the testimony of Walter and Berdella Boney about how the accident occurred, and the judgment is not against the manifest weight of the evidence. {¶23} The first assignment of error is overruled. II. {¶24} In his second assignment of error, Appellant argues the court erred in allowing Officer Moderwell to testify about information he obtained through LEADS that Appellant’s driver’s license was under suspension on the date of the accident for refusing to submit to OVI testing. {¶25} Appellant made an oral motion in limine to exclude evidence of the status of Appellant’s license prior to trial. Tr. 35. The trial court ruled the evidence was relevant evidence of motive, and denied the motion. {¶26} Appellant did not object at the time the officer testified about the status of his driver’s license. A motion in limine is insufficient to preserve the error for appellate review; the complaining party must object to the testimony at the time it is presented at trial in order to preserve the error. E.g., State v. Maurer, 15 Ohio St.3d 239 , 259-260, 473 N.E.2d 768 , 787-788 (1984). We therefore must find plain error in order to reverse. The Ohio Supreme Court has set forth the following standard for plain error: Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain errors or defects affecting substantial rights” notwithstanding an accused's failure to meet his obligation to bring those errors to the attention of the trial court. However, the accused bears the burden to demonstrate plain error Stark County, Case No. 2019CA00165 9 on the record, State v. Quarterman, 140 Ohio St.3d 464 , 2014-Ohio-4034 , 19 N.E.3d 900 , ¶ 16, and must show “an error, i.e., a deviation from a legal rule” that constitutes “an ‘obvious' defect in the trial proceedings,” State v. Barnes, 94 Ohio St.3d 21 , 27, 759 N.E.2d 1240 (2002). Even if the error is obvious, it must have affected substantial rights, and “[w]e have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial.” Id. We recently clarified in State v. Rogers, 143 Ohio St.3d 385 , 2015-Ohio-2459 , 38 N.E.3d 860 , that the accused is “required to demonstrate a reasonable probability that the error resulted in prejudice—the same deferential standard for reviewing ineffective assistance of counsel claims.” (Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74 , 81–83, 124 S.Ct. 2333 , 159 L.Ed.2d 157 (2004). If the accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it; we have “admonish[ed] courts to notice plain error ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 759 N.E.2d 1240 , quoting State v. Long, 53 Ohio St.2d 91 , 372 N.E.2d 804 (1978), paragraph three of the syllabus. {¶27} State v. Thomas, 2017-Ohio-8011 , ¶¶ 32-34. {¶28} Evid. R. 404(B) governs the admission or evidence of other bad acts: Stark County, Case No. 2019CA00165 10 (B) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this rule shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. {¶29} We agree with the trial court’s ruling on the motion in limine concerning the fact Appellant’s license was suspended on the date of the accident. Evidence Appellant’s license was under suspension was admissible pursuant to Evid. R. 404(B) to demonstrate a motive for leaving the scene. While the reason for the suspension was not relevant to demonstrate motive, we find its admission was not plain error. Abundant circumstantial evidence was presented to demonstrate Appellant was the driver of the box truck involved in the accident. We find the result of the proceeding would not have been different absent evidence the reason for the license suspension was Appellant’s refusal to submit to OVI testing. {¶30} Appellant also argues the State failed to present documentary evidence to support its claim Appellant’s license was suspended on May 16, 2019, and failed to prove Appellant was aware of the suspension. Appellant’s claims go to the weight to be given the evidence, and not to its admissibility. Appellant was not charged with driving under Stark County, Case No. 2019CA00165 11 suspension. The officer testified he had checked the status of Appellant’s operator’s license through LEADS, and it was suspended on May 16, 2019. Appellant testified he was unaware of the suspension on the date of the accident, and only learned of it later. Further, we find Appellant has not demonstrated a reasonable probability of a change in the outcome of the trial had evidence of his license suspension been excluded. {¶31} The second assignment of error is overruled. III. {¶32} In his third assignment of error, Appellant argues counsel was ineffective for failing to object to evidence of his license suspension, failing to object to the evidentiary value and authenticity of the evidence, and failing to ask for a limiting instruction regarding such evidence. {¶33} A properly licensed attorney is presumed competent. State v. Hamblin, 37 Ohio St.3d 153 , 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of ineffective assistance of counsel, Appellant must show counsel's performance fell below an objective standard of reasonable representation and but for counsel’s error, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136 , 538 N.E.2d 373 (1989). In other words, Appellant must show counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. {¶34} As discussed in Appellant’s second assignment of error, he has not demonstrated a reasonable probability the outcome of the proceeding would have been Stark County, Case No. 2019CA00165 12 different in the absence of the officer’s brief testimony concerning the status of Appellant’s operator’s license on the date in question. We find counsel was not ineffective. {¶35} The third assignment of error is overruled. {¶36} The judgment of the Massillon Municipal Court is affirmed. By: Hoffman, P.J. Gwin, J. and Wise, John, J. concur

2020-12-02 18:13:15.518616+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2020/2020-Ohio-5504.pdf

[Cite as State v. Dewalt, 2020-Ohio-5504 .] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2020CA00031 ADAM KEITH DEWALT : : Defendant-Appellant : OPINION CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2019- CR-1507 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: November 30, 2020 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JOHN D. FERRERO GEORGE URBAN Stark County Prosecutor 116 Cleveland Avenue North 110 Central Plaza South, 5th Fl. Suite 808 Canton, OH 44702 Canton, OH 44702 [Cite as State v. Dewalt, 2020-Ohio-5504 .] Gwin, P.J. {¶1} Defendant-appellant Adam Keith DeWalt [“DeWalt”] appeals his convictions after a jury trial in the Stark County Court of Common Pleas. Facts and Procedural History {¶2} DeWalt was charged by superseding Indictment filed December 12, 2019 with Felonious Assault, 3 counts in violation of R.C. 2903.11(A)(2), felonies of the first degree with Firearm Specifications pursuant to R.C. 2941.145 and with Firearm Specifications pursuant to R.C. 2941.1412, one count of Aggravated Arson, a felony of the first degree in violation of R.C. 2909.02(A)(1), eleven counts of Improperly Discharging a Firearm at or into a Habitation, in a School Safety Zone, or with the Intent to Cause Harm or Panic to Persons in a School, in a School Building, or at a School Function or the Evacuation of a School Function, felonies of the second degree in violation of R.C. 2923.161(A)(1),with Firearm Specifications pursuant to R.C. 2941.145 and Discharge of a Firearm on or Near Prohibited Premises, a felony of the third degree in violation of R.C. 2923.162(A)(3)(C)(2), with Firearm Specification pursuant to R.C. 2941.145. [Docket Entry Number 47]. DeWalt’s jury trial began on December 16, 2019. The following evidence was adduced during the trial. {¶3} On July 27, 2019 around 11:00 in the morning, Amy DeWalt was in the shower at the home she shared with her husband, Adam DeWalt on Opal Avenue in Louisville, Ohio. She heard her husband yelling and a window break. She jumped out of the shower, got dressed and her husband told her to "get some stuff and get out" because he didn't want her to get hurt. Amy DeWalt got in her car, pulled out of the driveway and her husband came out of the garage firing a pistol in the air. Amy DeWalt drove to the Stark County, Case No. 2020CA00031 3 high school, a couple of blocks from the residence, and called 9-1-1. Lieutenant Chris Stillwagon of the Louisville Police Department responded to the high school, talked with Mrs. DeWalt who reported that her husband had a .45 pistol and was suicidal. {¶4} When Lieutenant Stillwagon pulled up to the DeWalt residence on Opal Avenue, he could hear noises that sounded like gunfire and smoke coming from the front of the residence. Lieutenant Stillwagon called for backup and another Louisville Police Officer, Michael Stephey arrived. While Stephey was up at the front of the DeWalt residence, another barrage of gunfire came from the front of the residence. {¶5} Stillwagon and Stephey took cover and called for more backup. Three more law enforcement agencies responded - the Stark County Sheriff; Canton police, and Alliance police, including two SWAT teams and armored vehicles. {¶6} Deputy Keaton Sausman testified that she was dispatched to Louisville for an active shooter situation. Deputy Sausman was asked to block off the intersection of Hazel and Opal to stop traffic from going up or down the road. After exiting the cruiser, Deputy Sausman stated that she felt something go past her head and ducked down behind her cruiser. Deputy Sausman testified that while behind the cruiser, she heard shots hit her cruiser and stayed hidden until she was evacuated. {¶7} Officer Zachary Taylor of the Canton Police Department testified that he responded to the active shooter call from Louisville. Officer Taylor deployed his patrol rifle and positioned himself by a tree on the north side of the 1516 Opal Street residence to contain the occupants of the home. Officer Taylor testified that he heard several shots fired that he stated were not fired at him. Officer Taylor testified that he observed the glass in the front window break, something was thrown out the window, and a fireball Stark County, Case No. 2020CA00031 4 erupted on the window sill. He stated that it was not until he positioned himself behind a tree that was wider than his shoulders that he heard shots fired in his direction. Officer Taylor stated that there were four shots fired at him. {¶8} The Molotov cocktail ended up landing in the inside of the front window filling the home with smoke. DeWalt came out of the home shirtless with the pistol in his hand. He placed the pistol on the threshold of the residence and was taken into custody by the Alliance SWAT team. DeWalt was taken in a police cruiser to Mercy Medical Center for clearance for jail by Officer Steve Miller. DeWalt was given his Miranda warnings and body cameras recorded his statements during the five hours that his arrest was being processed. The recordings were played for the jury. {¶9} DeWalt was recorded saying that he wanted to die and that he would plead guilty to attempted murder. He stated that he tried to throw the Molotov cocktail outside but that it ended up hitting the windowsill and bouncing back inside. If that had not ended up smoking him out, he would have shot at law enforcement officers all day long. He would have taken them out if they had not made themselves "green.” {¶10} In all, DeWalt used at least four operable firearms to shoot at law enforcement. Bullets from a Springfield Armory Model XD 45 caliber semiautomatic pistol were found behind the Stark County Sheriff's cruiser where Deputy Sheriff Keaton Sausman was taking cover. State's Exhibits 3, 4. Bullets from a .223 caliber Smith and Wesson Model M&P 15 semiautomatic rifle with a scope and bipod were found on the ground surrounding the residence and spent cartridge cases were found in the DeWalt residence. State's Exhibit 6. Spent cartridge cases from another Smith & Wesson AR-15 rifle were also found in the residence, State's Exhibit 7. Finally, shot shells from a 12 Stark County, Case No. 2020CA00031 5 gauge Remington 870 Express Magnum pump-action shotgun were found in and around the residence, State's Exhibits 10, 11. {¶11} A deformed jacketed hollow-point bullet was found by the pillar of the Louisville Police cruiser. DeWalt shot out of every window in the house except his bedroom. {¶12} The home of eleven of DeWalt’s neighbors were hit by the bullets. The bullets hit spouting, a front door, brick, siding. Indeed, the home of Danielle Brickwood was hit multiple time and sustained $25,000 damage. Judith Juskiw, who was at home recovering from surgery heard glass break from the bullets, fell backwards and ripped open her incision. John P. Case's family was in the backyard pool when they heard the gunshots, came in the house and heard a big bang against the back door. They recovered a bullet laying in the grass next to the deck where they were swimming. {¶13} After hearing the evidence and receiving instructions from the trial court, the jury returned with a verdict of guilty to all the counts and specifications in the indictment. {¶14} On December 30, 2019, the Court sentenced DeWalt to an indefinite minimum prison term of five years up to a maximum prison term of 7 1/2 years on the charge of Felonious Assault, 1 count, as contained in Count One of the superseding indictment. The 3- year Firearm Specification (R.C. 2941.145) to Count One was merged into the 7 year Firearm Specification (R.C. 2941.1412) to Count One. The sentence in Count One was ordered to be served consecutive to and subsequent to a determinate mandatory term of 7 years actual incarceration for the specification that DeWalt had a firearm. DeWalt received a 5-year prison term on the charge of Felonious Assault, 1 count as contained in Count Two of the superseding indictment. This sentence was ordered to Stark County, Case No. 2020CA00031 6 be served consecutive to and subsequent to a determinate mandatory term of 7 actual years incarceration for the specification that DeWalt had a firearm. The 3-year Firearm Specification to Count Two was merged into the 7 year Firearm Specification to Count Two. DeWalt received a 5 year prison term on the charge of Felonious Assault, 1 count as contained in Count Three of the superseding indictment, with the 3 year Firearm Specification merged into the 7 year Firearm Specification in Counts One and Two, and the 7 year Firearm Specification to Count Three was merged into the 7 year Firearm Specification to Counts One and Two. DeWalt was ordered to serve a 4 year prison term on the charge of Aggravated Arson, 1 count as contained in Count Four of the superseding indictment. DeWalt received a prison term of 4 years on each count of Improperly Discharging a Firearm at or Into a Habitation, in a School Safety Zone, or With the Intent to Cause Harm or Panic to Persons in a School, in a School Building, or at a School Function or the Evacuation of a School Function, 11 counts as contained in Counts Five through Fifteen of the superseding indictment. The 3 year Firearm Specification to Counts 5 through 15 were merged into the 7 year Firearm Specification to Counts One and Two. DeWalt was ordered to serve 36 months on the charge of Discharge of a Firearm on or Near Prohibited Premises, 1 Count as contained in Count Sixteen of the superseding indictment. The 3-year Firearm Specification to Count Sixteen was merged into the 7 year Firearm Specifications to Counts One and Two. DeWalt was ordered to serve the sentences in Counts One through Five consecutively and the sentences in Counts Six through Fifteen concurrently, for an aggregate minimum prison term of 37 years up to a maximum prison term of 39 1/2 years. Stark County, Case No. 2020CA00031 7 Assignment of Error {¶15} DeWalt raises one Assignment of Error, {¶16} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.” Law and Analysis {¶17} In his sole Assignment of Error, DeWalt argues that his convictions are against the manifest weight of the evidence. DeWalt also claims there is insufficient evidence to support his convictions. Standard of Appellate Review– Sufficiency of the Evidence. {¶18} The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in conjunction with the Due Process Clause, requires that each of the material elements of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 U.S. __, 133 S.Ct. 2151 , 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616 , 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409 , 2016-Ohio-8295 , 82 N.E.3d 1124 , ¶30. “This naturally entails a review of the elements of the charged offense and a review of the state's evidence.” State v. Richardson, 150 Ohio St.3d 554 , 2016-Ohio-8448 , 84 N.E.3d 993 , ¶13. {¶19} When reviewing the sufficiency of the evidence, an appellate court does not ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259 , 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 , 102 at n.4, Stark County, Case No. 2020CA00031 8 684 N.E.2d 668 (1997; Walker, at ¶30. “The relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474 , 2018-Ohio-22 , 97 N.E.3d 478 , ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence] would convince the average mind of the defendant's guilt beyond a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516 , 543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 70 , 2006-Ohio-5283 , 855 N.E.2d 48 , ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421 , 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347 , 2016-Ohio-5487 , 71 N.E.3d 180 , ¶74. Issue for Appeal: Whether, after viewing the evidence in the light most favorable to the prosecution, the evidence, if believed, would convince the average mind of DeWalt’s guilt on each element of the crimes for which he was convicted beyond a reasonable doubt. Felonious Assault of a peace officer. {¶20} The jury convicted DeWalt of three counts of felonious assault on law enforcement officers with a firearm specification. R.C. 2903.11, felonious assault, provides in relevant part: (A) No person shall knowingly do either of the following: Stark County, Case No. 2020CA00031 9 (2) Cause or attempt to cause physical harm to another....by means of a deadly weapon or dangerous ordnance. If the victim is a peace officer, felonious assault is a felony of the first degree. {¶21} DeWalt argues that there was no evidence that he pointed his weapon directly at the law enforcement officers. According to DeWalt, he shot above their heads, in trees and at their cruisers when the officers were not in them. {¶22} Simply pointing a gun at another is not enough to prove an attempt to cause physical harm. State v. Brooks, 44 Ohio St.3d 185 , 192, 542 N.E.2d 636 , 642(1989). “Something more” is required to establish intent. Verbal threats or other demonstrative evidence which are perceived by a reasonable person under the circumstances to be a threat could fulfill the requirement for additional evidence. State v. Green, 58 Ohio St.3d 239 , 241, 569 N.E.2d 1038 , 1041(1991). That threat must indicate an intention to use that weapon. Id. at 241-242, 569 N.E.2d 1038 . In a somewhat analogous situation courts have found that a jury can infer intent from the defendant’s actions, even though the defendant claims he lacked the requisite intent, The trier of fact may infer an intention to kill from the surrounding circumstances where the natural and probable consequence of a defendant's actions is to produce death. State v. Robinson (1954), 161 Ohio St. 213 , 118 N.E.2d 517 , paragraph five of the syllabus; State v. Edwards (1985), 26 Ohio App.3d 199 , 200, 499 N.E.2d 352 . Here, defendant looked at a group of individuals, pointed a semi-automatic handgun in their direction, and fired five shots. In so doing, one of the bullets fired from the Stark County, Case No. 2020CA00031 10 handgun struck and killed his driver, Andre J. Bender. Although defendant claims the evidence equally supports a conclusion that he was merely trying to scare individuals in the group by firing the handgun into the air, “[t]he act of pointing a firearm and firing it in the direction of another human being is an act with death as a natural and probable consequence.” State v. Brown (Feb. 29, 1996), Cuyahoga App. No. 68761, unreported. Compare State v. Jester (1987), 32 Ohio St.3d 147 , 152, 512 N.E.2d 962 (when an inherently dangerous instrumentality is employed in the commission of a robbery, such evidence permits a jury to find a purposeful intent to kill). State v. Turner, 10th Dist. No. 97APA05-709, 1997 WL 798770 (Dec. 30, 1997), quoting State v. Brown, 8th Dist. No. 68761, 1996 WL 86627 (Feb. 29, 1996) dismissed, appeal not allowed, 77 Ohio St.3d 1468 , 673 N.E.2d 135 . {¶23} In the case at bar, Louisville police officer Michael Stephey was one of the first officers on the scene and knew DeWalt from previous encounters. When Stephey tried talking with him, instead of responding, he sent a barrage of bullets out the front of the house. When Stephey tried to run through the front yard, he could hear bullets "zinging" through the yard. DeWalt was firing at him. Officer Stephey's police cruiser was hit by two different caliber bullets. {¶24} Canton police officer Zachary Taylor arrived and heard a barrage of shots coming from the DeWalt residence. He took cover behind a tree and heard the shots being directed towards him. When asked how he knew the shots were being fired at him, he described for the jury the sound of the shots, Stark County, Case No. 2020CA00031 11 So what you'll hear, you know, a bullet pass by you in close proximity, you'll hear the, the sonic boom if it's a supersonic round. So if the round is traveling past the speed of sound, you'll hear this crack as it goes by you. If they hit something, glass or they ricochet off the ground or, you know, they hit something, they'll start to tumble. And it’s not kind of like the cartoonish whiz, that sound, but you’ll hear — it’s a distinctly different sound when they are tumbling and they pass you. They sound completely different when they’re coming at you rather than like if you’re standing behind it or you’re shooting a gun, or even if the gun, gun is shooting in a different direction. 1T. at 208-209. {¶25} Later, when Officer Taylor stood up to observe the Molotov cocktail thrown by DeWalt, he saw four rounds fired rapidly at him and he jumped from his standing position back to a prone position. 1T. at 211. {¶26} Stark County Deputy Sheriff Keaton Sausman was parked at the intersection of Hazel and Opal Streets. She felt bullets going past her head and she ducked behind her police cruiser. 1T. at 188. Bullets were going past her head and hitting her cruiser shooting at the back tire where she was crouched down hiding. She was pinned down by the bullets that DeWalt was firing until she was evacuated by the SWAT Team. {¶27} Viewing the evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that DeWalt caused or attempted to cause physical harm to Officer Stephey, Officer Taylor Stark County, Case No. 2020CA00031 12 and Deputy Sausman by means of a deadly weapon or dangerous ordnance. We hold, therefore, that the state met its burden of production regarding the element of felonious assault, of a peace officer, three counts, and, accordingly, there was sufficient evidence to support DeWalt’s convictions. Aggravated arson. {¶28} DeWalt was charged and convicted of aggravated arson. R.C. 2909.02 aggravated arson states in relevant part: "(A) No person, by means of fire or explosion, shall knowingly do any of the following: (1) Create a substantial risk of serious physical harm to any person other than the offender.” “Substantial risk” is defined as “a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist.” R.C. 2901.01(A)(8). {¶29} In the case at bar, DeWalt made a firebomb, lit the fuse of the firebomb and threw the firebomb in the direction of the law enforcement officers who were attempting to surround the home and advance toward it. DeWalt argues that the state offered no evidence that anyone was near the home when the fire from the Molotov cocktail erupted. Merely because DeWalt ineptly threw the firebomb does not negate the potential for substantial risk of physical harm. See, State v. Johnson, 8th Dist. No. 81814, 2003-Ohio- 4180, rev’d on other grounds, State v. Johnson, 104 Ohio St.3d 250 , 2004-Ohio-6399 , 819 N.E.2d 272 (“Merely because a firebomb was ineptly made does not negate the potential risk of physical harm. See State v. Wills (1997), 120 Ohio App.3d 320 , 331, 697 N.E.2d 1072 . It is the risk of physical harm that is sufficient under the statute, not whether there was actual damage.”). Stark County, Case No. 2020CA00031 13 {¶30} By creating, lighting and launching the firebomb, DeWalt knowingly created a substantial risk of serious physical harm to any person other than the offender. Viewing the evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that DeWalt by means of fire or explosion, knowingly created a substantial risk of serious physical harm to any person other than himself. We hold, therefore, that the state met its burden of production regarding the element of aggravated arson, and, accordingly, there was sufficient evidence to support DeWalt’s conviction. Improperly Discharging a Firearm at or Into a Habitation or in a School Safety Zone. {¶31} DeWalt was convicted of eleven counts of Improperly Discharging a Firearm at or Into a Habitation or in a School Safety Zone in Counts Five through Fifteen with accompanying three year Firearm Specifications to each. DeWalt argues that the state failed to offer evidence of the venue in all eleven of the counts of Improperly Discharging a Firearm at or Into a Habitation or in a School Safety Zone. {¶32} Section 10 of Article I of the Ohio Constitution requires that: " * * * [i]n any trial, in any court, the party accused shall be allowed * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed * * *. “Crim.R. 18(A) states that, "(t)he venue of a criminal case shall be as provided by law." {¶33} “Venue is not a material element of any offense charged. The elements of the offense charged and the venue of the matter are separate and distinct. State v. Loucks (1971), 28 Ohio App.2d 77 , 274 N.E.2d 773 , and Carbo v. United States (C.A.9, 1963), 314 F.2d 718 . Yet, in all criminal prosecutions, venue is a fact that must be proved at trial Stark County, Case No. 2020CA00031 14 unless waived. State v. Nevius (1947), 147 Ohio St. 263 , 71 N.E.2d 258 .” State v. Draggo 65 Ohio St.2d 88 , 90, 418 N.E.2d 1343 , 1345(1981). {¶34} R.C. 2901.12 contains the statutory foundation for venue. The relevant provisions of this section read, in pertinent part, as follows: (A) The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element of the offense was committed. {¶35} “[J]urisdiction and venue are not the same, as the former denotes the power of the court to hear the case and the latter denotes the situs of trial.” State v. Giffin, 62 Ohio App.3d 396 , 403, 575 N.E.2d 887 (10th Dist. 1991), citing State v. Loucks, 28 Ohio App.2d 77 , 274 N.E.2d 773 (4th Dist. 1971). Proper venue insures that “the state [does not] indiscriminately [seek] a favorable location for trial or [select] a site that might be an inconvenience or disadvantage to the defendant.” State v. Meridy, 12th Dist. No. CA2003-11-091, 2005-Ohio-241 , 2005 WL 123993 , ¶ 12, quoting State v. Gentry, 61 Ohio Misc.2d 31 , 34, 573 N.E.2d 220 (1990). “Venue need not be proven in express terms; it may be established either directly or indirectly by all the facts and circumstances of the case.” State v. Jackson, 141 Ohio St.3d 171 , 2014-Ohio-3707 , 23 N.E.3d 1023 , ¶ 144. {¶36} Ohio’s venue statute further provides that when an offender commits offenses in different jurisdictions as part of a course of criminal conduct, venue lies for all the offenses in any jurisdiction in which the offender committed one of the offenses or any element thereof. R.C. 2901.12(H). Offenses “committed as part of the same transaction or chain of events, or in furtherance of the same purpose or objective” serve as “prima facie evidence of a course of criminal conduct.” R.C. 2901.12(H)(3). Stark County, Case No. 2020CA00031 15 {¶37} DeWalt agrees that the state “procured testimony that the residence in which he was shooting from was located in Stark County, Ohio.” [Appellant’s Brief at 11]. The record does not show that venue was in another county. DeWalt has not argued any identifiable prejudice resulted in his being tried in Stark County. The shots into the neighboring homes and properties was committed as part of the same transaction or chain of events, or in furtherance of the same purpose or objective. Further, the neighbors who testified all said that they lived in Louisville, Ohio. A map was presented which showed that Louisville is in Stark County, Ohio. {¶38} “The venue need not be proved in express terms, where the evidence is such in the state’s case that no other inference can be reasonably drawn by the jury.” State v. Dickerson, 77 Ohio St. 34 , 56, 82 N.E. 969 (1907), citing Tinney v. State, 111 Ala. 74 , 20 South 597. In the case at bar sufficient evidence was presented that Stark County was the proper venue to conduct DeWalt’s jury trial. Standard of Appellate Review – Manifest Weight. {¶39} As to the weight of the evidence, the issue is whether the jury created a manifest miscarriage of justice in resolving conflicting evidence, even though the evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380 , 386–387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89 , 684 N.E.2d 668 , 1997–Ohio–355; State v. Issa, 93 Ohio St.3d 49 , 67, 752 N.E.2d 904 (2001). “[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every Stark County, Case No. 2020CA00031 16 reasonable presumption must be made in favor of the judgment and the finding of facts. *** “If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77 , 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978). {¶40} The reviewing court must bear in mind, however, that credibility generally is an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49 , 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31. Because the trier of fact sees and hears the witnesses and is particularly competent to decide whether, and to what extent, to credit the testimony of particular witnesses, the appellate court must afford substantial deference to its determinations of credibility. Barberton v. Jenney, 126 Ohio St.3d 5 , 2010–Ohio–2420, 929 N.E.2d 1047 , ¶ 20. In other words, “[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002– Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197 , 201, 722 N.E.2d 125 (7th Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the evidence to the fact finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24. Stark County, Case No. 2020CA00031 17 {¶41} Once the reviewing court finishes its examination, an appellate court may not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172 , 175, 485 N.E.2d 717 , 720–721(1st Dist. 1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional case in which the evidence weighs heavily against the conviction.” Id. Issue for Appellate Review: Whether the jury clearly lost their way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. {¶42} The jury as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness’s credibility. “While the trier of fact may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant’s conviction against the manifest weight or sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996 WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’ testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61 , 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889, citing State v. Caldwell, 79 Ohio App.3d 667 , 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have been circumstantial, we note that circumstantial evidence has the same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259 , 272, 574 Stark County, Case No. 2020CA00031 18 N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 , 102 at n.4, 684 N.E.2d 668 (1997). {¶43} In the case at bar, the jury heard the witnesses and viewed the evidence. The jury saw the witnesses and DeWalt himself subject to cross-examination. The jury heard DeWalt’s attorney’s arguments and explanations about the evidence and his actions. Further, the jury was able to view the events in real-time through the body cameras and pictures from the officers involved. Thus, a rational basis exists in the record for the jury’s decision. {¶44} We find that this is not an “‘exceptional case in which the evidence weighs heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380 , 386–387, 678 N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175 , 485 N.E.2d 717 . Based upon the foregoing and the entire record in this matter we find DeWalt’s convictions are not against the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears to have fairly and impartially decided the matters before them. The jury heard the witnesses, evaluated the evidence, and was convinced of DeWalt’s guilt. The jury neither lost their way nor created a miscarriage of justice in convicting DeWalt of the offenses. {¶45} Finally, upon careful consideration of the record in its entirety, we find that there is substantial evidence presented which if believed, proves all the elements of the crimes for which DeWalt was convicted. Stark County, Case No. 2020CA00031 19 {¶46} DeWalt’s sole Assignment of Error is overruled. {¶47} The judgment of the Stark County Court of Common Pleas is affirmed. By Gwin, P.J., Wise, J., and Delaney, J., concur

2020-12-02 18:13:15.895149+00

http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2020/2020-Ohio-5502.pdf

[Cite as In re Adoption of L.J.L.L., 2020-Ohio-5502 .] IN THE COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT : JUDGES: : : Hon. John W. Wise, P.J. : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. IN THE MATTER OF THE ADOPTION : OF: L.J.L.L. : : Case No. 20AP0001 : : : : : OPINION CHARACTER OF PROCEEDING: Appeal from the Morgan County Probate Court, Case No. 19 PA 0066 JUDGMENT: AFFIRMED DATE OF JUDGMENT ENTRY: November 30, 2020 APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: STACY J. JEWELL JOHN A. WELLS 9 S. Third St. 1 W. Main St. Newark, OH 43055 P.O. Box 176 McConnelsville, OH 43756 Morgan County, Case No. 20AP0001 2 Delaney, J. {¶1} Appellant Biological Father appeals the January 21, 2020 judgment entries of the Morgan County Probate Court, finding the consent of Biological Father is not required and granting the step-parent adoption petition of Appellee Step-Father. FACTS AND PROCEDURAL HISTORY {¶2} Biological Father is the father of L.J.L.V. (nka L.J.L.L), a minor child born on September 12, 2011. The child is hereinafter referred to as “L.V.” On August 6, 2019, Step-Father filed a step-parent petition for the adoption of L.V. in the Morgan County Probate Court. The petition alleged, pursuant to R.C. 3107.07 (A), that Biological Father’s consent was not necessary because he had not more than de minimis contact with L.V. for a period of at least one year preceding the filing of the adoption petition. Step-Father married L.V.’s mother on July 7, 2018. Biological Father and Mother were never married. {¶3} Biological Father was properly served, obtained legal counsel, and later filed an objection with the trial court on August 19, 2019. Discovery ensued. An adoption home visit was conducted and the report was filed on November 18, 2019. In addition, letters in support of Step-Father’s petition were filed with the trial court. {¶4} On January 7, 2020, the adoption hearing was held in the Morgan County Probate Court. At said hearing, the trial court first heard testimony from Biological Father. Upon direct examination by his legal counsel, Biological Father testified he currently resides in Vermont and is current in his child support payments. (T. 12, Ex. A). Biological Father stated his relationship with Mother ended in November, 2012 and his last contact with L.V. was in December, 2012. (T. at 13, 14). Thereafter, Biological Father testified his substance abuse issues and recovery treatment, which were followed by a period of Morgan County, Case No. 20AP0001 3 homelessness, created concerns for him being a presence in L.V.’s life. (T. 15). Biological Father is a disabled military veteran suffering from post-traumatic stress disorder. He further did not want to jeopardize the good relationship that Mother had with Paternal Grandmother by trying to seek visitation over the past 6 years. (T. 15- 17). During that time, Biological Father had gotten married, had a child, and was attending college. Biological Father testified in May 2019, he sent a letter to Mother to establish contact and/or visitation with L.V. but reaffirmed he had not had contact with L.V. since December, 2012. (Ex. B; T. 21). He sent a second letter by certified mail in July 2019 requesting some sort of contact in August when Biological Father was planning a trip home to Ohio, but the letter was refused on July 27, 2019. (T. 19). Step-Father subsequently filed the petition for step-parent adoption on August 6, 2019. Biological Father acknowledged that Step-Father is an excellent father in L.V.’s life. (T. 21). {¶5} Upon cross-examination, Biological Father again conceded he had no physical or verbal contact with L.V. since December, 2012, including the 365 days prior to the filing of the petition for adoption on August 6, 2019. (T. 23-24). {¶6} Biological Father rested, and the trial court asked Step-Father’s counsel if he intended to call any witnesses. Step-Father’s counsel responded “Not on this issue, Your Honor. I think we’ve satisfied our burden.” (T. 25). {¶7} The parties made their closing remarks and the trial court took a brief recess to review the exhibits and the law. Thereafter, the trial court resumed the proceedings and ruled orally from the bench that Biological Father’s consent for the adoption was not necessary based on the law and facts of this case. The trial court remarked it felt like it had “no choice” on this issue but encouraged the parties to maintain communication Morgan County, Case No. 20AP0001 4 between the biological families. (T. 30). The trial court then announced it would recess for ten minutes before the “adoption can proceed.” (T. 31). When the trial court resumed the proceeding, only Step-Father’s counsel and his clients were present in the courtroom. (T2. 3, 10). Step-Father and Mother testified as to their understanding of the legal ramifications of adoption and desire for the adoption to be granted. (T2. 4-10). The trial court ruled orally from the bench that “…it would be in this child’s best interest to be adopted” and granted the petition. (T2. 10). {¶8} The trial court’s rulings were journalized via judgment entries filed on January 21, 2020. Upon remand by this Court, the trial court issued findings of fact and conclusions of law on October 1, 2020. {¶9} Biological Father now appeals, raising the following seven assignments of error: ASSIGNMENTS OF ERROR {¶10} “I. THE COURT’S DECISION THAT THE APPELLANT HAD NO JUSTIFIABLE CAUSE FOR HAVING LESS THAN DE MINIMIS CONTACT WITH L.V. FOR THE YEAR IMMEDIATELY PRECEDING THE FILING OF THE ADOPTION PETITION HAS NO MERIT. {¶11} “II. THE TRIAL COURT’S DECISION VIOLATES APPELLANT’S CONSTITUTIONAL RIGHTS. {¶12} “III. THE TRIAL COURT’S DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶13} “IV. THE TRIAL COURT ERRORED IN ITS DECISION OF FINDING APPELLANT’S CONSENT WAS NOT REQUIRED FOR THE ADOPTION BECAUSE ITS Morgan County, Case No. 20AP0001 5 DECISION WAS NOT BASED ON CLEAR AND CONVINCING EVIDENCE PUT FORTH BY THE APPELLEE AS LAW REQUIRES. THE TRIAL COURT PUT THE BURDEN OF PROOF ON THE APPELLANT. THE BURDEN WAS ON THE APPELEE TO SHOW WHETHER THE APPELLANT’S CONSENT WAS NECESSARY. {¶14} “V. THE TRIAL COURT IMPROPERLY PLACED THE BURDEN OF PROOF ON THE APPELLANT TO SHOW THAT JUSTIFIABLE CAUSE WAS PRESENT FOR THE LACK OF COMMUNICATION WITH L.V. THE BURDEN WAS ON THE APPELLEE TO SHOW THERE WAS NO JUSTIFIABLE REASON. {¶15} “VI. THE TRIAL COURT ABUSED ITS DISCRETION BY THE GRANTING THE ADOPTION. {¶16} “VII. THE TRIAL COURT ERRORED WHEN IT TOLD THE APPELLANT THAT FOR ALL PRACTICAL PURPOSES IT WAS GRANTING THE ADOPTION PRIOR TO THE BEST INTEREST HEARING.” LAW AND ANALYSIS R.C. 3107.07 and Consent {¶17} Under R.C. 3107.07(A), Biological Father’s consent to the adoption of his child is not required if the probate court finds by clear and convincing evidence that he “has failed without justifiable cause to provide more than de minimis contact with” his child for at least one year immediately preceding the filing of the adoption petition. The probate court must strictly construe R.C. 3107.07(A) in favor of the parent to protect his or her rights as a natural parent. In re Adoption of Schoeppner, 46 Ohio St.2d 21 , 24, 345 N.E.2d 608 (1976). Morgan County, Case No. 20AP0001 6 {¶18} The clear and convincing standard is the highest degree of proof available in civil cases. Stark Cty. Milk Producers’ Assn v. Tabeling, 129 Ohio St. 159 , 171, 194 N.E. 16 (1934). It requires evidence that is sufficient to “produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 , 120 N.E.2d 118 (1954). {¶19} The stepparent or petitioner -- who asserts that a parent’s consent is not required -- has the burden of proving the applicability of R.C. 3107.07(A). In re Adoption of Holcomb, 18 Ohio St.3d 361 , 481 N.E.2d 613 (1985), paragraph four of the syllabus. {¶20} Even if a parent has completely failed to communicate with his child during the statutory period, his consent to adoption will still be required if there exists justifiable cause for the failure. Id. at 367. The burden of proving a lack of justifiable cause remains on the petitioner in the adoption proceedings. Id. at 368. Typically, a noncustodial parent has justifiable cause for failing to communicate when the custodial parent significantly interferes with or significantly discourages communication. Id. at 367-368. {¶21} The Supreme Court of Ohio has articulated a two-step analysis for probate courts to employ when applying R.C. 3107.07(A). In Re Adoption of M.B., 131 Ohio St.3d 186 , 2012-Ohio-236 . The first step involves deciding a factual question, in this case, whether the parent failed to provide more than de minimis contact with the minor for a period of at least one year immediately preceding the filing of the adoption petition. In Re Adoption of C.N.A., 3rd Dist. Shelby No. 17-17-20, 2018-Ohio-897 . “A trial court has discretion to make these determinations, and in connection with the first step of the analysis, an appellate court applies an abuse-of-discretion standard when reviewing a probate court decision.” Id. at ¶ 9, citations omitted. In the second step of analysis, if a Morgan County, Case No. 20AP0001 7 probate court finds the parent failed to provide more than de minimis contact, the court then determines ‘whether justifiable cause for the failure has been proved by clear and convincing evidence. A probate court’s decision on whether justifiable cause exists will not be disturbed on appeal unless the determination is against the manifest weight of the evidence. Id. A judgment supported by some competent, credible evidence will not be reversed by a reviewing court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279 (1978). {¶22} The Supreme Court also has held that “[s]ignificant interference by a custodial parent with communication between the non-custodial parent and the child, or significant discouragement of such communication, is required to establish justifiable cause for the non-custodial parent’s failure to communicate with the child.” Id. at paragraph three of the syllabus. A probate court is not restricted to focusing solely on the one-year statutory period in making such a determination. In re M.G.B.-E, 12th Dist. Clinton No. CA2016-06-017, 2016-Ohio-7912 , ¶ 61; In re: Adoption of Lauck, 82 Ohio App.3d 348 , 612 N.E.2d 459 (1992). {¶23} In light of the preceding law, we turn to address Biological Father’s assignments of error. I. {¶24} In this first assignment of error, Biological Father challenges the trial court’s finding that his lack of contact with L.V. was without justifiable cause. As noted earlier, Biological Father admits that he had not had contact with L.V. since December, 2012 -- almost seven years before the filing of the adoption petition. Therefore, the trial court correctly reasoned the “principal question for the court during the consent portion of the Morgan County, Case No. 20AP0001 8 hearing, therefore, was whether [Biological Father’s] lack of contact was justified.” Findings of Fact and Conclusions of Law, October 1, 2020, ¶ 11. {¶25} It is undisputed that Biological Father admitted he was not in a place in his life to have contact with L.V. due to his (1) substance abuse, (2) PTSD diagnosis, and (3) desire not to disrupt Paternal Grandmother’s good relationship with Mother. However, he asserts that Mother and Step-Father significantly interfered and significantly discouraged communication by failing to respond to his letters in May and July, 2019. He claims the filing of the adoption petition was a “direct result” of Biological Father sending the letters and is “manipulative, calculated and disingenuous.” Appellant’s Brief, p. 15. {¶26} The trial court disagreed, stating: The Petitioner and his wife, [Mother], have permitted [Biological Father’s] mother to be in the child’s life and to have frequent contact with her. In fact, testimony indicated that [Biological Father’s] mother had visitation the weekend before the adoption hearing. Based upon the frequent contact Petitioner and [Mother] have afforded [Biological Father’s] mother, the court finds it is unlikely that Petitioner and [Mother] have interfered, discouraged or prevented [Biological Father] from having contact with the child. The court further finds it commendable that the Petitioner and [Mother] have maintained contact with [Biological Father’s] family even when [Biological Father] failed to maintain contact with the child. Findings of Fact and Conclusions of Law, ¶ 13. {¶27} Furthermore, the trial court found: Morgan County, Case No. 20AP0001 9 By [Biological Father’s] own admission on both direct examination and cross examination, [Biological Father] had not had any contact with the minor child since December, 2012. The last time [Biological Father] had contact with the minor child, the child was only fifteen (15) months old. The child is now eight (8) years old. It is unlikely the child has any recollection of [Biological Father]. [Biological Father] attempted to excuse his failure to have contact with the minor child to his (1) substance abuse, (2) PTSD diagnosis, and (3) desire not to disrupt his mother’s good relationship with [Mother]. The finds these excuses, on their fact (sic), to be unpersuasive. Many men suffer from these illnesses, yet maintain healthy and productive relationships with their children. Id at 12. {¶28} We also observe there is no evidence that Biological Father had any difficulty locating L.V. during his life or made any efforts to communicate with him over the last six years other than the two attempted letters to Mother in 2019. Nor does the record reflect that Biological Father made efforts to establish parenting time through any court proceeding. Furthermore, there is no evidence of a pattern on Mother’s part of impeding Biological Father’s efforts to reinsert himself into L.V.’s life. To the contrary, Mother had fostered a loving, close relationship with Paternal Grandmother. While it is commendable Biological Father is on a journey of recovery and treatment, we must afford the appropriate deference to the trial court’s assessment of credibility. Accordingly, we find sufficient competent, credible evidence to support the finding that Biological Father Morgan County, Case No. 20AP0001 10 failed to provide, without justifiable cause, more than de minimis contact with L.V. in the year preceding the adoption petition. {¶29} The first assignment of error is overruled. Il. {¶30} In his second assignment of error, Biological Father contends the trial court violated his constitutional right to parent his child. He argues the trial court failed to strictly construe R.C. 3107.07(A) in his favor because he had justifiable cause for having no contact with L.V. due to Mother thwarting his efforts. In addition, he claims the trial court failed to explain the trial procedure and/or the burden of proof upon the parties. {¶31} Biological Father correctly states the language of R.C. 3107.07(A) must be construed to protect the interest of the non-consenting parent subject to forfeiture of his or her parent rights. However, a probate court, as the trier of fact, determines the weight and credibility of the evidence. We may not substitute our judgment for that of the trier of fact. We have already determined the trial court did not err in determining that Biological Father failed without justifiable cause to provide more than de minimis contact with L.V. to be supported by the record. {¶32} We further observe that Biological Father was represented by legal counsel of his choosing at the hearing. No objection was made to the manner in which the hearing was conducted nor does the record reflect Biological Father was prohibited from presenting any witnesses or evidence.1 The findings of fact and conclusions of law written by the trial court were thorough and comprehensive. 1Biological Father attached his affidavit to the appellant’s brief attesting that he was never told by the Judge or his attorney that he was permitted to stay for the best interest portion of the hearing or that it was his burden to prove that the adoption was not in his son’s best interest. However, the affidavit is not properly before this Court and is sua sponte stricken from the record. Morgan County, Case No. 20AP0001 11 {¶33} The second assignment of error is overruled. III., IV., V., VI. and VII. {¶34} In his third, fourth, fifth, sixth and seven assignments of error, Biological Father argues the trial court’s decision is against the manifest weight of the evidence and an abuse of discretion. {¶35} Biological Father essentially challenges the procedural manner in which the trial court conducted the adoption hearing. He asserts the trial court improperly placed the burden of proof upon the non-consenting parent during the consent portion, then granted the adoption petition prior to the best interest hearing and without affording Biological Father his right to present evidence as to the best interest of L.V. during the best interest hearing. {¶36} The trial court stated in its October 1, 2020, entry as follows: 10. The adoption hearing took place on January 7, 2020. Petitioner was represented by Attorney John A. Wells. [Biological Father] was represented by Attorney K. Robert Toy. Testimony was heard from [Step-Father], the [Mother] and the [Biological Father]. As is the court’s custom, the hearing (sic) bifurcated into two parts. The first session being primarily concerning if consent of the biological father was necessary. The second session primarily concerned determining best interest. * * * 15. At the conclusion of the “consent” portion of the hearing, the court ruled that [Biological Father’s] consent was not required for the adoption to be granted. The court then took a brief recess. Upon return from the court’s recess, [Biological Father] and his attorney K. Robert Toy were no longer Morgan County, Case No. 20AP0001 12 present. The court then completed the adoption hearing. Both [Step-Father] and the [Mother] testified on direct examination. {¶37} As stated earlier, the trial court ruled orally from the bench that it was in L.V.’s best interest to be adopted and granted the petition. {¶38} Biological Father reiterates the trial court granted the adoption prior to the best interest hearing and faults the trial court for not explaining the burden for the best interest hearing or telling Biological Father he was permitted to stay for the best interest hearing. {¶39} The record reflects the trial court conducted a separate best interest hearing almost immediately after the consent hearing. Such an approach is understandable and logical in light of the two-step analysis to be conducted under R.C. 3107.07. {¶40} Without citation to any authority, Biological Father argues the trial court should have explained the bifurcated proceeding to him, or the respective burdens of proof upon the parties. Upon review of the transcript and the fact Biological Father was represented by the counsel of his choosing, we can find no prejudicial error committed by the trial court in this regard. {¶41} We also disagree with Biological Father’s characterization and assumption that the trial court granted the adoption at the end of the “consent’ portion” when it stated, “I have no choice other than to rule that the consent of the biological father is not necessary for this adoption to proceed, and the law is the law. And this is – this is the adoption law and it is pretty carved in granite, so – but I do hope that his child continues to see Grandma, biological grandma because biological grandma can give him Morgan County, Case No. 20AP0001 13 connection to the future if he needs a kidney transplant or he’s got to have something that involves biological people.” (T. 30). {¶42} Biological Father claims that he left the courthouse and did not stay for the best interest hearing because he believed the adoption had been granted by the trial court. Whether or not such an impression was in the mind of Biological Father, the record clearly reflects the trial court took a brief recess after announcing its judgment orally that the consent of Biological Father was not necessary before the “adoption can proceed.” (T. 31). The trial court thereafter reconvened and proceeded to the best interest portion of the hearing. {¶43} The evidence demonstrates the adoption by Step-Father was supported by competent, credible evidence. Biological Father admitted that Mother has fostered a good relationship with his family, and Petitioner “has stepped up to be stepfather.” Biological Father further appreciated that Step-Father has instilled in L.V. a desire to be an athlete and someone who hunts and fishes. The home visit report favored the adoption, finding Step-Father and Mother have been a couple since L.V. was two years old and L.V. now has a half-sibling. Mother consented to the adoption and testified she believes that the adoption is in L.V.’s best interest. {¶44} We find, based on the foregoing, the trial court could conclude Biological Father had failed to maintain more than de minimis contact with L.V. for a period of at least one year immediately preceding the filing of the petition, and such failure was unjustified. We therefore do not find the trial court erred in determining that Biological Father consent to LV.’s adoption was not required and the adoption was in the best interest of L.V. Morgan County, Case No. 20AP0001 14 {¶45} Biological Father’s third, fourth, fifth, sixth and seven assignments of error are overruled. CONCLUSION {¶46} The January 21, 2020 and October 1, 2020, judgment entries of the Morgan County Probate Court are affirmed. By: Delaney, J., Wise, John, P.J. and Wise, Earle, J., concur.

2020-12-02 19:00:29.061803+00

https://www2.ca3.uscourts.gov/opinarch/191951np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 19-1951 ________________ CKSJB HOLDINGS LLC, Successor in Interest to PointSource, LLC, Appellant v. EPAM SYSTEMS, INC. ________________ Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-18-cv-02173) District Judge: Honorable Gerald J. Pappert ________________ Submitted under Third Circuit LAR 34.1(a) On December 10, 2019 Before: RESTREPO, ROTH and FISHER, Circuit Judges (Opinion filed December 2, 2020) ________________ OPINION * ________________ ROTH, Circuit Judge * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  CKSJB Holdings, LLC, appeals the dismissal of its amended complaint against EPAM Systems, Inc., alleging breach of a contractual duty to negotiate in good faith and promissory estoppel. CKSJB, as successor in interest to PointSource, LLC, brought this action after negotiations with EPAM for the potential acquisition of PointSource broke down. For the reasons that follow, we hold that there is no enforceable contract to support a duty to negotiate in good faith and no inducement to sustain a promissory estoppel claim. We will affirm the order of the District Court. I. 1 In 2016, PointSource began discussions with various companies about acquiring PointSource’s business. EPAM was one of the companies that showed interest. As discussions progressed, EPAM sent a draft indication of interest letter (IOI) to PointSource. The draft IOI set forth EPAM’s estimated valuation of PointSource and a proposed transaction structure. After PointSource received the draft IOI, EPAM’s President and Chief Executive Officer verbally agreed to negotiate in good faith to complete the deal described in the draft IOI. The parties also verbally agreed to change some of the proposed terms contained in the IOI. PointSource returned a redlined version of the IOI, reflecting those changes. However, no agreement to negotiate in good faith was included in the changes. The executed version of the IOI included a broad disclaimer disavowing any obligation of the parties: NON-BINDING AGREEMENT 1 Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. 2  This proposal does not constitute and will not give rise to any legally binding obligation whatsoever on the part of EPAM. Moreover, except as expressly provided in any binding written agreement that EPAM and [PointSource] may enter into in the future, no past, present or future action, course of conduct, or failure to act relating to the transaction described herein and/or this proposal or relating to the negotiation of the terms of the transaction contemplated herein and/or by this proposal will give rise to or serve as the basis for any obligation or other liability on the part of such entities or any of their respective affiliates. 2 The IOI stated that EPAM would provide a “definitive list” of conditions to closing upon completing its due diligence. 3 It also stated that “as [EPAM] move[s] forward, [EPAM] may require a commitment of exclusivity by [PointSource] . . . through the date of execution of the Purchase Agreement.” 4 The IOI proposed weekly calls between the companies to “discuss open items and progress” and stated that EPAM “would work diligently with [its] representatives and [PointSource]’s team and representatives to close the transaction in an expedient manner.” 5 PointSource “agree[d] to” and “accept[ed]” the IOI’s terms. 6 Immediately after receiving the executed IOI, PointSource informed EPAM that “[a]lthough the agreement [did not] call for immediate exclusivity, [PointSource] intend[ed] to move forward solely with EPAM” and was terminating discussions with other companies. 7 Throughout the next few months, the parties continued participating in discussions and negotiating the 2 JA81, JA82 (emphases added). 3 JA79. 4 JA81. 5 JA81. 6 JA63 ¶ 126. 7 JA50 ¶ 41. 3 terms of a draft purchase agreement. Then abruptly EPAM informed PointSource that it was terminating its acquisition of the company, citing a “change[] [in] its priorities.” 8 PointSource assigned its claims against EPAM to CKSJB and was subsequently acquired by Globant SA. CKSJB brought this action against EPAM for (1) breach of a contractual duty to negotiate in good faith, (2) promissory estoppel, and (3) breach of confidentiality. CKSJB appeals the District Court’s dismissal of its first two causes of action. II. The District Court had jurisdiction pursuant to 28 U.S.C. § 1332 (a). We have jurisdiction under 28 U.S.C. § 1291 . We exercise plenary review over a dismissal of a complaint for failure to state a claim. 9 Interpretations of contractual language present questions of law that we review de novo. 10 Dismissal may only be granted if, “accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff’s claims lack facial plausibility.”11 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 III. A. Choice of Law 8 JA61 ¶ 113. 9 Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153 , 154 n.1 (3d Cir. 2014). 10 Pellaton v. Bank of New York, 592 A.2d 473 , 478 (Del. 1991); Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418 , 430 (Pa. 2001). 11 Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77 , 84 (3d Cir. 2011). 12 Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009). 4  CKSJB contends that the District Court erred by applying Pennsylvania law and not the law of Delaware. However, CKSJB points to no disparity between the two states’ laws. We find no conflict between the laws of the two states relevant to our analysis. Delaware recognizes a cause of action for breach of an agreement to negotiate in good faith, 13 and we have predicted that Pennsylvania would do the same. 14 Both states recognize the same elements for claims of promissory estoppel. 15 Therefore, it is not necessary to perform a choice of law analysis. B. Breach of Agreement to Negotiate in Good Faith Plaintiff alleges that the parties agreed to negotiate in good faith and that EPAM breached that agreement when it “unilaterally and arbitrarily” terminated negotiations. 16 Agreements to negotiate in good faith are treated just like any other contractual obligation. 17 An enforceable contract requires (1) a manifestation of mutual assent to be bound, (2) sufficiently definite terms, and (3) exchange of legal consideration. 18 To survive a motion to dismiss, a plaintiff must allege sufficient facts to show the existence of an enforceable contract and that it was breached by bad faith. 19 13 See SIGA Techs., Inc. v. PharmAthene, Inc., 132 A.3d 1108 , 1110 (Del. 2015). 14 Channel Home Ctrs. v. Grossman, 795 F.2d 291 , 299 (3d Cir. 1986). 15 Compare SIGA Techs., Inc. v. PharmAthene, Inc., 67 A.3d 330 , 347-48 (Del. 2013), with Crouse v. Cyclops Indus., 745 A.2d 606 , 610 (Pa. 2000). 16 JA60 ¶ 111. 17 See Flight Sys. v. Electronic Data Sys. Corp., 112 F.3d 124 , 130 (3d Cir. 1997); Channel Home Ctrs., 795 F.2d at 299 ; SIGA Techs., Inc., 67 A.3d at 343-44 . 18 Flight Sys., 112 F.3d at 130 ; Eagle Force Holdings, LLC v. Campbell, 187 A.3d 1209 , 1212-13 (Del. 2018). 19 See Flight Sys., 112 F.3d at 130 ; SIGA Techs., 67 A.3d at 346-47 . 5  CKSJB’s claim does not get past the first element. 20 CKSJB argues that, although the IOI does not contain a talismanic or explicit invocation of an intent to negotiate in good faith, the statement that EPAM would work diligently with PointSource to close the transaction in an expedient manner constitutes an express agreement to negotiate in good faith. We disagree. As the District Court found, this statement is merely “optimistic language.” 21 Unlike the “unequivocal promise” to withdraw property from the market and “only negotiate the . . . transaction to completion” at issue in Channel Home Centers, 22 the IOI’s use of optimistic language in no way confers an obligation to negotiate in good faith. CKSJB alternatively argues that this statement is ambiguous and relies on the parties’ previous oral agreement to clarify this alleged ambiguity. The parol evidence rule, however, limits the use of extrinsic evidence, such as a prior oral agreement, to occasions where a written contract’s language is ambiguous. 23 A contract is only ambiguous when the provisions in controversy are reasonably susceptible to different interpretations. 24 Absent an ambiguity, courts will enforce the plain meaning of an agreement. 25 We do not read the above use of optimistic language as reasonably 20 We make no determination regarding the other elements required of a contract or whether the amended complaint sufficiently alleges bad faith conduct. 21 JA32. 22 795 F.2d at 293, 299-300 . 23 Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228 , 1232 (Del. 1997); Murphy, 777 A.2d at 429. 24 O’Brien v. Progressive N. Ins. Co., 785 A.2d 281 , 288 (Del. 2001). 25 Murphy, 777 A.2d at 430; Rhone-Poulenc Basic Chemicals Co. v. American Motorists Ins. Co., 616 A.2d 1192 , 1195-96 (Del. 1992). 6 susceptible to any other interpretation. Moreover, consideration of the oral agreement to negotiate in good faith would directly contradict the unequivocal disclaimer found in the IOI which denies the existence of any obligation based on past action “relating to the negotiation of the terms of the transaction” 26 and negates any inference that the parties manifested an assent to be bound through an earlier oral agreement. 27 CKSJB also argues that EPAM’s course of conduct after executing the IOI establishes an intent to be bound to negotiate in good faith. Plaintiff alleges that “[i]n all ways, EPAM continued to manifest and communicate to PointSource its intention to abide by the parties’ mutual agreement to negotiate diligently and in good faith.” 28 Although course of conduct may be relevant to determining the parties’ intentions, 29 the allegations contained in the amended complaint are insufficient to transform EPAM’s due diligence and continued negotiations into an enforceable contract. 30 C. Promissory Estoppel CKSJB contends that its promissory estoppel claim should not have been dismissed. “In order to maintain an action in promissory estoppel, the aggrieved party must show that 1) the promisor made a promise that he should have reasonably expected 26 JA81, JA82. 27 To the extent that CKSJB alleges explicit agreements to negotiate in good faith after execution of the IOI, we will not consider such evidence as CKSJB does not allege that such subsequent agreements modified the terms of the IOI or were accompanied by any other elements required of a contract modification. See Continental Ins. Co. v. Rutledge & Co., 750 A.2d 1219 , 1230 (Del. Ch. Ct. 2000) (citing Reeder v. Sanford School, Inc., 397 A.2d 139 , 141 (Del. Super. Ct. 1979)). 28 JA50 ¶ 44. 29 See Flight Sys., 112 F.3d at 131 . 30 See U.S.A. Machinery Corp. v. CSC Ltd., 184 F.3d 257 , 264 (3d Cir. 1999). 7 to induce action or forbearance on the part of the promisee; 2) the promisee actually took action or refrained from taking action in reliance on the promise; and 3) injustice can be avoided only by enforcing the promise.” 31 Again, CKSJB cannot make it past the first element. CKSJB relies on EPAM’s promise to negotiate in good faith, assertions to “treat the deal as done,” and other assurances to support its cause of action. 32 CKSJB alleges that EPAM’s actions caused PointSource to “commit[] to negotiate exclusively with EPAM, reject[] purchase offers from other companies, . . . devote[] substantial time, effort, and resources to the due diligence and contracting processes,” 33 integrate systems and personnel, and “structure[] its business plan . . . based on the anticipated acquisition.” 34 None of EPAM’s alleged representations can be said to have reasonably induced PointSource to behave in this manner. 35 We agree with the District Court that PointSource gratuitously took these measures and that EPAM had no responsibility for the consequences of PointSource’s own strategy. IV. For the foregoing reasons, we will affirm the order of the District Court. 31 Crouse, 745 A.2d at 610; accord SIGA Techs., 67 A.3d at 347-48 . 32 JA65-66 ¶¶ 139-144. 33 JA65 ¶¶ 139, 140. 34 JA66 ¶ 144. 35 See CMR D.N. Corp. & Marina Towers Ltd. v. City of Phila., 703 F.3d 612 (3d Cir. 2013) (quoting 3 Corbin on Contracts § 8.9, at 29-30 (Rev. Ed. 1996)) (“[I]t is a basic tenet of contract law that ‘mere expression[s] of intention, hope, desire, or opinion, which shows no real commitment, cannot be expected to induce reliance.’”); Kaufman v. Mellon Nat’l Bank & Trust Co., 366 F.2d 326 , 332 (3d Cir. 1966) (“Absent the element of inducement the rule of promissory estoppel is not applicable.”). 8

2020-12-02 19:00:42.893112+00

http://media.ca11.uscourts.gov/opinions/pub/files/201910915.pdf

USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 1 of 58 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-10915 ________________________ D.C. Docket No. 3:18-cr-00090-MMH-JBT-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DEANGELO LENARD JOHNSON, Defendant - Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (December 2, 2020) Before MARTIN, ROSENBAUM, and TALLMAN,* Circuit Judges. ROSENBAUM, Circuit Judge: * Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit, sitting by designation.  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 2 of 58 In 1996, Congress prohibited anyone convicted of a misdemeanor that involved domestic violence from possessing a firearm. See 18 U.S.C. § 922 (g)(9). Senator Frank Lautenberg, who sponsored the legislation, noted that at that time, each year, somewhere between 1,500 and several thousand women were killed in domestic-violence incidents involving guns, and guns were present in 150,000 cases involving domestic violence. 142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg). Yet, Senator Lautenberg observed, many of the perpetrators of “serious spousal or child abuse ultimately are not charged with or convicted of felonies. At the end of the day, due to outdated laws or thinking, perhaps after a plea bargain, they are, at most, convicted of a misdemeanor.” Id. at 22985 . Seeking to “close this dangerous loophole,” United States v. Hayes, 555 U.S. 415 , 426 (2009) (quoting 142 Cong. Rec. 22986 (1996) (statement of Sen. Lautenberg)), Congress banned those who have been convicted of a “misdemeanor crime of domestic violence”—one where the victim was essentially a member or former member of the perpetrator’s family, and the crime necessarily involved physical force—from possessing a firearm. See 18 U.S.C. §§ 921 (a)(33)(A), 922(g)(9). Recently, in Rehaif v. United States, 139 S. Ct. 2191 , 2194 (2019), the 2  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 3 of 58 Supreme Court clarified that a domestic-violence misdemeanant does not violate this prohibition on firearm possession if he does not know he is a domestic-violence misdemeanant at the time he possesses a gun. This case raises the question of what it means for a person to know he is a domestic-violence misdemeanant. As we explain below, we conclude that a person knows he is a domestic-violence misdemeanant, for Rehaif purposes, if he knows all the following: (1) that he was convicted of a misdemeanor crime, (2) that to be convicted of that crime, he must have engaged in at least “the slightest offensive touching,” United States v. Castleman, 572 U.S. 157 , 163 (2014) (internal citations omitted), and (3) that the victim of his misdemeanor crime was, as relevant here, his wife. The record establishes that Defendant-Appellant Deangelo Johnson knew all these things at the time he was found in possession of a gun. So we reject Johnson’s challenge to his conviction for being a domestic-violence misdemeanant while possessing a firearm. We similarly find no merit to his equal-protection and Commerce Clause arguments. For these reasons, we affirm Johnson’s conviction. I. In 2010, law enforcement responded to a call and found that Deangelo Johnson had “punched, strangled, and threatened to pistol whip” his wife. The responding officer observed numerous bruises and scratches all over Johnson’s wife. 3  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 4 of 58 Based on Johnson’s conduct, the State of Florida charged him with the felony crime of domestic violence by strangulation and assault. Represented by counsel, Johnson engaged in plea negotiations with the state. Ultimately, Johnson pled guilty to and was convicted of misdemeanor battery against his wife, in violation of Fla. Stat. § 784.03 (1). He eventually was sentenced to six months in jail for this conviction.1 Eight years later, in 2018, police officers found a gun on the floor of Johnson’s car while he was being arrested for an outstanding warrant. A federal grand jury indicted Johnson for having been “previously convicted of a misdemeanor crime of domestic violence, that is, Domestic Battery,” and knowingly possessing a firearm, in violation of 18 U.S.C. §§ 922 (g)(9) and 924(a)(2). The indictment did not allege that Johnson knew of his status as a domestic-violence misdemeanant when he possessed the firearm. Johnson moved to dismiss his federal indictment for failure to state an offense. He argued that his Florida offense did not qualify as a misdemeanor crime of domestic violence for purposes of 18 U.S.C. § 922 (g)(9) because he had never lost his civil rights, and 18 U.S.C. § 921 (a)(33)(B)(ii) renders § 922(g)(9) inapplicable to any person who has been convicted of a misdemeanor crime of domestic violence 1 Initially, Johnson was sentenced to two days in jail and a year of probation. But after two violations of probation, the court revoked his probation and sentenced him to six months in jail. 4  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 5 of 58 but, as relevant here, has had his civil rights restored. Johnson did not challenge the indictment on the basis that he did not know that he had been convicted of the misdemeanor in 2010 for battery against his wife. The district court denied Johnson’s motion to dismiss, relying on Logan v. United States, 552 U.S. 23 (2007). In Logan, the Supreme Court held that a near- identical rights-restoration exception in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 921 (a)(20), applied to only those individuals who had had their civil rights restored but not to those who had never lost their civil rights in the first place. 552 U.S. at 37 . Johnson then waived his right to a jury trial and agreed to a stipulated-facts bench trial. Under those stipulated facts, Johnson confirmed that he had previously been convicted of a misdemeanor crime of domestic violence when he pled guilty in 2010 to committing Florida misdemeanor domestic battery against his wife. He also confirmed that officers later found a pistol on the floor of his car when they arrested him for an outstanding warrant. The district court made oral findings of fact and concluded that based on the stipulated facts, Johnson was guilty of violating 18 U.S.C. § 922 (g)(9). Johnson’s presentence investigation report (“PSR”) recommended a total offense level of 12, with a criminal-history category of II, corresponding to an 5  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 6 of 58 advisory Guidelines sentencing range of 12 to 18 months’ imprisonment. Johnson did not object to the facts or Guidelines calculations in his PSR. At Johnson’s sentencing hearing, Johnson argued for a variance to a sentence of time served plus one day because he did not “know that he was not supposed to possess a firearm.” Johnson explained that he was unaware of the firearm prohibition because he was not a convicted felon—and therefore not advised he could not possess a firearm—and as a misdemeanant, he was not prohibited from possessing a firearm by Florida law. The district court acknowledged that “this is an unusual offense in that it isn’t often that individuals end up before the Court charged with something that they can genuinely say they didn’t know was unlawful, and that under the circumstances of this case, it is significant.” The court imposed the sentence Johnson requested, reasoning that “under the somewhat unusual facts of this case that is an appropriate sentence.” Johnson timely appealed his conviction. We stayed briefing until the Supreme Court issued its decision in Rehaif holding that, under 18 U.S.C. § 922 (g), knowledge of status is an element of unlawful possession of a firearm. Johnson now relies on Rehaif in seeking to vacate his conviction. He asserts that both the indictment and the stipulated facts at the bench trial were insufficient under Rehaif because they failed to allege and prove that Johnson knew he was a domestic- violence misdemeanant. Separately, he argues that Section 922(g) is 6  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 7 of 58 unconstitutional because (1) it violates his equal-protection rights by treating him less favorably than similarly situated people convicted of misdemeanor crimes of domestic violence who lost their civil rights and had them restored, and (2) it violates the Commerce Clause. We begin with Johnson’s Rehaif arguments. As we have noted, Rehaif clarified that to convict a defendant of illegal possession of a firearm under Section 922(g), the government must prove that “the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” 139 S. Ct. at 2194 . Johnson’s relevant status under Section 922(g) is that of a domestic- violence misdemeanant under 18 U.S.C. § 922 (g)(9). For purposes of Section 922(g)(9), 18 U.S.C. § 921 (a)(33)(A) defines the term “misdemeanor crime of domestic violence” as an offense that is a misdemeanor under federal, state, or tribal law and “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim . . . .” Under this definition, it is enough that the victim “was in fact the offender’s spouse (or other relation specified in [the definition])”—regardless of whether the predicate misdemeanor requires as an element a domestic relationship between the perpetrator and the victim. Hayes, 555 U.S. at 418 . 7  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 8 of 58 As we have noted, Johnson makes two Rehaif-based challenges. First, he contends that the indictment failed to state an offense because it did not allege that Johnson knew of his status; and second, Johnson argues that the stipulated facts at his bench trial were insufficient to prove that he knew his status as a domestic- violence misdemeanant. A. We review Johnson’s Rehaif claims for plain error Before we get to the merits of Johnson’s arguments, we must identify the applicable standard of review. Generally, we engage in de novo review of challenges to an indictment or to the sufficiency of the evidence. United States v. Sperrazza, 804 F.3d 1113 , 1119 (11th Cir. 2015); United States v. Taylor, 480 F.3d 1025 , 1026 (11th Cir. 2007). But when a defendant fails to raise an argument in district court, we review for plain error. United States v. Reed, 941 F.3d 1018 , 1020 (11th Cir. 2019); Sperrazza, 804 F.3d at 1119. Here, the government asserts that we should not review Johnson’s sufficiency- of-the-evidence argument at all because he invited error by stipulating that the facts were sufficient to convict him. We disagree. Johnson explained in district court that he proceeded to a stipulated bench trial solely because he did not know that he was prohibited under Section 922(g) from possessing a firearm, since misdemeanants in Florida are not deprived of their civil rights. Because the elements of Section 922(g) were understood (and were applied 8  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 9 of 58 under binding precedent, see United States v. Jackson, 120 F.3d 1226 , 1229 (11th Cir. 1997), abrogated by Rehaif, 139 S. Ct. 2191 ), at the time Johnson stipulated, the facts to which he agreed were sufficient to prove the elements of Section 922(g). Of course, since Johnson’s bench trial and sentencing, Rehaif has clarified the elements of Section 922(g). Now, there can be no doubt that under Rehaif, the elements the district court accounted for were incomplete. Johnson’s acknowledgement that the evidence he stipulated to was sufficient to satisfy the elements of the crime as laid out by then-binding precedent does not preclude him from asserting that the stipulation is not sufficient in light of the Supreme Court’s subsequent issuance of Rehaif.2 But while Johnson did not invite error in the district court, neither did he raise the claims that he now makes on appeal. Johnson argues that he did raise them when he moved to dismiss his indictment and when defense counsel discussed his lack of knowledge at sentencing. We are not persuaded. Johnson contended in his motion to dismiss the indictment that he had not committed a misdemeanor crime of domestic violence as 18 U.S.C. § 921 (a)(33)(a) defines the term because he fell under an exception that Section 921(a)(33)(B)(ii) recognizes. As we have mentioned, that section renders non-qualifying an otherwise-qualifying predicate offense under Section 922(g)(9) if, as relevant to 2 Rehaif applies to Johnson’s case on direct appeal. See Reed, 941 F.3d at 1021. 9  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 10 of 58 Johnson’s argument, the defendant’s civil rights have been restored since he was convicted. Johnson did not argue that his civil rights had been restored. Rather, because Johnson never lost his civil rights in connection with his conviction for a Florida domestic-violence misdemeanor, he contended that he was covered by the Section 921(a)(33)(B)(ii) exception. That argument is different from Johnson’s Rehaif-based contention on appeal that the indictment is insufficient because it fails to charge that Johnson knew he was a domestic-violence misdemeanant. In fact, as the district court ruled and as we explain later, see infra at II.C.2, a different Supreme Court case from Rehaif— Logan, 552 U.S. 23 —forecloses Johnson’s Section 921(a)(33)(B)(ii)-based argument. To be clear, at no point in the district-court proceedings did Johnson ever argue or even suggest that he was unaware that he had previously been convicted in Florida of a misdemeanor for engaging in physical violence against his wife. Similarly, at Johnson’s sentencing hearing, Johnson contended only that he did not know that he was not allowed to possess a gun because no one ever told him and because Florida never abrogated his civil rights. Johnson did not make the separate argument that he did not know that he had been convicted of a misdemeanor for using physical force against his wife. Because Johnson did not raise his Rehaif arguments in the district court, we review for plain error. Reed, 941 F.3d at 1020. To establish plain error, Johnson 10  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 11 of 58 must show that (1) an error occurred, (2) the error was plain or obvious, and (3) it affected his substantial rights. United States v. Moriarty, 429 F.3d 1012 , 1019 (11th Cir. 2005). If Johnson can demonstrate the three plain-error components, we may exercise our discretion to remedy the error, but only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. B. Rehaif error occurred in the district court, and that error was plain 1. Johnson’s indictment contained error, and that error is plain We begin by reviewing the district court’s order on Johnson’s motion to dismiss his indictment for plain error. An error is plain if it is “obvious” and “clear under current law.” United States v. Lange, 862 F.3d 1290 , 1296 (11th Cir. 2017) (internal citation omitted). Indictments must “contain[] the elements of the offense charged and fairly inform[] a defendant of the charge against which he must defend, and, second, enable[] him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87 , 117 (1974). Here, we focus on the first half of this equation, which requires an indictment to include the elements of the crime charged. Id. Under current law, as clarified by Rehaif, to establish a violation of Section 922(g)(9), the government must prove all of the following elements: (1) the defendant knew he possessed (2) a “firearm” (as defined by the statute) that (3) had 11  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 12 of 58 traveled in interstate commerce, and (4) he knew he had previously been convicted of a misdemeanor crime of domestic violence. See Rehaif, 139 S. Ct. at 2195-96 . Johnson’s indictment fails to allege that he knew he was a domestic-violence misdemeanant when he possessed the firearm in this case. So it is insufficient and plainly erroneous under current law. The government argues that this omission does not constitute plain error because Johnson’s indictment tracked the language of Sections 922(g)(9) and 924(a)(2), including the knowledge element. And it is true that the indictment did charge, in relevant part, that Johnson, “having been previously been convicted of a misdemeanor crime of domestic violence, that is, Domestic Battery, in the County Court, Duval County, Florida, on or about June 14, 2010, did knowingly possess, in and affecting interstate commerce, a firearm that is, a Cobra, .380 caliber pistol.” (emphasis added). But inconsistent with Rehaif, the indictment charged knowledge with respect to only Johnson’s possession of the firearm, not as to Johnson’s status as a domestic-violence misdemeanant. While it is generally enough for an indictment to track statutory language, as Johnson’s did, simply tracking statutory language does not suffice when the resulting indictment fails to “fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offen[s]e intended to be punished.” Hamling, 418 U.S. at 117 (citation and internal quotation marks 12  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 13 of 58 omitted). That was certainly the case here, since Section 922(g)’s phrasing did not materially change after we decided Jackson, where we held that Section 922(g) did not require the defendant to know his relevant status to be found guilty. 120 F.3d at 1229 . Against that background, no indictment that merely tracked Section 922(g)’s statutory language could unambiguously set forth all elements of the crime. And for that reason, the indictment was plainly erroneous. See Reed, 941 F.3d at 1021 (finding plain error when the “indictment failed to allege that he knew [his status]”); United States v. Moore, 954 F.3d 1322 , 1337 (11th Cir. 2020) (same). 3 The government also tries to shoehorn this case into fitting within our decisions in United States v. Gray, 260 F.3d 1267 (11th Cir. 2001), and United States v. Woodruff, 296 F.3d 1041 (11th Cir. 2002). We determined that the indictments at stake there were not defective even though they did not allege a mens rea element. But Gray and Woodruff are materially different. Each dealt with an indictment for Hobbs Act robbery that alleged that the defendant “unlawfully” 3 In one of their letters of supplemental authority, the government asserts that Moore supports its position because we stated that “[t]he absence of an element of an offense in an indictment is not tantamount to failing to charge a criminal offense against the United States.” 954 F.3d at 1333. We are disappointed by this argument, which relies on an out-of-context quotation to mischaracterize our opinion in Moore. The language that the government invokes from Moore comes from our analysis explaining that a Rehaif defect in an indictment does not deprive the district court of subject-matter jurisdiction, see id. at 1332-37; it has nothing to do with the point for which the government relies on it. In fact, in that same case, we held that the Rehaif defect in the indictment there, which similarly tracked the applicable statutory language, see id. at 1332-33, was plain error because it failed to specifically charge that the defendant knew of his status, see id. at 1337. There, though, the government conceded plain error. 13  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 14 of 58 “t[ook]” “property” “by means of . . . force, violence, and fear of injury.” Gray, 260 F.3d at 1283; Woodruff, 296 F.3d at 1046 . We upheld the sufficiency of those indictments because “the requisite state of mind may be inferred from other allegations in the indictment.” Gray, 260 F.3d at 1283; Woodruff, 296 F.3d at 1046 . Indeed, a person cannot take property by means of force, violence, and fear of injury without knowing he is doing that. In contrast, a person could hypothetically be convicted of a state-law battery offense without realizing that it qualified as a misdemeanor crime of domestic violence. So unlike with the Hobbs Act robbery offenses at issue in Gray and Woodruff, the knowledge requirement pertaining to Johnson’s status could not be inferred from the allegations in the indictment. And the rule in Gray and Woodruff cannot save the indictment here. 2. The lack of evidence in the stipulated facts proving that Johnson knew he was a domestic-violence misdemeanant constituted error, and that error was plain As for Johnson’s sufficiency-of-the-evidence claim, as the government appropriately concedes, the error there was plain to the extent that the stipulated facts did not demonstrate that Johnson had knowledge of his status as a domestic-violence misdemeanant. As we have explained, that was clearly contrary to the law as we understand it after Rehaif. See Rehaif, 139 S. Ct. at 2200 ; Reed, 941 F.3d at 1021. C. The plain errors did not affect Johnson’s substantial rights 14  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 15 of 58 Having concluded that plain error infected both the indictment and the sufficiency of the evidence based on the stipulated facts, we consider whether either of these errors affected Johnson’s substantial rights. To show that an error affected his substantial rights, Johnson bears the burden of demonstrating a reasonable probability that, without the error, the outcome of the proceeding would have been different. Molina-Martinez v. United States, 136 S. Ct. 1338 , 1343 (2016); United States v. Margarita Garcia, 906 F.3d 1255 , 1267 (11th Cir. 2018). A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Margarita Garcia, 906 F.3d at 1267 (internal quotation marks omitted). To determine whether Johnson’s substantial rights have been affected, we review the entire record. Reed, 941 F.3d at 1021. Whether the plain errors here had any impact on Johnson’s substantial rights hinges on the evidence of record showing whether Johnson knew his status— domestic-violence misdemeanant—when he possessed the gun. If this evidence is lacking, then Johnson can meet his burden to demonstrate a reasonable probability that the outcome of his case would not have been the same in the absence of the errors. But if not, then he cannot establish a reasonable probability that the outcome of his case would have differed, and his Rehaif challenges fail. 1. Rehaif’s Knowledge-of-Status Requirement 15  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 16 of 58 We begin by identifying what Rehaif’s knowledge-of-status requirement demands. Rehaif was convicted of possessing a firearm as a non-citizen illegally in the United States, in violation of 18 U.S.C. §§ 922 (g)(5) and 924(a)(2). Rehaif, 139 S. Ct. at 2194 . He argued that he did not know that his presence in the United States was unlawful. Id. at 2195 . The Supreme Court held that the language of Sections 922(g) and 924(a)(2) required proof that when Rehaif possessed the gun, he knew that he was a non-citizen who was “illegally or unlawfully in the United States.” Id. at 2198 . To explain what it meant by this, the Court pointed to Liparota v. United States, 471 U.S. 419 (1985), as illustrative of the type of knowledge required. Rehaif, 139 S. Ct. at 2198 . In Liparota, the defendant challenged his conviction for “knowingly us[ing] transfer[ring], acquir[ing], alter[ing], or possess[ing] [Food Stamps] in any manner not authorized by [the statute] or the regulations.” Liparota, 471 U.S. at 420 . The Supreme Court determined that the government had to show not only that the defendant had used, transferred, acquired, altered, or possessed Food Stamps, but also that the defendant knew that he was acting in a way that the applicable statute or regulations did not authorize. Id. at 423-25 . Significantly, though, the Court cautioned, the government did not need to demonstrate that the defendant “had knowledge of specific regulations governing food stamp acquisition or possession” that made his transfer or possession of food 16  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 17 of 58 stamps unlawful. Id. at 434 . In other words, Liparota did not “create[] a defense of ‘mistake of law.’” Id. at 425 n.9. To explain this concept further, the Court pointed to the offense of knowing receipt of stolen goods. Id. It noted that not knowing that receipt of stolen goods is a crime is no defense to that offense, but not knowing the goods were stolen is. Id. Given this understanding, it is not surprising that in Elonis v. United States, 575 U.S. 723 , ___, 135 S. Ct. 2001 , 2010 (2015), the Supreme Court characterized Liparota as having construed the statute there “to require knowledge of the facts that made the use of the food stamps unauthorized.”4 And the Court summarized its cases as having “explained that a defendant generally must ‘know the facts that make his conduct fit the definition of the offense,’ even if he does not know that those facts give rise to a crime.” Id. at 2009 (quoting Staples v. United States, 511 U.S. 600 , 608 n.3 (1994)). So for example, in Staples, the Court considered what the government had to prove to establish a violation of the law that made it illegal for anyone to possess a machinegun that was not properly registered with the federal government. 511 U.S. 4 Rehaif described the same thing from Liparota a little differently. It said that the Court “required the Government to prove that the defendant knew that his use of food stamps was unlawful—even though that was a question of law.” 139 S. Ct. at 2198 . We think Elonis’s characterization better helps to describe the type of knowledge that is required and to avoid the confusion that Rehaif suggests can occur in trying to differentiate between concepts of knowledge of the law and knowledge of the effect of a so-called collateral matter (here, status) under the law. See id. 17  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 18 of 58 at 602. The Court held that the government was required to demonstrate, in relevant part, that the defendant knew that the weapon he possessed had the characteristics that caused it to fall within the statutory definition of a machinegun. Id. In other words, the Court explained, the defendant “must know the facts that make his conduct illegal . . . .” Id. at 619. But the defendant did not need to know the statutory definition of a machinegun to be convicted. See id. To determine what facts Johnson needed to know in light of Rehaif, we now turn to the statutory definition of “misdemeanor crime of domestic violence” under Section 921(a)(33). This section includes two subsections. As we will explain, subsection (a)(33)(A) contains the elements of this offense, while subsection (a)(33)(B) contains affirmative defenses. a. Section 921(a)(33)(A) contains the elements that establish whether a person knows he is a domestic-violence misdemeanant Applying the principles from the teachings of Rehaif, Liparota, Elonis, and Staples to Section 922(g)(9)’s status requirement, we conclude that, at the time he possessed the firearm, the defendant must have known that he was convicted of a misdemeanor, and he must have known the facts that made that crime qualify as a misdemeanor crime of domestic violence. But Section 922(g)(9) introduces a slight twist: one of the facts that makes a crime qualify as a misdemeanor crime of domestic violence is that the crime must categorically require the use or threatened use of physical force. See 18 U.S.C. § 921 (a)(33)(A)(ii); see also Castleman, 572 18  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 19 of 58 U.S. at 168. That may create the misimpression that Rehaif requires technical knowledge of the law. It doesn’t. The Court did not conclude that Congress expected a person to have performed a Descamps 5 analysis on his misdemeanor crime of conviction to determine whether any element of the statute under which he was convicted categorically required the use or threatened use of “physical force.” Rather, the knowledge-of-status requirement demands that the defendant have known only that, to be convicted of his misdemeanor crime, he must have engaged in or threatened to engage in conduct that constitutes “physical force” as the Supreme Court has defined it for purposes of a misdemeanor crime of domestic violence under Section 922(g)(9)—whether or not the defendant actually knew that the Supreme Court had defined the term and what that definition was. In Castleman, the Supreme Court established that conduct consisting of “even the slightest offensive touching” satisfies Section 921(A)(33)(a)(ii)’s definition of “physical force.” 572 U.S. at 163 (internal citation omitted). So as relevant here, to satisfy Rehaif’s knowledge-of-status requirement under Section 922(g)(9), the evidence must establish that Johnson knew all the following: (1) he had been convicted of a misdemeanor under state law, 18 U.S.C. § 921 (a)(33)(A)(i); (2) to be convicted of that misdemeanor, he must have knowingly 5 Descamps v. United States, 570 U.S. 254 (2013). 19  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 20 of 58 or recklessly6 engaged in at least “the slightest offensive touching”; 7 and (3) the victim was his current or former spouse at the time he committed the crime, 18 U.S.C § 921(a)(33)(A)(ii). When we review the record for these things, we keep in mind that there need not be “extraordinary evidence that would conclusively demonstrate [Johnson’s] state of mind. Rather, as in any other criminal prosecution requiring mens rea, [state of mind may be proven] by reference to facts and circumstances surrounding the case . . . .” Liparota, 471 U.S. at 434 ; see also Ratzlaf v. United States, 510 U.S. 135 , 149 n.19 (1994) (“A jury may, of course, find the requisite knowledge on defendant’s part by drawing reasonable inferences from the evidence . . . .”). b. Section 921(a)(33)(B) does not set forth elements of what it means for a person to know he is a domestic-violence misdemeanant Before we leave this discussion to evaluate the evidence of record and determine whether it sufficiently establishes that Johnson had the necessary knowledge, we pause to explain why, in demonstrating a domestic-violence misdemeanant’s knowledge of his status, the government does not bear the burden 6 See Voisine v. United States, 136 S. Ct. 2272 , 2282 (2016). 7 The Dissent asserts that Rehaif requires the government to “prove the defendant was aware that his prior conviction included the element of use or attempted use of force.” Dissent at 50. We don’t disagree with this principal. We just believe that to prove knowledge that the prior conviction included an element of use or attempted use of physical force, the government must show that the defendant knew that his prior offense necessarily required for conviction (i.e., an element) that he engaged in at least “the slightest offensive touching”—the definition the Supreme Court has identified for the meaning of “physical force” in Section 921(a)(33). See Castleman, 572 U.S. at 163. 20  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 21 of 58 of proving the misdemeanant’s knowledge of the items specified in Section 921(a)(33)(B). Up until now, we have discussed Section 921(a)(33)(A) primarily. But Section 921(a)(33) also contains a subparagraph (B). That paragraph provides, (B)(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless— (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. (ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. We now explain how Section 921(a)(33)(B) fits into the legislative scheme. We see two possibilities: (1) Section 921(a)(33)(B) sets forth elements of the definition of “misdemeanor crime of domestic violence,” or (2) it states what are effectively affirmative defenses. The difference between an element and an affirmative defense is important: while the government must prove knowledge, 21  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 22 of 58 “[w]here affirmative defenses are created through statutory exceptions, the ultimate burden of persuasion remains with the prosecution, but the defendant has the burden of going forward with sufficient evidence to raise the exception as an issue.” United States v. Larouche, 723 F.2d 1541 , 1543 (11th Cir. 1984). So while the evidence must be enough to establish all the elements of knowledge, it need not prove that affirmative defenses did not apply, unless the defendant first introduced evidence that one did. Neither Johnson nor the government makes any specific argument that Section 921(a)(33)(B) sets forth elements for proving a person knows he is a domestic-violence misdemeanant. 8 And we agree with their apparent implicit conclusion that Section 921(a)(33)(B) represents what are effectively affirmative defenses, since as we explain below, both our test for assessing whether something constitutes an element and our precedent require that answer. 8 The Dissent suggests that the parties do not raise this issue and indicates its preference that we not decide this issue. See Dissent at 42 n.1. We don’t think that is a tenable option under the circumstances here. While no party specifically argues that the Section 921(a)(33)(B) provisions do or do not constitute elements of a “misdemeanor crime of domestic violence” under Section 921(a)(33), Johnson most assuredly does contend that the Rehaif errors here constituted plain errors that affected his substantial rights because, Johnson claims, the government did not establish that he knew he was a domestic-violence misdemeanant. To ascertain whether that is the case, we must first identify what the evidence of record was required to show to demonstrate whether Johnson knew he was a domestic-violence misdemeanant. That requires us to determine what parts of Section 921(a)(33) specify elements of the definition of “misdemeanor crime of domestic violence.” Assuming without deciding that Section 921(a)(33)(B) sets forth affirmative defenses is not consonant with evaluating whether the plain errors here affected Johnson’s substantial rights, since if the Section 921(a)(33)(B) components were elements, the government would be required to prove them, and we would need to study the record to see whether it contained sufficient evidence to establish each of these components. 22  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 23 of 58 To evaluate whether a statutory exception serves as an element of a crime, we consider three factors. United States v. Kloess, 251 F.3d 941 , 944 (11th Cir. 2001). We start with the statutory language and structure to see whether they yield any clues about the exception’s role. Id. Second, we review the statute’s legislative history to learn whether Congress intended for the exception to serve as an element of the crime. Id. And third, we assess whether the government is in a good position to find evidence that could prove the exception’s applicability. 9 Id. Beginning with the statutory language and structure, we first observe that Section 921(a)(33) is divided into two parts: (A) and (B). Subparagraph (A) begins, “Except as provided in subparagraph (C),[ 10] the term ‘misdemeanor crime of domestic violence’ means an offense that— . . . .” Subparagraphs (B)(i) and (B)(ii) each start, “A person shall not be considered to have been convicted of such an offense for purposes of this chapter,” “unless,” in the case of subparagraph (B)(i), and “if,” in the case of subparagraph (B)(ii), certain conditions exist. Perhaps these 9 The Dissent takes issue with this third factor—whether the government is in a good position to find evidence that could prove the exception’s applicability. See Dissent at 42 n.1. But our precedent has adopted this factor as part of the test for whether a provision constitutes an element or an affirmative defense, and we are bound by our prior-precedent rule to follow that precedent. See United States v. Steele, 147 F.3d 1316 , 1318 (11th Cir. 1998) (en banc). Plus, as we have noted, the prosecution still has the ultimate burden of persuasion on affirmative defenses. Larouche, 723 F.2d at 1543 . 10 Section 921(a)(33) does not contain a subparagraph (C). But as we discuss above, subparagraph (B) does set forth statutory exceptions to when a person may be considered to have been convicted of a “misdemeanor crime of domestic violence.” We therefore construe the reference to subparagraph (C) to be a typographical error intended to refer to subparagraph (B). 23  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 24 of 58 words could indicate congressional intent to make the subparagraph (B) factors elements of the definition of “misdemeanor crime of domestic violence.” But based on the rest of our analysis, we don’t think so. According to its statutory language, the purpose of subparagraph (A) is to state what the term “misdemeanor crime of domestic violence” means. See 18 U.S.C. § 921 (a)(33)(A) (“the term ‘misdemeanor crime of domestic violence’ means an offense that . . .”). Congress did not place the provisions of subparagraphs (A) and (B) in a single section—though it could have. We think that separating the subparagraph (A) provisions from those in subparagraph (B) suggests that Congress envisioned different roles for the two subparagraphs. Based on the structure Congress chose, we believe Congress viewed subparagraph (A) as setting forth the elements of a “misdemeanor crime of domestic violence” and subparagraph (B) as articulating what are effectively affirmative defenses. As for the legislative history, we found statements from a single Senator stating his view that subparagraph (B) “has no real substantive effect” and “really does not change anything,” 142 Cong. Rec. 11842 (Statement of Sen. Lautenberg). And we found a Congressional Research Service report published a few months after the bill passed, characterizing Section 921(a)(33)(B)(i) as “statutory defenses to the validity of the predicate conviction.” Cong. Rsch. Serv., Gun Ban for Persons Convicted of Misdemeanor Crime of Domestic Violence: Ex Post Facto Clause and 24  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 25 of 58 Other Constitutional Issues (Dec. 30, 1996). Though both suggest that the subparagraph (B) components are intended to be defenses and not elements, we haven’t found anything that purports to be indicative of the sense of the Congress. So we do not consider legislative history in our analysis. When we look to whether the government is in a good position to prove the exculpatory exceptions set forth in subparagraph (B), we conclude that relative to the defendant, it is not. In explaining why, we start with subparagraph (B)(ii), which excepts from the definition of “misdemeanor crime of domestic violence” any otherwise qualifying conviction that has been “expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored.” 18 U.S.C. § 921 (a)(33)(B)(ii). We have previously analyzed a similar exception to determine whether it was an element or an affirmative defense. In United States v. Jackson, 57 F.3d 1012 (11th Cir. 1995), we looked at 18 U.S.C. § 921 (a)(20)’s definition of “crime punishable by imprisonment for a term exceeding one year.” At that time, the statute said, What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 25  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 26 of 58 Jackson, 57 F.3d at 1015 (quoting 18 U.S.C. § 921 (a)(20) (West Supp. 1994) (emphasis added by Jackson Court)). We concluded that the italicized part of the statutory defenses was not an element. See id. at 1016-17 . In reaching this conclusion, we quoted the Tenth Circuit for the proposition that the defendant is in a better position than the government to show that his conviction has been expunged, his civil rights have been restored, or he has been pardoned: As a practical matter, requiring the government to negate the possibility, in every § 922(g)(1) case, that each defendant’s prior convictions had been expunged or set aside, that a pardon had been granted, or that civil rights had been restored, would impose an onerous burden. A defendant ordinarily will be much better able to raise the issue of whether his prior convictions have been expunged or set aside, whether a pardon has been granted, or whether civil rights have been restored. Id. at 1016 (quoting United States v. Flower, 29 F.3d 530 , 535 (10th Cir. 1994)). We, of course, are bound by Jackson. See United States v. Steele, 147 F.3d 1316 , 1318 (11th Cir. 1998) (en banc). So we conclude that the defendant is better situated than the government to demonstrate any of the defenses listed under subparagraph (B)(ii). That brings us back to Section 921(a)(33)(B)(i). As a reminder, that provision excepts from the definition of “misdemeanor crime of domestic violence” convictions where the defendant was not represented by (or did not knowingly and intelligently waive the right to be represented by) counsel and those where the 26  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 27 of 58 defendant was entitled to be tried by a jury but was not and did not knowingly and intelligently waive the right to try the case to a jury. Although we focused on a restoration-of-civil-rights exception in Jackson, we also relied on another of our precedents, United States v. Ruo, 943 F.2d 1274 , 1276 (11th Cir. 1991), which helps explain why it would also be harder for the government to shoulder the burden of demonstrating the exceptions in subparagraph (B)(i) here. We cited Ruo for the proposition that as a practical matter, it makes sense for the defendant to bear the weight of demonstrating defects in prior convictions. Id. We explained, [U]nder § 924(e), the burden is properly placed on the defendant raising the challenge to show the constitutional invalidity of the prior convictions. Any given conviction might suffer any of a myriad of constitutional defects. It would approach the absurd to undertake to prove guilt all over again in every predicate conviction . . . . Instead, the government’s burden is properly met when it introduces evidence that there are at least three prior violent felony convictions. The defendant must then point out any defects in a particular prior conviction. Jackson, 57 F.3d at 1016 (quoting Ruo, 943 F.2d at 1276 ). Though Section 924(e) did not list exceptions built into it, the point is that we have previously concluded that the defendant is in the better position to know of the facts subparagraph (B)(i) says remove a conviction from the definition of “misdemeanor crime of domestic violence.” 27  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 28 of 58 Plus, returning for a moment to our first consideration—the language and structure of the statute—that subsections (i) and (ii) both appear under subparagraph (B) suggests that Congress viewed the two provisions to have a similar function in the overall structure of Section 922(a)(33). So since subsection (B)(ii) is an affirmative defense, it is more likely that subsection (B)(i) is as well. In short, we conclude that the government does not have an affirmative obligation to prove or disprove the defendant’s knowledge of the components listed in subparagraph (B) to demonstrate that the defendant knew he was a domestic- violence misdemeanant, unless the defendant first brings forward evidence suggesting that his prior conviction is excepted from the definition of “misdemeanor crime of domestic violence.” 2. The record establishes that, for purposes of Rehaif’s knowledge requirement, Johnson knew he was a domestic-violence misdemeanant Now that we’ve established what knowledge a domestic-violence misdemeanant must possess under Rehaif, we consider whether the record here demonstrates that Johnson had that knowledge at the time he was found with the firearm in this case. To make this determination, we look here to Johnson’s stipulation at trial and the undisputed facts in his PSR, which the district court adopted as factual findings. As we have explained, when a defendant does not object to a district court’s factual findings, he is bound by them and may not argue that they contained error. United States v. Wade, 458 F.3d 1273 , 1277 (11th Cir. 2006). 28  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 29 of 58 Review of these documents reveals that the record includes sufficient evidence to establish that Johnson had the requisite knowledge of his status as a domestic- violence misdemeanant when he was found with the gun in his possession. First, Johnson knew at the time he possessed the gun that he had been convicted of the misdemeanor crime of battery under Florida Statute § 784.03(1). We know this because he stipulated at the bench trial that he had pled guilty to the charge of “domestic battery” under the laws of the State of Florida, 11 and Johnson’s Florida conviction identified the statute of conviction as Florida Statute § 784.03(1)(a), Florida’s battery statute. Johnson’s PSR states that he was originally charged with domestic battery by strangulation and assault, which Florida Statute § 784.041 renders a felony. That he eventually pled to the misdemeanor instead also supports the notion that he knew he was convicted of a misdemeanor under Florida law. Plus, Johnson ultimately spent six months in jail as a result of that conviction— 11 The Dissent seems to suggest that Johnson could not have known these things at the time he possessed the firearm because the evidence that proves he did came from his stipulation at the bench trial, which occurred after he possessed the gun. See Dissent at 51 (e.g., “[N]either [the stipulation nor the PSR] show that Mr. Johnson ‘knew . . . when he possessed’ the firearm that he was a domestic-violence misdemeanant.”) (quoting Rehaif, 139 S. Ct. at 2194 (emphasis added)). We respectfully disagree. In this case, the contents of the stipulation and the PSR identify what Johnson knew at the time that he pled guilty to the underlying misdemeanor crime of domestic violence. For example, he knew at the time he pled guilty to the misdemeanor that he was pleading guilty to a misdemeanor because, the stipulation shows, he pled down from a felony, and he eventually spent six months in jail for his conviction. To spend time in jail for this offense, it must have been a misdemeanor or a felony. And he stated he knew it was not a felony. Indeed, that was his defense: that he was not told that he could not possess a firearm because he had not been convicted of a felony, and misdemeanants in Florida do not lose their civil rights. So while these facts are documented in the stipulation and PSR, which were created after Johnson possessed the gun, they are sufficient to infer he knew these facts before he possessed the gun. 29  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 30 of 58 another indication that he must have been aware of it. Finally, during this case, Johnson admitted he knew he was a misdemeanant when he explained that he did not know he was prohibited from possessing a firearm because he was only a misdemeanant, and misdemeanants in Florida do not lose their civil rights. Second, Johnson knew that the misdemeanor to which he pled guilty— battery—required that he had, at a minimum, recklessly engaged in at least “the slightest offensive touching.” Castleman, 572 U.S. at 163 (internal citations omitted). The offense of battery under Florida law requires that the defendant have “[a]ctually and intentionally touche[d] or str[uck] another person against the will of the other,” Fla. Stat. § 784.03 (1)(a)(1.). A person cannot intentionally touch someone against her will without, at a minimum, recklessly committing at least “the slightest offensive touching.” And Johnson stipulated at his bench trial here that with the assistance of counsel, he “knowingly and intelligently waived his right to a jury trial and pled guilty” to the offense of battery. The Supreme Court has explained that a knowing and intelligent plea requires that the defendant have been informed of the crime’s elements. Bradshaw v. Stumpf, 545 U.S. 175 , 183 (2005). Since Johnson stipulated that he knowingly and intelligently pled guilty to battery, the record establishes that, at the time he pled guilty to battery, he knew he was pleading guilty to that offense, and he knew that one of the elements of that offense required him to have “[a]ctually 30  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 31 of 58 and intentionally touche[d] or str[uck] another person against the will of the other.” Fla. Stat. § 784.03 (1)(a)(1.). That means that the record shows that Johnson knew an element of his offense of conviction required that he had necessarily engaged in at least “the slightest offensive touching.” And third, as we have just noted and as Johnson stipulated to at his bench trial here, the victim of Johnson’s prior Florida misdemeanor battery was his wife. Obviously, Johnson knew she was his wife. So the record establishes that Johnson knew at the time he was found with the firearm in this case that he had previously been convicted of a misdemeanor crime of domestic violence. And for that reason, no reasonable probability exists that the outcome would be different on remand.12 We therefore conclude that the plain errors 12 The Dissent argues that our conclusion creates a split with the Seventh Circuit’s decision in United States v. Triggs, 963 F.3d 710 (7th Cir. 2020), because “‘complexity of the statutory definition’ of a misdemeanor crime of domestic violence gives defendants ‘at least a plausible argument’ that they were unaware they were convicted of such an offense.” Dissent at 57 n.7 (quoting Triggs, 963 F.3d at 716). We think not. True, the Seventh Circuit noted “the complexity of the statutory definition,” but that alone was not the reason why that court remanded the case. Rather, unlike here, in Triggs, the defendant pled guilty to his Section 922(g)(9) offense, and the proceedings that led to the defendant’s underlying domestic-violence misdemeanor conviction were “messy.” Id. at 716. So the Seventh Circuit was able to conclude that Triggs had a “colorable argument that he was unaware that he was convicted of a misdemeanor crime of domestic violence,” without ever analyzing what it means for a domestic-violence misdemeanant to know he is a domestic-violence misdemeanant. Id. The record here does not give us that option. Unlike Triggs, Johnson was convicted after a bench trial, not a guilty plea, and the proceedings that led to his conviction for a misdemeanor crime of domestic violence were straight-forward, not “messy.” As a result, we must proceed through the analysis in order, identifying what it means for a domestic-violence misdemeanant to know he is a domestic-violence misdemeanant and then assessing the record to see whether it contains sufficient evidence to establish the defendant’s requisite knowledge. By doing so, we do not create a split with Triggs because Triggs’s decision to remand rested on “the complexity of the statutory definition” in combination with the “messy” state-court-conviction record. 31  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 32 of 58 in the indictment and in the sufficiency of the evidence stipulated to at the bench trial did not affect Johnson’s substantial rights. 13 We are not persuaded by Johnson’s contentions to the contrary. Johnson’s arguments rest mainly on the fact that he did not “know he was prohibited from federal possession of a firearm.” He points to the fact that his Florida conviction never resulted in the loss of his civil rights, including his right to possess a firearm under Florida law. He also relies on the district court’s statement at sentencing that “this is an unusual offense” because Johnson was charged with something he could “genuinely say [he] didn’t know was unlawful.” While we can understand Johnson’s frustration with the situation, these facts pertain to whether Johnson knew he personally was prohibited from possessing a firearm under federal law, not whether he knew he committed a misdemeanor crime of domestic violence. But under Rehaif’s knowledge-of-status requirement, that a defendant does not recognize that he personally is prohibited from possessing a 13 The Dissent suggests that the outcome here would have been different in the absence of the Rehaif errors because “if Mr. Johnson had known that the government needed to prove he knew his status, it would have made no sense for him to stipulate to that point, instead of putting the government to its proof.” Dissent at 53. We respectfully disagree. The sole reason why Johnson went to trial here was because he never lost his civil rights as a result of his conviction for a misdemeanor crime of domestic violence, and he thought that was a defense under Section 921(a)(33)(B)(ii). Johnson never suggested during his trial here that he did not know that he had been convicted of a misdemeanor crime that had as an element the use of at least “the slightest offensive touching” against his wife. And as we have explained, the record here establishes that Johnson, in fact, knew at the time he possessed the firearm here that he had been convicted of a misdemeanor crime that had as an element the use of at least “the slightest offensive touching” against his wife. 32  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 33 of 58 firearm under federal law is no defense if he knows he has a particular status and that status happens to be one prohibited by § 922(g) from possessing a firearm. United States v. Maez, 960 F.3d 949 , 954-55 (7th Cir. 2020). Rather, that is a mistake of law, which is not a defense. See Liparota, 471 U.S. at 425 n.9. As we have mentioned, “a defendant generally must ‘know the facts that make his conduct fit the definition of the offense,’ even if he does not know that those facts give rise to a crime.” Elonis, 575 U.S. at 2009 (quoting Staples, 511 U.S. at 608 n.3). And to the extent that Johnson continues to assert that Section 921(a)(33)(B)(ii)’s exception to the definition of a domestic-violence misdemeanant for anyone whose civil rights have been restored applies to him because Florida never abrogated his rights in the first place, that argument is foreclosed under Logan, 552 U.S. 23 . In Logan, the Supreme Court considered a materially indistinguishable exception that applies to the Armed Career Criminal Act. Id. at 26 . The provision at issue there— 18 U.S.C. § 921 (a)(20)—authorized the disregarding of a prior conviction if the conviction “has been expunged, or set aside,” or the offender “has been pardoned or has had civil rights restored.” Id. Like Johnson, Logan had never had his civil rights abrogated in the first place, despite his otherwise-qualifying convictions under the Armed Career Criminal Act. Id. He contended that Section 921(a)(20)’s exception for those who had had their civil rights restored after an otherwise-qualifying conviction reached him. Id. 33  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 34 of 58 The Supreme Court disagreed. See id. It reasoned that the plain language of the provision, which used the word “restored,” did not support Logan’s construction. Id. at 31-32 . For further support, the Court pointed to Section 921(a)(33)(B)(ii), the very exception Johnson invokes here. The Court noted that it provides, in relevant part, that “[a] person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] [for purposes of Section 922(g)(9)] if the conviction . . . is an offense for which the person . . . has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) . . . .” Logan, 552 U.S. at 36 (quoting 18 U.S.C. § 921 (a)(33)(B)(ii)) (emphasis added by Logan Court). As the Court explained, “the emphasized parenthetical qualification shows that the words ‘civil rights restored’ do not cover a person whose civil rights were never taken away.” 14 Id. So Johnson’s argument that he does not satisfy the definition of domestic-violence misdemeanant because Florida never abrogated his civil rights necessarily fails. And since Section 921(a)(33)(B)(ii) does not make Section 921(a)(33)’s definition of “misdemeanor crime of domestic 14 Senator Lautenberg’s statement on what became codified at 18 U.S.C. § 921 (a)(33) reflects, as the Supreme Court in Logan believed, that Congress was aware that most people convicted of a misdemeanor do not lose their civil rights. See 142 Cong. Rec. S11872, S11877- 78 (1996) (Statement of Sen. Lautenberg) (“Loss of [civil] rights generally does not flow from a misdemeanor conviction, and so this language is probably irrelevant to most, if not all, of those offenders covered because of the new ban [on firearm possession by domestic-violence misdemeanants].”). 34  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 35 of 58 violence” inapplicable to someone whose civil rights were never breached in the first place, there was nothing for the government to refute with respect to the valid affirmative defenses encompassed within Section 921(a)(33)(B)(ii). 15 III. Next, we turn to Johnson’s contentions that Section 922(g)(9) is unconstitutional because (1) it violates Johnson’s equal-protection rights under the Due Process Clause of the Fifth Amendment; and (2) it violates the Commerce Clause. Although we generally review de novo the constitutionality of a statute, we review such claims, when they are not raised in the district court, for plain error. United States v. Wright, 607 F.3d 708 , 715 (11th Cir. 2010). As with the Rehaif claims, Johnson did not make his constitutional arguments in the district court. So we review them for plain error. A. 15 The Dissent suggests that the outcome of Johnson’s proceeding would have differed in the absence of the Rehaif errors since the government would have been required to prove that Section 921(a)(33)(B)(ii)’s affirmative defenses did not apply to Johnson because Johnson invoked that exception to argue that he did not qualify as a domestic-violence misdemeanant. See Dissent at 55. But Johnson relied on Section 921(a)(33)(B)(ii) only because his civil rights were never abrogated. Section 921(a)(33)(B)(ii), though, provides no exception to the definition of domestic- violence misdemeanant for an otherwise-qualifying individual whose civil rights were never taken. A defendant cannot make an affirmative defense relevant by raising a ground that is not even arguably covered by that affirmative defense. Simply put, Johnson never properly raised an affirmative defense under Section 921(a)(33)(B)(ii) because he did not allege any of the conditions set forth by that section that would exempt him from having committed a “misdemeanor crime of domestic violence,” so the government had no obligation to prove that that exception does not apply. 35  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 36 of 58 The terms of the Fourteenth Amendment guarantee equal protection of state law. U.S. Const. amend. XIV. When it comes to the concept of equal protection under federal law, the Fifth Amendment carries the load. Hampton v. Mow Sun Wong, 426 U.S. 88 , 100 (1976). Unlike the Fourteenth Amendment, the Fifth Amendment contains no express equal-protection clause. See U.S. amend. V. But the Fifth Amendment’s guarantee of due process under the law embodies within it the concept of equal justice under the law. Hampton, 426 U.S. at 100 . Johnson contends that Logan’s reading of Section 921(a)(33)(B)(ii), as applied to him, causes Section 922(g) to violate equal protection. As we have explained, under Logan, domestic-violence misdemeanants whose civil rights were never abrogated by the state where they were convicted are not excepted from Section 921(a)(33)’s definition of who has committed a “misdemeanor crime of domestic violence” for purposes of Section 922(g). 522 U.S. at 26. Yet those whose convictions—whether for misdemeanor crimes of domestic violence or for felonies—resulted in the forfeiture of their civil rights but who later had those civil rights restored do not violate Section 922(g) by possessing a firearm. See 18 U.S.C. § 921 (a)(33)(B)(ii), (a)(20). Johnson argues that domestic-violence misdemeanants who never lost their civil rights in the first place are therefore unconstitutionally treated less favorably than those—both domestic-violence misdemeanants and felons—who have had their civil rights restored. 36  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 37 of 58 No Supreme Court or Eleventh Circuit case holds that Section 922(g)’s application to domestic-violence misdemeanants who never lost their civil rights but not to felons and to domestic-violence misdemeanants whose rights were abrogated but then restored violates equal protection. In this Circuit, when no Supreme Court or Eleventh Circuit precedent directly resolves a legal issue, no plain error on that issue can exist. United States v. Lejarde-Rada, 319 F.3d 1288 , 1291 (11th Cir. 2003). Lejarde-Rada governs the situation here. So here, Johnson cannot establish plain error. B. Johnson also argues that Section 922(g)(9) violates the Commerce Clause both facially and as applied. He contends that the Commerce Clause does not allow Congress to criminalize the intrastate possession of a firearm merely because the firearm once traveled in interstate commerce. Once again, Johnson did not raise his argument in the district court. So once again, we apply plain-error review. This time, though, as Johnson recognizes, binding precedent addresses this issue. And that binding precedent rejects Johnson’s position. In United States v. McAllister, we held that Section 922(g), which makes it illegal for a qualifying person to “possess in or affecting commerce, any firearm or ammunition,” is a constitutional exercise of Congress’s power under the Commerce Clause. 77 F.3d 387 , 390 (11th Cir. 1996) (citing 18 U.S.C. § 922 (g)) 37  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 38 of 58 (emphasis added by McCallister court). We explained that Section 922(g) regulates firearms “that have a connection to interstate commerce; the statute explicitly requires such a connection” with its “in or affecting” language. Id. Since we issued McAllister, others have also challenged Section 922(g) as an unconstitutional reach beyond what the Commerce Clause authorizes. And we have held there, as we hold here, that Circuit precedent forecloses that argument. See United States v. Nichols, 124 F.3d 1265 , 1266 (11th Cir. 1997); Wright, 607 F.3d at 715 . Under our prior-precedent rule, we must follow the precedent of earlier panels unless and until the prior precedent is overruled or undermined to the point of abrogation by the Supreme Court or this Court sitting en banc. Steele, 147 F.3d at 1318 . As neither exception applies here, we reject Johnson’s Commerce Clause argument. IV. For the reasons we have explained, we affirm Johnson’s conviction. AFFIRMED. 38  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 39 of 58 MARTIN, Circuit Judge, concurring in part and dissenting in part: As set forth in the majority opinion, Deangelo Johnson was convicted for violating 18 U.S.C. § 922 (g)(9). This statute makes it unlawful for a person who has been convicted of a “misdemeanor crime of domestic violence” to possess a firearm. Last year, the Supreme Court clarified that a section 922(g) conviction requires the government to “show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” Rehaif v. United States, 588 U.S. ___, 139 S. Ct. 2191 , 2194 (2019). Rehaif abrogated our prior precedent, see, e.g., United States v. Jackson, 120 F.3d 1226 , 1229 (11th Cir. 1997) (per curiam), which required only a showing that a defendant knew he possessed a firearm but not that he knew his prohibited status. See United States v. Innocent, 977 F.3d 1077 , 1082 (11th Cir. 2020); see also Rehaif, 139 S. Ct. at 2210 n.6 (Alito, J., dissenting). This development in the law recognized that “[w]ithout knowledge of [his prohibited] status,” a defendant’s “behavior may instead be an innocent mistake to which criminal sanctions normally do not attach.” Rehaif, 139 S. Ct. at 2197 . Respectfully, I believe the majority’s approach dilutes the knowledge-of-status requirement from Rehaif that may result in the government sending people to prison for “innocent mistake[s].” But I am not completely at odds with the majority opinion. For example, I 39  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 40 of 58 agree that Mr. Johnson cannot establish plain error on his claim that section 922(g)(9) violates equal protection. I also agree with the majority that Mr. Johnson cannot establish plain error on his claim that section 922(g)(9) violates the Commerce Clause. But I do not agree that Mr. Johnson was properly convicted under section 922(g)(9) because there is no proof he knew he had a status that prohibited his possession of a firearm. I therefore respectfully dissent. I Here, I will highlight the legal background relevant to my understanding of this case. Section 922(g) describes various categories of people who are prohibited from possessing a firearm. That list includes felons, 18 U.S.C. § 922 (g)(1); people committed to a mental institution, id. § 922(g)(4); immigrants unlawfully in the United States, id. § 922(g)(5); people dishonorably discharged from the Armed Forces, id. § 922(g)(6); and, relevant here, people convicted of a “misdemeanor crime of domestic violence,” id. § 922(g)(9). Those who “knowingly violate[]” section 922(g) shall be fined, imprisoned for up to ten years, or both. Id. § 924(a)(2). In Rehaif, the Supreme Court considered the “scope of the word ‘knowingly’” in the statute. 139 S. Ct. at 2194 . It held that “knowingly” is a requirement for both a defendant’s conduct (that the defendant must have knowingly possessed a firearm), and his relevant status (that he knew he was, for 40  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 41 of 58 example, a felon, an immigrant unlawfully in the United States, or a domestic- violence misdemeanant). See id. Under Rehaif then, in order for Mr. Johnson to be convicted under section 922(g)(9), he must have known both that he possessed a firearm and that he was convicted of a misdemeanor crime of domestic violence. A “misdemeanor crime of domestic violence” might seem familiar in the lay sense, but its statutory definition is actually “quite complex.” See United States v. Triggs, 963 F.3d 710 , 715 (7th Cir. 2020). The term “misdemeanor crime of domestic violence” means an offense that is a misdemeanor under Federal, State, or Tribal law; and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. 18 U.S.C. § 921 (a)(33)(A). Thus, to be absolutely clear, under Rehaif, in order for a person to be convicted of possessing a firearm under section 922(g)(9), he must have known that he was convicted of a misdemeanor crime of domestic violence that had, “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” Id. 41  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 42 of 58 And that’s not all. Under section 921(a)(33)(B), a person “shall not be considered to have been convicted” of a misdemeanor crime of domestic violence under certain circumstances. Id. § 921(a)(33)(B). For our purposes here, a person “shall not be considered to have been convicted” of a misdemeanor crime of domestic violence if he “has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).” Id. § 921(a)(33)(B)(ii). As I read the majority opinion, it characterizes section 921(a)(33)(B) as effectively setting forth affirmative defenses, such that the government is not required to “prove or disprove the defendant’s knowledge of the components listed in subparagraph (B) to demonstrate that the defendant knew he was a domestic-violence misdemeanant, unless the defendant first brings forward evidence suggesting that his prior conviction is excepted from the definition of ‘misdemeanor crime of domestic violence.’” Maj. Op. at 28; see id. at 20–28. Under this view, a defendant would have to come forward with evidence that he viewed his prior conviction as excepted under section 921(a)(33)(B) from the definition of a “misdemeanor crime of domestic violence,” and only then must the government disprove the defendant’s view in order to show he knew he was convicted of a misdemeanor crime of domestic violence. 42  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 43 of 58 I will accept the majority’s characterization for the sole purpose of my analysis here.1 But I also emphasize what the majority recognizes in passing: once a defendant raises an exception under section 921(a)(33)(B), “the ultimate burden of persuasion remains with the prosecution.” Maj. Op. at 23; see United States v. Larouche, 723 F.2d 1541 , 1543 (11th Cir. 1984). II Now for the facts of this case. In 2010, before his conviction under section 922(g)(9) at issue here, Mr. Johnson pled guilty to and was convicted of the misdemeanor “Battery (Domestic)” in Florida state court. Specifically, Mr. 1 For a few reasons, it is not obvious to me that section 921(a)(33)(B) sets out affirmative defenses as opposed to elements of the offense. First, as the majority recognizes, the text “could indicate congressional intent to make the subparagraph (B) factors elements.” Maj. Op. at 23– 24. And I give weight to the term “unless” in the phrase “[a] person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless” certain conditions are met. See 18 U.S.C. § 921 (a)(33)(B)(i). The term “unless” introduces necessary conditions, such that it certainly could indicate congressional intent to make those conditions elements. Cf. Santiago-Lugo v. Warden, 785 F.3d 467 , 473 (11th Cir. 2015) (explaining the term “[u]nless” as used in a statute “lays out what must occur”). Most importantly though, I have deep reservations about putting the burden on a criminal defendant to avoid being convicted of a crime on the basis that he “is better situated than the government to demonstrate” those conditions. Maj. Op. at 26. It is true in every “criminal case the defendant has at least an equal familiarity with the facts and in most a greater familiarity with them than the prosecution. It might, therefore, be argued that to place upon all defendants in criminal cases the burden of going forward with the evidence would be proper.” Tot v. United States, 319 U.S. 463 , 469, 63 S. Ct. 1241 , 1245–46 (1943). “But the argument proves too much.” Id. Finally, my concerns are deepened by the fact that, as the majority observes, see Maj. Op. at 22, neither party briefed this issue. That being the case, I would have preferred that the majority assume without deciding that section 921(a)(33)(B) sets out affirmative defenses, thus saving the issue for when it is actually briefed and before our Court. I do think this is a “tenable option” when Mr. Johnson has not raised this issue for our plain error review. See id. at 22 n.8. Notwithstanding my concerns about the majority’s characterization, I accept it only for purposes of my analysis here. 43  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 44 of 58 Johnson was convicted of violating Florida Statutes § 784.03(1)(a). That provision says the “offense of battery occurs” when a person “[a]ctually and intentionally touches or strikes another person against the will of the other” or “[i]ntentionally causes bodily harm to another person.” Fla. Stat. § 784.03 (1)(a). Nothing in the record before us indicates that Mr. Johnson was ever made aware of the elements of his prior offense or that it might be a misdemeanor crime of domestic violence under federal law. And because his misdemeanor conviction did not prohibit Mr. Johnson from possessing a firearm under Florida law, see Fla. Stat. § 790.23 (1) (2010), Johnson was not advised of his prohibited status when he entered his plea. His experience stands in contrast to most people who are sentenced for felony convictions who are advised of their status that prohibits them from possessing firearms. During a traffic stop in 2018, a police officer saw a gun, which Mr. Johnson bought for protection, on the floorboard of Johnson’s vehicle. A federal grand jury indicted Mr. Johnson, charging him with possession of a firearm after being convicted of a misdemeanor crime of domestic violence in violation of section 922(g)(9). Mr. Johnson moved to dismiss his indictment under Federal Rule of Criminal Procedure 12(b)(3)(B)(v) for failure to state an offense. He argued that his domestic violence misdemeanor conviction fell under the exception in section 921(a)(33)(B). As set out above, that section says a person “shall not be 44  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 45 of 58 considered to have been convicted” of a misdemeanor crime of domestic violence if he “has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).” 18 U.S.C. § 921 (a)(33)(B)(ii). In moving to dismiss his indictment, Mr. Johnson observed that Florida “never suspended his civil rights” because Florida does not prohibit domestic-violence misdemeanants from possessing a firearm, and thus “his rights did not require restoration.” The District Court declined to dismiss Mr. Johnson’s indictment. Mr. Johnson then proceeded with a stipulated bench trial, and he was found guilty. When sentencing Mr. Johnson for violating section 922(g)(9), the District Court observed that “it isn’t often that individuals end up before the Court charged with something that they can genuinely say they didn’t know was unlawful.” III With this legal and factual background in mind, I now turn to Mr. Johnson’s Rehaif challenges to his indictment as well as the sufficiency of the evidence at trial. The majority correctly observes that Mr. Johnson did not raise his Rehaif arguments in the District Court. Maj. Op. at 10. That means we review those challenges for plain error. See United States v. Reed, 941 F.3d 1018 , 1020 (11th Cir. 2019). Plain error exists when (1) there was error, (2) the error was plain, (3) the error affected the defendant’s substantial rights, and (4) the error “seriously affect[ed] the fairness, integrity, or public reputation of a judicial proceeding.” 45  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 46 of 58 United States v. Humphrey, 164 F.3d 585 , 588 n.3 (11th Cir. 1999). To show that an error affected his substantial rights, a defendant must demonstrate a reasonable probability that, but for the errors, the outcome of the proceeding would have been different. Reed, 941 F.3d at 1021. Applying this test, I agree with the majority that there were Rehaif errors here and that they were plain. See Maj. Op. at 11–14.2 But I part ways with the majority’s holding that those errors did not affect Mr. Johnson’s substantial rights. Id. at 31–32. According to the majority opinion, “to satisfy Rehaif’s knowledge- of-status requirement under Section 922(g)(9), the evidence must establish that Johnson knew all the following: (1) he had been convicted of a misdemeanor under state law; (2) to be convicted of that misdemeanor, he must have knowingly or recklessly engaged in at least ‘the slightest offensive touching’; and (3) the victim was his current or former spouse at the time he committed the crime.” Id. at 19–20 (footnotes and citations omitted).3 The majority says these prongs are easily satisfied, so Mr. Johnson’s substantial rights were not affected because he was due to be convicted under section 922(g)(9) regardless of Rehaif. Id. at 28–32. 2 The majority also correctly holds that Mr. Johnson did not invite error by stipulating that the facts were sufficient to convict him. Maj. Op. at 8–9. 3 I understand the majority’s test to apply only to Mr. Johnson’s case, rather than to all criminal defendants subject to section 922(g)(9). Otherwise, the majority’s test improperly excludes people convicted of a misdemeanor under non-state law, such as “Federal” or “Tribal” law, as well as people convicted of a misdemeanor crime of domestic violence involving victims other than current or former spouses, such as children. See 18 U.S.C. § 921 (a)(33)(A). 46  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 47 of 58 I have three primary concerns about the majority’s analysis. First, the majority fails to require, contrary to Rehaif, that Mr. Johnson actually knew his offense was a misdemeanor crime of domestic violence. Second, the majority relies on what Mr. Johnson knew at the time he was tried for the section 922(g)(9) violation (which is irrelevant under Rehaif), instead of what he knew when he had the firearm (which is what matters under Rehaif). Third, the majority errs in finding that the test for plain error review is not satisfied. I will address each of these misgivings in turn. A My first concern about the majority’s approach relates to the government’s proof of the “knowledge” requirement in order to obtain a conviction under section 922(g). Rehaif held that the government must show that a defendant “knew he had the relevant status” when he possessed the firearm. Rehaif, 139 S. Ct. at 2194 . Therefore, I read Rehaif as requiring the government to show that Mr. Johnson knew he was “convicted in any court of a misdemeanor crime of domestic violence,” which “means an offense that . . . has, as an element, the use or attempted use of physical force.” 18 U.S.C. §§ 921 (a)(33)(A)(ii), 922(g)(9). In other words, I understand Rehaif to require the government to show that Mr. Johnson actually knew he was convicted of an offense that had, “as an element, the use or attempted use of physical force” and thus qualified as a misdemeanor crime 47  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 48 of 58 of domestic violence. Id. § 921(a)(33)(A)(ii). Because it requires knowing a specific legal “element of the offense,” knowledge of status under section 922(g)(9) is a “question of law.” See Rehaif, 139 S. Ct. at 2198 . The majority opinion requires the government to show less than I think the statute and Rehaif require. The majority requires only that the government show a defendant knew his conviction required particular conduct, regardless of whether the defendant actually knew his conduct qualifies his offense as a misdemeanor crime of domestic violence. For instance, under its test, the majority requires that the defendant knew that, to be convicted of his offense, “he must have knowingly or recklessly engaged in at least ‘the slightest offensive touching.’” Maj. Op. at 19 (footnote omitted). Likewise, in applying its test to Mr. Johnson, the majority observes that Johnson stipulated at his bench trial that he “pled guilty to battery” and thus knew he “engaged in at least ‘the slightest offensive touching.’” Id. at 30. But again, those facts might show Mr. Johnson knew of his conduct and the offense to which he pled guilty, but they do not show that Mr. Johnson knew his offense was a misdemeanor crime of domestic violence under federal law. The Supreme Court said the government must show that a defendant “knew he had the relevant status” when he possessed the firearm. Rehaif, 139 S. Ct. at 2194 . By this, I take the Supreme Court to mean that the government must show the defendant knew he had “been convicted in any court of a misdemeanor crime 48  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 49 of 58 of domestic violence.” 18 U.S.C. § 922 (g)(9). It is irrelevant under section 922(g) and Rehaif that a defendant knows that an offense requires certain conduct for a conviction if he does not know that conduct ultimately makes the offense a misdemeanor crime of domestic violence. I acknowledge that this is a subtle distinction, but it is one that matters. In Rehaif, the Supreme Court recognized that a “mistake of law” is no defense when a defendant “claims to be ‘unaware of the existence of a statute proscribing his conduct’” (which is not at issue here). Rehaif, 139 S. Ct. at 2198 . Yet it is a defense when, as in section 922(g)(9), that mistake of law “negat[es] an element of the offense.” Id. Namely, a defendant who does not know that he has been convicted of a misdemeanor crime of domestic violence “does not have the guilty state of mind that the statute’s language and purposes require.” Id. My difference with the majority’s position is exactly that: Mr. Johnson’s mistake of law—that he did not know his prior offense was a misdemeanor crime of domestic violence—negates an element of the section 922(g)(9) offense. I think the majority fails to engage with Rehaif’s recognition that this mistake of law negates an element of the offense. 4 Instead the majority asserts, citing to cases 4 The majority says, “under Rehaif’s knowledge-of-status requirement, that a defendant does not recognize that he personally is prohibited from possessing a firearm under federal law” is a “mistake of law, which is not a defense.” Maj. Op. at 32–33. But that, of course, is not the mistake of law I refer to here. Instead, I refer to a mistake of law that “negat[es] an element of the offense.” See Rehaif, 139 S. Ct. at 2198 . 49  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 50 of 58 involving other statutes, that a defendant need only know the facts making his conduct unlawful. See Maj. Op. at 15–20. But even if a defendant knows the facts that resulted in his conviction for what is, in fact, a misdemeanor crime of domestic violence, he does not necessarily know it was a misdemeanor crime of domestic violence. In Rehaif, the Supreme Court said that, as is the case here, “a mistake of law is a defense if the mistake negates the ‘knowledge . . . required to establish a material element of the offense.’” Rehaif, 139 S. Ct. at 2198 . I believe the government must show that a defendant knew he was “convicted in any court of a misdemeanor crime of domestic violence,” which means he knew he was convicted of “an offense that . . . has, as an element, the use or attempted use of physical force.” 18 U.S.C. §§ 921 (a)(33)(A)(ii), 922(g)(9). That requires the government to prove the defendant was aware that his prior conviction included the element of use or attempted use of force. The majority says this requirement is met by a defendant’s knowledge of his conduct. See Maj. Op. at 15–20 & n.7. I think the government’s burden is heavier than that. For example, if a defendant pleads guilty to a battery offense, he very well may be informed of the elements of that offense by the judge during his plea colloquy or through a stipulation. In this hypothetical circumstance, there is a record showing that he knew he was convicted of an offense that “has, as an element, the use or attempted use of physical force.” 18 U.S.C. § 921 (a)(33)(A)(ii). Unlike this 50  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 51 of 58 hypothetical, I don’t believe the record here is sufficient to attribute this knowledge to Mr. Johnson. B While my first concern about the majority’s position looks to what the government must show the defendant knew, my second concern is about when the government must show he knew it. Rehaif requires that the defendant “knew he had the relevant status when he possessed” the firearm. Rehaif, 139 S. Ct. at 2194 (emphasis added). As an initial matter, I do not understand the majority’s test to comport with this part of Rehaif. Rather, the majority opinion requires only that “Johnson knew all” necessary facts, Maj. Op. at 29, and then relies on Mr. Johnson’s knowledge at the time of the proceedings on the section 922(g)(9) charge. Specifically, the majority looks to only two documents in the record to determine what Mr. Johnson knew: Johnson’s stipulation at the trial of his section 922(g)(9) charge and the presentence investigation report from his sentencing after he was convicted for that crime. Id. at 28. Based on these two documents, the majority concludes that Mr. Johnson knew his offense “required that he had necessarily engaged in at least ‘the slightest offensive touching.’” Id. at 28, 31. But neither of those documents show that Mr. Johnson “knew . . . when he possessed” the firearm that he was a domestic-violence misdemeanant. Rehaif, 51  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 52 of 58 139 S. Ct. at 2194 (emphasis added). The documents merely tell us what he knew as he progressed through his section 922(g)(9) proceedings. Federal courts see many defendants who have never before faced federal charges, and I’ve observed that they get quite an education about what can constitute a federal crime between the time they are arrested and the time they ultimately face trial or are sentenced. For instance, the majority only cites Mr. Johnson’s stipulation to show his purported knowledge of “the elements of [his battery] offense.” Maj. Op. at 30. The stipulation says Mr. Johnson “knowingly and intelligently waived his right to a jury trial and pled guilty” to the battery offense. According to the majority’s reading of Bradshaw v. Stumpf, 545 U.S. 175 , 125 S. Ct. 2398 (2005), Mr. Johnson’s knowing and intelligent plea means he was “informed of the crime’s elements.”5 Maj. Op. at 30. But the problem is that nowhere in that stipulation does it say Mr. Johnson knew the nature of his plea (and thus the elements of his offense) when he possessed the firearm. The most we 5 I read Stumpf differently than the majority. The majority says Stumpf “explained that a knowing and intelligent plea requires that the defendant have been informed of the crime’s elements.” Maj. Op. at 30. But Stumpf said only that a plea is knowing and intelligent “where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel” or “by the trial judge.” Stumpf, 545 U.S. at 183 , 125 S. Ct. at 2405 . Stumpf does not say that a defendant’s statement that he knowingly and intelligently pled guilty is sufficient to show he knew the elements of his offense. Rather, all it says is that “where the record accurately reflects” that a defendant knew the elements of his offense, then he knowingly and intelligently pled guilty. Id. We simply don’t have that here. We cannot assume that Mr. Johnson knew the elements of his offense solely because he stipulated that he knowingly and intelligently pled guilty to the battery offense. This is especially true since he made that stipulation during his section 922(g)(9) proceedings and after he possessed the firearm. 52  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 53 of 58 can say is that the stipulation shows Mr. Johnson had knowledge of the nature of his plea during the section 922(g)(9) proceedings. The majority says that the stipulation and presentence investigation report “identify what Johnson knew at the time that he pled guilty to the underlying” battery offense. Id. at 29 n.11. Again, I don’t think they do. Perhaps now Mr. Johnson understands the nature of his prior conviction. But nothing in Rehaif is concerned about after-the-fact knowledge like this. I worry that the majority’s reliance on documents purportedly showing Mr. Johnson’s knowledge after he possessed the firearm will pave the way for the government to rely on such deficient evidence in the future. C My final concern with the majority’s position is its conclusion that the test for plain error review is not satisfied. See Maj. Op. at 31–32. For the reasons discussed here, I would easily conclude that Mr. Johnson has shown that the Rehaif errors affected his substantial rights. I’ve found nothing in the record showing that Mr. Johnson knew, at the time he possessed the firearm, that his prior conviction had, “as an element, the use or attempted use of physical force,” 18 U.S.C. § 921 (a)(33)(A)(ii), and consequently was a misdemeanor crime of domestic violence. This being the case, if Mr. Johnson had known that the government needed to prove he knew his status, it would have made no sense for him to stipulate to that point, instead of putting the government to its proof. Thus, he has 53  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 54 of 58 shown a reasonable probability that the outcome of the proceeding would have been different. Reed, 941 F.3d at 1021. Mr. Johnson’s resulting prison sentence, when he did not know the status for which he was convicted, makes it clear to me that this error “seriously affect[ed] the fairness, integrity, or public reputation of a judicial proceeding.” Humphrey, 164 F.3d at 588 n.3. Were it up to me, I would follow the Seventh Circuit’s approach in Triggs. Like Mr. Johnson, Robert Triggs challenged his section 922(g)(9) conviction under Rehaif. Triggs, 963 F.3d at 712. The Seventh Circuit held that Mr. Triggs established plain error because he “carried his burden to establish a reasonable probability that he would not have pleaded guilty had he known of the government’s Rehaif burden.” Id. at 717. The Seventh Circuit observed that Mr. Triggs had a “potentially viable avenue of defense” because the “government had to prove that he knew he had been convicted of a ‘misdemeanor crime of domestic violence,’” and the record nowhere showed that the “elements” of his prior conviction were ever provided or explained to him. See id. at 715–16. As in Triggs, nothing in this record indicates that Mr. Johnson knew, at the time when he possessed the firearm, that he had been convicted of a misdemeanor crime of domestic violence, which requires he knew his battery offense had, “as an element, the use or attempted use of physical force.” 18 U.S.C. § 921 (a)(33)(A)(ii). This comes as no surprise to me, as the legal definition of a misdemeanor crime of 54  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 55 of 58 domestic violence is “quite complex.” Triggs, 963 F.3d at 715. Indeed, the “[m]embers of [the Supreme] Court have been unable to agree on the meaning” of a crime of domestic violence, even “after briefing, argument, and careful study” in numerous cases. Rehaif, 139 S. Ct. at 2208 (Alito, J., dissenting). If the Supreme Court has been grappling for years with the meaning of a crime of a domestic violence, I think Mr. Johnson certainly has a “plausible defense” that he didn’t know that meaning either. See Triggs, 963 F.3d at 717. He therefore didn’t know his status and so has “establish[ed] a reasonable probability” that the outcome of the proceeding would have been different “had he known of the government’s Rehaif burden.” Id. But even putting aside my other misgivings and the wisdom of Triggs, I think this record affirmatively shows a reasonable probability that the outcome of the proceeding would have been different. Namely, when Mr. Johnson moved to dismiss the indictment, he argued that his domestic violence misdemeanor conviction fell under the exception in section 921(a)(33)(B)(ii). As a refresher, that section says a person “shall not be considered to have been convicted” of a misdemeanor crime of domestic violence if he “has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).” 18 U.S.C. § 921 (a)(33)(B)(ii). In Mr. Johnson’s view, he qualified for 55  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 56 of 58 that exception because he was never prohibited from possessing a gun under Florida law. Remember, according to the majority opinion, when a defendant puts forward evidence that he viewed his prior conviction as excepted under section 921(a)(33)(B) from the definition of a “misdemeanor crime of domestic violence” (which Mr. Johnson did, as shown by his motion to dismiss), the government has the burden of persuasion and must disprove that view in order to show the defendant knew he was convicted of a misdemeanor crime of domestic violence. Maj. Op. at 28; see also id. at 20–28. Regardless of whether Mr. Johnson’s section 921(a)(33)(B) argument would ultimately be meritorious, see id. at 33–35, the question under the plain error analysis is whether there is a reasonable probability that the outcome of the proceeding would have been different. Reed, 941 F.3d at 1021. If Mr. Johnson had known that the government had to “disprove” his view that “his prior conviction [was] excepted from the definition of ‘misdemeanor crime of domestic violence,’” Maj. Op. at 28, it seems clear that Mr. Johnson would have put the government to its proof on this issue.6 6 The majority says the outcome of the proceeding would not have been different because Mr. Johnson “never properly raised an affirmative defense under Section 921(a)(33)(B)(ii).” Maj. Op. at 35 n.15. This assertion is troubling. The question on plain error review is not whether Mr. Johnson had a proper affirmative defense that “arguably” would have succeeded. Id. Instead, the question is whether Mr. Johnson would have required the government to disprove his view (regardless of whether his view is proper) that an exception applied had he known the government needed to do so. I certainly think so, and if so, there is a reasonable 56  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 57 of 58 IV I view today’s decision as relieving the government of its burden to obtain convictions under section 922(g). Both the statute and Rehaif require more for a section 922(g) conviction than the government will now be called upon to show. As I understand this decision, the government will not now need to show, as Rehaif requires, that a defendant actually knew his offense was a misdemeanor crime of domestic violence. And under the majority’s decision, the government can rely on a defendant’s knowledge after his actual possession of the firearm, as opposed to, again as Rehaif requires, his knowledge when he possessed the firearm. I also believe the majority’s decision does all that while conducting a flawed plain error review and creating a split with the Seventh Circuit in Triggs.7 probability that the outcome of the proceeding would have been different. Reed, 941 F.3d at 1021. 7 The majority disavows its split with Triggs because Triggs involved “messy” proceedings. Maj. Op. at 31 n.12. I don’t think this is a proper distinction. The Seventh Circuit said that the “complexity of the statutory definition” (before ever discussing any “messy” proceedings) “open[ed] a potentially viable avenue of defense.” Triggs, 963 F.3d at 716. I, like the Seventh Circuit, believe that “the complexity of the statutory definition” of a misdemeanor crime of domestic violence gives a defendant “at least a plausible argument” that he was unaware he had been convicted of such an offense. Id. However, the majority, unlike the Seventh Circuit, gives no leeway for the complex statutory definition to be relevant, so long as the defendant knew the facts making his conduct unlawful. See Maj. Op. at 15–20. But even assuming the Seventh Circuit remanded in Triggs based in part on “messy” proceedings, those proceedings were characterized that way because the “elements” of the prior offense were never provided to Mr. Triggs. See Triggs, 963 F.3d at 716. This being the case, I view the proceedings here to be “messy” too and see a split with the Seventh Circuit on that ground as well. 57  USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 58 of 58 Like the District Court, I view this as an “unusual offense,” because Mr. Johnson was charged with something he can “genuinely say [he] didn’t know was unlawful.” For his conviction under this statute, that matters. I respectfully dissent. 58

2020-12-02 19:13:50.461936+00

http://www.tsc.state.tn.us/sites/default/files/reinationopn.pdf

12/01/2020 IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs November 2, 2020 REI NATION LLC v. LATASHA TENNIAL Appeal from the Circuit Court for Shelby County No. CT-4592-19 Felicia Corbin-Johnson, Judge No. W2020-00223-COA-R3-CV In this forcible entry and detainer case, REI Nation, LLC (“REI”) filed a detainer warrant against LaTasha Chanta Tennial (“Tennial”) in the General Sessions Court for Shelby County (“the General Sessions Court”) to obtain possession of certain foreclosed-upon real estate (“the Property”) it had purchased. The General Sessions Court entered judgment for REI. Tennial appealed to the Circuit Court for Shelby County (“the Circuit Court”) for trial de novo. The Circuit Court found for REI, as well. Tennial appeals to this Court. Discerning no reversible error in the Circuit Court’s judgment, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT and CARMA DENNIS MCGEE, JJ., joined. LaTasha Chanta Tennial, pro se appellant. Russell W. Savory, Memphis, Tennessee, for the appellee, REI Nation, LLC.  MEMORANDUM OPINION1 Background The Property, once home to Tennial, is located in Memphis, Tennessee. The Property was foreclosed upon several years ago. REI, a real estate investment company, purchased the Property in June 2019. In July 2019, REI filed a detainer warrant against Tennial in the General Sessions Court to obtain possession of the Property. However, REI discovered that Tennial was in the midst of Chapter 13 bankruptcy proceedings. REI moved to terminate the automatic stay so it could proceed with its case. The United States Bankruptcy Court Western District of Tennessee, Western Division, entered an order stating that “the Automatic Stay be and is hereby terminated nunc pro tunc to March 25, 2019 for the purpose of allowing REI Nation, LLC, to exercise its state law remedies to obtain possession of [the Property].” In October 2019, trial was held in the General Sessions Court. The General Sessions Court thereafter entered judgment for possession in favor of REI. Tennial timely appealed to the Circuit Court for trial de novo. The record on appeal contains no transcript or statement of the evidence reflecting the testimony from that trial. In January 2020, the Circuit Court entered an order finding in favor of REI. The Circuit Court stated: This appeal from the forcible entry and detainer judgment of the General Sessions Court was tried on January 23, 2020, and the Court, having considered the evidence presented and the statements of counsel for Plaintiff, and Defendant, pro se, finds that REI Nation, LLC, is the owner of [the Property], and has the superior right to possession thereof, and that a final judgment should be entered accordingly. IT IS, THEREFORE, ORDERED ADJUDGED AND DECREED that REI Nation, LLC be restored to the possession of [the Property], and that a Writ of Possession issue therefore. Costs are hereby assessed against Latasha Tennial, for which let execution issue. Tennial timely appealed to this Court. 1 Rule 10 of the Rules of the Tennessee Court of Appeals provides: “This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated ‘MEMORANDUM OPINION’, shall not be published, and shall not be cited or relied on for any reason in any unrelated case.” -2-  Discussion Tennial, pro se, raises seven issues on appeal, which we quote as follows: 1) REI Nation’s breach of contract claim is spurious, uncorroborated, and plagued with erroneous assumptions meant to distort my original complaint. 2) There is not a contract; nor has there ever been any agreement whatsoever that I entered into with REI Nation; without a contract a Breach of a Contract simply put does not exist. 3) The United States Bankruptcy Court in the Western Division for Tennessee issued an ordered agreement on March 26, 2019 that involved Bank of America N.A., Carrington Mortgage Services, LLC, and I are the ONLY parties in the agreement; REI NATION is not a party of that agreement. 4) The order clearly states that I should remain as an occupant until the conclusion of the wrongful foreclosure lawsuit pending in the Court of Appeals. 5) REI Nation failed to give proper Notice, prior to the FED being filed. 6) The service of the detainer warrant is defected [sic]. 7) This case was set for a continuous [sic] numerous times, and each continuous [sic] was without the consent of all parties. We begin by observing that Tennial’s brief fails to comply with Tennessee Rule of Appellate Procedure 27, which governs appellate briefs. Tenn. R. App. P. 27 specifies that an appellant’s brief must contain, inter alia: (2) A table of authorities, including cases (alphabetically arranged), statutes and other authorities cited, with references to the pages in the brief where they are cited; *** (6) A statement of facts, setting forth the facts relevant to the issues presented for review with appropriate references to the record; (7) An argument, which may be preceded by a summary of argument, setting forth: (A) the contentions of the appellant with respect to the issues presented, and the reasons therefor, including the reasons why the contentions require appellate relief, with citations to the authorities and appropriate references to the record (which may be quoted verbatim) relied on; and -3-  (B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues); Tenn. R. App. P. 27(a). Tennial’s brief does not contain a table of authorities as required. Indeed, Tennial’s brief cites no legal authority. Tennial also fails to cite to the record on appeal, which consists of one volume of technical record. The record contains no transcript. “In the absence of a transcript of the evidence, there is a conclusive presumption that there was sufficient evidence before the trial court to support its judgment, and this Court must therefore affirm the judgment.” Coakley v. Daniels, 840 S.W.2d 367 , 370 (Tenn. Ct. App. 1992). Throughout the whole of her brief, Tennial makes unsupported legal and factual assertions. A party’s failure to comply with the appellate brief requirements set forth in Tenn. R. App. P. 27 can have serious consequences, as we have warned repeatedly: Courts have routinely held that the failure to make appropriate references to the record and to cite relevant authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a waiver of the issue. See State v. Schaller, 975 S.W.2d 313 , 318 (Tenn. Crim. App. 1997); Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196 , 210 (Tenn. Ct. App. 1994); State v. Dickerson, 885 S.W.2d 90 , 93 (Tenn. Crim. App. 1993). Moreover, an issue is waived where it is simply raised without any argument regarding its merits. See Blair v. Badenhope, 940 S.W.2d 575 , 576-577 (Tenn. Ct. App. 1996); Bank of Crockett v. Cullipher, 752 S.W.2d 84 , 86 (Tenn. Ct. App. 1988).... As noted in England v. Burns Stone Company, Inc., 874 S.W.2d 32 , 35 (Tenn. Ct. App. 1993), parties cannot expect this court to do its work for them. This Court is under no duty to verify unsupported allegations in a party’s brief, or for that matter consider issues raised but not argued in the brief. Duchow v. Whalen, 872 S.W.2d 692 , 693 (Tenn. Ct. App. 1993) (citing Airline Const. Inc., [sic] v. Barr, 807 S.W.2d 247 (Tenn. Ct. App. 1990)). Bean v. Bean, 40 S.W.3d 52 , 55-56 (Tenn. Ct. App. 2000). We are aware that Tennial is a pro se litigant and have tried to give her the benefit of the doubt. Nevertheless, pro se litigants must comply with the same substantive and procedural rules that apply to represented parties. As this Court explained in Young v. Barrow: Parties who decide to represent themselves are entitled to fair and equal treatment by the courts. Whitaker v. Whirlpool Corp., 32 S.W.3d 222 , -4-  227 (Tenn. Ct. App. 2000); Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393 , 396 (Tenn. Ct. App. 1997). The courts should take into account that many pro se litigants have no legal training and little familiarity with the judicial system. Irvin v. City of Clarksville, 767 S.W.2d 649 , 652 (Tenn. Ct. App. 1988). However, the courts must also be mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se litigant’s adversary. Thus, the courts must not excuse pro se litigants from complying with the same substantive and procedural rules that represented parties are expected to observe. Edmundson v. Pratt, 945 S.W.2d 754 , 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728 , 733 n. 4 (Tenn. Ct. App. 1995). Young v. Barrow, 130 S.W.3d 59 , 62-63 (Tenn. Ct. App. 2003). Tennial’s failure to comply with Tenn. R. App. P. 27 is reason enough to find her issues waived. In addition, REI argues that the appeal is now moot since Tennial has been evicted from the Property and the Property has been sold to bona fide purchasers. Even affording Tennial the maximum possible leeway and pressing on with her issues, we find no merit in what she has raised. Tennial states, for instance, that she had no contractual relationship with REI. That may well be, but it is beside the point. The Circuit Court’s judgment was not based upon any purported contractual relationship between Tennial and REI. Rather, it was based upon a finding that REI “is the owner of [the Property], and has the superior right to possession thereof.” Tennial fails to contend with that finding, which was the basis of the judgment against her. Tennial also asserts that an order by the Bankruptcy Court “clearly states” that she may remain an occupant of the Property until her separate wrongful foreclosure lawsuit is concluded. However, as is the case throughout Tennial’s brief, this assertion is unsupported by any citation to the record or to the law. Tennial states further that service of the detainer warrant upon her was insufficient or defective. However, the record reflects service on July 13, 2019 to an “adult person found in possession of premises, who gave the name of Latasha Cennial (occupant).” Tennial’s name was misspelled, but the record nevertheless reflects that service was achieved. Finally, Tennial states that the case was reset below numerous times without the consent of all parties. However, Tennial fails to explain how or why that would entitle her to any relief on appeal. In sum, we discern no reversible error in the Circuit Court’s judgment. We affirm. -5-  Conclusion The judgment of the Circuit Court is affirmed, and this cause is remanded to the Circuit Court for collection of the costs below. The costs on appeal are assessed against the Appellant, LaTasha Chanta Tennial, and her surety, if any. ______________________________________ D. MICHAEL SWINEY, CHIEF JUDGE -6-

2020-12-02 19:13:50.975136+00

http://www.tsc.state.tn.us/sites/default/files/erwinjoedavid2opn.pdf

12/01/2020 IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON February 11, 2020 Session JOE DAVID ERWIN ET AL. v. GREAT RIVER ROAD SUPERCROSS, LLC ET AL. Appeal from the Chancery Court for Dyer County No. 15-CV-218 Tony A. Childress, Chancellor ___________________________________ No. W2019-01005-COA-R3-CV ___________________________________ In this dispute over the sale of real and personal property, the buyers complain that they did not receive all the personal property described in the bill of sale and that the real property was encumbered. Their complaint asserted claims for intentional misrepresentation, breach of the covenant against encumbrances, and breach of contract. After a bench trial, the trial court awarded the buyers damages for breach of contract and intentional misrepresentation. Both sides appealed. We conclude that the evidence preponderates against the trial court’s finding that the buyers’ reliance on the misrepresentation in the warranty deed was reasonable. In all other respects, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed in Part and Affirmed in Part W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and CARMA DENNIS MCGEE, J., joined. Matthew W. Willis, Dyersburg, Tennessee, for the appellants, Great River Road Supercross, LLC and Brian Klinkhammer. Jason R. Creasy, Dyersburg, Tennessee, for the appellees, Joe David Erwin and Amanda Rachel Erwin.  OPINION I. A. Brian Klinkhammer was the sole member and chief manager of Great River Road Supercross, LLC. The LLC was administratively dissolved in 2004. Four years later, Mr. Klinkhammer orally agreed to sell a 21.61-acre property owned by the LLC, along with various improvements and equipment, to Joe and Amanda Erwin for a total purchase price of $160,000. The Erwins paid $40,000 down and signed a Real Estate Installment Note, secured by a deed of trust, for the balance of the purchase price. The note obligated the Erwins to make 10 annual payments of $12,000 to Mr. Klinkhammer. Mr. Klinkhammer, on behalf of the LLC, conveyed the real property to the Erwins by warranty deed dated July 8, 2008. In the same manner, he also signed a bill of sale for designated personal property. The warranty deed contained a covenant that the real estate was unencumbered, which turned out to be false. A recorded deed of trust in favor of First Citizens National Bank encumbered the real property. Although Mr. Klinkhammer notified the Bank about the pending sale, he did not pay off the debt or obtain a release of the deed of trust as part of the closing. A few months later, Mr. Klinkhammer realized that the bill of sale erroneously included a John Deere ten-foot fiber shank among the listed items of personal property. The LLC did not own the ten-foot fiber shank. The actual owner removed the item from the property approximately three months after the sale. The first installment on the note was due in July 2009. Without Mr. Klinkhammer’s approval, the Erwins deducted $2,000 from their payment to compensate for the loss of the fiber shank. Mr. Klinkhammer declared a default and instituted foreclosure proceedings. During the foreclosure, Mr. Erwin discovered the pre-existing lien on the real property. He did not submit a bid at the March 1, 2010 foreclosure sale. Mr. Klinkhammer was the successful bidder; he purchased the property for $110,000, the balance owed on the note. B. Mr. and Mrs. Erwin sued Mr. Klinkhammer, individually, and the LLC seeking compensatory damages for intentional misrepresentation, breach of the covenant against 2 encumbrances, and breach of contract. At the bench trial, the court heard testimony from the two principal players—Mr. Erwin and Mr. Klinkhammer. Mr. Klinkhammer maintained that he included the fiber shank in the bill of sale by mistake. He meant to list another piece of equipment of similar value. Mr. Erwin disagreed. And he claimed that Mr. Klinkhammer had agreed to a $2,000 adjustment to the total purchase price. For his part, Mr. Klinkhammer denied ever discussing a deduction or set off with Mr. Erwin. Mr. Klinkhammer conceded that he knew that the real estate was encumbered when he signed the warranty deed on behalf of the LLC. But he never intended to deceive the Erwins. With the Bank’s permission, he continued to make timely payments on the loan after the sale. The Bank released its lien in 2012. Still, Mr. Erwin was unaware of any encumbrances when he purchased the real property. And he remained ignorant of the true facts until he received the trustee’s notice of the pending foreclosure sale. Proof at trial established that, as of July 8, 2009, the outstanding balance on the Bank loan was $21,884.06. Mr. Erwin claimed that he decided not to bid at the foreclosure sale because of the Bank debt. The trial court ruled in favor of the Erwins on their breach of contract claim, but dismissed all other claims. The court found that the LLC did not deliver a ten-foot fiber shank as promised in the bill of sale. So the Erwins were entitled to recover $1,000 in damages for breach of contract, representing the value of the missing item. The court dismissed the intentional misrepresentation claim after finding that the Erwins had not actually relied on the misrepresentation. And while the covenant against encumbrances had been breached, the Erwins had failed to prove their damages. The court awarded judgment against Mr. Klinkhammer individually “[s]ince the LLC was dissolved on the date of the transaction and has not been reinstated.” The Erwins appealed. See Erwin v. Great River Rd. Supercross LLC, No. W2017- 00150-COA-R3-CV, 2017 WL 4743055 , at *1 (Tenn. Ct. App. Oct. 19, 2017). In the first appeal, we concluded that the evidence at trial preponderated against the trial court’s reliance finding. Id. at *2. So we vacated the trial court’s judgment and remanded this case for further proceedings. Id. On remand, the trial court held a hearing limited to the issue of reliance. Mr. Erwin, the lone witness at the hearing, testified that he relied on the representation in the warranty deed that the property was unencumbered when he completed the purchase of the real property. Once again, the trial court ruled in favor of the Erwins. This time, the court awarded $1,000 in damages for breach of contract and $21,887.06 in damages for 3 intentional misrepresentation. The court found that Mr. Erwin “relied on the unencumbered language in the deed when making the decision to purchase the real property and that reliance was reasonable.” All other claims were dismissed. This judgment was also against Mr. Klinkhammer individually. II. All parties raise issues on appeal. Mr. Klinkhammer and the LLC argue that the evidence preponderates against the trial court’s finding that Mr. Erwin’s reliance on the misrepresentation in the warranty deed was reasonable. Both sides raise issues with the damages awarded for intentional misrepresentation. The Erwins also contend that the court erred in failing to award damages for breach of the covenant against encumbrances. Finally, Mr. Klinkhammer asserts that the court erred in finding him individually liable. Because this was a bench trial, our review is de novo on the record with a presumption that the trial court’s factual findings are correct, unless the evidence preponderates against those findings. Tenn. R. App. P. 13(d). Evidence preponderates against a finding of fact if the evidence “support[s] another finding of fact with greater convincing effect.” Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291 , 296 (Tenn. Ct. App. 2001). Our review of the trial court’s conclusions of law is de novo with no presumption of correctness. Kaplan v. Bugalla, 188 S.W.3d 632 , 635 (Tenn. 2006). A. The plaintiff seeking to recover for intentional misrepresentation must establish multiple elements. See Hodge v. Craig, 382 S.W.3d 325 , 343 (Tenn. 2012) (outlining six elements of a successful intentional misrepresentation action). Here, we are only concerned with one of those elements, reliance. See id. (explaining that the plaintiff must show that “[he] did not know that the representation was false when made and was justified in relying on the truth of the representation”). And to narrow the issue further, Mr. Klinkhammer and the LLC do not question the court’s finding of actual reliance. See Pritchett v. Comas Montgomery Realty & Auction Co., No. M2014-00583-COA-R3-CV, 2015 WL 1777445 , at *3 (Tenn. Ct. App. Apr. 15, 2015) (explaining that the reliance element involves two inquiries, “whether the plaintiff actually relied on the misrepresentation and whether that reliance was reasonable”). They contend the trial court erred in finding that Mr. Erwin’s reliance was reasonable. Reasonable reliance is a question of fact requiring consideration of a number of factors. City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d 729 , 737 (Tenn. Ct. App. 1996). The factors include the plaintiff’s sophistication and expertise in the subject matter of the representation, the type of relationship—fiduciary or 4  otherwise—between the parties, the availability of relevant information about the representation, any concealment of the misrepresentation, any opportunity to discover the misrepresentation, which party initiated the transaction, and the specificity of the misrepresentation. Davis v. McGuigan, 325 S.W.3d 149 , 158 (Tenn. 2010). Based on these factors, we conclude that the evidence preponderates against a finding that Mr. Erwin’s reliance on the misrepresentation in the warranty deed was reasonable. The Bank’s deed of trust was recorded in 2000, placing all the world on constructive notice of an encumbrance on the real property. See Tenn. Code Ann. § 66 - 26-102 (2015); see also Blevins v. Johnson Cty., 746 S.W.2d 678 , 682-83 (Tenn. 1988) (“Constructive notice is notice implied or imputed by operation of law and arises as a result of the legal act of recording an instrument under a statute by which recordation has the effect of constructive notice.”). This was an arm’s length transaction. There was no proof that Mr. Erwin was inexperienced in real estate matters or that Mr. Klinkhammer took steps to prevent him from discovering the recorded deed of trust. The true facts were readily available through a simple search of the public record. “Generally, a party dealing on equal terms with another is not justified in relying upon representations where the means of knowledge are readily within his reach.” Solomon v. First Am. Nat’l Bank of Nashville, 774 S.W.2d 935 , 943 (Tenn. Ct. App. 1989). The Erwins failed to prove an essential element of their claim for intentional misrepresentation, that their reliance was reasonable. See Estate of Lambert v. Fitzgerald, 497 S.W.3d 425 , 457 (Tenn. Ct. App. 2016). So we reverse the court’s award of damages for intentional misrepresentation. B. The Erwins contend that the trial court erred in failing to award any damages for an undisputed breach of the covenant against encumbrances. The covenant against encumbrances, if untrue, is broken as soon as it is made. Amos v. Carson, 210 S.W.2d 677 , 679 (Tenn. 1948). This covenant provides “security against those rights to, or interests in, the land granted which may subsist in third persons to the diminution in value of the estate although consistent with the passing of the fee.” Id. (citation omitted). In effect, the seller agrees to indemnify the buyer against any encumbrances on the property. Id. The grantee’s actual or constructive knowledge of the encumbrance is irrelevant. Murdock Acceptance Corp. v. Aaron, 230 S.W.2d 401 , 405 (Tenn. 1950). The trial court concluded that the appropriate measure of damages was “the diminution in value of the estate caused by the encumbrance.” Lacking any proof of diminished value, the court declined to award damages for the breach. The Erwins contend that the trial court used the wrong measure of damages. We review the trial 5 court’s choice of the measure of damages de novo, with no presumption of correctness. Beaty v. McGraw, 15 S.W.3d 819 , 827 (Tenn. Ct. App. 1998), abrogated on other grounds by Bowen ex rel. Doe v. Arnold, 502 S.W.3d 102 (Tenn. 2016). According to the Erwins, the trial court should have ordered Mr. Klinkhammer to refund their $50,000. As support for their position, they cite the general rule that damages for breach of covenants of title “are based upon the consideration received by the grantor.” King v. Anderson, 618 S.W.2d 478 , 483 (Tenn. Ct. App. 1980). Even so, the Erwins are only entitled to recover their actual losses as a result of the breach. See Halford v. Gunn, No. W2006-02528-COA-R3-CV, 2007 WL 2380300 , at *6 (Tenn. Ct. App. Aug. 22, 2007). The $50,000 loss was not due to the encumbrance. The Erwins lost their purchase money because they failed to comply with the terms of the note. The proper measure of damages for breach of the covenant against encumbrances depends on the encumbrance at issue. See generally 21 C.J.S. Covenants § 87, Westlaw (database updated Sept. 2020) (differentiating between measure of damages depending on nature of the encumbrance). When the encumbrance is a lien, our courts typically award damages equal to “the cost of removing the encumbrance.” Vaughan v. Vaughan, 6 Tenn. App. 354 , 359 (1927); see also Halford, 2007 WL 2380300 , at *6 (affirming an award of damages equal to the amount of the judgment lien). But when the encumbrance cannot be removed at the option of the parties, “the proper measure of damages is the property’s diminution in value as a result of the [encumbrance.]” See Mills v. Solomon, 43 S.W.3d 503 , 509 (Tenn. Ct. App. 2000); see also Carlton v. Williams, No. E2003- 02996-COA-R3-CV, 2004 WL 2636709 , at *6 (Tenn. Ct. App. Nov. 19, 2004); Ellison v. F. Murray Parker Builders, Inc., 573 S.W.2d 161 , 165 (Tenn. Ct. App. 1978). Here, the cost of removal is not an appropriate measure of damages. The Erwins never paid to remove the encumbrance. And they lost possession of the property for reasons unrelated to the encumbrance. So their actual loss can only be measured by the diminution in value of the property as a result of the encumbrance at the time of the sale. See Ellison, 573 S.W.2d at 165 (holding that damages should be determined as of the date the plaintiffs purchased the property). The Erwins bore the burden of proof on damages. See Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414 , 419 (Tenn. 2013). Without proof of diminished value, the trial court did not err in failing to award damages for breach of the covenant against encumbrances. C. Finally, we turn to the question of Mr. Klinkhammer’s personal liability. For the reasons discussed above, we reverse the trial court’s award of damages for intentional misrepresentation. So we are left with the judgment against Mr. Klinkhammer for breach of contract. Mr. Klinkhammer never raised this issue in his first appeal or otherwise contested liability for breach of contract. He concedes as much in his reply brief on this 6 appeal. So we deem this issue waived. See Hood v. Jenkins, 432 S.W.3d 814 , 823 n.9 (Tenn. 2013). III. Because the evidence preponderates against a finding that Mr. Erwin’s reliance on the misrepresentation in the warranty deed was reasonable, we reverse the judgment against Mr. Klinkhammer for intentional misrepresentation. In all other respects, we affirm the trial court’s decision. _________________________________ W. NEAL MCBRAYER, JUDGE 7

2020-01-17 22:01:52.513492+00

Gbeen

*44OPINION. Gbeen: Issues 1 and 4, as set out above, relate to the petitioner’s invested capital and involve the question of the value, on November *4529, 1911 (the date of its acquisition by the petitioner), of the invention and application for patent thereon, and the further question of whether such Avalué may be included in the petitioner’s invested capital. We have found the value of the invention and application to have been $500,000, on the date of its acquisition by the petitioner. This Board, has, however, consistently held that intangible property paid in to a corporation, without consideration, may not be included in paid-in surplus. See Herald-Despatch Co., 4 B. T. A. 1096; Shope Brick Co., 5 B. T. A. 1042; Browning Co., 6 B. T. A. 914. It is, accordingly, held that the petitioner may not include in its invested capital, by reason of the acquisition of this invention and the application for patent thereof, any amount in excess of its cost. Issues numbered 2 and 5, relate to the annual deduction, if any, to which the petitioner is entitled, by reason of the exhaustion of the patent. The petitioner, in some of its income-tax returns, placed on the invention and application for patent thereon a value of $339,000 as of March 1,1913. In its petition, it alleged the value thereof to be in excess of $500,000. Subsequently, leave to amend to conform to the proof having been granted, it alleged such value to be in excess of $150,000. The witnesses testified to values ranging from $600,000 to $1,000,000. The respondent, in his brief, concedes the value thereof, as of March 1, to have been $373,697.56. We have found as a fact that the valuation of the invention and application for patent thereon, as of March 1, 1913, was $500,000, which valuation we arrived at after a careful consideration of all of the facts and circumstances and the opinions of the witnesses. In Individual Towel & Cabinet Service Co., 5 B. T. A. 158, we held that the petitioner therein was entitled to an annual deduction for exhaustion of his patent, computed upon the basis of the March 1,1913, value of the invention and application for patent thereon, and a 17-year life of such patent, starting with the actual date of the issuance of such patent. The rule there announced has been consistently adhered to. See Hartford-Fairmont Co., 12 B. T. A. 98, and A. E. Starbuck, Administrator, 13 B. T. A. 796. The petitioner’s deduction for exhaustion of its patent should be computed in the same manner. The fifth issue relates to additional deductions for bad debts, in the year 1920. This issue was abandoned by the petitioner. The seventh and last issue relates to the right of the petitioner to have its profits taxes for the calendar years 1920 and 1921 computed under the provisions of sections 327 and 328 of the Revenue Act of 1918. The respondent’s motion to confine the issues to those prescribed in subdivisions (a) and (b) of Rule 62 of the Board’s rules of practice, was granted. Our consideration of this issue is, accord*46ingly, limited to the question of whether or not there existed abnormal conditions affecting the petitioner’s capital or income, within the meaning of section 327 (d) of the Revenue Act of 1918. Petitioner does not discuss this issue in its brief. It is apparent, however, that the petitioner is the owner of a patent having a value, on the date of acquisition, of $500,000, which it acquired without cost to it. No amount has or can be included in invested capital, by reason of this asset. It is clear that a very substantial portion of the petitioner’s earnings during the taxable years here involved is attributable directly to its ownership of this patent. These conditions, viewed in the light of the petitioner’s invested capital, which the respondent fixed for the year 1920 at the amount of $929,142.56, and for the year 1921 at the amount of $1,024,933.36, indicate clearly to us an abnormal condition affecting the petitioner’s capital. We, therefore, find that an abnormal condition affecting the petitioner’s capital, within the provisions of section 327 (d) of the Revenue Act of 1918, exists as to both years, and it is, accordingly, held that the petitioner is entitled to have its profits taxes computed as provided in section 328 of the Revenue Act of 1918. Reviewed by the Board. Further proceedings toill he had wnder parar graph (c) or (d) of Buie 62. Smith, Sternhagen, and Mukdook dissent.

2020-01-17 22:01:52.54792+00

Milliken

*414OPINION. Milliken: Petitioners’ first contention is that section 280 of the Revenue Act of 1926 is unconstitutional. This question is foreclosed by our decision in Henry Cappellini et al., 14 B. T. A. 1269, where we held that where transferees have invoked the provisions of this section by appealing to the Board they may not in such proceedings question its validity. The only remaining question that is before us at this time is whether the assessment and collection of the liabilities against the various petitioners are barred by the statute of limitations. It is proper to state at this point that although the transferor was dissolved in December, 1924, it continued to exist as a corporate entity for the period of five years thereafter for the purpose of winding up its affairs and prosecuting and defending actions or proceedings by or against it. Sec. 6815, Oregon Laws (1920). Petitioners rely on section 250 (d) of the Revenue Act of 1918, which reads: (d) Except in tlie case of false or fraudulent returns with intent to evade the tax, the amount of tax due under any return shall be determined and assessed by the Commissioner within five years after the return was due or was made, and no suit or proceeding for the collection of any tax shall he begun after the expiration of five years after the date when the return was *415clue or was made. In the case of such false or fraudulent returns, the amount of tax due may be determined at any time after the return is filed, and the tax may he collected at any time after it becomes due. Since the return of the transferor was not fraudulently made, the first issue is whether the five-year period above described began to run from July 23, 1918, when it filed its first return, or from June, 1919, when it filed its second return. The transferor kept its accounts and made its income and profits-tax returns on the basis of fiscal years ending June 30. The fiscal year involved in these proceedings ended June 30, 1918, and thus included one-half of the calendar year 1917 and one-half of the calendar year 1918. The transferor was thus taxable under the [Revenue Act of 1916 as amended by the Revenue Act of 1917, and also under the Revenue Act of 1918. The latter act was approved February 24, 1919, but, in so far as the issues before us are concerned, was made retroactive to January 1, 1918. The question here presented was before us in Davis Feed Co., 2 B. T. A. 616. The Davis Feed Co. kept its accounts and made returns on the basis of a fiscal year ending May 31 and filed two returns for the fiscal year ending May 31,1918. The first return was filed in July, 1918, and the second in May, 1919. After quoting and citing the pertinent parts of the Revenue Act of 1918, we there said: There can be no doubt, in our opinion, that the above-quoted provisions of the Revenue Act of 1918 required taxpayers having a fiscal year ending during the calendar year 191S, and who have consistently filed returns on a fiscal-year basis, to make return of net income for the entire period and pay the tax thereon computed in accordance with section 205. Although this taxpayer filed a return for the fiscal year under the provisions of the prior revenue acts before the Revenue Act of 1918 was enacted, the 1918 Act was retroactive and required taxpayer to file a return of its income for its fiscal year beginning in 1917 and ending in 1918, and to pay the tax imposed thereon. The provisions of the Revenue Act of 1918 relative to returns, therefore, superseded the provisions of the Revenue Act of 1918, as amended by the Act of 1917, and the return filed on May 1, 1919, pursuant to the provisions of the Revenue Act of 1918 must be held to be the return referred to in section' 250 (d) of the Revenue Act of 1918. The assessment in March, 1924, of the tax determined under the provisions of the Revenue Act of 1918 for the fiscal year ending May 31, 1918, was, therefore, within the statutory period of five years. In Covert Gear Co., 4 B. T. A. 1025, the question before us was whether the Board had jurisdiction. There the taxpayer on October 8,1918, filed its income and profits-tax returns for its fiscal year ending July 31,1918. This return showed a tax amounting to $41,390.97. Thereafter, on September 29, 1919, petitioner filed its second return under the Revenue Act of 1918, and its return showed a total tax of $15,978.62. The Commissioner determined a tax liability of less than that shown by the first return and larger than that shown by the second return. The question there was whether the Commissioner *416had determined a deficiency. After referring with approval to Davis Feed Co., supra, we said: Although the assessment by the Commissioner on November 9, 1918, of the tax shown due on the return filed under the provisions of the Revenue Act of 1917 was not an assessment of a deficiency, the portion of the assessment became a deficiency when, pursuant to the Revenue Act of 1918, the petitioner’s return required by that Act showed a tax at less than the amount assessed. When the Commissioner, therefore, on July 16, 1925, finally determined petitioner’s claim for abatement and determined that the correct tax for the year was in excess of the amount shown upon its return, he determined a deficiency within the meaning of the statute, and, while the situation may not come within the letter of section 283 (f) of the Revenue Act of 1926, it, in our opinion, comes well within the spirit thereof. The situation before us is not similar to that presented by the repeal of the Revenue Act of 1918 and the enactment of the Revenue Act of 1921, and which is discussed in Fred T. Ley & Co., 9 B. T. A. 749, and subsequent cases. In the Ley case we said: The Commissioner relies upon the Board’s decisions in Davis Feed Co., 2 B T. A. 616, and Covert Gear Co., 4 B. T. A. 1025, as authority for the proposition that it was necessary to file a return after the enactment of the Revenue Act of 1921 in order to start the running of the statute of limitations. Those decisions are not in point. They involve a fiscal year beginning in 1917 and ending in 1918. The Revenue Act of 1918 made a complete change in the Federal income and profits-tax system effective January 1, 1918. Taxes for the most part were greatly increased; invested capital was defined, larger percentages of invested capital were made deductible, and many other new features were enacted. Practically every taxpayer was subject to an additional tax for such fiscal year. If he were not subject to an additional tax there had been such changes and so many new features introduced into the Revenue Act of 1918 over the Revenue Act of 1916, as amended by the Revenue Act of 1917, as to require the filing of a return under the 1918 Act to enable the Commissioner to make an audit of the tax liability for the fiscal year. The changes in the law made it necessary to issue new and different forms of tax returns, and Form 1120, income and profits-tax return, was issued to be used by corporations in lieu of Form 1031 issued under the prior revenue acts. In Davis Feed Co., supra, the taxpayer was subject to an additional tax and, by regulations prescribed by the Commissioner by authority of law, was required to file a return imder the Revenue Act of 1918. In Covert Gem• Co., supra, the taxpayer was subject to higher rates of tax upon its income, but due to new provisions of the Revenue Act of 1918 it was entitled to deductions not previously allowable which, when it made its return under the Revenue Act of 1918, resulted in a less tax than had previously been shown. However, the underlying principle necessitating the making of a return under the 1918 Act was the same. Under these authorities we are of opinion that the five-year period provided by section 250 (d) of the Revenue Act of 1918 began to run in June, 1919, at the date of the filing of the transferor’s second return. Before this period had expired and on November 23, 1921, the Revenue Act of 1921 was approved. Section 250 (d) of that Act provides: *417(d) The amount of income, excess-profits or war-profits taxes due under any return made under this Act for the taxable year 1921 or succeeding taxable years shall he determined and assessed by the Commissioner within four years after the return was filed, and the amount of any such taxes due under any return made under this Act for prior taxable years or under prior income, excess-profits, or war-profits tax Acts * * * shall be determined and assessed within five years after the return was filed, unless both the Commissioner and the taxpayer consent in writing to a later determination, assessment, and collection of the tax; and no suit or proceeding for the collection of any such taxes due under this Act or under prior income, excess-profits, or war-profits tax Acts * * * shall be begun, after the expiration of five years after the date when such return was filed, but this shall not affect suits or proceedings begun at the time of the passage of this Act: * * * Under this provision and before the expiration of the five-year period and as of February 16, 1924, the transferor and respondent executed a waiver in which it was consented that the taxes due for the fiscal year ending June 30, 1918, might be assessed and collected “ irrespective of any period of limitations.” Respondent assessed the tax on December 29, 1925. In cases involving similar waivers we have held that respondent must make his determination or assessment within a reasonable time. In one case an assessment made 20 months after the date of the waiver was held not to have been unreasonably delayed (Cunningham Sheep & Lamb Co., 7 B. T. A. 652) and in another case (Greylock Mills, 9 B. T. A. 1281) it was held that respondent acted within a reasonable time when he made his determination within approximately three years after the date of the waiver. Here respondent acted in less than 23 months after the date of the waiver and during this period he and the transferor were in active correspondence. Transferor was seeking a special assessment and this relief it obtained, together with a reduction of its assessment. Under these circumstances we are of opinion that respondent acted within a reasonable time and that the assessment was made within the statutory period as extended by the waiver. See Greylock Mills v. Commissioner, recently decided by the Circuit Court of Appeals for the Second Circuit. It is not necessary to consider the question whether the collection of the tax was further extended by the waiver, for the reason that at the time the assessment was made the Revenue Act of 1924 was in effect. Section 277 of the Revenue Act' of 1924, which was approved June 2, 1924, contains the following: Sec. 277. (a) Except as provided in section 278 and in subdivision (b) of section 274 and in subdivision (b) of section 279— * # * * * * * (2) The amount of income, excess-profits, and war-profits taxes imposed by * * * the Revenue Act of 1916, the Revenue Act of 1917, the Revenue Act of 1918, and by any such Act as amended, shall be assessed within five years after the return was filed, and no proceeding in court for the collection of such taxes shall be begun after the expiration of such period. *418Section 278 of the same Act in part provides: (c) Where both the Commissioner and the taxpayer have consented in writing to the assessment of the tax after the time prescribed in section 277 for its assessment the tax may be assessed at any time prior to the expiration of the period agreed upon. (d) Where the assessment of the tax is made within the period prescribed in section 277 or in this section, such tax may be collected by distraint or by a proceeding in court, begun within six years after the assessment of the tax. Nothing in this Act shall be construed as preventing the beginning, without assessment, .of a proceeding in court for the collection of the tax at any time before the expiration of the period within which an assessment may be made. The assessment against the transferor having been made after the approval of the Revenue Act of 1924, the tax could be collected by distraint or a proceeding in court begun within six years after December 29, 1925. Cf. Bussell v. United States, 278 U. S. 181. This period has not expired. The pertinent parts of section 280 of the Revenue Act of 1926 read: Seo. 280. (a) The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in a tax imposed by this title (including the provisions in case of delinquency in payment after notice and demand, the provisions authorizing distraint and proceedings in court for collection, and the provisions prohibiting claims and suits for refunds) : (1)The liability, at law or in equity, of a transferee of property of a taxpayer, in respect of the tax (including interest, additional amounts, and additions to the tax provided by law) imposed upon the taxpayer by this title or by any prior income, excess-profits, or war-profits tax Act. #*#**»* (b) The period of limitation for assessment of any such liability of a transferee or fiduciary shall be as follows: (1) Within one year after the expiration of the period of limitation for assessment against the taxpayer; or (2) If the period of limitation for assessment against the taxpayer expired before the enactment of this Act but assessment against the taxpayer was made within such period, — then within six years after the making of such assessment against the taxpayer, but in no case later than one year after the enactment of this Act. (3) If a court proceeding against the taxpayer for the collection of the tax has been begun within either of the above periods, — then within one year after return of execution in such proceeding. Under the above provisions, respondent has the right to make an assessment of liability against petitioners within one year after the expiration of the period for assessment against the transferor. As we have shown, the assessment against the transferor was made in due time and is valid as against it. Although the assessment was made after the expiration of the five-year period provided in section 250 (d) of the Revenue Act of 1921 and in section 277 (a) (2) *419of the Revenue Act of 1924, it was made within that period as extended by the consent, which was executed pursuant to statutory authority. Confining our opinion to the facts presented by these proceedings, it is sufficient to point out that petitioners, as transferees, did not acquire the assets of the transferor until subsequent to the execution of the consent. They acquired such assets subject to the obligations of the transferor and thus subject to its then existing valid agreement extending the time within which the additional tax could be assessed and collected. Under the provisions of section 280, respondent has determined the liability of petitioners in the same manner as in the case of a deficiency in tax and petitioners have availed themselves of these provisions by appealing to the Board. Respondent has not assessed but has proposed for assessment the various liabilities and he made these determinations and mailed his deficiency letters within one year after he made the assessment against the transferor and at a time when the collection of a tax was not barred by limitations as against the transferor. Cf. Marion Parsons Spencer, 11 B. T. A. 437. Since petitioners have appealed to the Board, respondent is prohibited from making an assessment so long as the appeals are pending and the running of the statute of limitations is suspended during such period and for 60 days thereafter. See sections 274 (a) and 280 (d) of the Revenue Act of 1926. Under these provisions we are of opinion that since neither the assessment nor collection of the deficiency in tax is barred as against the transferor and since the assessments against petitioners were proposed by respondent within the period provided by section 280, the assessment and collection of such liabilities are not barred by the statute. Under the order heretofore referred to, these proceedings will be restored to the Day Calendar, for the purpose of a hearing on issue (4). Reviewed by the Board.

2020-01-17 22:01:52.585299+00

Trammell

*422OPINION. Trammell : The petitioners contend that the compensation received by D. F. Strickland from the Hidalgo County Water Improvement District Number Two, a political subdivision of the State of Texas, for his services as attorney during the period here involved is exempt from tax. The respondent concedes that the Hidalgo County Water Improvement District Number Two is a municipal corporation and a governmental agency of the State of Texas. See Article XVI of the Constitution of Texas; Article 7731, Vernon’s Kevised Civil Statutes of Texas (1925); J. C. Engleman Land Co. v. Donna Irrigation District No. 1 (Texas), 209 S. W. 428; Peyton Creek Irrigation *423District v. White (Texas), 230 S. W. 1060. He, however, contends that Strickland was not an officer or employee of such municipal corporation and governmental agency, that his position with reference to the District was not materially different from that of attorney and client, and that the compensation received during the years involved is not exempt from tax. Article 7652 of Vernon’s Revised Civil Statutes of Texas (1925) provides in part as follows: The board of directors herein provided for shall have control over and management of all the affairs of such district, shall make all contracts pertaining thereto, and shall employ all necessary employees for the proper handling and operating of such districts, and especially may employ a general manager, an assessor and collector, attorneys, a bookkeeper, an engineer, water master and such other assistants and such other laborers as may be required, * * *; a director may be employed as general manager, and at such compensation as may be fixed by the other four directors and when so employed he shall also perform the duties of a director, but he shall not receive the compensation in this act provided to be paid to directors. (Italics ours.) Article 7717 provides that: The term of office of all officers elected for such district shall be for two years, and until their successors are elected and qualified; provided, however, that all officers elected at the first election held under the provisions of this chapter shall hold office only until the next regular election to be held in said district for the election of such officers. Article 7720 provides as follows: All other persons employed or representing said district shall be employed by the board of directors for such time and under such terms and conditions as said board of directors shall deem best for the interest of said district; provided, however, that no contract shall ever be made with any person or employee for a longer period of time, at any one time, than one year, and the salaries of all such employees, or the compensation to be received by them, shall be fixed by the board of directors at the time of the employment. In Metcalf & Eddy v. Mitchell, 269 U. S. 514, the court said: An office is a public station conferred by the appointment of government. The term embraces the idea of tenure, duration, emolument and duties fixed by law. Where an office is created, the law usually fixes its incidents, including its term, its duties and its compensation. United States v. Hartwell, 6 Wall. 385; Hall v. Wisconsin, 103 U. S. 5. The term “officer” is one inseparably connected with an office; but there was no office *of sewage or water supply expert or sanitary engineer, to which either of the plaintiffs was appointed. The contracts with them, although entered into by authority of law and prescribing their duties, could not operate to create an office or give to plaintiffs the status of officers. Hall v. Wisconsin, supra; Auffmordt v. Hedden, 137 U. S. 310. There were lacking in each instance the essential elements of a public station, permanent in character, created by law, whose incidents and duties were prescribed by law. See United States v. Maurice, 2 Brock. 96, 102, 103; Untied States v. Germaine, 99 U. S. 508, 511, 512; Adams v. Murphy, 165 Fed. 304, *424In view of the above definition we think that Strickland clearly was not an officer of the State of Texas or a political subdivision thereof and it is not seriously contended that he was, the chief question being whether he was an employee. Strickland’s contract of employment provided that the nature of his duties as attorney for the District should be that of general counsel, and that he should do and perform any and all legal duties entrusted to him by the Board of Directors of the District. The duties performed by him under the contract as attorney were of a general and miscellaneous character, ranging from attendance at regular and special meetings of the Board of Directors of the District to the drawing of legal instruments and the handling of suits in court. When not employed on the District’s business he was free to and did accept such other outside legal work as he saw fit, insofar as it did not conflict with his employment by the District. However, in the performance of his duties as attorney with the District, he was at all times under the direction and control of the Board of Directors and was not permitted to leave the- community on other business or to go on vacations without the Board’s approval. While ordinarily neither' the Board of Directors nor the manager directed Strickland as to the amount of time he should devote to his work, they would, however, when in a hurry request him to perform certain matters within a specified time. Strickland was not responsible merely for the result to be accomplished, but was employed generally on a time basis for such services as were necessary during the period. In Blair v. Mathews, 29 Fed. (2d) 892, a question there involved was whether the compensation of the county attorney of Duval County, Florida, was subject to tax. There the court said: The contract bound the tax payer for a period of two years to attend to all legal matters for the county. He was not engaged to accomplish any particular result in a way chosen by himself, but was obligated to render any legal service for the county to which at any time during the period mentioned he was assigned by the Board of County Commissioners. One whose services are so at the command of another for a definite time is an employee- of the latter, though the services contracted are legal services of a lawyer, who is not forbidden to render professional services to others. Seaboard Air Line Railway v. Continental Trust Co., 166 Fed. 597. We think that the rule laid down by the court is the sound and correct rule and is in accordance with the principles laid down in the decision of the Supreme Court in the case of Metcalf & Eddy v. Mitchell, supra; and is applicable to the facts of this case. It is, therefore, our opinion that Strickland was an employee of the District, and as such his compensation is exempt. Judgment will he entered, for the petitioners.

2020-01-17 22:01:52.62049+00

Smith

*427OPINION. Smith : The questions presented by this proceeding are: (1) The proper method of computing the petitioner’s losses sustained in 1921,1922, and 1923 in respect of the securities sold during those years but acquired prior to March 1, 1913. (2) Whether the petitioner was engaged in a trade or business and entitled to deduct from the gross incomes of 1922 and 1924 net losses sustained in 1921 and 1923, provided the petitioner is entitled to deduct from the gross incomes of 1921 and 1923 losses on the sales of securities in those years represented by the difference between the selling price' and the cost at the date of purchase where the securities were purchased prior to March 1, 1913, and such cost was uniformly in excess of the March 1, 1913, value, which in turn was in excess of the selling price. The petitioner admits that the computation of the amounts of the losses in 1921, 1922, and. 1923 has been made by the respondent in accordance with the provisions of the lievenue Act of 1921 and *428regulations thereunder. He contends, however, that such method of determination of the losses was not in accord with the intent and purpose and authorization of the Sixteenth Amendment to the Constitution. In support of this contention the petitioner relies upon United States v. Flannety, 268 U. S. 98, and McCaughn v. Ludington, 268 U. S. 106. The statute involved is section 202 of the Revenue Act of 1921, which provides, so far as is here material, as follows : (b) Tbe basis for ascertaining tbe gain derived or loss sustained from tbe sale or other disposition of property, real, personal, or mixed, acquired before March 1, 1913, shall be tbe same as that provided by subdivision (a) ; but— (1) If its fair market price or value as of March 1, 1913, is in excess of such basis, the gain to be included in the gross income shall be the excess of the amount realized therefor over such fair market price or value; (2) If its fair market price or value as of March 1, 1913, is lower than such basis, the deductible loss is the excess of the fair market price or value as of March 1, 1913, over the amount realized therefor; and (3) If the amount realized therefor is more than such basis but not more than its fair market price or value as of March 1, 1913, or less than such basis but not less than such fair market price or value, no gain shall be included in and no loss deducted from the gross income. The Revenue Act of 1924 was passed on June 2,1924, and provides in section 204(b) that: The basis for determining the gain or loss from the sale or other disposition of property acquired before March 1, 1913, shall be (A) the cost of such property (or, in the case of such property as is described in paragraph (1). (4), or (5), of subdivision (a), the basis as therein provided), or (B) the fair market value of such property as of March 1, 1913, whichever is greater. In determining the fair market value of stock in a corporation as of March 1, 1913, due regard shall be given to the fair market value of the assets of the corporation as of that date. The petitioner submits that: From the line of decisions interpreting the successive Revenue Acts, it is clearly evident that the original intention of Congress, (to; as it were, balance off all accounts as at March 1, 1913 and in computing gain or loss, disregard anything prior to that date, so that all gain or loss should be measured by the difference between March 1, 1913 value and selling price), was impossible to carry out because it substituted an arbitrary, and in many cases fictitious,value for the actual investment of the taxpayer, disregarding the actual money gain or loss from a given transaction to use instead a purely theoretical gain or loss. Thus, through the series of Supreme Court decisions, and changes in the statute following each such decision, it is evident that the theory of deductibility of losses was amended to conform to the Supreme Court’s construction of the power of Congress to tax gains and recognize loss. * * * It is further submitted that as the cases involving different combinations of conditions were decided, the acts and regulations were changed accordingly, until in the Revenue Act of 1924, the accumulated effect of the decisions and the logical effect thereof is shown by *429the provisions that the basis of cost shall be the, actual cost or March 1, 1913, value, whichever is greater; that from that condition, it is certainly reasonable to consider the intention of Congress to be fairly expressed in the language of the Ludington decision; that the Supreme Court has stated most explicitly that losses are to be treated in the same manner as gains, and gains are to be taxed on the amount of actual gain resulting from the purchase and sale of property, the only limitation by the March 1, 1913, value being that if its use will be to the advantage of the taxpayer, it may be used to reduce the tax; that if “losses with reference to March 1, 1913, value are to be determined the same as gains,” as the court said in the Ludington case, the only use that may be made of the March 1, 1913, value would be to reduce the amount of tax computed on the transaction, and as the amount of the tax in the present case would not be reduced by the application of the March 1, 1913, value, such value must be disregarded; that if we apply to the present case the decision in the Ludington case, it will allow the deduction of the actual loss sustained, measured by the difference between the purchase and sale price of the property, “ and this rule would apply with equal force whether the March 1,1913, price were greater or less than the selling price.” The purpose and meaning of the Sixteenth Amendment to the Constitution is elaborately stated in Brushaber v. Union Pacific Railroad Co., 240 U. S. 1. In the course of the opinion it is stated: * * * There is no escape from the conclusion that the Amendment was drawn for the purpose of doing away for the future with, the principle upon which the Polloclc Case was decided, that is, of determining whether a tax on income was direct not by a consideration of the burden placed on the taxed income upon which it directly operated, but by taking into view the burden which resulted on the property from which the income was derived, since in express terms the Amendment provides that income taxes, from whatever source the income may be derived, shall not be subject to the regulation of apportionment. * * * In the instant proceeding there is no question but that the petitioner derived a large amount of income during the years 1921, 1922, and 1923 from dividends and interest. It can not be doubted that Congress by the Revenue Act of 1921 intended to levy and did levy an income tax in respect of that income. The question before the Board is as to whether that income may be reduced by certain deductions therefrom for the purpose of determining the amount of the income upon which the tax shall be levied. The petitioner in effect contends that Congress must in any case provide for the deduction of the full amount of the difference between the cost of securities and the sales price where the latter is less than the former, without regard to the March 1, 1913, value in the determination of taxable net income. *430That Congress did not do so is clearly stated in section 202 (b) of the Revenue Act of 1921, above quoted. It limited the actual loss deductible where the property was acquired prior to March 1, 1913, by the value at March 1, 1913, so that where, as in the instant proceeding, the cost was higher than the March 1, 1913, value, which in turn was higher than the selling price, the only part of the loss deductible from gross income is the difference between the March 1, 1913, value and the selling price. As we interpret the power of Congress to levy an income tax, there is no requirement that Congress permit the deduction of every kind of a loss that may be sustained by a taxpayer. The deduction of a loss from income received is purely a matter of grace. For instance, a gambling loss is not deductible from gross income. It was argued before the Supreme Court in Stanton v. Baltic Mining Co., 240 U. S. 103, that where the depletion allowance allowed by Congress was less than the actual loss sustained, the law was repugnant to the Constitution and that the taxpayer was in any event entitled to deduct from gross income resulting from the operation of a mine the full amount of the depletion sustained. The court held, however, that this was not correct and that the income-tax law of 1913 was not repugnant to the Constitution by reason of limiting the loss. By the same token it must be held in the instant proceeding that the Revenue Act of 1921 is likewise not repugnant to the Constitution by limiting the loss deductible on the sale of securities to the difference between the March 1, 1913, value and the selling price where the securities, as in this case, were acquired prior to March 1,' 1913, at a cost in excess of the March 1, 1913, value, which was in turn in excess of the selling price. The fact that the Revenue Act of 1924 permits the deduction from gross income of the full amount of the loss in the case of a sale of securities in 1924 and subsequent years measured by the difference between the cost and the selling price where the securities were acquired prior to March 1, 1913, is not a valid argument that Congress intended by the Revenue Act of 1921 to permit the full amount of the loss. In the enactment of the Revenue Act of 1924, Congress deliberately changed the basis for determining the amount of the loss that might be deductible. In Report 179, dated February 11, 1924, at page 18, the Ways and Means Committee of the Sixty-Eighth Congress, gave the following explanation with respect to the change made by the 1924 Act: (8) Subdivision (b) [meaning section 204 (b) of the Revenue Act of 1924] provides that the basis for determining the gain or loss from the sale or other disposition of property acquired before March 1, 1913, shall be the cost of the property or its fair market value as of March 1,1913, whichever is higher. This *431provision changes the existing law in the interest of. the taxpayer. It simplifies exceedingly the rule in effect under the present law without appreciable loss to the Treasury. The petitioner relies upon the decision of the Supreme Court in McCaugln v. Ludington, supra. This case involved the Revenue Act of 1918. The question there presented was whether a taxpayer who had prior to March 1, 1913, purchased securities at a cost of $32,500, the market value of which on March 1, 1913, was $37,050, and who sold the securities in 1919 for $3,866.91, could' base his loss upon the March 1, 1913, value or upon cost. The court held that the deductible loss was the difference between the sale price and the cost and not the difference between the sale price and value as of March 1, 1913. In the course of the court’s opinion it is stated: The case is governed by the decision in United Btates v. Flammerp, supra. It was there held * * * that the Act allowed a deduction to the extent only that an actual loss was sustained from the investment, as measured by the difference between the purchase and sale prices of the property. It follows that, as the actual loss to Ludington in the entire transaction was the difference between the purchase and selling prices, that is, $28,633.09, he was only entitled to deduct this amount, and not the difference of $33,183.09 between the market value on March 1, 1913, and the selling price. This is in exact correspondence with the decision in Walsh v. Brewster, supra, in reference to the second transaction there involved, in which it was held that the taxable gain derived from the sale of property was only the difference between the purchase and selling prices, and not the difference between the market value on March 1, 1913, and the selling price. As will be noted from the above, the Ludington case and the Flan-nery case involve substantially different facts from those which obtain in the instant proceeding. Here there was a continuous decline in the value of the securities from the date of the purchase prior to 1913, to the date of sale. The statute permits the deduction from gross income of only such portion of the loss sustained upon the sale of the securities as is represented by the difference between the March 1, 1913, value and the selling price. The statute is not ambiguous upon the point involved. It is not repugnant to the Constitution. The Commissioner has determined the deductible losses strictly in accordance with the statute. The determination of the respondent as to the amount of the deductible losses is sustained. Inasmuch as the petitioner admits that if the basis for the determination of the deductible loss is the basis laid down by the statute he has no net loss for either 1921 or 1923 to be carried forward to 1922 and 1924, respectively, for which the respondent has determined deficiencies, it becomes unnecessary to consider the question as to whether the petitioner was engaged in a trade or business within the meaning of section 204 of the Revenue Act of 1921. Judgment will be entered under Rule 50.

2020-01-17 22:01:52.706752+00

Smith

*437OPINION. Smith: The issues in this proceeding are (1) whether petitioner’s invested capital should be decreased by the amount of $22,742.83; (2) whether petitioner’s tax liability should be computed under the provisions of section 210 of the Bevenue Act of 1917 and section 328 of the Revenue Act of 1918; and (3) whether the collection of any deficiency for the fiscal year ended October 31, 1918, is barred by the statute of limitations. Since the third issue goes to the whole of the alleged deficiency it will be disposed of first. Section 250 (d) of the Revenue Act of 1918 provides: Except in tlie ease of false or fraudulent returns with intent to evade the tax, the amount of tax due under any return shall be determined and assessed by the Commissioner within five years after the return was due or was made, and no suit or proceeding for the collection of any tax shall be begun after the expiration of five years after the date when the return was due or was made. In the case of such false or fraudulent returns, the amount of tax due may be determined at any time after the return is filed, and the tax may be collected at any time after it becomes due. Section 250 (d) of the Revenue Act of 1921 provides in part: The amount of income, excess-profits, or war-profits taxes due under any return made * * * under prior income, excess-profits, or war-profits tax Acts, or under section 38 of the Act entitled “An Act to provide revenue, equalize duties, and encourage the industries of the United States, and for other purposes,” approved August 5, 1909, shall be determined and assessed within five years after the return was filed, unless both the Commissioner and the taxpayer consent in writing to a later determination, assessment, and collection of the tax; and no suit or proceeding for the collection of any such taxes * * * shall be begun, after the expiration of five years after the date when such return was filed * * *. Section 277 of the Revenue Act of 1924 provides in part as follows: (2) The amount of income, excess-profits, and war-profits taxes imposed by the * * * Revenue Act of 1917, the Revenue Act of 1918, and by any such Act as amended, shall be assessed within five years after the return was filed, and no proceeding in court for the collection of such taxes shall be begun after the expiration of such period. The record discloses that on December 24, 1918, the petitioner filed an income-tax return under the provisions of the Revenue Act of *4381917 for the fiscal year ended October 31, 1918. It filed a return for the same fiscal year under the provisions of the Revenue Act of 1918 on April 25,1919, and a deficiency in respect of its taxes for that fiscal year was assessed against it on February 20, 1924. Counsel for the petitioner alleges'that the petitioner and the respondent did not consent to the later collection of the deficiency and that no suit or proceeding has been brought for the collection of the additional assessment. The respondent does not show that such a consent was entered into; that such a suit or proceeding was begun within five years after the filing of either the first or the second return, or that the petitioner filed a false and fraudulent return. Cf. Farmers Feed Co., 10 B. T. A. 1069. In view of the foregoing we are of the opinion that there is no deficiency for the fiscal year ended October 31, 1918, which may be collected from the petitioner. Bowers v. New York & Albany Lighterage Co., 273 U. S. 346; Ocean Accident & Guarantee Corporation, Ltd., 6 B. T. A. 1045. Since this disposes of the whole of the alleged deficiency, cf. Bussell v. United States, 278 U. S. 181, it will not be necessary to consider the remaining issues. Judgment will be entered for the petitioner.

2020-11-20 19:08:25.491726+00

PROGRESS PAPER CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Progress Paper Co. v. Commissioner Docket No. 39648. United States Board of Tax Appeals July 15, 1930, Promulgated 1930 BTA LEXIS 2173">*2173 Cancellation of indebtedness by agreement of creditors, under the circumstances involved herein, held not to constitute income. Gladwin M. Mead, Esq., for the petitioner. L. W. Creason, Esq., for the respondent. MARQUETTE 20 B.T.A. 234">*234 This proceeding is for the redetermination of deficiencies in income tax asserted by the respondent in the amounts of $1,395.96 for 1924 and $327.17 for 1925. The deficiencies arise from the action of the respondent in treating as income to the petitioner for 1924 the amount of $49,032.84, representing an increase in book surplus which arose from the compromise of certain accounts payable effected by the petitioner in that year. FINDINGS OF FACT. The petitioner, which was formerly known as Stone & Andrew, Inc., is a corporation organized in 1911 under the laws of Massachusetts, with its principal office and place of business at Boston. It is and has been since it was organized, engaged in business as a wholesale jobber of paper. Its books are and were, during the years involved herein, kept on the accrual basis. In the year 1923 the petitioner's financial affairs became involved and a creditors' protective1930 BTA LEXIS 2173">*2174 committee was appointed, which caused an examination of the petitioner's affairs to be made by a firm of certified public accountants. The creditors' committee decided to keep the petitioner in business if possible, and on November 28, 1923, it sent to each of the creditors a statement signed by the committee, 20 B.T.A. 234">*235 containing a balance sheet of the petitioner as of October 15, 1923, and recommending that all the other creditors join with the subscribing creditors in accepting 5 per cent of their claims in cash, 35 per cent in seven time notes of equal amounts dated October 16, 1923, and payable April 1, 1924, and each four months thereafter, and 60 per cent in demand notes, the demand notes to be endorsed without recourse by the respective creditors and turned over to the creditors' protective committee, said committee to have full power to make such terms with the petitioner as to the date and manner of payment of said notes, as might be deemed expedient. All but two of the petitioner's creditors accepted the recommendation of the creditors' protective committee and signed agreements accepting said terms. On or about January 18, 1924, one Thomas Goddard Bradlee became1930 BTA LEXIS 2173">*2175 interested in the petitioner and submitted to the creditors' protective committee a written offer to furnish the petitioner with $20,000 capital in exchange for stock, on the condition that the creditors would extend the time for payment of their 60 per cent demand notes to December 1, 1947, with the option to exchange each of said demand notes for a debenture note of the petitioner in the amount of 40 per cent of the face of the demand note, payable in installments on April 1, 1927, April 1, 1928, April 1, 1929, and April 1, 1930, respectively. The creditors' protective committee accepted Bradlee's offer and notified the creditors thereof. The creditors accepted the offer, and all but one of them elected to exchange their demand notes for the petitioner's debenture notes. One creditor, who had refused to accept a demand note, elected, however, to accept a 40 per cent debenture note for his claim. The total amount of demand notes and claims so exchanged was $83,144.61, and the amount of debenture notes issued therefor was $33,257.86. The difference between the amount of said demand notes and claims and the amount of debenture notes issued in settlement thereof, to wit, $49,886.75, 1930 BTA LEXIS 2173">*2176 was credited to surplus on the petitioner's books. The petitioner filed a return of income for the years 1922 and 1923 and reported thereon net losses of $9,668.36 and $25,182.95, respectively. In computing the net loss for 1923 gross sales were taken as $589,128.51. From said gross sales there was deducted the amount of $499,328.13, representing the cost of goods sold. The cost of goods sold was determined by adding to inventory at the beginning of the year, as shown by the return, to wit, $27,642.66, the amount of $503,237.72 as the cost of merchandise purchased during the year, and deducting from the sum of the opening inventory and the cost of merchandise purchased, the inventory at the close of the year, to 20 B.T.A. 234">*236 wit, $31,552.25. Included in said inventory at the beginning of the year, and/or merchandise bought for sale during the year, and in said inventory at the end of the year, was the cost of merchandise which created the accounts payable which stood on the petitioner's books at or about October 15, 1923, and which were liquidated by the 60 per cent demand notes heretofore mentioned, the demand notes subsequently being exchanged for the 40 per cent debenture1930 BTA LEXIS 2173">*2177 notes. The petitioner filed a return of income for the year 1924 showing a net loss of $1,423.07. The respondent, upon audit of the return, added as income the amount of $49,032.84, representing the adjustment to notes payable as a result of the compromise effected by the petitioner with its creditors in 1924, as above set forth. From the income thus determined the respondent allowed and deducted the net losses of $9,668.06 and $25,182.95 reported by the petitioner on its returns for 1922 and 1923, and determined that there is a deficiency in tax for 1924 in the amount of $1,395.96. The respondent also disallowed as deductions from income for 1925 net losses for 1923 and 1924 taken on the return for that year, and determined a deficiency in tax in the amount of $327.17. OPINION. MARQUETTE: This Board in a number of cases has held that under circumstances such as we have here the forgiveness or cancellation of a debt, in whole or in part, by a creditor does not result in income to the debtor. ; 1930 BTA LEXIS 2173">*2178 ; ; and . These cases are not distinguishable in principle from the instant case and we therefore hold that the petitioner realized no income in 1924 as a result of the compromise and reduction of its indebtedness effected by it with its creditors. See also ; ; ; and . The respondent contends, however, that if the petitioner did not realize income in 1924 directly as a result of the compromise of its indebtedness, the compromise nevertheless represented a reduction of the cost of the goods for which the compromised obligations were incurred, and that the part of the obligation remitted or forgiven by the creditors, to wit, $49,886.75, should be deducted from the cost of the goods purchased in 1923. Assuming, but not deciding, that the amount saved to the1930 BTA LEXIS 2173">*2179 petitioner by the compromise should be regarded as a reduction of the cost of the goods for which the obligations 20 B.T.A. 234">*237 were incurred, the evidence does not warrant us in making that adjustment in 1923. The parties have stipulated that some of these goods were included in the opening inventory for 1923 as well as in purchases made in that year, and in the closing inventory. To the extent that these goods were in the opening inventory for 1923, they must have been purchased prior to that year, and it would be manifestly unfair and would result in a distortion of income for 1923, to deduct the entire amount of the compromise adjustment from 1923 purchases, and it should be pointed out that if purchases are changed to reflect the compromise, subsequent inventories, so long as any part of the merchandise remains, must also be changed to reflect the new price. The respondent has raised no issue respecting 1922 and that year is therefore not before us. In the absence of more specific information as to the amount of the goods in question purchased in each of the years 1922 and 1923, also the amount thereof remaining in the closing inventories for the same years, we have no basis1930 BTA LEXIS 2173">*2180 for making any adjustment in the petitioner's income for 1923. Judgment will be entered under Rule 50.

2020-12-02 20:00:16.631665+00

https://www2.ca3.uscourts.gov/opinarch/191940np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 19-1940 ________________ UNITED STATES OF AMERICA v. ATTICUS SLITER-MATIAS, Appellant ________________ Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal Action No. 2-17-cr-00034-001) District Judge: Honorable Billy Roy Wilson ________________ Submitted under Third Circuit LAR 34.1(a) On December 13, 2019 Before: RESTREPO, ROTH and FISHER, Circuit Judges (Opinion filed: December 2, 2020) ________________ OPINION * ________________ ROTH, Circuit Judge * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  Atticus Sliter-Matias was convicted of two counts of mail fraud. He challenges his conviction on three grounds, all of which we reject for the reasons that follow. I. 1 Using fake names and addresses, Sliter-Matias created thousands of accounts on eBay and PayPal referred to as “stealth accounts.” 2 He paired each stealth eBay account with a stealth PayPal account, assigning each pair a unique IP address and e-mail account. Roughly 161 of the stealth eBay accounts he created were involved in fraudulent transactions. In each of these fraudulent transactions he would post an item for sale through one of his eBay accounts. Once a buyer had been confirmed, he would provide a tracking number to the buyer for a shipment within the buyer’s zip code or mark the item shipped on eBay to prompt eBay to release the buyer’s purchase funds to the paired PayPal account. Using those funds, he would purchase items, including gold and silver, and ship them to himself. However, instead of the purchased item, the eBay buyer would receive only a torn or empty envelope from Sliter-Matias, sent through his Click-N-Ship account with the United States Postal Service. By the time the buyer reported the fraud, there would be no funds in Sliter-Matias’s account to refund to the buyer, so eBay or PayPal would reimburse the buyer themselves. eBay and PayPal lost over $110,000 from these fraudulent transactions. On July 5, 2016, the United States Postal Inspectors executed a search warrant at Sliter-Matias’s home address. Sliter- 1 We write primarily for the parties who are familiar with the facts and the record, which we recite only as necessary to explain our decision. 2 App. 655 –58, 692. 2 Matias initially declined to be interviewed. Later when he asked to be interviewed, he claimed that he created eBay accounts with fake names and addresses to sell laptops, that the gold and silver found in his bedroom closet were his mother’s retirement assets, and that he sent packages through his Click-N-Ship account for his employer. The Postal Inspectors collected a number of documents from his residence during this search. A significant portion of these documents were lost in transit. Sliter-Matias was ultimately charged with two counts of mail fraud under 18 U.S.C. § 1341 . At trial, Sliter-Matias denied being involved in the fraudulent transactions. He claimed that he created the stealth accounts to sell to eBay users who wanted to circumvent the limit eBay places on the number of sales a user can make each week and that he was compensated for his stealth accounts, sometimes in the form of gold and silver. He also claimed that he sent the empty or torn packages through his Click-N-Ship account to test the stealth accounts and make sure they would work. Evidence presented at trial indicated that Sliter-Matias maintained a spreadsheet monitoring each fraudulent transaction involving the stealth accounts, that Sliter-Matias was the one who mailed torn or empty envelopes to the buyers after they paid for their purchases, and that the funds released to the stealth accounts were used only on purchases for Sliter-Matias. There was no evidence to suggest that his alleged employer ever existed or that Sliter-Matias ever communicated with anyone regarding the sale of his stealth accounts. 3  After a five-day trial, the jury returned a guilty verdict on both counts. The District Court sentenced him to a term of 46 months with 36 months of supervised release. His appeal followed. II. The District Court had jurisdiction under 18 U.S.C. § 3231 . We have jurisdiction over the appeal from the District Court’s final judgment under 28 U.S.C. § 1291 . Sliter- Matias challenges his conviction on three grounds, each subject to a different standard of review. A. First, Sliter-Matias argues that the evidence presented at trial was insufficient to sustain his convictions. In reviewing challenges to the sufficiency of the evidence, we employ a “highly deferential” standard to determine whether there was sufficient evidence, viewed in the light most favorable to the prosecution, for any rational trier of fact to find the essential elements of the offense beyond a reasonable doubt. 3 A conviction for mail fraud under 18 U.S.C. § 1341 requires three elements to be proven: “(1) a scheme or artifice to defraud by means of a materially false or fraudulent pretense; (2) participation by the defendant with specific intent to defraud; and (3) use of the mail in furtherance of the scheme.”4 Sliter-Matias challenges the sufficiency of the evidence only with respect to the second element. That element requires the prosecution 3 United States v. Caraballo-Rodriguez, 726 F.3d 418 , 424–25, 430 (3d Cir. 2013) (en banc); United States v. Silveus, 542 F.3d 993 , 1002 (3d Cir. 2008). 4 United States v. Bryant, 655 F.3d 232 , 248 (3d Cir. 2011). 4 to demonstrate not “merely that a defendant participated in a fraudulent scheme,” but that the defendant “did so knowingly and in furtherance of the illicit enterprise.”5 In Sliter- Matias’s view, the government failed to produce certain proof, for example, evidence connecting him to the images and advertisements for the items for sale and evidence of his communications with his victims. He contends that this failure left the jury to speculate in its fact-finding role, with no reliable evidence upon which to reasonably reach a verdict of guilty. We disagree. At trial, the government presented strong evidence establishing that Sliter-Matias knowingly participated in the fraudulent transactions and acted to further them. Sliter- Matias admitted to maintaining a spreadsheet listing the details of every fraudulent transaction involving the stealth accounts, including the eBay item number, the sale price, the name of the buyer, and the status of each transaction. Sliter-Matias also admitted that he was the one who shipped the torn or empty envelopes to the buyers. In addition, the funds acquired from the fraudulent transactions were used only for his benefit, and they were all spent immediately after they were released to PayPal accounts he created. Viewed in the light most favorable to the government, the evidence presented permits a rational trier of fact to find beyond a reasonable doubt that Sliter-Matias was 5 United States v. Dobson, 419 F.3d 231 , 237 (3d Cir. 2005) (internal quotation marks omitted); see also United States v. Pearlstein, 576 F.2d 531 , 537 (3d Cir. 1978) (explaining that specific intent under the mail fraud statute requires the defendant to “have devised the fraudulent scheme” or “wilfully participated in it with knowledge of its fraudulent nature”). 5 the sole participant in this scheme and knew that he was being paid for items the buyers would never receive. We therefore reject his sufficiency-of-the-evidence challenge. 6 B. Second, Sliter-Matias argues that the government violated his Fifth Amendment right against self-incrimination by introducing testimony at trial that noted his initial invocation of that right to the Postal Inspectors. Since he did not timely object to the relevant testimony, we review the District Court’s admission of that testimony for plain error. 7 To establish plain error, a defendant must show “that (1) there was an error, (2) the error was ‘clear or obvious,’ and (3) the error ‘affected [his] substantial rights.’” 8 Sliter-Matias argues that the District Court plainly erred in permitting the following testimony in violation of his right against self-incrimination: Q. Postal Inspector Weckerly, during the search of the residence, did the defendant agree to be interviewed? A. Initially, he did not, but later during our search, he initiated contact with law enforcement and agreed to be interviewed. Q. When you say “he initiated contact,” he asked to talk to you guys? A. Correct. Q. Who interviewed him? A. Myself and Postal Inspector Mike Adams. Q. And was he provided his what we call Miranda warnings? A. He was. In both instances both when he declined to speak with us and later when he said that he did want to speak with us, he was provided his rights both times, you know, the right to remain silent, the right to an attorney, that he could 6 See United States v. Lacerda, 958 F.3d 196 , 225–26 (3d Cir. 2020) (holding there was sufficient evidence to establish that the defendant knowingly or intentionally participated in wire fraud where she was in a position to know fraud was being committed and took initiative to further it). 7 See United States v. Moore, 375 F.3d 259 , 262 (3d Cir. 2004). 8 United States v. Stinson, 734 F.3d 180 , 184 (3d Cir. 2013) (quoting Puckett v. United States, 556 U.S. 129 , 135 (2009)). 6  stop the interview at any point. The first time, he did not waive those rights and the second time he did waive those rights and agreed to talk to us. 9 In Sliter-Matias’s view, this testimony served as evidence from which the jury could infer that he had delayed his interview so that he could fabricate his story. We find no plain error in the District Court’s admission of this testimony. The evidence at trial against Sliter-Matias was strong. Whether he invoked his right against self-incrimination would not have altered the fact that he created all of the stealth accounts in question, personally tracked all of the fraudulent transactions occurring through those accounts, was the sole beneficiary of those transactions, and repeatedly shipped empty or torn packages to buyers. Whether he invoked his right against self- incrimination would also not have altered the fact that he raised two theories of defense with no evidence to support either. His assertions that his substantial rights were affected fall short of the bar required to satisfy the third prong of plain error analysis. 10 C. Finally, Sliter-Matias argues that the indictment should have been dismissed because the government’s loss of potentially exculpatory records acquired from the search of his residence violated his right to due process. We employ a mixed standard of review over whether the District Court erred in refusing to dismiss an indictment, 9 App. 596 –97. 10 See United States v. Ludwikowski, 944 F.3d 123 , 136-37 (3d Cir. 2019) (holding that the defendant’s substantial rights were not affected by the admission of certain testimony where the challenged testimony was unnecessary to establish guilt). 7 reviewing the District Court’s legal conclusions de novo but reviewing its factual findings for clear error. 11 In Brady v. Maryland, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 12 Where evidence destroyed only “might have proved exculpatory,” a defendant “has to show the prosecution’s bad faith in ordering or permitting its destruction.” 13 Sliter-Matias does not allege that the government acted in bad faith in losing his belongings but argues that the existing standard creates a manifest injustice. He asks us to apply a different standard to dismiss the case in his favor. We are not, however, free to ignore Supreme Court precedent and accordingly must reject this argument. 14 IV. For the foregoing reasons, we will affirm the judgment of the District Court. 11 United States v. Bergrin, 650 F.3d 257 , 264 (3d Cir. 2011). 12 373 U.S. 83 , 87 (1963). 13 United States v. Deaner, 1 F.3d 192 , 200 (3d Cir. 1993) (citing Arizona v. Youngblood, 488 U.S. 51 , 58 (1988)). 14 See Lambert v. Blackwell, 387 F.3d 210 , 267 (3d Cir. 2004) (rejecting the defendant’s claim that the government violated the Constitution by failing to preserve certain evidence where the defendant produced no evidence of bad faith). 8

2020-12-02 20:00:17.794138+00

https://www2.ca3.uscourts.gov/opinarch/201547np.pdf

ALD-012 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-1547 ___________ MAYCO ANTULIO LOPEZ-RAMIREZ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A208-269-186) Immigration Judge: Steven A. Morley ____________________________________ Submitted on a Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 15, 2020 Before: MCKEE, GREENAWAY, Jr., and BIBAS, Circuit Judges (Opinion filed December 2, 2020) _________ OPINION* _________ PER CURIAM * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  Mayco Antulio Lopez-Ramirez petitions for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”), which dismissed his appeal from an Immigration Judge’s (“IJ”) removal order. Because Petitioner raises no substantial question, see 3d Cir. LAR 27.4 and I.O.P. 10.6, and indeed has not raised any issue over which we have jurisdiction, we will summarily dismiss the petition for review.1 Petitioner is a citizen of Guatemala. He entered the United States without inspection as a juvenile. He was served with a Notice to Appear (“NTA”), which indicated that he should appear for a hearing at a time and date to be set. A.R. 637. Petitioner, represented by counsel, applied for asylum and related relief. The IJ found Petitioner to be credible for the most part, A.R. 103-04, but determined that he did not meet the standard for the relief he requested. A.R. 104-13. On appeal to the BIA, Petitioner argued among other things that, following the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the IJ lacked subject matter jurisdiction over Petitioner’s removal proceedings, because his NTA lacked a date and time to appear. A.R. 31-40. The Board rejected Petitioner’s argument, based on its own precedent and this Court’s decision in Nkomo v. Attorney General, 930 F.3d 129 , 133-34 (3d Cir. 2019). A.R. 3. The Board also affirmed the IJ’s determination that relief from removal was not warranted. A.R. 4. 1 We essentially will grant the Government’s motion, although we will do so by dismissing the petition for review rather than affirming the BIA’s decision.  Still represented by counsel, Petitioner timely petitioned for review. In his opening brief, Petitioner raises one issue: the Board erred by failing to terminate his proceedings because the NTA failed to comply with the statutory requirements of 8 U.S.C. § 1229 (a)(1)(G)(i).2 Petitioner insists that he is not arguing that the IJ lacked jurisdiction over his removal proceedings—he concedes that such an argument is foreclosed by Nkomo. Instead, he argues that his removal proceedings must be terminated because his NTA did not meet the requirements of the statute. The Government has filed a motion for summary action, and Petitioner has responded in opposition to that motion. We have jurisdiction under 8 U.S.C. § 1252 . We may only review issues that a petitioner has raised before the agency. 8 U.S.C. § 1252 (d)(1). Petitioner’s brief to the BIA contained nine pages of argument on how the defective NTA stripped the IJ of jurisdiction. But he argues now that he alerted the BIA to his statutory argument because he also stated in his brief that the NTA was defective “as a matter of law.” As his few statements using this short phrase (A.R. 30, 31, 32) were made in the context of his lengthy argument that the IJ lacked subject matter jurisdiction, we conclude that they were insufficient to put the BIA on notice of a separate statutory claim that provided an independent basis for terminating proceedings before the IJ.3 Accordingly, Respondent 2 Section 1229(a)(1) provides that written notice (the NTA) shall be provided in person or through service by mail, specifying as relevant here, “[t]he time and place at which the proceedings will be held.” 8 U.S.C. § 1229 (a)(1)(G)(i). 3 In his brief before the BIA, Petitioner clearly stated that he “has not waived the right to failed to exhaust the statutory claim that he has addressed in his brief here. See Cadapan v. Att’y Gen., 749 F.3d 157 , 158-59 (3d Cir. 2014) (explaining that we lack jurisdiction to consider a claim that was not raised before the Board); Perez-Sanchez v. Att’y Gen., 935 F.3d 1148 , 1157 (11th Cir. 2019) (dismissing for lack of jurisdiction claim that “NTA violated the agency’s claim-processing rules” because the petitioner “failed to exhaust the claim before the agency”).4 As Petitioner did not exhaust before the agency the only issue he raises here, we will dismiss the petition for review for lack of jurisdiction. move to terminate these proceedings” because “a challenge to subject matter jurisdiction cannot be waived.” A.R. 33. We note that, if he had intended to raise a separate, statutory claim that was not jurisdictional, courts that have considered such statutory requirements as claim-processing rules likely would have considered the argument forfeited, as he did not argue before the IJ that removal proceedings should be terminated because the NTA failed to meet statutory requirements. See Ortiz-Santiago v. Barr, 924 F.3d 956 , 964 (7th Cir. 2019). 4 Petitioner has waived any challenge to the denial of relief from removal by failing to address in his brief that portion of the BIA’s decision. See Chen v. Ashcroft, 381 F.3d 221 , 235 (3d Cir. 2004).

2020-12-02 20:00:18.826014+00

https://www2.ca3.uscourts.gov/opinarch/192737np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 19-2737 ______________ DAVID M. WATSON, Appellant v. GUS CHRISTO, Chaplain; CORPORAL KATRINA BURLEY, Grievance Committee; JOSEPH SIMMONS, Food Service Supervisor; MICHAEL KNIGHT, Food Service Administrator; MAJOR JOHN BRENNAN, Grievance appeals person; WARDEN DAVID PIERCE; JAMES SCARBOROUGH, Deputy Warden; LIEUTENANT CHRIS SENATO ______________ On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-16-cv-00433) District Judge: Honorable Richard G. Andrews ______________ Argued September 29, 2020 ______________ Before: SHWARTZ, PHIPPS, and SCIRICA, Circuit Judges. (Filed: December 2, 2020) _______________ OPINION ∗ ______________ ∗ This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Brian Biggs, Esq. [ARGUED] Kaitlin M. Edelman, Esq. Denise S. Kraft, Esq. Erin Larson, Esq. DLA Piper 1201 North Market Street, Suite 2100 Wilmington, DE 19801 Counsel for Appellants Wilson B. Davis Stuart B. Drowos, I George T. Lees, III [ARGUED] Office of Attorney General of Delaware Delaware Department of Justice 820 North French Street Carvel Office Building Wilmington, DE 19801 Brionna L. Denby Cohen Seglias Pallas Greenhill & Furman 500 Delaware Avenue, Suite 730 Wilmington, DE 19801 Counsel for Appellees SHWARTZ, Circuit Judge. David Watson sued officials 1 at James T. Vaughn Correctional Center (“VCC”) in Delaware (collectively “the prison”), alleging that the prison violated the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, and the First Amendment by denying his request to possess tefillin, an item used by some Jewish men 1 The defendants involved in this appeal are Chaplain Gus Christo, Corporal Katrina Burley, Major John Brennan, Warden David Pierce, and Deputy Warden James Scarborough because the sole order appealed is the one that denied Watson access to tefillin. Before the District Court, Watson dismissed the claims and parties related to his requests for kosher meals. 2 for weekday prayers. The District Court granted summary judgment in favor of the prison, concluding that denying Watson use of tefillin was the least restrictive means of furthering prison safety and security. Based on this record, which demonstrates the unique components of the tefillin, Watson’s behavioral and mental health issues, and the challenges in securing the prison unit in which he is housed, we agree and we will affirm. I Following convictions for violent offenses, 2 Watson was incarcerated, classified as a maximum-security inmate, and placed in the Residential Treatment Unit (“RTU”), a segregated unit for inmates with severe mental health needs. 3 Watson has a history of escape, suicide attempts, threatening to hang himself, possession of a razor and sharpened metal objects, and threats to corrections officers. Watson and the other RTU inmates pose a higher security risk than prisoners in other maximum-security units because of their more frequent and unpredictable violent outbursts and attempted suicides. In this volatile environment, staff members must quickly respond to sudden disturbances. The RTU, and VCC in general, are short-staffed. Watson practices Reform Judaism, and he requested tefillin, a set of small boxes containing parchment with verses from scripture that are attached to thick leather straps 2 In January 2013, Watson was arrested for his participation in shootings at the homes of law enforcement officers. Watson v. State, No. 665, 2013, 2015 WL 1279958 , at *2-5 (Del. Mar. 19, 2015). Watson was found guilty of three counts of first-degree reckless endangering, three counts of possession of a firearm during the commission of a felony, one count of second-degree conspiracy, and one count of criminal mischief. Id. at *1. He was sentenced to 101 years’ imprisonment. Id. at. *6. 3 Watson is in the RTU to receive treatment for schizophrenia and bipolar disorder. 3 several feet long. Watson asked to keep tefillin in his cell for weekday morning prayers. He did not propose any alternative forms of access. The prison educated itself about tefillin, discussed the security issues it posed (namely, that it could be used for violence, self-harm, or escape), and denied Watson’s request due to those security risks. Watson sued the prison and, in an amended complaint, alleged that denying him access to tefillin violated RLUIPA and the First Amendment. 4 In response, the prison revisited Watson’s request for tefillin and considered (1) whether a staff member could bring Watson tefillin and supervise him while he prayed and (2) whether staff could escort Watson from the RTU to pray with tefillin in a designated area. The prison rejected both alternatives because each required diverting staff from other needs and did not alleviate the risk that Watson could harm himself once given the tefillin. Moreover, even if the prison had staff available, in the event of an emergency incident—a frequent occurrence in the RTU—staff members monitoring or escorting Watson would either be unable to respond to or, potentially worse, would respond to the emergency, leaving Watson unsupervised. In his deposition testimony, Deputy Warden Scarborough repeatedly raised his concern about “times where things happen that cause a security alert, cause our staff to be diverted[,]” and noted that “[i]t will go fine all the way up until the one time that it doesn’t.” App. 496. Further, neither accommodation addressed the fact that tefillin’s components pose a danger and a method to smuggle contraband, which 4 Watson also alleged that denying him tefillin violated the Delaware Constitution, but his opening brief does not mention that claim, so he has forfeited any challenge to the dismissal of this state law claim. Khan v. Att’y Gen., 691 F.3d 488 , 495 n.4 (3d Cir. 2012). 4 make it risky to secure. Thus, due to staffing constraints and the physical attributes of tefillin, as well as Watson’s classification, placement in the RTU, and escape attempt, the prison concluded that it could not accommodate his request. Thereafter, the prison moved for summary judgment, which the District Court granted. Watson v. Christo, Nos. 16-cv-433-RGA, 17-cv-351-RGA, 2019 WL 1324941 , at *2, *7 (D. Del. Mar. 25, 2019). The Court held that, under RLUIPA, the prison had carried its burden of showing that denying Watson tefillin was the least restrictive means of maintaining prison safety and security. Id. at *6. The Court found that (1) tefillin was riskier than other religious objects the prison allowed, (2) the prison’s staffing concerns for the demanding RTU were supported by testimony, and (3) other prisons’ policies that allowed access to tefillin were inapposite because those policies did not apply to a short- staffed mental health unit, as here. Id. Because the prison met its demanding burden under RLUIPA, the Court held that the prison also met its lesser burden under the First Amendment. Id. Watson appeals. II 5 The parties agree that maintaining prison safety and security is a compelling interest. Id. at *5. The sole issue is whether denying Watson tefillin is the least 5 The District Court had jurisdiction under 28 U.S.C. § 1331 , and we have jurisdiction under 28 U.S.C. § 1291 . Our review of a district court’s order granting summary judgment is plenary, Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413 , 418 (3d Cir. 2013), and we view the facts and make all reasonable inferences in the non-movant’s favor, Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265 , 266-67 (3d Cir. 2005). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “‘A dispute is genuine if 5 restrictive means of furthering that interest. 6 To do so, the prison must “show that it lacks other means of achieving” prison safety and security without burdening Watson’s requested religious exercise. 7 Holt v. Hobbs, 574 U.S. 352 , 364-65 (2015) (alteration and a reasonable trier-of-fact could find in favor of the nonmovant’ and ‘material if it could affect the outcome of the case.’” Thomas v. Tice, 948 F.3d 133 , 138 (3d Cir. 2020) (quoting Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294 , 300 (3d Cir. 2012)). “We may affirm a district court for any reason supported by the record.” Brightwell v. Lehman, 637 F.3d 187 , 191 (3d Cir. 2011). 6 In examining a RLUIPA claim, we may rely on cases that discuss the Religious Freedom Restoration Act (“RFRA”) because the same standards apply in RFRA and RLUIPA cases. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 , 695 (2014) (The RLUIPA “imposes the same general test as RFRA but on a more limited category of governmental actions.”). Under RLUIPA, Watson bears the “initial burden” of showing that (1) he has a sincerely held religious belief in possessing tefillin, and (2) the prison substantially burdened the exercise of his belief by denying him tefillin. Holt v. Hobbs, 574 U.S. 352 , 360-61 (2015); see also 42 U.S.C. § 2000cc-1(a). If he makes that showing, the burden shifts to the prison to show that denying tefillin “(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental interest.” Holt, 574 U.S. at 362 (alterations in original) (quoting § 2000cc-1(a)). The District Court resolved this case on the least-restrictive- means element because the other elements were either conceded or not appropriate for summary judgment. On the first element, the Court held that there was a genuine dispute of fact over whether Watson’s Reform Judaism was sincere. Watson v. Christo, Nos. 16- cv-433-RGA, 17-cv-351-RGA, 2019 WL 1324941 , at *4 (D. Del. Mar. 25, 2019). On the second element, the parties agreed that denying tefillin to a practicing Reform Jew would be a substantial burden. Id. On the third element, the parties agreed that prison safety and security were compelling interests. Id. at *5. On appeal, the parties make no arguments regarding the other elements. 7 We examine the prison’s response to an inmate’s request. See United States v. Wilgus, 638 F.3d 1274 , 1289 (10th Cir. 2011) (“[T]he government’s burden is two-fold: it must support its choice of regulation, and it must refute the alternative schemes offered by the challenger, but it must do both through the evidence presented in the record.”). Indeed, courts have not required prisons to identify and evaluate “every conceivable option in order to satisfy the least restrictive means prong of RFRA” or RLUIPA. Fowler v. Crawford, 534 F.3d 931 , 940 (8th Cir. 2008) (internal quotation marks and citation omitted); see also Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 , 188-89 (1979) (Blackmun, J., concurring) (“A judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in 6 citation omitted). While the prison “must consider and reject other means,” Washington v. Klem, 497 F.3d 272 , 284 (3d Cir. 2007), RLUIPA does not require prisons to “impose unjustified burdens on other institutionalized persons[] or jeopardize the effective functioning of an institution.” Cutter v. Wilkinson, 544 U.S. 709 , 726 (2005). Watson argues that denying him access to tefillin is not the least restrictive means of maintaining safety and security either because (1) he could safely possess tefillin or (2) officers could supervise his use of tefillin. Based on this record, however, no reasonable juror could conclude that the prison could feasibly achieve its goal of safety and security while allowing Watson access, supervised or otherwise, to tefillin each weekday morning. almost any situation, and thereby enable himself to vote to strike legislation down.”). Thus, a prison is not required to offer ways that would not fully accommodate the religious practice. In fact, we have held that a partial accommodation of a religious request that does not fulfill a prisoner’s religious obligation is insufficient under RLUIPA. See Washington v. Klem, 497 F.3d 272 , 284-86 (3d Cir. 2007) (holding that a prison’s policies that only allowed a prisoner to access roughly fourteen books per week violated RLUIPA because his religion required him to read twenty-eight books per week). Applied here, Watson asked for access to tefillin each weekday morning. The prison evaluated that specific request and was not required to offer an avenue for access that did not fulfill this daily religious obligation without Watson indicating that such an accommodation would have been acceptable. See Fowler, 534 F.3d at 940 (“If [plaintiff] was willing to accept something less than a sweat lodge 17 times a year, he should have said so in no uncertain terms.”). Here, Watson requested weekday access to tefillin. In response, the prison considered several alternatives to accommodate Watson’s request, such as allowing Watson to use tefillin while in the unit or transporting him to the Chapel. The prison determined that each alternative requires committing at least one or two staff members to monitor him each weekday morning. The undisputed record shows that allocating staff to supervise or escort Watson every weekday would leave less manpower to respond to incidents in the RTU. The prison determined that each alternative was not feasible because of the unique dangers posed by tefillin and the RTU’s volatile environment. 7  First, the undisputed facts show that allowing Watson access to tefillin poses substantial risks because of tefillin’s uniquely risky attributes. 8 Its long leather straps could be used to strangle or restrain others or injure oneself. Moreover, its boxes could be used to smuggle contraband. Thus, no reasonable juror could conclude that an inmate in Watson’s position could be allowed access to tefillin without posing a substantial risk to himself and others. 9 Second, Watson has engaged in behavior that shows his possession of such an object as requested could undermine prison safety and security. See Holt, 574 U.S. at 363 (instructing that courts analyze how granting an accommodation to the particular claimant will affect the prison’s interests). Watson is classified as a maximum-security risk based on his sentence, crime, and behavior in prison. Watson’s history includes an escape attempt, suicide attempts, possession of prohibited dangerous objects, threats to injure corrections officers, and a threat to hang himself. 8 Watson argues that the prison allows inmates to possess other religious objects that pose security risks, such as necklace chains or prayer rugs, creating a factual issue over whether the prison can safely allow him tefillin. However, tefillin presents multiple unique risks if in the possession of an inmate like Watson, and these other objects do not have similar components and thus are not relevant comparators. 9 Watson argues that other prisons have safely allowed inmates in similar housing to access tefillin, but policies or conditions at other prisons are “not necessarily controlling.” Holt, 574 U.S. at 368 (quoting Procunier v. Martinez, 416 U.S. 396 , 414 n.14 (1974)). For example, policies discussed in Searles v. Bruce, No. 01-3379-JTM, 2003 WL 23573643 , at *3 (D. Kan. Oct. 20, 2003), and Spigelman v. Samuels, No. 13- CV-074-GFVT, 2015 WL 1411942 , at *1 (E.D. Ky. Mar. 26, 2015), which allowed segregated inmates access to tefillin have little relevance here because neither applied to a volatile mental health unit, with a higher risk for misconduct than even maximum- security units, in a short-staffed prison. See Subil v. Sheriff of Porter Cnty., No. 2:04- CV-0257 PS, 2008 WL 4690988 , at *4 (N.D. Ind. Oct. 22, 2008) (holding that denying tefillin does not violate RLUIPA). 8  Third, the RTU is a particularly challenging environment to secure because it houses inmates like Watson who have serious behavioral and mental health issues that result in unpredictable disruptions. See Fowler v. Crawford, 534 F.3d 931 , 939 (8th Cir. 2008) (denying request for sweat lodge ceremonies was the least restrictive means of maintaining prison security because, among other things, such ceremonies would divert staff and prevent them from responding to unrest in other areas of the prison). Finally, when applying RLUIPA, “[c]ontext matters.” Cutter, 544 U.S. at 723 (citation omitted). Congress enacted RLUIPA “mindful of the urgency of discipline, order, safety, and security” in prisons, and anticipated courts would give “due deference to the experience and expertise” of prison officials “in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Id. (internal quotation marks and citations omitted). Thus, Congress recognized that prisons are unique, and their resources are limited. The limited RTU staff10 must monitor unpredictable inmates who pose security 10 Watson argues that the prison overstates its staffing concerns because the prison never performed a detailed cost analysis or provided documentary evidence of their staffing concerns, and because Deputy Warden Scarborough testified that, if directed to do so, he could assign staff members to escort Watson. We disagree. First, while “cost may be an important factor in the least-restrictive-means analysis,” Hobby Lobby, 573 U.S. at 730, prisons need not produce detailed cost analyses to satisfy their RLUIPA burden, see Cutter v. Wilkinson, 544 U.S. 709 , 723 (2005) (“[c]ontext matters” when considering RLUIPA’s application). Moreover, here, the reason was not cost but the availability of staff, and thus a cost analysis is not relevant, particularly given the testimony explaining that the staffing shortage stems from challenges in finding people to fill positions. Furthermore, the prison did not need to establish its limited staffing through documentary evidence, and instead properly established those facts through deposition testimony. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular 9 risks. Diverting resources to monitor the activities of one inmate each weekday places the entire unit at risk. Within this context, no reasonable jury could conclude that the prison’s decision to bar Watson from having daily access to tefillin is not the least restrictive means to further the compelling interest in maintaining prison security and safety. 11 See Cutter, 544 U.S. at 726 . parts of materials in the record, including depositions . . . .”). Second, while Deputy Warden Scarborough testified that reallocating staff was not impossible, there is no dispute that the prison is understaffed, the RTU houses inmates who are unpredictable, and the requested accommodation would divert two staff members to supervise Watson from responding to RTU incidents. Thus, the undisputed facts show that the proposed accommodation is not “viable” or “straightforward,” Hobby Lobby, 573 U.S. at 728; see also Fowler, 534 F.3d at 939 . While the prison raised concerns about staffing and the District Court found those concerns were valid and supported by testimony, we do not base our holding on the contention that the prison has insufficient staff to implement Watson’s proposed accommodations. Instead, we conclude that neither Watson’s initial request to possess tefillin in his cell nor Watson’s proposed accommodations achieve the prison’s goal of safety and security in the context of the unit in which he is housed. Our dissenting colleague, nonetheless, asserts that staffing should be considered and that the prison could pay overtime to its existing personnel so that it could provide Watson monitors while he uses the tefillin. The undisputed testimony reflects that the prison was understaffed, hundreds of overtime hours were being worked, and there were difficulties in recruiting new personnel. Directing the prison to require its already stretched staff to work overtime to monitor the actions of a volatile inmate who is housed in a unit with unique demands ignores our obligation to consider whether we are directing the prison to bear an “unjustified burden” that could “jeopardize the effective functioning” of the prison as well as the requirement that we “consider[] costs and limited resources.” Cutter, 544 U.S. at 723, 736 . 11 Because we conclude that Watson’s RLUIPA claim fails, and the prison’s burden is greater under RLUIPA than the First Amendment, see, e.g., Fox v. Washington, 949 F.3d 270 , 277 (6th Cir. 2020), his First Amendment claim necessarily fails. Compare Turner v. Safley, 482 U.S. 78 , 89 (1987) (explaining that a prison may defeat a First Amendment claim if the prison policy “is reasonably related to legitimate penological interests”), with Holt, 574 U.S. at 352-54 (explaining that a prison may defeat a RLUIPA claim if the prison policy is the “least restrictive means” of furthering a “compelling interest”). 10  III For the foregoing reasons, we will affirm the District Court’s order granting summary judgment in favor of the prison. 11 Watson v. Christo, No. 19-2737 PHIPPS, Circuit Judge, dissenting. David Watson, a Reform Jewish inmate who poses a maximum-security risk, requested tefillin 1 for use in prayer for fifteen minutes each weekday morning. After his request was denied, Watson filed suit pro se against several officials at the prison, the James T. Vaughn Correctional Center in Smyrna, Delaware, in their individual and official capacities (collectively “the prison”). Watson claimed that by denying him access to tefillin, the prison violated his rights to exercise religion under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the First Amendment. The prison moved for summary judgment, and the District Court granted that motion. Watson appealed, and today the Majority Opinion affirms that judgment denying Watson’s claims for access to tefillin. I respectfully dissent because, on this record, Watson’s RLUIPA and constitutional claims should survive summary judgment, and that requires vacatur and remand to the District Court for further proceedings. I. THE PRISON FAILS TO PROVE THAT DENYING WATSON ACCESS TO TEFILLIN IS THE LEAST RESTRICTIVE MEANS OF ACHIEVING ITS COMPELLING INTERESTS IN PRISON SAFETY AND SECURITY. RLUIPA protects the exercise of religion in prison by generally preventing the government from substantially burdening a prisoner’s exercise of religion. 42 U.S.C. § 2000cc-1(a) (“No government shall impose a substantial burden on the religious 1 Tefillin are a set of two small black leather boxes containing scrolls of parchment inscribed with verses from the Torah, attached to leather straps, traditionally worn by adult Jewish men during weekday morning prayers. 1 exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability . . . .”). To overcome that general prohibition, the government must make two showings: first, that the burden on the prisoner’s religious exercise furthers a compelling governmental interest, and second, that the burden constitutes the least restrictive means of furthering that compelling governmental interest. Id.; see also Holt v. Hobbs, 574 U.S. 352 , 364 (2014). For the first showing, the prison denied Watson access to tefillin due to prison safety and security concerns. The prison recognized that tefillin could be used as a weapon or a tool for escape. As a result, the prison determined that two guards would have to observe Watson for fifteen minutes while he prayed with tefillin in his cell, and that the guards would also have to transport the tefillin to and from storage outside Watson’s cell. Importantly, despite Watson’s mental illness, checkered disciplinary record, and prior escape, the prison did not reject Watson’s request based upon the safety or flight risk that he would pose with access to tefillin. The prison determined that it could account for those risks by having two guards observe Watson while he prayed with tefillin and by having them transport and store the tefillin outside of Watson’s cell. But, according to the prison, staffing those guards in that way would pull them away from their normal duties, which would critically compromise prison safety and security by causing the remainder of the prison to be understaffed. On that rationale – the marginal loss in prison safety and security caused by diverting two guards from their normal duties – the prison determined that Watson could never have tefillin in his cell. 2  To prevail at summary judgment, the prison must make the second showing – that furthering those marginal safety and security interests by denying Watson tefillin satisfies the “exceptionally demanding” least-restrictive-means test. Holt, 574 U.S. at 364 (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 , 728 (2014)). By its text, RLUIPA acknowledges that compliance with its mandate “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” 42 U.S.C. § 2000cc-3(c). Thus, crediting the prison’s assessment that the diversion of two guards would critically compromise the safety and security of the prison, see Cutter v. Wilkinson, 544 U.S. 709 , 722–23 (2005), the prison must still establish that it cannot otherwise provide the staffing needed for Watson’s request. See, e.g., Yellowbear v. Lampert, 741 F.3d 48 , 59 (10th Cir. 2014) (Gorsuch, J.) (vacating summary judgment when a prison demonstrated only that its denial of a religious accommodation was due to “some marginal cost it consider[ed] too high” and not to an “inability to provide adequate security at any price”). On this record, the prison does not make that showing. The prison argues that it cannot accommodate Watson’s request within its current operational model. But that misapprehends RLUIPA, which protects more than merely the exercise of religious liberty that comports with a prison’s current budget or staffing model. Rather, RLUIPA – like any number of federal statutes – comes with compliance costs. 2 And unless those 2 Examples include the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 , see Robert P. Bartlett III, Going Private But Staying Public: Reexamining the Effect of Sarbanes-Oxley on Firms’ Going-Private Decisions, 76 U. Chi. L. Rev. 7 , 8 (2009) (observing that “the Sarbanes-Oxley Act of 2002 (SOX) has engendered a vigorous 3 costs unavoidably compromise compelling prison interests, they cannot justify burdens on religious exercise. See 42 U.S.C. § 2000cc-3(c). But here, the prison does not explain why it cannot accommodate Watson’s request through some other staffing model or budgetary approach. See Washington v. Klem, 497 F.3d 272 , 284 (3d Cir. 2007) (“[T]he Government must consider and reject other means before it can conclude that the policy chosen is the least restrictive means.”). The prison does not provide the details of its staffing model, much less a non-conclusory explanation of its inability under that model to adjust staffing to accommodate Watson’s request. The prison likewise does not show that authorizing overtime hours to accommodate Watson’s request would undermine prison safety and security. Without any such evidence, the prison has not met its burden. 3 debate concerning whether the post-SOX increase in the cost of being a public company has harmed the competitiveness of US capital markets” (footnote omitted)), and the Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590 , see Gregory C. Keating, Is Cost-Benefit the Only Game in Town?, 91 S. Cal. L. Rev. 195 , 239 (2018) (observing that “[the Occupational Safety and Health Administration] generally considers a standard economically feasible when the costs of compliance are less than one percent of revenues” (quotation omitted)). 3 See Hobby Lobby, 573 U.S. at 728–29 (finding that under RLUIPA’s sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), the U.S. Department of Health & Human Services could not prove least restrictive means without providing estimates or statistics); Williams v. Annucci, 895 F.3d 180 , 193–94 (2d Cir. 2018) (vacating summary judgment when a correctional department denied a prisoner dairy-free, egg-free, grape- free, kosher, vegetarian meals because such denial was not the least restrictive means of running a cost-efficient prison food-service program); Yellowbear, 741 F.3d at 59 (finding that a prison could not prove least restrictive means without at least trying to quantify the costs of accommodation and explain how those costs implicate prison budget or administration). 4  If anything, the prison’s evidence undermines its own position. The prison notes that it already authorizes around 3,000 eight-hour overtime shifts per month. But to justify denying Watson’s request, each of those cumulative 24,000 monthly overtime hours must be essential to furthering the prison’s compelling interests. And even if so, the prison would also have to demonstrate that it could not authorize additional overtime to accommodate Watson’s request. For reference, suppose that Watson’s request would require one hour of overtime per weekday (thirty minutes each for two guards), that would total between twenty and twenty-five hours of overtime a month, which is less than one-tenth of one-percent of the current authorized overtime – to say nothing of the prison’s overall staffing budget, let alone its total budget. See Hobby Lobby, 573 U.S. at 730 (“We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs.”); Moussazadeh v. Tex. Dep’t of Crim. Just., 703 F.3d 781 , 797 (5th Cir. 2012) (“Although cost reduction, as a general matter, is unquestionably a compelling interest of [the prison system], we are skeptical that saving less than .05% of the food budget constitutes a compelling interest.”). Rather than proving that Watson’s request is unworkable, the prison’s evidence suggests a malleable budget and a flexible staffing model that can adapt to other demands but not to Watson’s request to pray with tefillin. Perhaps as a practical matter the prison can do nothing more operationally and budgetarily to accommodate Watson’s request while also fulfilling its compelling interests in prison safety and security. That may well be the case – especially since 5 Watson poses a safety and flight risk and because he requests access to a religious object that could be weaponized or used to facilitate escape – but the prison has not made that showing at summary judgment. See Greene v. Solano Cnty. Jail, 513 F.3d 982 , 989–90 (9th Cir. 2008) (“[I]n light of RLUIPA, no longer can prison officials justify restrictions on religious exercise by simply citing to the need to maintain order and security in a prison.”); Murphy v. Mo. Dep’t of Corr., 372 F.3d 979 , 988 (8th Cir. 2004) (“Nevertheless, [a prison] must do more than merely assert a security concern.”). For that reason, I respectfully dissent from Majority Opinion’s affirmance of summary judgment for the prison on the RLUIPA claim. II. WATSON’S FREE EXERCISE CLAIM ALSO SURVIVES SUMMARY JUDGMENT. I also respectfully dissent from the Majority Opinion’s affirmance of summary judgment to the prison on Watson’s free exercise claim. The District Court granted summary judgment based entirely on its analysis of Watson’s RLUIPA claim, reasoning that because the denial of tefillin satisfied the more demanding RLUIPA standard, it necessarily complied with the less stringent standard for a free exercise claim. See Watson v. Christo, 2019 WL 1324941 , at *6–*7 (D. Del. Mar. 25, 2019). But because I believe that the prison fails to defeat Watson’s RLUIPA claim on this record, Watson’s free exercise claim should be assessed independently under the factors announced in Turner v Safley, 482 U.S. 78 (1987). See, e.g., Fontroy v. Beard, 559 F.3d 173 , 177–78 (3d Cir. 2009) (applying the Turner factors to determine whether a correctional department policy violated prisoners’ First Amendment rights). Because the prison 6 advances no arguments in that respect, the judgment denying Watson’s free exercise claim should be vacated and remanded as well. 7

2020-12-02 20:00:21.168625+00

https://www2.ca3.uscourts.gov/opinarch/201959np.pdf

ALD-009 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-1959 ___________ CHRISTOPHER YOUNG, Appellant v. TAMMY FERGUSON; DANIEL MYERS; BOBBI JO SALAMON; JENNIFER ROSSMAN; DAVID LINK; STEFAN STESSNEY; TIMOTHY GRAHAM; JOHN DANISON; W. MATTHEWS; JOSEPH DUPONT; JOHN WETZEL ____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1-18-cv-00879) District Judge: Honorable Christopher C. Conner ____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915 (e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 8, 2020 Before: MCKEE, GREENAWAY, JR. and BIBAS, Circuit Judges (Opinion filed December 2, 2020) _________ OPINION* _________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM Appellant Christopher Young filed a civil rights action against numerous prison officials grounded on his temporary administrative placement in a restricted housing unit (“RHU”).1 Specifically, Young alleged that he was normally housed with the general population at SCI Albion as he was a “custody level 3-4” prisoner. He complained that, on five separate occasions when he was temporarily taken to SCI Benner for court appearances, he was placed in “administrative custody” and housed in the RHU, which limited his access to the phone, law library, and outdoor recreation time, among other things. Young filed grievances while being held at SCI Benner on at least four occasions. The review committee responded each time, noting that it was prison policy to house temporary transfers in the RHU and that, on three occasions, lack of bed space prevented Young from being housed with the general population. In his complaint, Young alleged that his placement in the RHU violated his rights under the Eighth and Fourteenth Amendments. The District Court granted summary judgment in favor of six defendants and granted the remaining defendants’ motion to dismiss. Young appealed. This Court has jurisdiction under 28 U.S.C. § 1291 , and we review the District Court’s orders granting the defendants’ motions de novo. See Tundo v. County of 1 Because we write primarily for the benefit of the parties, we will recite only the facts necessary for the discussion. Passaic, 923 F.3d 283 , 286 (3d Cir. 2019) (summary judgment); Newark Cab Ass’n v. City of Newark, 901 F.3d 146 , 151 (3d Cir. 2018) (motion to dismiss). We may summarily affirm on any ground supported by the record if the appeal fails to present a substantial question. See Murray v. Bledsoe, 650 F.3d 246 , 247 (3d Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4; I.O.P. 10.6. In order to state an Eighth Amendment claim, Young must establish that he was denied “the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825 , 834 (1994). Only “extreme deprivations” are sufficient to make out a conditions of confinement claim, Hudson v. McMillen, 503 U.S. 1 , 8-9 (1992), such as when a prisoner has been denied “basic human needs, such as food, clothing, shelter, sanitation, medical care and personal safety” from physical assault, Griffin v. Vaughn, 112 F.3d 703 , 709 (3d Cir. 1997). Placement in administrative segregation, by itself, is insufficient to constitute cruel and unusual punishment. See Gibson v. Lynch, 652 F.2d 348 , 352 (3d Cir. 1981). Young has not alleged any deprivation that would be sufficient under the Eighth Amendment. In his deposition, Young stated that the cells in the RHU were the same as those in the general population. He received food on a daily basis and was able to exercise and shower regularly. While Young identified some differences between the RHU and the general population, such as longer waiting time for cleaning supplies to be delivered and limited access to the phone, Young was provided “life’s necessities.”  Young’s equal protection claim also fails. He does not allege membership in a suspect class or interference with a fundamental right, so he must show that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410 , 423 (3d Cir. 2000). We agree with the District Court that Young was similarly situated to inmates who were temporary transfers to SCI Benner. By Young’s own admission, all temporary transfers were placed in administrative custody and housed in the RHU. Young was not treated differently.2 Finally, the District Court properly concluded that the claims against certain defendants (Wetzel, Danison, Matthews, Dupont, and Graham) failed because they were not directly involved in the alleged constitutional violations. See Rode v. Dellarciprete, 845 F.2d 1195 , 1207 (3d Cir. 1998). Young alleged simply that he disagreed with the way those defendants responded to his grievances, which generally is not the basis for a claim. See id. Accordingly, we will affirm the judgment of the District Court. 2 To the extent that Young alleged a due process violation under the Fourteenth Amendment, his temporary administrative confinement in the RHU did not implicate a liberty interest. See Torres v. Fauver, 292 F.3d 141 , 151-52 (3d Cir. 2002) (holding that administrative segregation for 120 days did not implicate a protected liberty interest); Smith v. Mensinger, 293 F.3d 641 , 653 (3d Cir. 2002) (“[C]onfinement in administrative or punitive segregation will rarely be sufficient, without more, to establish the kind of ‘atypical’ deprivation of prison life necessary to implicate a liberty interest.”).

2020-12-02 20:00:23.655266+00

http://www.ca4.uscourts.gov/Opinions/206821.P.pdf

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-6821 UNITED STATES OF AMERICA Plaintiff – Appellant, v. THOMAS F. MCCOY Defendant – Appellee. Appeal from the United States District Court for the Eastern District of Virginia at Norfolk. Raymond A. Jackson, District Judge. (2:03-cr-00197-RAJ-6) No. 20-6869 UNITED STATES OF AMERICA Plaintiff – Appellant, v. KEITH E. BRYANT Defendant – Appellee. Appeal from the United States District Court for the District of Maryland at Baltimore. Catherine C. Blake, District Judge. (1:95-cr-00202-CCB-3)  No. 20-6875 UNITED STATES OF AMERICA Plaintiff – Appellant, v. CRAIG LAMONT SCOTT Defendant – Appellee. Appeal from the United States District Court for the District of Maryland at Baltimore. Catherine C. Blake, District Judge. (1:95-cr-00202-CCB-2) No. 20-6877 UNITED STATES OF AMERICA Plaintiff – Appellant, v. KITTRELL BERNARD DECATOR Defendant – Appellee. Appeal from the United States District Court for the District of Maryland at Baltimore. Catherine C. Blake, District Judge. (1:95-cr-00202-CCB-1) Argued: September 10, 2020 Decided: December 2, 2020 Before DIAZ, THACKER, and HARRIS, Circuit Judges. 2 Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Diaz and Judge Thacker joined. ARGUED: Joseph Attias, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia; Jason Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant. John Gleeson, DEBEVOISE & PLIMPTON LLP, New York, New York, for Appellees. ON BRIEF: G. Zachary Terwilliger, United States Attorney, Richard D. Cooke, Assistant United States Attorney, Daniel T. Young, Assistant United States Attorney, Aidan Taft Grano, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant. Marisa Taney, Matthew Specht, Steven Tegrar, DEBEVOISE & PLIMPTON LLP, New York, New York, for Appellees. James Wyda, Federal Public Defender, Paresh Patel, Assistant Federal Public Defender, Shari Silver Derrow, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellees Craig Scott, Keith Bryant, and Kittrell Decator. 3 PAMELA HARRIS, Circuit Judge: The defendants in these consolidated appeals were convicted of robberies and accompanying firearms violations under 18 U.S.C. § 924 (c). At the time, sentences under § 924(c) were “stacked,” which exposed the defendants to additional mandatory minimums and led to sentences ranging from 35 to 53 years of imprisonment. After the defendants’ convictions became final, Congress passed the First Step Act and ended sentence “stacking” under § 924(c). Today, the defendants’ sentences would be dramatically shorter – in most cases, by 30 years – than the ones they received. At the same time it shortened sentences under § 924(c), the First Step Act significantly expanded access to compassionate release under 18 U.S.C. § 3582 (c)(1)(A). Prior versions of § 3582(c)(1)(A), which empowers courts to reduce sentences for “extraordinary and compelling reasons,” had allowed review of sentences only at the request of the Bureau of Prisons (“BOP”). The First Step Act removed the BOP from that gatekeeping role, authorizing defendants themselves to file motions for sentence reductions. Relying on both these First Step Act provisions, the defendants moved for reductions in their sentences under § 3582(c)(1)(A), resting their case for “extraordinary and compelling reasons” primarily on the length of their § 924(c) sentences and the disparity between their sentences and those that Congress deemed appropriate in the First Step Act. After considering each defendant’s individual circumstances – including their youth at the time of the offenses, their lack of significant prior criminal history, their exemplary behavior and rehabilitation in prison, and their already-substantial years of 4 incarceration – the district courts granted the defendants’ motions and reduced their sentences to time served. We now affirm the judgments of the district courts. As the government emphasizes on appeal, § 3582(c)(1)(A) prohibits sentence reductions that are not consistent with “applicable policy statements issued by the Sentencing Commission.” But contrary to the government’s argument, treating the defendants’ § 924(c) sentences as an “extraordinary and compelling” reason for release is not inconsistent with any “applicable policy statement” of the Sentencing Commission for the simple reason that the Commission has yet to issue a policy statement that applies to motions filed by defendants under the recently amended § 3582(c)(1)(A). Nor was it otherwise improper, we conclude, for the district courts to consider the First Step Act’s declaration of the appropriate level of punishment under § 924(c) in assessing the defendants’ cases, on an individualized basis, for compassionate release. I. We begin with a brief overview of the First Step Act and the law regarding compassionate release, and turn next to the district court decisions granting the defendants’ motions for sentence modifications. A. The First Step Act was enacted on December 21, 2018. Pub. L. No. 115-391, 132 Stat. 5194 (2018). As the Second Circuit recently explained: 5  The First Step Act . . . was simultaneously monumental and incremental. Monumental in that its changes to sentencing calculations, mandatory minimums . . . and other parts of our criminal laws led to the release of thousands of imprisoned people whom Congress and the Executive believed did not need to be incarcerated. Incremental, in that, rather than mandating more lenient outcomes, it often favored giving discretion to an appropriate decisionmaker to consider leniency. United States v. Zullo, 976 F.3d 228 , 230 (2020). The First Step Act made two specific changes relevant here. First is a “[m]onumental . . . change[] to sentencing calculations,” id., under 18 U.S.C. § 924 (c). That provision imposes mandatory minimum sentences for using or carrying a firearm in connection with a crime of violence: for a first offense, a five- to ten-year mandatory minimum, depending on the circumstances; and for a subsequent conviction, a consecutive 25-year mandatory minimum. Prior to the First Step Act, a conviction was treated as “second or subsequent,” triggering the 25-year minimum sentence, even if the first § 924(c) conviction was obtained in the same case. See Deal v. United States, 508 U.S. 129 , 132 (1993). The First Step Act ended this practice, known as sentence “stacking,” by clarifying that the 25-year mandatory minimum applies only when a prior § 924(c) conviction arises from a separate case and already “has become final.” § 403(a), 132 Stat. at 5222. Under § 403 of the First Step Act, that is, the 25-year mandatory minimum is “reserved for recidivist offenders, and no longer applies to multiple § 924(c) convictions obtained in a single prosecution.” United States v. Jordan, 952 F.3d 160 , 171 (4th Cir. 2020). But that change does not apply retroactively to sentences – like the defendants’ – imposed before December 21, 2018, when the First Step Act became law. See § 403(b), 132 Stat. at 5222; Jordan, 952 F.3d at 174. 6  The second relevant change is to § 3582(c)(1)(A), known as the compassionate release statute. Under § 3582(c)(1)(A), a court may reduce a defendant’s sentence if the “court . . . finds that . . . extraordinary and compelling reasons warrant such a reduction” and that the reduction is “consistent with applicable policy statements issued by the Sentencing Commission,” and if the § 3553(a) sentencing factors merit a reduction. 18 U.S.C. § 3582 (c)(1)(A). Importantly, prior to the First Step Act, courts could consider compassionate release only upon motion by the BOP. See 18 U.S.C. § 3582 (c)(1)(A) (2012). The BOP used that power so “sparingly” that the Department of Justice’s Inspector General found in a 2013 report that an average of only 24 imprisoned persons were released each year by BOP motion. See Zullo, 976 F.3d at 231 (citing U.S. Dep’t of Just., Office of the Inspector Gen., The Federal Bureau of Prisons’ Compassionate Release Program 1 (2013), https://www.oversight.gov/sites/default/files/oig-reports/e1306.pdf); United States v. Rodriguez, 451 F. Supp. 3d 392 , 395 (E.D. Pa. 2020). According to the same report, the BOP poorly managed the compassionate-release process and failed to establish timeliness standards for reviewing prisoner requests, causing delays so substantial that inmates sometimes died awaiting final BOP decisions. See Zullo, 976 F.3d at 231–32. Against this backdrop, Congress amended § 3582(c)(1)(A) to “remove the Bureau of Prisons from its former role as a gatekeeper over compassionate release petitions.” McCoy v. United States, No. 2:03-cr-197, 2020 WL 2738225 , at *4 (E.D. Va. May 26, 2020). Section 603(b) of the First Step Act announces its purpose in its title – “Increasing the Use and Transparency of Compassionate Release” – and provides that defendants now 7 may file motions for sentence modifications on their own behalf, so long as they first apply to the BOP. See § 603(b), 132 Stat. at 5239. By creating an avenue for defendants to seek relief directly from the courts, Congress effectuated an “incremental” change, expanding the “discretion [of the courts] to consider leniency.” Zullo, 976 F.3d at 230. Section 3582(c)(1)(A)(i) does not attempt to define the “extraordinary and compelling reasons” that might merit compassionate release. 1 Instead, the Sentencing Commission, pursuant to authority granted it by Congress, see 28 U.S.C. § 994 (t); see also id. § 994(a)(2)(C), addressed the issue in a policy statement, United States Sentencing Guideline § 1B1.13. The Commission first issued its policy statement in 2006 and last updated it in November 2018, before the First Step Act. Accordingly, it is directed at BOP requests for sentence reductions: “Upon the motion of the Director of the Bureau of Prisoners,” it provides, a court may reduce a sentence if, after considering the § 3553(a) sentencing factors, it determines that “extraordinary and compelling reasons warrant the reduction,” that the defendant is not a danger to the community, and that the reduction is consistent with the instant policy statement. U.S.S.G. § 1B1.13. Finally, in an application note, the Commission sets out four categories of “extraordinary and compelling reasons.” The first three establish specific circumstances 1 Other subsections of the compassionate release statute do specify particular circumstances that may merit sentence reductions. See 18 U.S.C. § 3582 (c)(1)(A)(ii) (focusing on age of the defendant); id. § 3582(c)(2) (focusing on defendants sentenced under sentencing ranges that are subsequently lowered by the Sentencing Commission). Section 3582(c)(1)(A)(i), by contrast, uses more open-ended language to capture cases that do not fall within those provisions but meet the heightened “extraordinary and compelling” standard. 8 under which such reasons exist, having to do with a defendant’s medical condition, health and age, and family circumstances. See U.S.S.G. § 1B1.13 cmt. n.1(A)–(C). Fourth, and most important to this case, is the so-called “catch-all” category, located at Application Note 1(D) and labeled “Other Reasons,” which permits a sentence reduction if “there exists in the defendant’s case an extraordinary and compelling reason other than” the above-listed reasons – but only “[a]s determined by the Director of the Bureau of Prisons.” Id. cmt. n.1(D). B. 1. We turn now to the defendants’ individual cases, beginning with United States v. McCoy. Thomas McCoy was charged, in a single prosecution, with involvement in a string of twelve robberies, and pleaded guilty to two counts of Hobbs Act robbery under 18 U.S.C. § 1951 and two counts of using firearms in connection with those robberies under § 924(c). At the time of the robberies, McCoy was 19 years old, and his only prior conviction had been for reckless driving, resulting in a $120 fine. McCoy was sentenced in 2004, before the First Step Act eliminated sentence- stacking under § 924(c). As a result, the court was required to impose two mandatory, consecutive sentences totaling 32 years: seven years for the first § 924(c) conviction, and 25 years for the second. The applicable Guidelines range for the robberies was 37 to 46 months. The district court sentenced McCoy to the lowest possible sentence: 37 months 9 for the robberies and 384 months for the § 924(c) convictions, for a total of 421 months or just over 35 years. 2 In 2020, after serving over 17 years of his sentence, McCoy submitted a request for compassionate release to the BOP, which denied the request. Taking advantage of the recently enacted First Step Act, McCoy then filed his own motion for a sentence reduction in the district court, based primarily on the severity of his § 924(c) sentence and the First Step Act’s changes to that provision. After the district court summarily denied his pro se motion, McCoy, now represented by counsel, filed a motion for reconsideration. The district court granted McCoy’s motion for reconsideration and for compassionate release on May 26, 2020, reducing McCoy’s sentence to time served. McCoy, 2020 WL 2738225 , at *6. Before the district court, the government argued primarily that treating McCoy’s § 924(c) sentence as an “extraordinary and compelling” reason for compassionate release would be inconsistent with Guideline § 1B1.13, and thus outside the court’s authority to grant reductions “consistent with applicable policy statements issued by the Sentencing Commission.” See 18 U.S.C. § 3582 (c)(1)(A)(i). The length of a sentence or a change in sentencing law, the government explained, did not fall under any of the three specific categories of “extraordinary and compelling reasons” set out in the application note to § 1B1.13. And, critically, Application Note 1(D)’s catch-all provision could not be 2 At the time of sentencing, prior to United States v. Booker, 543 U.S. 220 (2005), the imposition of a Guidelines sentence was mandatory. 10 invoked, according to the government, because that provision applies only when the BOP, and not a court, finds “other reasons” that qualify. See U.S.S.G. § 1B1.13 cmt. n.1(D). The district court disagreed. Guideline § 1B1.13, the court emphasized, was adopted before the First Step Act was passed, and “assumes that the Bureau of Prisons still has veto power” over requests for compassionate release. McCoy, 2020 WL 2738225 , at *4. But when it enacted the First Step Act, the court reasoned, Congress intended to remove the BOP from this gatekeeping role – an intent that would be frustrated if § 1B1.13 and Application Note 1(D) continued to make BOP approval a “prerequisite” to the district court’s review of McCoy’s sentencing petition. Id. In light of the “inherent conflict” between § 1B1.13 and the First Step Act, the district court concluded, § 1B1.13 was no longer binding – though it remained informative – and the court retained discretion to “define the contours” of an “extraordinary and compelling” reason under § 3582(c)(1)(A)(i) itself. Id. The district court went on to find that McCoy had presented “extraordinary and compelling reasons” for a reduction of his sentence on the § 924(c) convictions. First was the “incredible length of the [32-year] mandatory sentence imposed,” which far exceeded that necessary to “achieve the ends of justice.” Id. at *5 (citations omitted). If sentenced today, the court explained, McCoy likely would be subjected to less than half that sentence – a disparity of over 200 months. The district court also relied on the fact that McCoy was a teenager with no relevant criminal history at the time of his offenses, making the recidivist penalties of “stacked” sentences particularly inappropriate. Finally, the district court cited McCoy’s rehabilitation, shown through his many educational and vocational achievements 11 and his payments of nearly $10,000 towards a $38,209 restitution order shared among seven co-defendants. As required by § 3582(c)(1)(A), the district court also considered the relevant sentencing factors under § 3553(a) and found that “an individualized application” of those factors supported compassionate release. Id. at *3. Accordingly, the district court granted McCoy’s motion and reduced his sentence to time served. Id. at *6. McCoy was released, subject to supervised release, after serving just over 17 years in prison. 2. United States v. Bryant consolidates three related appeals. In 1993 and 1994, defendants Keith Bryant, Kittrell Decator, and Craig Scott participated in one attempted and two completed bank robberies, none of which resulted in any injuries. Each defendant was convicted of bank-robbery charges and three counts of using a firearm in connection with the robberies in violation of § 924(c). At the time of their offenses, the defendants were between 22 and 24 years old. Decator and Scott had no criminal history, and Bryant had one minor prior conviction for which he served no jail time. Under the then-current stacking regime, each defendant’s three § 924(c) convictions led to a mandatory minimum sentence of 45 years. 3 Those mandatory minimums were the 3 At the time the Bryant defendants were sentenced, the enhanced minimum sentence for “second or subsequent” § 924(c) convictions was 20 years, rather than the current 25. So each defendant was subject to a first mandatory minimum sentence of five years, upon which was stacked two additional 20-year sentences, for a total of 45 years. United States v. Bryant, Crim. No. 95-202-CCB-3, 2020 WL 2085471 , at *3 & n.4 (D. Md. Apr. 30, 2020). 12 lion’s share of the defendants’ sentences: Combined with sentences for the robbery conviction, they added up to total terms of imprisonment between 52 and 53 years. The district court expressed its concern about the severity of the sentences produced by the stacked § 924(c) charges but explained that it had no discretion in the matter. In late 2019 and early 2020, the defendants moved for compassionate release, first with the BOP and then by filing court motions on their own behalf under the newly amended § 3582(c)(1)(A). By that time, each defendant had served approximately 25 years in prison. As “extraordinary and compelling reasons” to support their motions, the defendants focused primarily on the length of their sentences, imposed under an understanding of § 924(c) since corrected by § 403 of the First Step Act and substantially longer than the sentences they would receive if prosecuted today. They also relied on their exemplary prison records and other evidence of rehabilitation. In three opinions issued in April and May of 2020, the district court granted the defendants’ motions and reduced their sentences to time served. United States v. Decator, 452 F. Supp. 3d 320 , 326 (D. Md. 2020); United States v. Bryant, Crim. No. 95-202-CCB- 3, 2020 WL 2085471 , at *5 (D. Md. Apr. 30, 2020); United States v. Scott, Crim. No. 95- 202-CCB-2, 2020 WL 2467425 , at *5 (D. Md. May 13, 2020). 4 First, the district court rejected the same argument the government had advanced in McCoy: that under Guideline § 1B1.13’s catch-all provision, only the BOP, and not a court, may determine that an 4 Because the district court’s legal reasoning is substantially similar in all three opinions, for ease of reference, the remainder of this opinion cites to the decision in Bryant, the lead case on appeal. 13 unusually long sentence is an “extraordinary and compelling” reason for relief. Like McCoy, the court found that “the catch-all provision’s limitation of other extraordinary and compelling reasons to those defined by the BOP is . . . inconsistent with the First Step Act,” which eliminated the BOP’s gatekeeping role. Bryant, 2020 WL 2085471 , at *2 (internal quotation marks omitted). Given that conflict, the court concluded, while § 1B1.13 “remain[s] helpful guidance, the amended § 3582(c)(1)(A)(i) vests courts with independent discretion to determine whether there are extraordinary and compelling reasons to reduce a sentence.” Id. (internal quotation marks omitted). The court went on to find, consistent with the reasoning of “[m]ultiple district courts,” that the First Step Act’s change to sentencing law under § 924(c) – which would have shortened each defendants’ sentence by a full 30 years – could be considered under the “extraordinary and compelling” standard. See id. at *3 (citing cases). The court was not persuaded by the government’s argument that because the First Step Act’s changes to § 924(c) are not retroactive, they also cannot be the basis for compassionate release under § 3582(c)(1)(A)(i). “[I]t is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis.” Id. (internal quotation marks omitted). The district court then evaluated the defendants’ individual circumstances. With respect to each, the court took into account the defendant’s youth and minimal criminal history at the time of his offenses; his post-sentencing conduct and rehabilitation; and the fact that continued incarceration would be disproportionate to both “the seriousness of the 14 offense and to what Congress now deems appropriate for this kind of conduct.” Id. at *5. Indeed, the court noted with respect to all three defendants that their sentences were “roughly twice as long as federal sentences imposed today for murder.” Id. Given all those factors, the court concluded, relief was warranted under § 3582(c)(1)(A). The court therefore granted the defendants’ motions and reduced their sentences to time served, and the defendants have since been released on supervision and subject to additional conditions. 5 The government timely appealed the district court judgments in McCoy and Bryant, and we consolidated the cases for purposes of this appeal. II. On appeal, the government presents two primary arguments, echoing its positions before the district courts. First, the government contends that treating a disproportionately long sentence as an “extraordinary and compelling” reason for a potential sentence reduction is not “consistent with applicable policy statements issued by the Sentencing 5 The government filed a motion to stay all three defendants’ releases, but only after Decator and Bryant already had been released from custody, and after Scott’s scheduled release was imminent. See Mot. to Stay Orders Pending Appeal ¶ 5 n.1, Bryant, 1:95-cr- 00202-CCB (D. Md. May 13, 2020), ECF No. 390; Mem. at 3, Bryant, 1:95-cr-00202-CCB (D. Md. July 9, 2020), ECF No. 413. The district court denied the motion after Scott had been released, rejecting the government’s argument that the defendants were flight risks absent supporting evidence and after the court had already considered suitability of release for each defendant individually. Mem. at 5, Bryant, 1:95-cr-00202-CCB. The district court added that the government’s request was especially unwarranted where the government was seeking to return the defendants to custody “in the midst of a global pandemic,” and before the government had finalized its decision even to pursue appeals. Id. at 3, 5. 15 Commission,” as required by § 3582(c)(1)(A). The relevant policy statement, according to the government, is Guideline § 1B1.13, and under that statement, a reason may qualify as “extraordinary and compelling” under Application Note 1(D)’s catch-all category only with the approval of the BOP, which is absent here. And second, the government argues, even if consideration of the defendants’ § 924(c) sentences were not precluded by § 1B1.13, the First Step Act’s elimination of sentence-stacking still could not constitute an “extraordinary and compelling reason” for compassionate release, mostly because Congress chose not to apply that change retroactively. These arguments raise questions of statutory interpretation, bearing on the authority of the district courts to grant relief. Accordingly, our review is de novo. See United States v. Wirsing, 943 F.3d 175 , 182 (4th Cir. 2019) (construing First Step Act provision); cf. United States v. Muldrow, 844 F.3d 434 , 437 (4th Cir. 2016) (“We review a district court’s decision to reduce a sentence under § 3582(c)(2) for abuse of discretion and its ruling as to the scope of its legal authority under § 3582(c)(2) de novo.”) (citation omitted). For the reasons given below, we disagree with the government’s position. A. Under § 3582(c)(1)(A), a district court may reduce a sentence if it finds that a reduction is both warranted by “extraordinary and compelling reasons” and also “consistent with applicable policy statements issued by the Sentencing Commission.” The government’s first argument focuses on the “consistency” requirement. According to the government, the Sentencing Commission, charged with “describ[ing] what should be considered extraordinary and compelling reasons for sentence reduction,” 28 U.S.C. 16 § 994(t), did so in Guideline § 1B1.13. That statement limits such reasons to three prescribed categories – Application Notes 1(A) through (C), covering a defendant’s health, age, and family circumstances – and a catch-all category, Application Note 1(D), allowing the BOP and only the BOP to identify “other reasons” that qualify. See U.S.S.G. § 1B1.13 cmt. n.1. Because the BOP has not determined under Application Note 1(D) that there are “other reasons” in these cases, the government concludes, the district courts are precluded from finding the existence of such reasons “consistent with the applicable policy statement.” The defendants, of course, disagree. They argue that there is no inconsistency here because Guideline § 1B1.13 – and specifically Application Note 1(D) – conflicts with the later-enacted First Step Act and thus no longer binds the courts. According to the defendants, the phrase in Application Note 1(D) requiring BOP approval before “other reasons” may be treated as “extraordinary and compelling” is a vestige of the pre-First Step Act statutory structure, under which only the BOP could move for compassionate release. Now that the First Step Act has removed the BOP, quite deliberately, from its gatekeeping role, the BOP’s authority to determine the existence of “other reasons” under Application Note 1(D) is irreconcilable with the amended § 3582(c)(1)(A). Given that conflict, the defendants finish, the statute prevails, see Dorsey v. United States, 567 U.S. 260 , 266 (2012) (noting that statutes “trump[]” Guidelines), leaving courts with independent discretion to determine whether “extraordinary and compelling reasons” exist. The district courts in this case – like many other courts – adopted the defendants’ position, holding that Guideline § 1B1.13 conflicts with the First Step Act to the extent it 17 “entrench[es]” the BOP in its gatekeeping role under Application Note 1(D). McCoy, 2020 WL 2738225 , at *4; Bryant, 2020 WL 2085471 , at *2; see also, e.g., Wise v. United States, Crim. No. ELH-18-72, 2020 WL 2614816 , at *5–6 (D. Md. May 22, 2020); United States v. Young, 458 F. Supp. 3d 838 , 844–45 (M.D. Tenn. 2020); United States v. Cantu, 423 F. Supp. 3d 345 , 351–52 (S.D. Tex. 2019). But we need not go so far to resolve this case. What § 3582(c)(1)(A) requires is that sentence reductions be consistent with “applicable policy statements.” And here, that consistency requirement simply is not implicated, for the threshold reason that there currently exists no “applicable policy statement[].” In so holding, we join three federal courts of appeals that recently have considered this question. See Zullo, 976 F.3d at 230; United States v. Jones, --- F.3d ----, No. 20-3701, 2020 WL 6817488 , at *1–2 (6th Cir. Nov. 20, 2020); United States v. Gunn, --- F.3d ----, No. 20-1959, 2020 WL 6813995 , at *2 (7th Cir. Nov. 20, 2020). First was United States v. Zullo, in which the Second Circuit faced the same issue before us now: “[W]hether the First Step Act allows courts independently to determine what reasons, for purposes of compassionate release, are ‘extraordinary and compelling,’ or whether that power remains exclusively with the BOP Director as stated in Application Note 1(D)” to Guideline § 1B1.13. 976 F.3d at 234. The court concluded that the amended § 3582(c)(1)(A) does authorize courts to make their own independent assessments of “extraordinary and compelling reasons” – not because § 1B1.13 is inconsistent with the First Step Act, but because § 1B1.13 is not an “applicable” policy statement at all. Id. at 235–36. When a defendant exercises his new right to move for compassionate release on his own behalf, in other words, § 1B1.13 does not apply, and thus § 3582(c)(1)(A)’s consistency requirement 18 does not constrain the discretion of district courts. Id. at 236; see also Jones, --- F.3d at -- --, 2020 WL 6817488 , at *7–9 (following Zullo); Gunn, --- F.3d at ----, 2020 WL 6813995 , at *2 (same). We agree with the decisions of these courts of appeals, which reflect a growing consensus in the district courts. See, e.g., United States v. Jones, --- F. Supp. 3d ----, No. 94-cr-20079-EJD-1, 2020 WL 5359636 , at *4–5 (N.D. Cal. Aug. 27, 2020) (describing “growing consensus” in district courts); United States v. Rodriguez, 451 F. Supp. 3d 392 , 397–99 (E.D. Pa. 2020); United States v. Redd, 444 F. Supp. 3d 717 , 724–25 (E.D. Va. 2020); United States v. Beck, 425 F. Supp. 3d 573 , 579 (M.D.N.C. 2019). The only policy statement that possibly could be “applicable” to the defendants’ motions is the one upon which the government relies, Guideline § 1B1.13. That policy statement was adopted before the First Step Act, and the Sentencing Commission has not updated it to account for the fact that the Act now allows defendants to file their own motions for compassionate release. 6 So it is not surprising that § 1B1.13’s “very first sentence . . . constrains the entire policy statement to motions filed solely by the BOP,” Rodriguez, 451 F. Supp. 3d at 397, and not by defendants themselves: “Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582 (c)(1)(A), the court may reduce a term of imprisonment . . . .” 6 The Sentencing Commission currently lacks the quorum required to amend the Sentencing Guidelines. U.S. Sentencing Comm’n, Annual Report 2–3 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports- and-sourcebooks/2019/2019-Annual-Report.pdf. Thus, as many courts have recognized, the Commission has been unable to revise the Guidelines in response to the First Step Act, and no amendment or new policy statement appears forthcoming. See, e.g., Zullo, 976 F.3d at 234. 19 U.S.S.G. § 1B1.13 (emphasis added). The point is confirmed by Application Note 4 to § 1B1.13, reiterating that “[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons.” Id. cmt. n.4 (emphasis added). Like the Second Circuit, we read this language as “defining the motions to which the policy statement applies”: A sentence reduction brought about by motion of a defendant, rather than the BOP, is not a reduction “under this policy statement.” See Zullo, 976 F.3d at 236. By its plain terms, in short, § 1B1.13 does not apply to defendant-filed motions under § 3582(c)(1)(A). See Gunn, --- F.3d at ----, 2020 WL 6813995 , at *2 (“Section 1B1.13 addresses motions and determinations of the Director [of the BOP], not motions by prisoners.”). 7 Notwithstanding this straightforward reading, the government maintains that § 1B1.13 is indeed “applicable” to defendants’ motions for compassionate release. According to the government, the change worked by the First Step Act – allowing a defendant, and not only the BOP, to move for compassionate release – is minor and purely procedural. If we just do some quick judicial surgery on § 1B1.13, the government suggests, editing out the language described above, then we may assume that what remains – including Application Note 1(D)’s catch-all category dependent on BOP approval – 7 That does not leave Guideline § 1B1.13 without practical import. The existing policy statement continues to govern BOP-filed motions for compassionate release. See Zullo, 976 F.3d at 235–36; Jones, --- F.3d at ----, 2020 WL 6817488 , at *8 (quoting Zullo). And as the district courts held here, it remains helpful guidance even when motions are filed by defendants. See McCoy, 2020 WL 2738225 , at *5; Bryant, 2020 WL 2085471 , at *2; see also, e.g, Gunn, --- F.3d at ----, 2020 WL 6813995 , at *2; Rodriguez, 451 F. Supp. 3d at 400; United States v. Brown, 411 F. Supp. 3d 446 , 451 (S.D. Iowa 2019). 20 applies to defendant-filed as well as BOP-filed motions. But that badly understates the importance of the First Step Act’s compassionate-release amendment, which “significantly altered the landscape of compassionate-release motions” in a way that the “policy statement never had a chance to address.” Rodriguez, 451 F. Supp. 3d at 398. When the Sentencing Commission adopted § 1B1.13 in 2006, a motion could reach a reviewing court only by way of the BOP. Recognizing that it could not definitively predict every “extraordinary and compelling” reason that might arise, the Commission included a catch-all provision, subject, again, to BOP approval – which meant at the time that “every motion to reach [a] court would have an opportunity to be assessed under the flexible catchall provision.” Rodriguez, 451 F. Supp. 3d at 398–99. Application Note 1(D)’s focus on a BOP determination made sense in 2006, in other words, against a backdrop in which the BOP was the gatekeeper for all compassionate release motions. But we cannot simply assume, as the government urges, that the Commission would make the same decision now, after the First Step Act pointedly has removed the BOP from that gatekeeper role. See Jones, --- F.3d at ----, 2020 WL 6817488 , at *8. Indeed, a catch-all provision limited to BOP-approved “other reasons” could raise some specific issues under § 3582(c)(1)(A)’s new exhaustion provision. As amended by the First Step Act, § 3582(c)(1)(A) requires a defendant to exhaust his remedies with his warden and the BOP before filing his own motion for compassionate release. But Congress, aware of the BOP’s history of extensive delays, also provided a “30-day lapse” alternative, under which a defendant may proceed directly to district court if his request is not acted on within that time. See First Step Act § 603(b)(1), 132 Stat. at 5239. As a result, 21 a defendant now may file a compassionate-release motion in court before the BOP even has considered whether he qualifies for relief under the catch-all provision. If the BOP nevertheless retains its determinative role under Application Note 1(D), then such defendants would be required either to forgo the 30-day lapse provision and wait for a BOP determination, or to forgo reliance on the catch-all provision in exchange for a timely decision by the district court. See Rodriguez, 451 F. Supp. 3d at 399 (“It would be a strange remedy indeed if Congress provided that prisoners whose wardens failed to respond . . . could only take advantage of the thirty-day lapse provision by accepting a pared-down standard of review that omitted the flexible catchall standard.”); see also Zullo, 976 F.3d at 236. Our point, to be clear, is not that Guideline § 1B1.13 and Application Note 1(D) necessarily conflict with the First Step Act. As we said at the start, we need not decide whether the Sentencing Commission, under the First Step Act, could apply a BOP- approved catch-all category to motions filed by defendants, because the Sentencing Commission has yet to do so. But the Act’s changes to the compassionate-release system are substantial enough, and the questions raised complex enough, that we cannot do as the government asks and simply assume that Application Note 1(D) will survive unchanged in a post-First Step Act world. As of now, there is no Sentencing Commission policy statement “applicable” to the defendants’ compassionate-release motions, which means that district courts need not conform, under § 3582(c)(1)(A)’s consistency requirement, to § 1B1.13 in determining whether there exist “extraordinary and compelling reasons” for a sentence reduction. 22  Although the government’s primary argument is that § 1B1.13 is “applicable” to defendant-filed motions under the First Step Act, it appears to have a fallback argument, as well: If there are not “applicable policy statements issued by the Sentencing Commission” to govern such motions, it suggests, then maybe courts cannot rule on those motions at all, because only the Sentencing Commission, and not courts, may decide what counts as an “extraordinary and compelling” reason. We again disagree. “Nothing in § 3582(c)(1)(A)(i) requires courts to sit on their hands” if there is a gap in Commission policy. Rodriguez, 451 F. Supp. 3d at 400. The statutory text resolves this issue. On the government’s reading, the consistency provision operates as an affirmative command that every sentence reduction be consistent with “applicable policy statements,” plural, “issued by the Sentencing Commission.” 18 U.S.C. § 3582 (c)(1)(A) (emphasis added). That makes no sense; we can think of no reason, and the government has provided none, why Congress would insist that each sentence reduction be consistent with at least two policy statements. Rather, Congress’s use of the plural “statements” makes clear what is required: A sentence reduction must conform to any and all policy statements that apply. But where the Commission fails to act, then courts make their own independent determinations of what constitutes an “extraordinary and compelling reason[]” under § 3582(c)(1)(A), as consistent with the statutory language, which “directly instructs courts to ‘find that’ extraordinary circumstances exist.” Rodriguez, 451 F. Supp. 3d at 400 (quoting 18 U.S.C. § 3582 (c)(1)(A)); see also Gunn, -- - F.3d at ----, 2020 WL 6813995 , at *2 (“Any decision is ‘consistent with’ a nonexistent policy statement. ‘Consistent with’ differs from ‘authorized by.’”). 23  The Sentencing Commission, of course, continues to play a central role in defining “extraordinary and compelling reasons,” as directed by Congress. See 28 U.S.C. § 944 (t) (instructing the Commission, in promulgating general policy statements regarding § 3582(c)(1)(A), to “describe what should be considered extraordinary and compelling reasons” for sentence reductions); see also id. § 994(a)(2)(C). As the district court emphasized in McCoy, the Sentencing Commission “maintains the statutory authority to update its guidance for district courts . . . after passage of the First Step Act.” 2020 WL 2738225 , at *5. When it does, courts will be required to ensure that any sentence reductions granted on defendants’ motions are consistent with that guidance, assuming, of course, that such guidance violates no statutory or constitutional provision. See Dillon v. United States, 560 U.S. 817 , 826–27 (2010) (applying neighboring section § 3582(c)(2) and holding that a court may not reduce a sentence without “first determin[ing] that a reduction is consistent” with the applicable policy statement). But we cannot endorse the government’s suggestion that until then, there can and should be no court action on defendant-filed motions under § 3582(c)(1)(A) – a result that would frustrate entirely Congress’s expansion of the compassionate-release system in the First Step Act. See Rodriguez, 451 F. Supp. 3d at 400 & n.11. In short, we agree with the Second Circuit and the emerging consensus in the district courts: There is as of now no “applicable” policy statement governing compassionate- release motions filed by defendants under the recently amended § 3582(c)(1)(A), and as a result, district courts are “empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.” Zullo, 976 F.3d at 230. 24  B. The government’s second argument is that even if § 3582(c)(1)(A)’s consistency requirement did not limit the district courts’ discretion, those courts nevertheless erred in treating as “extraordinary and compelling reasons” the length of the defendants’ sentences and the fact that those sentences would be dramatically shorter today, given the First Step Act’s elimination of sentence-stacking under § 924(c). Again, we disagree. As the court observed in Bryant, multiple district courts have concluded that the severity of a § 924(c) sentence, combined with the enormous disparity between that sentence and the sentence a defendant would receive today, can constitute an “extraordinary and compelling” reason for relief under § 3582(c)(1)(A). See Bryant, 2020 WL 2085471 , at *3 (citing cases); see also, e.g., Jones, --- F. Supp. 3d at ----, 2020 WL 5359636 , at *7; United States v. Haynes, 456 F. Supp. 3d 496 , 514–16 (E.D.N.Y. 2020); Redd, 444 F. Supp. 3d at 723–24; Young, 458 F. Supp. 3d at 848; United States v. Maumau, No. 2:08-cr-00758-TC-11, 2020 WL 806121 , at *7 (D. Utah Feb. 18, 2020). We find their reasoning persuasive. The First Step Act’s clarification of § 924(c) resulted in not just any sentencing change, but an exceptionally dramatic one. The Bryant defendants are a good example: Sentenced before the First Step Act, each received a 45-year mandatory minimum sentence under § 924(c), including two consecutive 20-year sentences for “second and subsequent” convictions. Today, with sentence-stacking eliminated, each would have been sentenced under § 924(c) not to 45 years, but to 15 – making their sentences a full 30 years longer “than what Congress has now deemed an adequate punishment for comparable § 924(c) conduct.” Redd, 444 F. Supp. 3d at 723. 25  The district courts here – like other district courts – appropriately considered two distinct features of the defendants’ § 924(c) sentences in applying the “extraordinary and compelling reasons” standard. First is the sheer and unusual length of the sentences. As the district court noted in Bryant, the defendants’ sentences in that case were about twice as long as federal sentences imposed today for murder. 2020 WL 2085471 , at *5 & n.8 (noting that the national average for a federal murder sentence in fiscal year 2018 was 291 months); see also Redd, 444 F. Supp. 3d at 723 & n.9 (finding stacked § 924(c) sentence to be decades longer than sentences imposed for federal offenses like murder, kidnapping and manslaughter). And the district court in McCoy recalled that when it initially sentenced the defendant, it expressed concern about the length of the mandatory 35-year sentence it was required to impose, driven almost entirely by a 32-year minimum sentence under § 924(c). See 2020 WL 2738225 , at *5. In combination with the length of the defendants’ sentences, the district court also considered the “gross disparity” between those sentences and the sentences Congress now believes to be an appropriate penalty for the defendants’ conduct. Redd, 444 F. Supp. 3d at 723; see McCoy, 2020 WL 2738225 , at *6 (explaining 200-month disparity between McCoy’s § 924(c) sentence and the sentence he would receive today); Bryant, 2020 WL 2085471 , at *3 (discussing 30-year disparity). “That disparity is primarily the result of Congress’ conclusion that sentences like [these] are unfair and unnecessary, in effect, a legislative rejection of the need to impose sentences under § 924(c), as originally enacted, as well as a legislative declaration of what level of punishment is adequate.” Redd, 444 F. Supp. 3d at 723 (footnote omitted). We think courts legitimately may consider, under the 26 “extraordinary and compelling reasons” inquiry, that defendants are serving sentences that Congress itself views as dramatically longer than necessary or fair. See id. at 723–24; Jones, --- F. Supp. 3d at ----, 2020 WL 5359636 , at *7 (granting compassionate release to § 924(c) defendant who “long ago completed a sentence which Congress . . . consider[s] sufficient and proportionate to his misconduct”) (internal quotation marks omitted). 8 In sum, we find that the district courts permissibly treated as “extraordinary and compelling reasons” for compassionate release the severity of the defendants’ § 924(c) sentences and the extent of the disparity between the defendants’ sentences and those provided for under the First Step Act. We emphasize, as did the district courts, that these judgments were the product of individualized assessments of each defendant’s sentence. And we note that in granting compassionate release, the district courts relied not only on the defendants’ § 924(c) sentences but on full consideration of the defendants’ individual circumstances. In particular, in determining that release was appropriate for all of the defendants, the courts focused on the defendants’ relative youth – from 19 to 24 years old – at the time of their offenses, a factor that many courts have found relevant under § 3582(c)(1)(A)(i). See, e.g., Zullo, 976 F.3d at 238; Jones, --- F. Supp. 3d at ----, 2020 8 As many courts have noted, see Zullo, 976 F.3d at 238; Maumau, 2020 WL 806121 , at *6, consideration of the defendants’ § 924(c) sentences is supported by the legislative history of the original compassionate release statute, enacted as part of the Comprehensive Crime Control Act of 1984. See Pub. L. 98-473, 98 Stat. 1837 . The accompanying Senate Report suggested that the length of a sentence is a relevant factor, indicating that relief would be appropriate when “extraordinary and compelling circumstances justify a reduction of an unusually long sentence.” S. Rep. No. 98-225, at 55 (1984). 27 WL 5359636 , at *7. Combined with the substantial sentences the defendants already had served at the time of their motions – from 17 to 25 years – that meant that each defendant had spent close to or more than half his life in prison. Cf. Jones, --- F. Supp. 3d at ----, 2020 WL 5359636 , at *7 (“[B]ecause Mr. Jones was only 22 years old when he began serving his sentence, he has spent more than half his life in prison.”). And during that time, as the district courts explained, each defendant had established excellent institutional records and taken substantial steps toward rehabilitation. 9 The government’s primary argument in response is that by taking into account the First Step Act’s elimination of § 924(c) sentence-stacking, the district courts impermissibly gave that provision retroactive effect, contrary to Congress’s direction. See Jordan, 952 F.3d at 174 (holding that the First Step Act’s changes to § 924(c) do not apply retroactively to previously imposed sentences). We disagree. The fact that Congress chose not to make § 403 of the First Step Act categorically retroactive does not mean that courts may not consider that legislative change in conducting their individualized reviews of motions for compassionate release under § 3582(c)(1)(A)(i). As multiple district courts have explained, there is a significant difference between automatic vacatur and resentencing of an entire class of sentences – with its “avalanche of applications and inevitable re- 9 In 28 U.S.C. § 994 (t), which generally directs the Sentencing Commission to provide guidance on “extraordinary and compelling reasons,” Congress specifies that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” But there is no indication that successful rehabilitation efforts may not be considered as one among other factors under § 3582(c)(1)(A)(i), and the government does not argue otherwise here. 28 sentencings,” Haynes, 456 F. Supp. 3d at 516 – and allowing for the provision of individual relief in the most grievous cases. See, e.g., Redd, 444 F. Supp. 3d at 720–21; Maumau, 2020 WL 806121 , at *7; Jones, --- F. Supp. 3d at ----, 2020 WL 5359636 , at *8 (citing additional cases). Indeed, the very purpose of § 3582(c)(1)(A) is to provide a “safety valve” that allows for sentence reductions when there is not a specific statute that already affords relief but “extraordinary and compelling reasons” nevertheless justify a reduction. Jones, --- F. Supp. 3d at ----, 2020 WL 5359636 , at *8 (citation omitted). Like the district court in Bryant, we see nothing inconsistent about Congress’s paired First Step Act judgments: that “not all defendants convicted under § 924(c) should receive new sentences,” but that the courts should be empowered to “relieve some defendants of those sentences on a case-by-case basis.” 2020 WL 2085471 , at *3 (quoting Maumau, 2020 WL 806121 , at *7). The government points to § 404(b) of the First Step Act, which expressly permits retroactive sentence reductions for certain crack cocaine offenses at the discretion of district court judges, see First Step Act § 404(b), 132 Stat. at 5222, as evidence that Congress did not intend to allow for case-by-case consideration of § 403’s elimination of sentence-stacking under § 3582(c)(1)(A)(i). But those are significantly different regimes, and the comparison is inapt. Sentence reductions under § 404(b) may ultimately be discretionary, but the starting point is that the entire class of defendants is eligible, and 29 relief is common. 10 Under § 3582(c)(1)(A)(i), by contrast, only those defendants who can meet the heightened standard of “extraordinary and compelling reasons” may obtain relief. Again, it was not unreasonable for Congress to decide that it did not want sentence reductions based on § 403 of the First Step Act to be as widely available as relief under § 404 – and thus to limit those reductions to truly extraordinary and compelling cases. Nor, contrary to the government’s suggestion, is 18 U.S.C. § 3582 (c)(2) a compelling point of comparison. Section 3582(c)(2) grants courts discretion to reduce terms of imprisonment that are based on sentencing ranges subsequently lowered by the Sentencing Commission, and we have held that nonretroactive changes to statutory minimums cannot be grounds for such reductions. See United States v. Black, 737 F.3d 280 , 285–86 (4th Cir. 2013). But § 3582(c)(2) and § 3582(c)(1)(A)(i) are separate and distinct provisions, one of which – subsection (c)(2) – makes sentencing reductions available in a precisely delineated class of cases, and one of which – subsection (c)(1)(A)(i) – uses the more open-ended “extraordinary and compelling reasons” standard to capture the truly exceptional cases that fall within no other statutory category. Black does not purport to address this separate class of cases, and we have no reason to import it here. For 10 According to the Sentencing Commission, 2,387 defendants were granted sentence reductions pursuant to § 404 of the First Step Act in 2019 alone. U.S. Sentencing Comm’n, First Step Act of 2018 Resentencing Provisions Retroactivity Data Report 4 tbl. 1 (Jan. 2020), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/ retroactivity-analyses/first-step-act/20200203-First-Step-Act-Retro.pdf. During the same time period, 15 individuals were granted compassionate release for “other reasons” under Application Note 1(D). U.S. Sentencing Comm’n, The First Step Act of 2018: One Year of Implementation 49 (Aug. 2020), https://www.ussc.gov/sites/default/files/pdf/research- and-publications/research-publications/2020/20200831_First-Step-Report.pdf. 30 the same reason, and contrary to the government’s argument, allowing courts to consider changes in sentencing law as part of the “extraordinary and compelling reasons” inquiry does not render § 3582(c)(2) superfluous; the two provisions operate in separate categories of cases, with § 3582(c)(1)(A)(i) setting an exceptionally high standard for relief. Finally, the government argues that by treating the First Step Act’s change to sentencing law as an “extraordinary and compelling” reason for a sentence reduction, the district courts effectively declared the defendants’ prior sentences unjust, usurping clemency powers reserved to the executive branch. But as the court explained in Bryant, the defendants here did not petition for clemency; they moved for compassionate release under a duly enacted congressional statute, which, in turn, authorizes the judicial branch to grant such motions. 2020 WL 2085471 , at *3 n.5. Similarly, while the finality of sentences is an important principle, § 3582(c)(1)(A) “represents Congress’s judgment that the generic interest in finality must give way in certain individual cases,” see Jones, --- F. Supp. 3d at ----, 2020 WL 5359636 , at *8, and authorizes judges to implement that judgment. To the extent the government suggests that the district court decisions here violate the constitutional separation of powers, we do not agree. * * * We return to the Second Circuit’s description of the First Step Act and its amendment of § 3582(c)(1)(A): an “incremental” change that does not mandate more lenient sentences across the board but instead gives new discretion to the courts to consider leniency. Zullo, 976 F.3d at 230. The district courts in these cases appropriately exercised the discretion conferred by Congress and cabined by the statutory requirements of 31 § 3582(c)(1)(A). We see no error in their reliance on the length of the defendants’ sentences, and the dramatic degree to which they exceed what Congress now deems appropriate, in finding “extraordinary and compelling reasons” for potential sentence reductions. The courts took seriously the requirement that they conduct individualized inquiries, basing relief not only on the First Step Act’s change to sentencing law under § 924(c) but also on such factors as the defendants’ relative youth at the time of their offenses, their post-sentencing conduct and rehabilitation, and the very substantial terms of imprisonment they already served. Those individualized determinations were neither inconsistent with any “applicable” Sentencing Commission guidance nor tantamount to wholesale retroactive application of the First Step Act’s amendments to § 924(c). Accordingly, we affirm the judgments of the district courts. III. The judgments of the district courts in the four consolidated cases on appeal are affirmed. AFFIRMED 32

2020-12-02 20:00:24.29495+00

http://www.ca4.uscourts.gov/Opinions/204005.U.pdf

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-4005 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC KAREEM DUDLEY, a/k/a E-Dub, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, Chief District Judge. (7:18-cr-00198-BO-1) Submitted: November 25, 2020 Decided: December 2, 2020 Before GREGORY, Chief Judge, AGEE, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Walter H. Paramore, III, LAW OFFICES OF W. H. PARAMORE, III, Jacksonville, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Eric Kareem Dudley pleaded guilty to conspiracy with intent to distribute and possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846 , and possession with intent to distribute and distribute a quantity of methamphetamine, in violation of 21 U.S.C. § 841 (a)(1). On appeal, Dudley’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting there are no meritorious grounds for appeal, but questioning whether Dudley’s sentence is procedurally and substantively reasonable. Although notified of his right to file a pro se supplemental brief, Dudley has not done so. We affirm. * We “review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse of discretion standard.” Gall v. United States, 552 U.S. 38 , 41 (2007). Our review of Dudley’s sentence requires consideration of both the procedural and substantive reasonableness of the sentence. Id. at 51 . In determining procedural reasonableness, we consider whether the district court properly calculated the defendant’s advisory Guidelines range, considered the 18 U.S.C. § 3553 (a) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. “Regardless of whether the district court imposes an above, below, or within- Guidelines sentence, it must place on the record an individualized assessment based on the * Because the Government has not moved to enforce the appellate waiver in Dudley’s plea agreement, we conduct a full review pursuant to Anders. See United States v. Poindexter, 492 F.3d 263 , 271 (4th Cir. 2007). 2 particular facts of the case before it.” United States v. Carter, 564 F.3d 325 , 330 (4th Cir. 2009) (internal quotation marks omitted). If there is no “significant procedural error,” we next evaluate the substantive reasonableness of the sentence, “tak[ing] into account the totality of the circumstances.” Gall, 552 U.S. at 51 . “[W]e are obliged to apply a presumption of reasonableness to a sentence within or below a properly calculated guidelines range. That presumption can only be rebutted by showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553 (a) factors.” United States v. Vinson, 852 F.3d 333 , 357-58 (4th Cir. 2017) (citation and internal quotation marks omitted). Because Dudley neither objected to the district court’s advisory Sentencing Guidelines calculation nor argued for a sentence different than that imposed by the district court, we review Dudley’s sentence for plain error. United States v. Lynn, 592 F.3d 572 , 577, 580 (4th Cir. 2010). Under the plain error standard, we “will correct an unpreserved error if (1) an error was made; (2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Harris, 890 F.3d 480 , 491 (4th Cir. 2018) (internal quotation marks omitted). In this case, the district court erred by failing to provide an explanation for the 220- month sentence it imposed on Dudley. We conclude, however, that this error did not affect Dudley’s substantial rights. Because Dudley received a downward variance, the district court’s inadequate explanation “did not have a substantial and injurious effect or influence on the result” of the sentencing proceeding. Lynn, 592 F.3d at 585 (internal quotation 3 marks omitted). Furthermore, the district court reviewed the nature and circumstances of the offense and Dudley’s criminal history before imposing a sentence below the low end of the applicable Guidelines range, demonstrating that it was aware of and considered the pertinent § 3553(a) factors. Finally, Dudley has failed to rebut the presumption that his below-Guidelines sentence is substantively reasonable. In accordance with Anders, we have reviewed the record in this case and have found no meritorious grounds for appeal. We therefore affirm the judgment of the district court. This court requires that counsel inform Dudley, in writing, of the right to petition the Supreme Court of the United States for further review. If Dudley requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Dudley. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4

2020-12-02 20:00:25.07365+00

http://www.ca4.uscourts.gov/Opinions/184913.P.pdf

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-4913 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL KA, a/k/a Daniel Konso, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:10-cr-00144-FDW-DSC-1) Argued: September 9, 2020 Decided: December 2, 2020 Before GREGORY, Chief Circuit Judge, and WYNN and HARRIS, Circuit Judges. Affirmed by published opinion. Judge Wynn wrote the majority opinion, in which Judge Harris joined. Chief Judge Gregory wrote a dissenting opinion. ARGUED: Melissa S. Baldwin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. WYNN, Circuit Judge: While serving a term of supervised release, Defendant Daniel Ka made several self- incriminating statements to his probation officer. The United States District Court for the Western District of North Carolina considered these statements when it found Ka guilty of violating the terms of his supervision and revoked his supervised release. On appeal, Ka contends that the district court violated his Fifth Amendment right against self-incrimination by denying his motion to suppress these statements. Because we have previously held that the use of compelled, self-incriminating statements in a supervised release revocation hearing does not violate the Self-Incrimination Clause of the Fifth Amendment, we affirm the district court’s denial of Ka’s motion to suppress. I. In 2011, Ka was convicted of possessing a firearm during and in relation to a drug trafficking crime. The district court’s sentence of five years of imprisonment was followed by five years of supervised release which he began serving in June of 2016. The conditions of Ka’s supervised release required him to refrain from committing any new crime or using controlled substances and to “answer truthfully all inquiries by [his] probation officer and [to] follow the instructions of [his] probation officer.” J.A. 15. 1 Additionally, Ka’s criminal judgment provided that “[u]pon a finding of a violation of probation or supervised release . . . the court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision.” Id. at 18. 1 Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal. 2  Ka’s trouble complying with the conditions of his release began approximately a year after he left prison. On May 26, 2017, he tested positive for drug use. His probation officer, Chelsey Padilla, warned him that any further positive tests would result in fifteen days of confinement. Accordingly, after Ka again tested positive two months later, the district court ordered him to serve fifteen days in the Gaston County Jail. Not long after his release from the county jail, Ka recorded a third positive drug test. In response, Officer Padilla and her partner traveled to Ka’s house to discuss his drug use. The officers spoke with Ka as the three sat around his dining room table. During their conversation, Ka told Officer Padilla that he was short on cash after leaving the county jail and that he had been helping friends sell drugs to make money. Officer Padilla reviewed text messages on Ka’s phone, finding photos of marijuana and text messages related to drug sales. Ka then signed a statement prepared by Officer Padilla in which Ka admitted to selling marijuana and cocaine. The statement also included Ka’s averment that “[t]hese are my own words and [are] given voluntarily.” Id. at 156. At no point during the conversation did Ka invoke his Fifth Amendment right against self-incrimination. Following her conversation with Ka, Officer Padilla petitioned the district court to revoke Ka’s term of supervised release pursuant to 18 U.S.C. § 3583 (e) because, as relevant on appeal, Ka had violated the condition of his supervision prohibiting him from breaking the law. Ka moved to suppress all statements he had made to Officer Padilla concerning his possession and sale of drugs on the grounds that the use of these statements violated his 3 Fifth Amendment privilege against self-incrimination. While conceding that he never invoked the privilege, Ka argued that the Fifth Amendment’s “penalty exception” applied. A defendant generally “must assert the [Fifth Amendment’s privilege against self- incrimination] rather than answer [a law enforcement officer’s questions] if he desires not to incriminate himself.” Minnesota v. Murphy, 465 U.S. 420 , 429 (1984). However, this general rule does not apply in “penalty” cases, “in which assertion of the privilege results in a penalty that essentially ‘foreclose[s] a free choice to remain silent.’” United States v. Lara, 850 F.3d 686 , 692 (4th Cir. 2017) (alteration in original) (quoting Garner v. United States, 424 U.S. 648 , 661 (1976)). Ka argued that the condition in his terms of supervision requiring him to “answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer” meant he would have been penalized for any assertion of his Fifth Amendment privilege, rendering the privilege self-executing under the penalty exception. The magistrate judge recommended denying Ka’s motion to suppress. The district court accepted the recommendation, denied Ka’s motion, and later sentenced Ka to thirty months of imprisonment and an additional term of twenty-four months of supervised release for violating the conditions of his supervision. In so doing, the district court relied in part on Ka’s statements to Officer Padilla. Ka filed a timely appeal. II. On appeal, Ka argues that the district court violated the Fifth Amendment by considering his statements to Officer Padilla. “[W]e review de novo the issue whether the 4 government violated a defendant’s Fifth Amendment right against compelled self- incrimination.” Lara, 850 F.3d at 690. We need not decide whether the condition of Ka’s release requiring him to answer truthfully all inquiries by his probation officer triggered the Fifth Amendment’s penalty exception because, even if it did, our recent holding in United States v. Riley precludes Ka’s challenge. In Riley, we concluded that the Self-Incrimination Clause of the Fifth Amendment does not prevent the use of compelled, self-incriminating statements in supervised release revocation hearings held, as Ka’s was, under 18 U.S.C. § 3583 (e). See 920 F.3d 200 , 207–09 (4th Cir. 2019). The Self-Incrimination Clause provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. In Riley, we explained that the clause is violated “only if [the self-incriminating] statements are used in a criminal trial.” 920 F.3d at 205. “Supervised release revocation proceedings, however, are not part of the underlying criminal prosecution.” Id. Thus, the introduction of compelled self- incriminating statements in supervised release revocation proceedings does not violate a defendant’s rights under the Self-Incrimination Clause. Id. at 209. The district court did not err by relying on Ka’s statements to Officer Padilla in his supervised release revocation hearing. Ka argues that the Supreme Court’s recent decision in United States v. Haymond fatally undermines our holding in Riley. United States v. Haymond, 139 S. Ct. 2369 (2019). We disagree. 5  The defendant in Riley, like Ka, was sentenced under the ordinary supervised release revocation provision, 18 U.S.C. § 3583 (e)(3). See Riley, 920 F.3d at 209; S.J.A. 174. By contrast, Haymond involved an as-applied constitutional challenge to 18 U.S.C. § 3583 (k), an “unusual provision” that imposed a mandatory minimum sentence of five years’ imprisonment if a supervised releasee committed one of several enumerated offenses— “without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt.” Haymond, 139 S. Ct. at 2373–74, 2383 (plurality opinion). The Court concluded that the statute was unconstitutional under the Fifth Amendment’s Due Process Clause and the Sixth Amendment’s jury guarantee. Id. at 2378 . But the plurality was careful to cabin its analysis to § 3583(k). See id. at 2382–83 & n.7 (“[W]e do not pass judgment one way or the other on § 3583(e)’s consistency with Apprendi[ v. New Jersey, 530 U.S. 466 (2000)]. . . . [O]ur decision is limited to § 3583(k).”). Moreover, in his controlling concurrence, 2 Justice Breyer highlighted three unique aspects of § 3583(k) that distinguish it from § 3583(e): (1) § 3583(k) applies only to an enumerated list of federal criminal statutes; (2) it strips judges of the discretion to decide whether a violation of a condition of supervised release should result in imprisonment; and (3) it “limits the judge’s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of [five years]” upon the judge’s finding that the releasee had committed one of the enumerated offenses. Id. at 2386 (Breyer, J., concurring). “Taken 2 “Justice Breyer’s concurrence [in Haymond] presented the narrowest grounds for the Court’s holding and therefore controls.” United States v. Coston, 964 F.3d 289 , 295 (4th Cir. 2020). 6 together,” these features made § 3583(k) “resemble the punishment of new criminal offenses,” and so triggered the jury right “that attend[s] a new criminal prosecution.” Id. Section 3583(k) did not grant releasees that jury right, so, Justice Breyer concluded, it was unconstitutional. Id. Notably, however, § 3583(e) “does not contain any of the three features that, in combination, render[ed] § 3583(k) unconstitutional.” United States v. Doka, 955 F.3d 290 , 296 (2d Cir. 2020). Because the controlling opinion in Haymond relied on the unique aspects of § 3583(k) not present in § 3583(e), Haymond did not abrogate Riley. Our sister circuits that have considered whether Haymond has implications for their § 3583(e) jurisprudence agree that it does not. Id. at 292 (concluding that “Haymond did not undermine, let alone overrule” Second Circuit precedent on the constitutionality of § 3583(e)); see also United States v. Walton, 819 F. App’x 731, 734 (11th Cir. 2020) (unpublished) (per curiam) (concluding that Haymond’s holding was limited to § 3583(k) and therefore “d[id] not overrule or abrogate [circuit precedent] regarding the constitutionality of § 3583(e)”); United States v. Smithey, 790 F. App’x 643, 643–44 (5th Cir. 2020) (unpublished) (per curiam) (concluding that a revocation of supervised release pursuant to § 3583(e) did not contravene Haymond as that opinion was expressly limited to § 3583(k)). And our unpublished authority is similarly in accord, albeit in a case regarding the standard of proof during revocation proceedings, not the Self-Incrimination Clause. See United States v. Mooney, 776 F. App’x 171, 171 n.* (4th Cir. 2019) (unpublished) (per curiam) (concluding that “Haymond had no impact on [defendant’s] run-of-the-mill revocation sentence imposed under 18 U.S.C. § 3583 (e)(3)”). Riley remains governing law and requires the 7 conclusion that Ka’s Fifth Amendment right against compelled self-incrimination did not attach in his supervised release revocation hearing conducted pursuant to § 3583(e). III. Because we previously held in Riley that the Self-Incrimination Clause of the Fifth Amendment does not apply in supervised release revocation hearings conducted pursuant to § 3583(e), and because that holding remains good law, the district court did not err in denying Ka’s motion to suppress and considering his incriminating statements. AFFIRMED 8 GREGORY, Circuit Judge, dissenting: The majority concludes that United States v. Riley controls this case, such that even compelled self-incriminating statements may be used against defendants in supervised release revocation proceedings. Because in my view Riley cannot serve as binding precedent after the Supreme Court’s decision in United States v. Haymond, I respectfully dissent. I. Riley considered a sentence arising under the general supervised release revocation provision, 18 U.S.C. § 3583 (e)(3). United States v. Riley, 920 F.3d 200 , 203–04, 209 (4th Cir. 2019). This Court held that supervised release revocation proceedings are not part of the “criminal prosecution,” and therefore use of the defendant’s self-incriminating statements could not constitute a Fifth Amendment violation. Id. at 204–05. In Haymond, the Supreme Court held that a more “unusual provision” governing supervised release revocation, 18 U.S.C. § 3583 (k), was unconstitutional under the Fifth and Sixth Amendments. United States v. Haymond, 139 S. Ct. 2369 , 2375–79, 2383 (2019) (plurality opinion); id. at 2385–86 (Breyer, J., concurring). Here, the majority concludes that Haymond did not abrogate Riley. Haymond considered only revocation proceedings subject to § 3583(k), whereas the proceeding in Riley arose under § 3583(e). See Maj. Op. at 6–8. First, the majority points to Haymond’s express limitations, like the plurality’s qualifiers that it “d[id] not pass judgment one way or the other on § 3583(e)’s consistency with Apprendi” and that its decision was “limited 9 to § 3583(k).” Haymond, 139 S. Ct. at 2382–83 & n.7 (plurality opinion); Maj. Op. at 6. Next, the majority emphasizes that Justice Breyer—in his controlling concurrence— identified “unique aspects of § 3583(k) that distinguish it from § 3583(e).” Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring); Maj. Op. at 6–7. It was these aspects that made revocation proceedings under § 3583(k), in particular, more like a criminal prosecution, such that the Fifth and Sixth Amendments applied. Maj. Op. at 6–7. Because § 3583(e) lacks these features, the majority concludes that Riley remains good law. The majority’s reasoning goes to whether Haymond controls the outcome of constitutional challenges to revocation proceedings arising under § 3583(e)—like the one at issue in Riley or the one Mr. Ka raises here. But Mr. Ka does not argue that Haymond necessarily binds this Court to decide his Fifth Amendment challenge one way or the other. Rather, Mr. Ka argues that Haymond undermined the necessary premises of Riley, such that Riley can no longer be given binding effect. See, e.g., United States v. Peterson, 629 F.3d 432 , 438 (4th Cir. 2011) (finding a circuit precedent non-binding where a Supreme Court holding “overruled at least in part the reasoning of” the prior decision) (emphasis added); see also In re Guo, 965 F.3d 96 , 105 (2d Cir. 2020) (explaining that a prior panel decision is no longer binding after a Supreme Court decision either “broke the link on which we premised” the prior decision “or undermined an assumption of that decision,” even if the Supreme Court did not “address the precise issue decided by the panel”) (internal quotations omitted). Therefore, Mr. Ka contends, Riley does not control the outcome of this case, and this Court should consider anew the question of Fifth Amendment protections at supervised release revocation proceedings post-Haymond. 10  A. The Riley court, like the majority here, declined to reach the defendant’s compelled-statement argument because “[e]ven with regard to statements made under circumstances that would otherwise be viewed as coercive, the Self-Incrimination Clause is violated only if those statements are used in a criminal trial,” and supervised release revocation proceedings “are not part of the underlying criminal prosecution.” 920 F.3d at 205. To support this conclusion, Riley cited Supreme Court decisions reaching the same conclusion as to probation and parole revocation proceedings. See id. at 205–06 (citing Minnesota v. Murphy, 465 U.S. 420 , 429 (1984); Morrissey v. Brewer, 408 U.S. 471 , 480 (1972)). Riley relied on the common presumption that the “[probation and parole] analysis is equally applicable to supervised release proceedings, which[] . . . are analogous to and largely indistinguishable from probation and parole proceedings.” 1 Id. at 206 (emphasis added); see also id. (explaining that supervised release revocation proceedings are analogous to those of parole because, in both settings, the “full panoply of constitutional protections afforded a criminal defendant is not available”) (quoting United States v. Armstrong, 187 F.3d 392 , 394 (4th Cir. 1999)). In other words, the holding that the majority cites as controlling this case—that supervised release revocation proceedings are 1 Other pre-Haymond decisions of this Court relied on similar reasoning, citing the Supreme Court’s parole and probation jurisprudence based on the presumption that supervised release revocation proceedings are constitutionally equivalent. See, e.g., United States v. Ward, 770 F.3d 1090 , 1097 (4th Cir. 2014); United States v. Ferguson, 752 F.3d 613 , 616 (4th Cir. 2014). 11 not part of the criminal prosecution—arose directly from the Riley court’s determination that constitutional protections in supervised release revocation proceedings are coextensive with those of parole and probation. See id. at 205–06. In Haymond, the Supreme Court controverted this premise for the first time. Cf. Jacob Schuman, Supervised Release Is Not Parole, 53 Loy. L.A. L. Rev. 587 , 590 (2020) (“Haymond is the Supreme Court’s first major decision on the constitutional law of supervised release.”). Haymond held that imposing a mandatory revocation sentence under § 3583(k) based on the district court’s factfinding on a preponderance of the evidence standard violated the Fifth and Sixth Amendments. 139 S. Ct. at 2376–85 (plurality opinion); id. at 2385–86 (Breyer, J., concurring). The plurality found that these protections could apply because “a ‘criminal prosecution’ continues . . . until a final sentence is imposed,” and “an accused’s final sentence includes any supervised release sentence he may receive.” Id. at 2379–80 (plurality opinion) (citing Johnson v. United States, 529 U.S. 694 , 700 (2000)). “The defendant receives a term of supervised release thanks to his initial offense, and whether that release is later revoked or sustained, it constitutes a part of the final sentence for his crime.” Id. at 2380. Therefore, in the context of a challenge to § 3583(k), the plurality concluded that “[a]s at the initial sentencing hearing, . . . a jury must find any facts that trigger a new mandatory minimum prison term.” Id. And in reaching this conclusion, the plurality identified “structural difference[s]” between supervised release and parole and probation that “bear[] constitutional consequences.” See id. at 2381–82. 12  I agree with the majority that Justice Breyer’s controlling concurrence is narrower than the plurality opinion. See, e.g., id. at 2385 (Breyer, J., concurring) (“I agree with much of the dissent, . . .”). However, Justice Breyer also found that § 3583(k) “is unconstitutional,” specifically because “[r]evocation of supervised release is typically understood as ‘part of the penalty for the initial offense,’” and “[§] 3583(k) is difficult to reconcile with this understanding of supervised release.” Id. at 2386 (quoting Johnson, 529 U.S. at 700 ). Thus, while Justice Breyer disagreed with the plurality on the extent to which the Court’s Fifth and Sixth Amendment jurisprudence should apply to supervised release revocations more broadly, he agreed that constitutional protections can attach. Haymond, 139 S. Ct. at 2385–86 (Breyer, J., concurring). Ultimately, then, Haymond held that a supervised release revocation could be part of a criminal prosecution, whereas under Murphy and Morrissey—the cases Riley relied upon—parole and probation revocations cannot be. After Haymond, Riley’s broad rule statement that “[s]upervised release revocation proceedings . . . are not part of the underlying criminal prosecution” is incorrect. See Riley, 920 F.3d at 205. Instead, it is now possible for them to be “part of the underlying criminal prosecution” based on unique features of the supervised release system. It is no longer true, as a general rule, that “as with parole revocation proceedings, the full panoply of constitutional protections afforded a criminal defendant is not available in supervised release revocation proceedings.” See id. at 206 (internal quotations omitted). And it can no longer be taken as a given that the Supreme Court’s parole and probation jurisprudence 13 is “equally applicable” in the supervised release context because the systems are constitutionally “indistinguishable.” See id. Therefore, Haymond undermined Riley’s presumption of coextensive constitutional protections across the supervised release, parole, and probation contexts. Rather, supervised release’s differences from parole and probation bear constitutional consequences. Haymond, 139 S. Ct. at 2382 . For these reasons, I would find that Riley does not bind this panel. See Peterson, 629 F.3d at 438 ; In re Guo, 965 F.3d at 105. Instead, I would consider anew whether the Fifth Amendment’s Self-Incrimination Clause attached at Mr. Ka’s supervised release revocation proceeding. 2 B. Mr. Ka argues, based on Haymond’s guidance, that supervised release revocation proceedings are sentencing proceedings triggering the Fifth Amendment’s protection against self-incrimination. There is no denying that the circuit courts have reached the opposite conclusion, as this Court did in Riley, based on the presumption that supervised release is “virtually indistinguishable” from parole and probation. See, e.g., United States v. Hulen, 879 F.3d 1015 , 1019–20 (9th Cir. 2018); United States v. Neal, 512 F.3d 427 , 434–35 (7th Cir. 2008); United States v. Carlton, 442 F.3d 802 , 807 (2d Cir. 2006). 2 For example, in United States v. Coston, this Court considered a post-Haymond constitutional challenge to a different mandatory provision governing supervised release revocations, 18 U.S.C. § 3583 (g). United States v. Coston, 964 F.3d 289 , 294–96 (4th Cir. 2020). Coston concluded only that the district court did not commit plain error by upholding § 3583(g). See id. Notably, however, the Coston court applied Haymond to the question rather than simply applying parole and probation cases to conclude that supervised release revocation proceedings are not part of the criminal prosecution, such that no constitutional protections could possibly apply. See id. 14  But supervised release is different. Most fundamentally, supervised release differs in its intent. See Haymond, 139 S. Ct. at 2381–82. “[U]nlike parole, supervised release wasn’t introduced to replace a portion of the defendant’s prison term”; it is intended “only to encourage rehabilitation after the completion of [their] prison term.” Id. at 2382 (internal quotations omitted). This rehabilitative intent results in a sentencing regime that persists well beyond the period of incarceration. See id. Previously, a federal defendant “could serve as little as a third of his assigned prison term” before obtaining parole eligibility, or “might avoid prison altogether in favor of probation.” Id. at 2381 . If parole or probation was revoked, “the prison sentence a judge or parole board could impose . . . normally could not exceed the remaining balance of the term of imprisonment already authorized by the jury’s verdict.” Id. at 2377 . Then, “Congress overhauled federal sentencing procedures to make prison terms more determinate and abolish the practice of parole,” substituting the supervised release system. Id. at 2382 . “Now, when a defendant is sentenced to prison he generally must serve the great bulk of his assigned term.” Id.; see also United States v. Thompson, 777 F.3d 368 , 372 (7th Cir. 2015) (“Supervised release does not shorten prison time; instead it imposes restrictions on the prisoner to take effect upon his release from prison.”). Then, upon release, the defendant must comply with “restrictions, imposed by the judge at 15 sentencing, called conditions or terms of supervised release, that . . . continue for a specific term of years (which can be life).” Thompson, 777 F.3d at 372. 3 During that term of supervision, violations of the restrictions can result in a loss of the defendant’s conditional liberty. If supervised release is revoked, the court can impose a new term of incarceration—usually capped by statute at one, three, or five years depending on the violation, but not temporally linked to any remitted prison sentence. See id.; 18 U.S.C. § 3583 (e)(3). And that new term of incarceration can be followed by a new term of supervised release, which could also then be subject to revocation and reimprisonment, and so on. See Fiona Doherty, Indeterminate Sentencing Returns: The Invention of Supervised Release, 88 N.Y.U. L. Rev. 958 , 1010 (2013) (“In cases in which a defendant’s supervised release previously has been revoked, . . . [e]ach revocation is now potentially subject to a new reimprisonment term of between one and five years—without regard to any statutory aggregate maximum.”). 3 Given the size of the federal case load and considering resource limitations, some experts question whether the federal probation agency is administratively equipped to make genuinely individualized recommendations in sentencing reports about which conditions should apply. See United States v. Siegel, 753 F.3d 705 , 710–11 (7th Cir. 2014). Those same concerns extend to whether probation officers can then effectively enforce those conditions in the name of rehabilitation, not punishment. See id. Likewise, they extend to whether sentencing courts are exercising sufficient discretion over probation officers’ recommendations and providing sufficient justification—as required by Booker and its progeny—for the supervised release component of federal sentences. See id. at 711–12. See generally Christine S. Scott-Hayward, Shadow Sentencing: The Imposition of Federal Supervised Release, 18 Berkeley J. Crim. L. 180 (2013); Fiona Doherty, Indeterminate Sentencing Returns: The Invention of Supervised Release, 88 N.Y.U. L. Rev. 958 (2013). 16  Put differently, “[p]arole mitigates punishment; supervised release augments it— most dramatically when the defendant, having been determined to have violated a condition or conditions of supervised release, is given, as punishment, a fresh term of imprisonment.” Thompson, 777 F.3d at 372. So while “the primary purpose of supervised release is to facilitate the reentry of offenders into their communities, rather than to inflict punishment,” United States v. Murray, 692 F.3d 273 , 280 (3d Cir. 2012), supervised release nevertheless “lengthens [the] sentence, unlike parole.” 4 United States v. Siegel, 753 F.3d 705 , 707 (7th Cir. 2014). Throughout the duration of the supervised release portion of that lengthened sentence, the defendant must comply with the bevy of conditions—of which there are over thirty to potentially be imposed—at the risk of losing their conditional liberty. Id. at 708 . 4 “The cumulative effect of these changes has made supervised release into a more expansive, more rigid, more punitive system.” Schuman, supra, at 606 (referring to the supervised release system’s expansion since its initial introduction as a rehabilitative program with no provision for revocations). Although supervised release was intended as a “discretionary supplement to prison,” specifically “designed for people in particular need of post-release services,” sentencing judges now impose supervised release in 99% of cases. Doherty, supra, Indeterminate Sentencing, at 997–98, 1015 (noting that supervised release is only required by statute in “less than half of all cases”). “[A]t its most expansive, the federal parole system supervised . . . about one-fourth of the number now on supervised release,” and “federal probation has declined by about two-thirds since” the introduction of supervised release. Id. at 1014–15 (“Supervised release is now the dominant form of federal community supervision . . . . [and] is responsible for sending a significant number of offenders back to prison.”). “Revocations have also become more common, and more than half of all revocations are for noncriminal conduct.” Schuman, supra, at 606 (“One- third of all defendants are eventually found in violation of a condition of their release, . . . . [i]n 2009, over 10,000 people were in federal prison for violating their supervised release, which was between 5 and 10 percent of the total federal prison population.”). Thus, “[w]hile Congress intended supervised release to reduce government interference in the lives of former prisoners,” it has instead grown to vast scale and, for many people, extends involvement with the criminal system, raising the chances of reincarceration. Id. at 603– 07. Our constitutional analysis should be informed by these developments. 17  Ultimately, then, supervised release revocation proceedings—unlike revocations of parole or probation—consider the imposition of new terms of incarceration. Yet, “between 1984 and 2019, the Supreme Court said almost nothing about how this new system of post- release supervision fit into the nation’s constitutional framework.” Schuman, supra, at 612. Haymond’s acknowledgment that the unique features of supervised release have constitutional ramifications should reasonably be expected to have implications for this Court. One such implication is presented by this case, which invites this Court to reconsider the presumption that parole and probation case law apply equally to supervised release. See Haymond, 139 S. Ct. at 2382 ; see also Johnson, 529 U.S. at 724–25 (Scalia, J., dissenting) (arguing that “equat[ing] parole and supervised release is unpersuasive” because “the Sentencing Reform Act’s adoption of supervised release was meant to make a significant break with prior practice”). We should accept the invitation and recognize what has long been true but, until now, has gone unaddressed: the supervised release system’s differences from probation and parole necessitate additional constitutional protections. Supervised release sanctions are “part of the penalty for the initial offense.” Johnson, 529 U.S. at 700 ; see also Haymond, 139 S. Ct. at 2379–80 (plurality opinion); Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring). And supervised release revocation can result in a new, additional term of incarceration. See Thompson, 777 F.3d at 372; Siegel, 753 F.3d at 707. Therefore, a supervised release revocation proceeding should be regarded as a “sentencing proceeding,” and the same constitutional protections available at 18 the initial sentencing should attach. 5 See Haymond, 139 S. Ct. at 2377–80 (plurality opinion). The Supreme Court has “repeatedly rejected efforts to dodge the demands of the Fifth and Sixth Amendments by the simple expedient of relabeling a criminal prosecution” as an “enhancement,” “modification,” or “postjudgment sentence-administration proceeding.” Id. at 2379 . Here, a supervised release revocation proceeding is a sentencing proceeding, regardless of what the government labels it. Its purpose is to modify the supervised release portion of the defendant’s sentence—which is one portion of a single, unified sentence for the original offense—and potentially impose a new term of incarceration followed by a new term of supervised release. And it is well-established that sentencing is a critical stage of the criminal prosecution, such that the Fifth Amendment applies. Mitchell v. United States, 526 U.S. 314 , 328 (1999); Mempa v. Rhay, 389 U.S. 128 , 137 (1967). Indeed, it is especially vital that the protection against the use of compelled statements applies at sentencing proceedings: “To say that [the defendant] ha[s] no right to remain silent but instead could be compelled to cooperate in the deprivation of her liberty would ignore the Fifth Amendment privilege at the precise stage where, from her point of 5 There is intuitive appeal to the contrary position put forward by the dissent in Haymond: “[A] sentence is ‘imposed’ at final judgment, not again and again every time a convicted criminal wakes up to serve a day of supervised release and violates a condition of his release.” 139 S. Ct. at 2395 (Alito, J., dissenting). “But saying it does not make it so.” Id. at 2380 n.5 (plurality opinion). Rather, “[a]s Johnson recognized, when a defendant is penalized for violating the terms of his supervised release, what the court is really doing is adjusting the defendant’s sentence for his original crime.” Id. 19 view, it was most important.” See Mitchell, 526 U.S. at 327–28. That principle applies just as forcefully to a revocation proceeding—where additional terms of incarceration and supervised release are considered—as it does to the initial sentencing. Unlike parole and probation revocations, supervised release revocation proceedings uniquely allow for the imposition of new prison sentences. Just like the initial sentencing proceeding, then, constitutional protections should apply. Here, I would find that Mr. Ka’s supervised release revocation proceeding was a sentencing proceeding, part of his “criminal prosecution,” and the Fifth Amendment’s protection against the use of compelled statements applied. Because the majority declines to do so, I respectfully dissent. 20

2020-12-02 20:00:26.421602+00

http://www.ca4.uscourts.gov/Opinions/192470.U.pdf

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-2470 SARA NOHEMI RAMIREZ-PERALTA; K.S.C., Petitioners, v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: November 18, 2020 Decided: December 2, 2020 Before KING and AGEE, Circuit Judges, and TRAXLER, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville, Maryland, for Petitioners. Joseph H. Hunt, Assistant Attorney General, Timothy G. Hayes, Senior Litigation Counsel, Sunah Lee, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sara Nohemi Ramirez-Peralta and her minor child, natives and citizens of Honduras, petition for review of an order of the Board of Immigration Appeals (Board) summarily dismissing their appeal pursuant to 8 C.F.R. § 1003.1 (d)(2)(i)(A), (E) (2020). For the reasons set forth below, we deny the petition for review. The Board may summarily dismiss any appeal in which the appellant “fails to specify the reasons for the appeal on Form EOIR-26 or Form EOIR-29 (Notices of Appeal) or other document filed therewith;” or in which the appellant indicates “that he or she will file a brief or statement in support of the appeal and, thereafter, does not file such brief or statement, or reasonably explain his or her failure to do so, within the time set for filing.” 8 C.F.R. § 1003.1 (d)(2)(i)(A), (E). Additionally, 8 C.F.R. § 1003.3 (b) (2020) provides: Statement of the basis of appeal. The party taking the appeal must identify the reasons for the appeal in the Notice of Appeal (Form EOIR-26 or Form EOIR-29) or in any attachments thereto, in order to avoid summary dismissal pursuant to § 1003.1(d)(2)(i). The statement must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged. If a question of law is presented, supporting authority must be cited. If the dispute is over the findings of fact, the specific facts contested must be identified. Where the appeal concerns discretionary relief, the appellant must state whether the alleged error relates to statutory grounds of eligibility or to the exercise of discretion and must identify the specific factual and legal finding or findings that are being challenged. Id. Based on our review of the record, we conclude that the Board was justified in summarily dismissing Petitioners’ appeal and that no abuse of discretion occurred. See Esponda v. U.S. Att’y Gen., 453 F.3d 1319 , 1321 (11th Cir. 2006) (setting forth standard of review). Petitioners’ attachment to Form EOIR-26 consisted of three short statements, 2 all of which set forth general and conclusory challenges to the IJ’s decision. Petitioners did not dispute any of the IJ’s specific factual findings or raise any legal challenges with supporting authority. See 8 C.F.R. § 1003.3 (b). The Board was “left to reconstruct the IJ proceedings, infer factual error without knowledge of what precise error [wa]s complained of, and build the legal analysis from only general statements of legal conclusion.” Rojas-Garcia v. Ashcroft, 339 F.3d 814 , 821 (9th Cir. 2003). We further reject Petitioners’ claim that the Board’s summary dismissal procedure violated their rights to due process. We review legal issues de novo. Velasquez v. Sessions, 866 F.3d 188 , 193 (4th Cir. 2017). The record reveals that Petitioners received proper notice of their obligation to apprise the Board of the bases for their appeal and that they were warned that failure to do so could result in the summary dismissal of the appeal. Despite this warning, Petitioners failed to set forth specific reasons for their appeal on the Form EOIR-26, file a separate brief or statement after indicating that they intended to do so, or otherwise provide the Board with any explanation for their failure to provide a brief. Under these circumstances, we conclude that Petitioners were “accorded an opportunity to be heard at a meaningful time and in a meaningful manner, i.e., [to] receive a full and fair [adjudication of their] claims.” Rusu v. INS, 296 F.3d 316 , 321-22 (4th Cir. 2002) (setting forth requirements for bringing procedural due process claim in the immigration context). We therefore deny the petition for review. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. PETITION DENIED 3

2020-12-02 20:00:27.259091+00

http://www.ca4.uscourts.gov/Opinions/201092.P.pdf

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1092 NORTH CAROLINA STATE CONFERENCE OF THE NAACP; CHAPEL HILL- CARRBORO NAACP; GREENSBORO NAACP; HIGH POINT NAACP; MOORE COUNTY NAACP; STOKES COUNTY BRANCH OF THE NAACP; WINSTON SALEM – FORSYTH COUNTY NAACP, Plaintiffs - Appellees, v. KEN RAYMOND, in his official capacity as a member of the North Carolina State Board of Elections; STELLA E. ANDERSON, in her official capacity as Secretary of the North Carolina State Board of Elections; DAMON CIRCOSTA, in his official capacity as Chair of the North Carolina State Board of Elections; JEFFERSON CARMON, in his official capacity as a member of the North Carolina State Board of Elections; DAVID C. BLACK, in his official capacity as a member of the North Carolina State Board of Elections, Defendants - Appellants, PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate, and TIMOTHY K. MOORE, in his official capacity as Speaker of the North Carolina House of Representatives, Intervenors. ------------------------------ DEMOCRACY NORTH CAROLINA; ROY COOPER; NATIONAL REDISTRICTING FOUNDATION, Amici Supporting Appellees. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:18-cv-01034-LCB-LPA) Argued: September 11, 2020 Decided: December 2, 2020 Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges. Reversed by published opinion. Judge Richardson wrote the opinion, in which Judge Harris and Judge Quattlebaum joined. ARGUED: Olga E.V. de Brito, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. David Henry Thompson, COOPER & KIRK PLLC, Washington, D.C., for Intervenors. John Charles Ulin, TROYGOULD PC, Los Angeles, California, for Appellees. ON BRIEF: Joshua H. Stein, Attorney General, Paul M. Cox, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Irving Joyner, Cary, North Carolina; Penda D. Hair, Washington, D.C., Caitlin A. Swain, Kathleen Roblez, FORWARD JUSTICE, Durham, North Carolina; Andrew T. Tutt, James W. Cooper, Jeremy C. Karpatkin, Stephen K. Wirth, Jacob Zionce, Thomas La Voy, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellees. Peter A. Patterson, Nicole J. Moss, COOPER & KIRK PLLC, Washington, D.C.; Nathan A. Huff, PHELPS DUNBAR LLP, Raleigh, North Carolina, for Intervenors. Marc E. Elias, Aria C. Branch, Washington, D.C., Abha Khanna, PERKINS COIE LLP, Seattle, Washington, for Amicus National Redistricting Foundation. Sean Morales-Doyle, Myrna Pérez, NYU SCHOOL OF LAW, New York, New York; Nathaniel B. Edmonds, Washington, D.C., Aaron Charfoos, Chicago, Illinois, Jane H. Yoon, New York, New York, Steven A. Marenberg, PAUL HASTINGS LLP, Los Angeles, California, for Amicus Democracy North Carolina. Robert E. Harrington, Adam K. Doerr, Erik R. Zimmerman, Travis S. Hinman, ROBINSON, BRADSHAW & HINSON, P.A., Charlotte, North Carolina, for Amicus Governor Roy Cooper. 2 RICHARDSON, Circuit Judge: This case challenges the constitutionality of a 2018 North Carolina law requiring voters to present photographic identification (“2018 Voter-ID Law”). This law was passed after this Court found that North Carolina acted with racially discriminatory intent in enacting a 2013 omnibus voting law (“2013 Omnibus Law”), which included a voter-ID requirement. See N.C. State Conf. of the NAACP v. McCrory, 831 F.3d 204 , 215 (4th Cir. 2016). The Challengers allege that the 2018 Voter-ID Law was enacted with the same discriminatory intent as the 2013 Omnibus Law. And the district court preliminarily agreed, finding that the Challengers were likely to succeed on the merits of their constitutional claims and issuing a preliminary injunction against the law’s enforcement. See N.C. State Conf. of the NAACP v. Cooper, 430 F. Supp. 3d 15 , 54 (M.D.N.C. 2019). We must determine whether this was an abuse of discretion. The outcome hinges on the answer to a simple question: How much does the past matter? To the district court, the North Carolina General Assembly’s recent discriminatory past was effectively dispositive of the Challengers’ claims here. But the Supreme Court directs differently. See Abbott v. Perez, 138 S. Ct. 2305 , 2324 (2018). A legislature’s past acts do not condemn the acts of a later legislature, which we must presume acts in good faith. Id. So because we find that the district court improperly disregarded this principle by reversing the burden of proof and failing to apply the presumption of legislative good faith, we reverse. 3 I. Background From 1965 until the summer of 2013, North Carolina was one of several states required to obtain federal permission under the Voting Rights Act before enacting any voting law. Obtaining that permission required a state to present persuasive evidence that the proposed state law had neither the purpose nor effect of “diminishing the ability of any citizens” to vote “on account of race or color.” 52 U.S.C. § 10304 ; see South Carolina v. United States, 898 F. Supp. 2d 30 , 33 (D.D.C. 2012). While under that preclearance regime, the General Assembly introduced a voter-ID bill in 2011. The bill passed both chambers, but the Governor vetoed it. In the spring of 2013, the General Assembly tried again. In preparation, at various points in 2012 and 2013, the General Assembly requested information on the use of voting practices by race. See N.C. State Conf. of the NAACP v. McCrory, 182 F. Supp. 3d 320 , 489 (M.D.N.C. 2016). While the General Assembly considered the new voter-ID bill, the Supreme Court rejected the Voting Rights Act’s coverage formula that had required that North Carolina obtain preclearance. See Shelby Cnty. v. Holder, 570 U.S. 529 , 537 (2013). Freed of the preclearance requirement, the General Assembly expanded the proposed voter-ID bill into “omnibus legislation” that included a “number of voting restrictions.” McCrory, 831 F.3d at 216–18. The omnibus bill passed along party lines, and the Governor signed it into law. Id. at 218. In a challenge to this 2013 Omnibus Law, we enjoined five of its voting restrictions: (1) the elimination of preregistration; (2) the elimination of out-of-precinct provisional voting; (3) the elimination of same-day registration; (4) the reduction of the time for early 4 voting; and (5) the requirement of a photo ID to vote. Id. at 242. Reversing the district court, we found that each of these restrictions had been unlawfully enacted with racially discriminatory intent. Id. at 215. Those five restrictions “unmistakably” reflected the General Assembly’s motivation to “entrench itself . . . by targeting voters who, based on race, were unlikely to vote for the majority party,” id. at 233, and did so with “almost surgical precision” using the data on voting practices, id. at 214. We noted that after Shelby County the General Assembly expanded the bill’s restrictions and amended the voter-ID provision to exclude “many of the alternative photo IDs used by African Americans,” retaining “only the kinds of IDs that white North Carolinians were more likely to possess.” Id. at 216. The Supreme Court denied certiorari. North Carolina v. N.C. State Conf. of the NAACP, 137 S. Ct. 1399 (2017). A. The enactment of the 2018 Voter-ID Law After we enjoined the 2013 Omnibus Law, legislative leaders called for a new voter- ID law. The General Assembly first asked the voters to approve a voter-ID amendment to the North Carolina Constitution. 2018 N.C. Sess. Laws 128 . 1 The amendment required that all voters in North Carolina “offering to vote in person [] present photographic identification before voting” and directed that the General Assembly “shall enact general laws governing the requirements of such photographic identification, which may include 1 The North Carolina Constitution allows the legislature to place amendments on the ballot by a three-fifths vote of each chamber. N.C. CONST. art. XIII, § 4. 5 exceptions.” N.C. CONST. art VI, § 2(4). Fifty-five percent of the voters approved the constitutional amendment. In that same election, the Republicans lost their supermajorities in both chambers of the General Assembly. During the lame-duck term following the election, the General Assembly enacted the 2018 Voter-ID Law. Its stated purpose was “to implement the constitutional amendment requiring photographic identification to vote.” 2018 N.C. Sess. Laws 144 . After the Governor vetoed the law, both chambers voted to override the veto and enact the law. B. The 2018 Voter-ID Law’s provisions Subject to exceptions, the 2018 Voter-ID Law requires North Carolinian voters to produce photographic identification to vote in person or by absentee ballot. 2018 N.C. Sess. Laws 144 , § 1.2(a). The law at first listed ten forms of authorized ID: 1. North Carolina driver’s licenses; 2. Other nontemporary IDs issued by the Division of Motor Vehicles; 3. United States passports; 4. North Carolina voter photo ID cards; 5. Tribal enrollment cards issued by state- or federally recognized tribes; 6. Certain student IDs issued by post-secondary institutions; 7. Certain employee IDs issued by a state or local government entity; 8. Out-of-state driver’s licenses and nonoperator IDs (if the voter is newly registered); 9. Military IDs; and 10. Veterans IDs. Cooper, 430 F. Supp. 3d at 36 (footnote omitted) (citing 2018 N.C. Sess. Laws 144 , § 1.2(a)). Military and veteran IDs qualify “regardless of whether the identification contains a printed expiration or issuance date.” § 1.2(a). All other forms of ID must be “valid and unexpired” or expired for less than one year (except that voters over the age of 6 sixty-five may use an expired ID so long as it was unexpired on their sixty-fifth birthday). Id. To mitigate any hardships, the 2018 Voter-ID Law establishes three ways to vote for those lacking a qualifying ID. First, registered voters may obtain a free voter-photo-ID card by visiting their county board of elections. § 1.1(a). These IDs are also available during one-stop early voting, where one can get a free ID and vote the same day. See id.; N.C. GEN. STAT. §§ 163-227.2(b), 163-227.6(a). No documentation is needed to get the free ID: voters must simply provide their name, date of birth, and last four digits of their social security number. § 1.1(a). Second, if registered voters show up to the polls without a qualifying ID, they may fill out a provisional ballot. § 1.2(a). Their vote will be counted if they present an ID—including a new voter-photo-ID card—to the elections board no later than the day before the election is canvassed. Id. Last, three groups of people are exempted from the photo-ID requirement: (1) people with religious objections; (2) survivors of recent natural disasters who cannot present a qualifying ID because of that natural disaster; and (3) people with a “reasonable impediment” to obtaining or presenting a qualifying ID. Id. Voters in these groups may cast a provisional ballot if they complete an affidavit that affirms their identity and gives their reason for not presenting a qualifying ID. Id. Their votes must count unless the five-member bipartisan county board of elections unanimously finds that there are “grounds to believe the affidavit is false.” Id.; see also Cooper, 430 F. Supp. 3d at 40 (citing 08 N.C. ADMIN. CODE 17.0101(b)). The law includes a list of qualifying “reasonable impediments,” including having lost or stolen identification, having applied for but not yet received proper identification, and being unable to obtain 7 identification because of disability, illness, work schedule, family responsibilities, or a lack of transportation or documentation. § 1.2(a). But the law also includes a catch-all provision that allows voting without a photo ID for any “other reasonable impediment” to obtaining or presenting a qualifying ID. Id. In addition to imposing a voter-ID requirement, the 2018 Voter-ID Law permits each political party in North Carolina “to designate up to 100 additional at-large observers who are residents of the State who may attend any voting place in the State.” § 3.3. It also expands the grounds on which ballots can be challenged to include when “[t]he registered voter does not present photo identification in accordance with [the 2018 Voter-ID Law].” § 3.1(c). C. The current lawsuit The day after the 2018 Voter-ID Law was enacted, the Challengers sued the members of the North Carolina State Board of Elections (“Defendants”) and the Governor of North Carolina 2 in their official capacities. The complaint challenged three provisions of the law—the voter-ID requirements, the increase in the number of poll observers, and the expansion of reasons for challenging a ballot. According to the Challengers, these provisions violated § 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments because they had been enacted with racially discriminatory intent. More than nine months after filing suit, the Challengers first requested that the district court enter a preliminary injunction against enforcement of the challenged 2 Governor Cooper was dismissed from the lawsuit as an improper defendant. 8 provisions. After a hearing, the district court granted the preliminary injunction for the voter-ID and ballot-challenge provisions after finding that the Challengers were likely to succeed on their constitutional claims. Cooper, 430 F. Supp. 3d at 53–54. Defendants appealed, and we have jurisdiction under 28 U.S.C. § 1292 (a)(1). D. Standing To bring this suit, the Challengers—chapters of the NAACP—require some form of organizational standing. The district court found that the Challenger organizations have standing to sue on their own behalf because “they will need to divert resources away from their planned voter-engagement efforts to respond to S.B. 824’s requirements.” Cooper, 430 F. Supp. 3d at 24 n.3. When an action “perceptibly impair[s]” an organization’s ability to carry out its mission and “consequent[ly] drain[s] . . . the organization’s resources,” “there can be no question that the organization has suffered injury in fact.” Havens Realty Corp. v. Coleman, 455 U.S. 363 , 379 (1982). After the district court ruled in this case, we clarified that the Havens Realty standard is not met simply because an organization makes a “unilateral and uncompelled” choice to shift its resources away from its primary objective to address a government action. CASA de Maryland, Inc. v. Trump, 971 F.3d 220 , 238 (4th Cir. 2020). We need not consider the effect of that decision on the Challengers’ standing to sue on their own behalf, however, because the Challengers in any event have standing on a representational theory. An organizational plaintiff may sue on behalf of its members if: (1) its members would have standing if they sued individually; (2) the interests the lawsuit seeks to raise “are germane to the organization’s purpose”; and (3) the claims and 9 type of relief asserted in the complaint do not require the individual members’ participation in the lawsuit. Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333 , 343 (1977). The Challengers meet those requirements. Three days before oral argument, however, the Challengers moved to dismiss this appeal as moot based on developments in a parallel case in state court. In early 2020, the North Carolina Court of Appeals reversed a state trial court and ordered that the 2018 Voter-ID Law be preliminarily enjoined. Holmes v. Moore, 840 S.E.2d 244 , 266–67 (N.C. Ct. App. 2020). The trial court entered that injunction in early August 2020 and set trial for April 2021. Based on this state-court injunction, the Challengers allege “[n]either party can win any effective relief by winning this appeal” because the state-court preliminary injunction restrains the same conduct as the federal preliminary injunction and will remain in place until the federal district court enters a final judgment. Appellants’ Motion to Dismiss as Moot 6. But improbability and impossibility are not the same thing. A suit becomes moot, and we lose jurisdiction, “when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 568 U.S. 165 , 172 (2013) (emphasis added) (internal citations omitted). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Id. A final state- court judgment that the 2018 Voter-ID Law violates the North Carolina state constitution might make relief in this federal appeal impossible. See Nationwide Mut. Ins. Co. v. Burke, 897 F.2d 734 , 739 (4th Cir. 1990). But neither the federal nor state court has ruled on the merits. Cf. California v. Azar, 911 F.3d 558 , 569 (9th Cir. 2018). 10  The federal trial on the merits was recently continued from its originally scheduled date in January 2021, so it is not clear that the federal district court will issue a final judgment before the trial in state court. We decline to presume that the state and federal trial dates will not continue to change or that, even if the federal trial occurs first, the federal court will issue a final ruling on the merits before the state court. Nor do we presume that the state court will find in the Challengers’ favor and issue a permanent injunction. So the present appeal may well matter, and the case is not moot. See Chafin, 568 U.S. at 172 . II. Discussion We review the district court’s preliminary injunction for an abuse of discretion. Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d 75 , 78 (4th Cir. 1989). “A district court abuses its discretion ‘by applying an incorrect preliminary injunction standard, by resting its decision on a clearly erroneous finding of a material fact, or by misapprehending the law with respect to underlying issues in litigation.’” Id. (quoting Goldie’s Bookstore v. Super. Ct. of State of Cal., 739 F.2d 466 , 470 (9th Cir. 1984)). We review factual findings for clear error and legal conclusions de novo. Pashby v. Delia, 709 F.3d 307 , 319 (4th Cir. 2013) (citing Dewhurst v. Century Aluminum Co., 649 F.3d 287 , 290 (4th Cir. 2011)). Obtaining a preliminary injunction requires the Challengers to establish that (1) they are likely to succeed on the merits of their claim, (2) they are likely to suffer irreparable harm without an injunction, (3) the balance of equities tilts in their favor, and (4) issuing an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 , 20 (2008). To prevail on the merits of their constitutional challenges, these Challengers 11 had to prove that the 2018 Voter-ID Law was passed with discriminatory intent and has an actual discriminatory impact. McCrory, 831 F.3d at 231; see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 , 265 (1977); Irby v. Va. State Bd. of Elections, 889 F.2d 1352 , 1355 (4th Cir. 1989). In its only precedent that addresses the constitutionality of a voter-ID law, the Supreme Court held that Indiana’s voter-ID law was constitutional. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 , 194–97, 200–04 (2008) (plurality). It reasoned that the minimal burdens imposed on voters who lacked a qualifying ID to comply with the law were outweighed by the state’s legitimate interests in preventing voter fraud, election modernization, and safeguarding voter confidence. Id. But the plaintiffs there did not allege that the law had been passed with racially discriminatory intent. So although Crawford lays down important principles for evaluating the burdens and benefits of voter- ID laws, it does not directly answer the discriminatory-intent issue before us. Determining whether a statute was enacted with discriminatory intent is a factual question involving a two-step process. Hunt v. Cromartie, 526 U.S. 541 , 549 (1999). First, the Challengers bear the burden of showing that racial discrimination was a “‘substantial’ or ‘motivating’ factor behind enactment of the law.” Hunter v. Underwood, 471 U.S. 222 , 228 (1985). Satisfying that burden requires looking at the four factors from the Supreme Court’s Arlington Heights decision: (1) historical background; (2) the specific sequence of events leading to the law’s enactment, including any departures from the normal legislative process; (3) the law’s legislative history; and (4) whether the law “bears more heavily on one race than another.” Arlington Heights, 429 U.S. at 265–69. And in doing 12 so, the district court must afford the state legislature a “presumption” of good faith. Abbott, 138 S. Ct. at 2324 . For “a finding of past discrimination” neither shifts the “allocation of the burden of proof” nor removes the “presumption of legislative good faith.” Id.; see also City of Mobile v. Bolden, 446 U.S. 55 , 74 (1980) (“[P]ast discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful.”); McCrory, 831 F.3d at 241 (finding that we cannot “freeze North Carolina election law in place” as it existed before the 2013 Omnibus Law). Only if the Challengers meet their burden to show discriminatory intent do we turn to the second step. There “the burden shifts to the law’s defenders to demonstrate that the law would have been enacted without” racial discrimination. Hunter, 471 U.S. at 228 . It is only then that judicial deference to the legislature “is no longer justified.” Arlington Heights, 429 U.S. at 265–66. Without deference and with the burden placed firmly on the legislature, a district court at the second step must “scrutinize the legislature’s actual non- racial motivations to determine whether they alone can justify the legislature’s choices.” McCrory, 831 F.3d at 221. The district court here considered the General Assembly’s discriminatory intent in passing the 2013 Omnibus Law to be effectively dispositive of its intent in passing the 2018 Voter-ID Law. In doing so, it improperly flipped the burden of proof at the first step of its analysis and failed to give effect to the Supreme Court’s presumption of legislative good faith. These errors fatally infected its finding of discriminatory intent. And when that finding crumbles, the preliminary injunction falls with it. 13  A. Burden-shifting and the presumption of good faith Abbott could not be more clear in allocating the burden of proof and applying the presumption of good faith. Yet the district court failed to hold the Challengers to their burden of proving the General Assembly’s discriminatory intent. And it failed to apply— or even mention—the presumption of legislative good faith to which the General Assembly was entitled. See Abbott, 138 S. Ct. at 2324–25. Instead, based on our decision in McCrory, the court forced the General Assembly to “bear the risk of nonpersuasion with respect to intent.” Cooper, 430 F. Supp. 3d at 32 (quoting United States v. Fordice, 505 U.S. 717 , 747 (1992) (Thomas, J., concurring)). This was an unmistakable error. We first note that this case is much like Abbott. There, a three-judge panel found that the 2013 Texas Legislature had acted with discriminatory intent in passing a new redistricting plan after its 2011 plan was denied preclearance under the Voting Rights Act. Abbott, 138 S. Ct. at 2318 . The panel first stated that the burden was on the challengers but then flipped it based on who passed the 2013 law: a Legislature with “substantially similar” membership and the “same leadership” that passed the flawed 2011 plan. Perez v. Abbott, 274 F. Supp. 3d 624 , 645–46, 648 n.37 (W.D. Tex. 2017). Because who passed both plans remained the same, the court “flip[ped] the evidentiary burden on its head,” requiring Texas to show that the 2013 Legislature had “purged the ‘taint’” of the unlawful 2011 plan. Abbott, 138 S. Ct. at 2324–25. The Supreme Court reversed this “fundamentally flawed” analysis. Id. at 2326 . The district court had erred because it had “reversed the burden of proof [and] [] imposed on the State the obligation of proving that the 2013 Legislature had experienced a true ‘change of heart.’” Id. at 2325 (quoting Perez, 14 274 F. Supp. 3d at 649). Its finding of discriminatory intent had “relied overwhelmingly on what it perceived to be the 2013 Legislature’s duty to show that it had purged the bad intent of its predecessor.” Id. at 2326 n.18. What was relevant was “the intent of the 2013 Legislature.” Id. at 2327. And that legislature was to be afforded “the presumption of legislative good faith” and not condemned based on prior bad acts. Id. at 2324. Turning to the evidence presented, the Supreme Court found it “plainly insufficient” to overcome this presumption and meet the plaintiffs’ burden. Id. at 2327. The district court here made the same mistake as the panel in Abbott without even trying to distinguish the Supreme Court’s holding. Explaining that it is “‘eminently reasonable to make the State bear the risk of non-persuasion with respect to intent’ when the very same people who passed the old, unconstitutional law passed the new,” Cooper, 430 F. Supp. 3d at 32, the district court noted that the General Assembly did not “try[] to cleanse the discriminatory taint,” id. at 43, or “tak[e] steps to purge the taint of discriminatory intent,” id. at 35. See Veasey v. Abbott, 888 F.3d 792 , 801 (5th Cir. 2018) (reversing the district court for presuming that a new voter-ID law was “fatally infected” by the unconstitutional discrimination of a past voter-ID law that had been struck down). These were not merely “stray comments.” Abbott, 138 S. Ct. at 2325 . “On the contrary, they were central to the court’s analysis,” id., for they made explicit the burden-shifting that the court engaged in while assessing the Arlington Heights factors. The district court penalized the General Assembly because of who they were, instead of what they did. When discussing the sequence of events leading to the 2018 Voter-ID Law’s enactment, the district court discounted the normalcy of the legislative 15 process to focus on who drafted and passed the law. Cooper, 430 F. Supp. 3d at 31. “[W]ho” drafted the 2018 Voter-ID Law was “many of the same legislative leaders who championed [the 2013 Omnibus Law].” Id. at 31–32 (citing the record). And who passed the 2018 Voter-ID Law was many of the same legislators who “had previously voted for [the 2013 Omnibus Law].” Id. at 31. The question of who reared its head again in the court’s discussion of the 2018 Voter-ID Law’s legislative history. In that section, the district court emphasized that the General Assembly’s positions had “remained virtually unchanged” between McCrory and the enactment of the 2018 Voter-ID Law. Id. at 33. And the court assumed that the racial data remained in the minds of the legislators: “[T]hey need not have had racial data in hand to still have it in mind.” Id. at 34–35. By focusing on who passed the 2018 Voter-ID Law and requiring the General Assembly to purge the taint of the prior law, the district court flipped the burden and disregarded Abbott’s presumption. The district court’s who argument also overlooked the state constitutional amendment. Fifty-five percent of North Carolinian voters constitutionally required the enactment of a voter-ID law and designated to the General Assembly the task of enacting the law. N.C. CONST. art. VI, § 2(4). That constitutional amendment served as an independent intervening event between the General Assembly’s passage of the 2013 Omnibus Law and its enactment of the 2018 Voter-ID Law. See Abbott, 138 S. Ct. at 2325 (noting that the plans the 2013 Texas Legislature had enacted “had been developed by the Texas court pursuant to instructions” from the Supreme Court). This constitutional amendment undercuts the district court’s tenuous “who” argument. For after the 16 constitutional amendment, the people of North Carolina had interjected their voice into the process, mandating that the General Assembly pass a voter-ID law. None of this suggests that the 2013 General Assembly’s discriminatory intent in enacting the 2013 Omnibus Law is irrelevant. See Abbott, 138 S. Ct. at 2327 . But the appropriate place to consider the 2013 Omnibus Law is under the “historical background” factor. See Arlington Heights, 429 U.S. at 267 ; see also Abbott, 138 S. Ct. at 2325 (finding that the historical background leading to the law’s enactment is but “‘one evidentiary source’ relevant to the question of intent” (quoting Arlington Heights, 429 U.S. at 267 )). And yet the “historical background” section is the one part of the district court’s discriminatory-intent analysis where the court did not discuss the 2013 Omnibus Law. B. The remaining evidence Once the proper burden and the presumption of good faith are applied, the Challengers fail to meet their burden of showing that the General Assembly acted with discriminatory intent in passing the 2018 Voter-ID Law. See Abbott, 138 S. Ct. at 2327 . While North Carolina’s historical background favors finding discriminatory intent, Cooper, 430 F. Supp. 3d at 25 (“No one disputes that North Carolina ‘has a long history of race discrimination generally and race-based vote suppression in particular.’” (quoting McCrory, 831 F.3d at 223)), the facts considered under the remaining Arlington Heights factors—the sequence of events leading to enactment, legislative history, and disparate impact—cannot support finding discriminatory intent. We discuss each factor in turn. 17  1. Sequence of events leading to enactment The district court acknowledged that there were no procedural irregularities in the sequence of events leading to the enactment of the 2018 Voter-ID Law. Cooper, 430 F. Supp. 3d at 30. “[O]f course, a legislature need not break its own rules to engage in unusual procedures.” McCrory, 831 F.3d at 228. But the remaining evidence of the legislative process otherwise fails to “spark suspicion” of impropriety in the 2018 Voter-ID Law’s passage. Arlington Heights, 429 U.S. at 269 . The 2018 Voter-ID Law underwent five days of legislative debate and was permitted time for public comment. Cooper, 430 F. Supp. 3d at 31 (citing the record); see Abbott, 138 S. Ct. at 2328–29 (“[W]e do not see how the brevity of the legislative process can give rise to an inference of bad faith—and certainly not an inference that is strong enough to overcome the presumption of legislative good faith.”). Twenty-four amendments were offered and thirteen, including several proposed by the law’s opponents, were adopted. J.A. 2008–09, 2092–97. In all, the enactment was not the “abrupt” or “hurried” process that characterized the passage of the 2013 Omnibus Law. See McCrory, 831 F.3d at 228–29 (finding “compelling” evidence of discriminatory intent in the passage of omnibus legislation that was “the most restrictive voting law North Carolina has seen since the era of Jim Crow” because it was enacted right after Shelby County invalidated the preclearance regime, passed both chambers in three days, received only two hours of debate in the House, and provided House members with no chance to propose amendments); see also Abbott, 138 S. Ct. at 2329 (finding no suspicion of discriminatory intent from the use 18 of a legislative special session, which eliminated the need to comply with certain legislative rules). The 2018 Voter-ID Law also enjoyed bipartisan support: four Democratic legislators joined their Republican colleagues in voting for the 2018 Voter-ID Law. J.A. 2081–89. One of those legislators—Senator Joel Ford, a Black Democrat—sponsored the bill. Cooper, 430 F. Supp. 3d at 31. But the district court discounted this bipartisanship in general, failing to even mention two of the Democrats who first voted for the bill. See id. Senator Ford, the district court explained, had later admitted that he considered switching parties while the 2018 Voter-ID Law was being drafted. Id. Relying on this “admission,” the district court found it was “a bit misleading” to say that the 2018 Voter-ID Law had bipartisan support. Id. 3 But regardless of his unacted-upon musings, Senator Ford was a Black Democrat who sponsored the 2018 Voter-ID Law. His input in its drafting and his votes to pass the bill deserve at least the same weight as those of any other legislator— including the three other Democrats that voted for the bill—in the General Assembly in 2018. See Lee v. Va. State Bd. of Elections, 843 F.3d 592 , 603 (4th Cir. 2016) (relying favorably on the votes of two non-Republicans—one Democrat and one Independent); McCrory, 831 F.3d at 227 (crediting the votes of five House Democrats that voted for the pre-Shelby County version of the 2013 Omnibus Law); cf. South Carolina, 898 F. Supp. 3 One might question the relevance of bipartisanship in a discriminatory-intent analysis. Is political affiliation a reliable indicator of discriminatory intent? Is a minority legislator’s support for a law irrelevant if he is a Republican or merely considered becoming a Republican? But, as both McCrory and Lee did before us, we consider bipartisanship. 19 2d at 44 (commenting favorably that changes to the law were led by two Republicans and one Democrat). Whatever one thinks of the weight of bipartisanship, the district court erred in discounting Senator Ford and ignoring the other supporting Democrats. And finally, the district court again overlooked the state constitutional amendment as part of the sequence of events leading to the 2018 Voter-ID Law’s enactment. There is no question that the voters of North Carolina constitutionally mandated that the legislature enact a voter-ID law. At the very least, this intervening event undermined the district court’s inappropriate linking of the 2013 Omnibus Law and the 2018 Voter-ID Law. 4 2. Legislative history The district court also concluded that the 2018 Voter-ID Law’s legislative history supported finding discriminatory intent. Cooper, 430 F. Supp. 3d at 35. In making that determination, the district court noted that Republican legislative leaders strongly opposed McCrory, remained committed to passing a voter-ID law that would withstand future court challenges, and did not change their positions, goals, or motivations between the passage of the 2013 Omnibus Law and the 2018 Voter-ID Law. Id. at 33. 5 But these findings 4 The Governor’s veto was overridden by supermajorities elected under racially gerrymandered maps. But this sheds little light on the motivations of those overriding legislators. At most the racially gerrymandered maps tell us about the motivations of the mapmakers and the legislators to whom they answered. They do not dictate a later General Assembly’s intent in passing different legislation. Cf. Greater Birmingham Ministries v. Sec’y of State for the State of Ala., 966 F.3d 1202 , 1227 (11th Cir. 2020) (“[T]he statements Plaintiffs identify were not made about the law at issue in this case and thus do not evidence discriminatory intent behind it.”). 5 With respect to the 2013 Omnibus Law that was so critical to the district court’s analysis, the court stated that the General Assembly requested and received racial voting (Continued) 20 impermissibly stemmed from the comments of a few individual legislators, see McCrory, 831 F.3d at 229, and relied too heavily on comments made by the bill’s opponents, see Fieger v. U.S. Att’y Gen., 542 F.3d 1111 , 1119 (6th Cir. 2008). They also go against inferring “good faith” on the part of the legislature, which we are required to do: decrying a court opinion holding that you acted improperly in the past is not evidence that you have acted improperly again. See Abbott, 138 S. Ct. at 2324, 2327 (explaining that the legislature’s stated objective of quickly bringing the litigation to a close “is entirely reasonable and certainly legitimate” when there “is no evidence that the Legislature’s aim was to gain acceptance of plans that it knew were unlawful”). The district court makes hay out of the fact that a proposed amendment to include public-assistance IDs failed. Cooper, 430 F. Supp. 3d at 34 (“The decision not to include this form of identification in [the 2018 Voter-ID Law], despite the attention given to it in McCrory, is, as it was with [the 2013 Omnibus Law], particularly suspect.”). 6 But the data “[f]ollowing” the issuance of Shelby County in June 2013. Cooper, 430 F. Supp. 3d at 26. To support this timing, it cites our prior decision in McCrory, which we do not read as taking a position on the data receipt’s timing. See McCrory, 831 F.3d at 216. Our review of the record suggests, at least preliminarily, that most of the racial voting data was requested and received by the General Assembly while North Carolina was subject to the preclearance regime. See McCrory, 182 F. Supp. 3d at 489; see also J.A. 52, 53. The McCrory district court only noted one email containing racial data about same-day voter registration—the subject of one of five voting restrictions enacted as part of the 2013 Omnibus Law—that a member of the General Assembly received after Shelby County, on the same day the House voted to pass the bill in July 2013. 182 F. Supp. 3d at 490. 6 Several months after the district court’s decision, the General Assembly amended the 2018 Voter-ID Law to include federal and state public-assistance IDs. 2020 N.C. Sess. 17. 21 district court did not consider the context in which that amendment failed. While the 2018 Voter-ID Law was in the House, Representative Richardson introduced an amendment to include public-assistances IDs that were “issued by a branch, department, agency, or entity of the [] United States or this State for a government program of public assistance.” J.A. 2302. Representative Lewis spoke in opposition. J.A. 1761–63. He articulated concerns that “we have no way to impose our standards on the Federal Government” and that “[t]here is no provision of this amendment that would even require the ID to have a picture.” J.A. 1761–62. Representative Richardson “accept[ed] the justification [he] gave” for opposing the bill 7 and asked if he would be amendable to considering an amendment that only included public-assistance IDs issued by state agencies. J.A. 1763. Representative Lewis said that he would, and the two agreed to collaborate on such an amendment (though it never came to fruition). J.A. 1763. The House then voted, and the amendment failed. J.A. 1764. But this dialogue does nothing to suggest that the amendment failed due to discriminatory intent. In any case, the district court erred in focusing on the public-assistance amendment. For even if it passed, the proposed amendment seems to cover a null set. As it would not have added any actual IDs to the list of qualifying IDs, it cannot be evidence of discriminatory intent. Recall that each of the qualifying IDs must include a photograph. 7 With the benefit of hindsight, we might conclude that while the amendment itself does not mention a photograph, its placement within the bill would have required public- assistance IDs to have a photograph. But no legislator challenged Representative Lewis’s contention. See J.A. 1761–64. 22 See J.A. 1761–64. The parties put forth evidence about the types of public-assistance IDs that do and do not have photographs. The Defendants provided evidence that state public- assistance IDs do not include photographs. See J.A. 2106–09. The Challengers’ lone counter was that several North Carolina housing authorities issue photo IDs to their residents. See J.A. 2318–27. But in North Carolina it appears that housing authorities are local government agencies—not state government agencies. See Huntley v. Pandya, 534 S.E.2d 238 , 239 (N.C. Ct. App. 2000). And the proposed amendment only included public- assistance IDs issued by a federal or state entity. J.A. 2302 (“An identification card issued by a branch, department, agency, or entity of the [] United States or this State for a government program of public assistance.”). Thus, as far as this record reveals, this proposed amendment would not cover any existing public-assistance IDs. And the failure to adopt a meaningless amendment cannot support finding discriminatory intent. The other amendment that the district court focused on—and discounted— addressed a concern we had with the 2013 Omnibus Law: voter-ID for absentee ballots. Cooper, 430 F. Supp. 3d at 33–34. In McCrory, we found the lack of an ID requirement for absentee voting suspect since absentee voting is disproportionately used by white voters and evidence of voting fraud is primarily related to absentee voting. 831 F.3d at 230, 235. Although the district court acknowledged that the 2018 Voter-ID Law “correct[s] this discrepancy,” the court largely discounted the amendment and characterized the law’s proponents as “reluctant” and “unconcerned about absentee voter fraud.” Cooper, 430 F. Supp. 3d at 34. This is because, according to the district court, the initial law did not require an ID to vote absentee and the amendment was added after a significant absentee voting 23 scandal and in response to “intensifying public pressure.” Id. Much like the district court’s analysis of bipartisanship, the court acknowledges a significant difference between this law and the one in McCrory but then quickly discounts it. Again, the district court seems to be presuming bad faith by noting that the legislature was unconcerned with absentee-voting fraud in McCrory and surmising that they remained “unconcerned” here until a scandal forced their hand. That the legislature made this change should at least count for something. The 2018 Voter-ID Law’s legislative history is otherwise unremarkable. Nothing here suggests that the General Assembly used racial voting data to disproportionately target minority voters “with surgical precision.” McCrory, 831 F.3d at 214, 216–17. And neither party nor the district court has brought to our attention any discriminatory remarks made by legislators during or about the legislation’s passage. 3. Impact of the official action The district court also erred in evaluating the racial impact of the 2018 Voter-ID Law. See Arlington Heights, 429 U.S. at 564 (considering whether “[t]he impact of the official action[s] . . . ‘bears more heavily on one race than another’” (quoting Washington v. Davis, 426 U.S. 229 , 242 (1976))). In evaluating the impact of the 2018 Voter-ID Law, the district court failed to adequately consider its mitigating provisions. We accept the district court’s finding that minority voters disproportionately lack the types of ID required by the 2018 Voter-ID Law. But the 2018 Voter-ID Law contains three provisions that go “out of [their] way to make its impact as burden-free as possible.” Lee, 843 F.3d at 603. First, the law provides for registered voters to receive free voter-ID 24 cards without the need for corroborating documentation. 2018 N.C. Sess. Laws 144 , § 1.1(a). Second, registered voters who arrive to the polls without a qualifying ID may fill out a provisional ballot and their votes will be counted if they later produce a qualifying ID at the county elections board. § 1.2(a). Third, people with religious objections, survivors of recent natural disasters, and those with reasonable impediments may cast a provisional ballot after completing an affidavit that affirms their identity and their reason for not producing an ID. Id. Their votes must be counted unless the county board of elections “has grounds to believe the affidavit is false.” Id. The district court discounted the first of these mitigating features—free voter-ID cards—out of concern that minority voters would be more likely to have to spend time and money (though the IDs are free and require no documentation) to procure this alternative form of ID. Cooper, 430 F. Supp. 3d at 39. This argument suffers from two flaws. First, as the Supreme Court noted in Crawford, where it addressed a more restrictive voter-ID law, 8 “[f]or most voters who need them, the inconvenience of making a trip to the [DMV], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” 553 U.S. at 198 . And while the district court found that “the evidence in this case suggests otherwise,” Cooper, 430 F. Supp. 3d at 39, at most, what the 8 Indiana’s voter-ID law required documentation to obtain a voter ID and did not include a reasonable impediment provision. Crawford, 553 U.S. at 185–86. 25 cited evidence “suggests” is the same kind of minimal burden associated with obtaining a voter ID that the Supreme Court held insufficient to sustain a facial challenge in Crawford. Second, eligible voters may engage in one-stop early voting (at their county board of elections office or an approved alternate site). N.C. GEN. STAT. §§ 163-227.2(b), 163- 227.6(a). And the 2018 Voter-ID Law obligates each county board of elections to issue free photo-ID cards during one-stop early voting. 2018 N.C. Sess. Laws 144 , § 1.1(a). So for those who vote early at their county board of elections, the marginal cost of obtaining a qualifying ID is negligible because they can obtain a free voter ID and vote in a single trip. Those voters must do no more than they did previously—show up to vote. See Crawford, 553 U.S. at 198 . The district court gave no weight to the 2018 Voter-ID Law’s second mitigating provision—provisional voting that is ‘cured’ by later presenting a qualifying ID, including a newly obtained voter-ID card, to the county elections board. And the district court discounted the 2018 Voter-ID Law’s third mitigating feature—the reasonable impediment exemption—as unlikely to be the “panacea[]” it is claimed to be. Cooper, 430 F. Supp. 3d at 41. The district court seemingly believed that even if every eligible voter in North Carolina should be able to vote under the letter of the 2018 Voter-ID Law, in practicality, poor enforcement of the law would prevent eligible voters from doing so. Id. But an inquiry into the legislature’s intent in enacting a law should not credit disparate impact that may result from poor enforcement of that law. See United States v. Chem. Found., 272 U.S. 1 , 14–15 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they 26 have properly discharged their official duties.”); cf. South Carolina, 898 F. Supp. 2d at 44 (accepting that a reasonable-impediment provision would function as intended). Indeed, the 2018 Voter-ID Law is more protective of the right to vote than other states’ voter-ID laws that courts have approved. In Lee v. Virginia State Board of Elections, we upheld Virginia’s voter-ID law that only included two of these mitigating features— free voter IDs available without corroborating documentation and provisional voting subject to ‘cure.’ 843 F.3d at 594. Likewise, in South Carolina v. United States, the District Court of the District of Columbia precleared South Carolina’s voter-ID law that included a different combination of two mitigating features—free voter IDs available without corroborating documentation and a reasonable impediment procedure. 898 F. Supp. 2d at 32. And recently, the Eleventh Circuit, in Greater Birmingham Ministries v. Secretary of State for the State of Alabama, upheld Alabama’s voter-ID law that included versions of two of the 2018 Voter-ID Law’s mitigating features—free voter IDs that require corroborating documentation and provisional voting subject to ‘cure.’ 966 F.3d at 1213– 14. Given these cases, it is hard to say that the 2018 Voter-ID Law does not sufficiently go “out of its way to make its impact as burden-free as possible.” Lee, 843 F.3d at 603. Considering the evidence presented to the district court with the burden properly applied to the Challengers and the presumption of good faith afforded to the General Assembly, we cannot agree that the Challengers would likely carry their burden of proving that the General Assembly acted with discriminatory intent in passing the 2018 Voter-ID 27 Law. 9 We do not reverse the district court because it weighed the evidence before it differently than we would. Instead, we reverse because of the fundamental legal errors that permeate the opinion—the flipping of the burden of proof and the failure to provide the presumption of legislative good faith—that irrevocably affected its outcome. We therefore hold that the district court abused its discretion in issuing the preliminary injunction. * * * We do not doubt, as we held in McCrory and as the State expressly acknowledges in this case, that there is a long and shameful history of race-based voter suppression in North Carolina. See McCrory, 831 F.3d at 223. But we made clear in McCrory that our holding did not “freeze North Carolina election law in place.” 831 F.3d at 241. The district court failed to adhere to our admonishment and the Supreme Court’s unmistakable commands in Abbott. Instead, it considered the North Carolina General Assembly’s past conduct to bear so heavily on its later acts that it was virtually impossible for it to pass a 9 Because our decision rests on the Challengers’ failure to show a likelihood of success on the merits of their claims, we decline to consider the remaining preliminary- injunction requirements. We do, however, find it prudent to mention two concerns about the district court’s analysis of those factors. First, because the district court found that the Challenger organizations had standing to bring this case on their own behalf, it analyzed the irreparable harm requirement with an eye towards whether the organizations themselves would suffer irreparable harm in the absence of an injunction. Cooper, 430 F. Supp. 3d at 51. Because we rest our standing holding on a representational theory, this factor should instead consider whether the voting members of the organizations would suffer irreparable harm in the absence of an injunction. Second, the district court ignored the Challengers’ nine-month delay in moving for a preliminary injunction after filing their complaint. No matter if this delay would have been dispositive, the district court erred by ignoring it entirely. See Benisek v. Lamone, 138 S. Ct. 1942 , 1944 (2018); Quince Orchard Valley Citizens Ass’n, 872 F.2d at 80 . 28 voter-ID law that meets constitutional muster. In doing so, the district court improperly reversed the burden of proof and disregarded the presumption of legislative good faith. And the remaining evidence in the record fails to meet the Challengers’ burden. For these reasons, the district court abused its discretion in issuing the preliminary injunction. 10 The judgment below is REVERSED. 10 The district court’s opinion devotes little analysis to the 2018 Voter-ID Law’s ballot-challenge provision, which it also enjoined. See Cooper, 430 F. Supp. 3d at 42, 54. Upon reviewing the record, we do not find adequate grounds on which that portion of the injunction can stand independent of the photo-ID injunction. 29

2020-12-02 20:00:28.457346+00

http://www.ca4.uscourts.gov/Opinions/191350.P.pdf

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-1350 LOREN VARNER, Plaintiff - Appellant, v. MICHAEL ROANE, in his individual capacity, Defendant - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:17-cv-00080-EKD-JCH) Argued: October 28, 2020 Decided: December 2, 2020 Before GREGORY, Chief Judge, WILKINSON, and KEENAN, Circuit Judges. Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge Gregory and Judge Keenan joined. ARGUED: Dallas S. LePierre, NDH LLC, Atlanta, Georgia, for Appellant. Carlene Booth Johnson, PERRY LAW FIRM, PC, Dillwyn, Virginia, for Appellee. ON BRIEF: Mario B. Williams, NDH LLC, Atlanta, Georgia, for Appellant. WILKINSON, Circuit Judge: Appellant Loren Varner appeals the district court’s rejection of his two claims alleging violations of the Fourth Amendment. For the reasons set forth herein, we affirm. I. Two incidents gave rise to this case. First, Varner alleged an unlawful seizure of his person. Varner’s complaint states that he was having an alcoholic drink and lunch at a local restaurant. During this lunch, appellee Michael Roane, an Augusta County Deputy Sheriff, approached Varner and requested that he grab his jacket and leave the restaurant with him. Varner complied with the request, knowing that Roane was a police officer because Roane had previously arrested him on drug charges. Once they were outside the restaurant, Roane asked Varner to empty his pockets. After he found nothing, Roane patted down Varner. No incriminating items were found. Because Varner was drinking, Roane asked him to submit to a breath test. Varner stated he would not be driving and refused. Second, Varner alleged an unlawful search of his automobile. After Roane patted down Varner, K-9 officer Jeremy Johnson approached Varner’s car with a drug-sniffing dog named Zeke. Zeke and Johnson regularly trained and worked together. They together successfully completed testing in Police Narcotic Detection Training and obtained certification from the Virginia Police Canine Association. Johnson testified during a deposition that Zeke pressed his nose against a surface if he detected drugs underneath. Both sides agree that Zeke gave a positive alert signifying he detected drugs inside Varner’s car. Varner, who was standing away from the car with Officer Roane, alleges that Johnson manufactured this alert by smacking the side of his car, and that Zeke then gave 2 his alert by jumping up and placing his paws on the vehicle. Varner also alleges Zeke displayed some erratic behavior by veering toward the police cars sitting nearby Varner’s vehicle. Officer Johnson testified that Zeke gave his positive alert by pressing his nose against the car while all four of his paws were on the ground, and that this was done on the side of the car facing away from where Varner and Roane were standing. Johnson then reported Zeke’s positive alert over the police radio to members of his drug task force and the local police department. No drugs were found during the search of the car. II. Varner filed two damages claims under 42 U.S.C. § 1983 for Fourth Amendment violations against Officer Roane in his personal capacity. Roane moved to dismiss both claims, arguing Varner failed to plead constitutional violations and that he was protected by qualified immunity. The district court dismissed Varner’s claim that he had been unlawfully seized during the pat down outside the restaurant. In an oral order, it reasoned that Varner had failed to allege facts sufficient to demonstrate the encounter was anything but consensual; the complaint therefore did not adequately plead a Fourth Amendment violation. Varner v. Roane, No. 5-17-cv-00080, 2019 WL 982870 , at *1 (W.D. Va. Feb. 28, 2019). After discovery, Roane moved for summary judgment on the remaining Fourth Amendment claim. The district court granted the motion, thus disposing of the entire case. The district court found there was no evidence from which a reasonable jury could conclude that Officer Johnson had manufactured Zeke’s positive alert. Id. at *3 . The court noted that Varner relied purely on his own testimony that Johnson had slapped the side of 3 the car and that Zeke had subsequently jumped and placed his paws on the car. Id. at *4 . The district court reasoned that Varner had failed to rebut Johnson’s testimony that Zeke alerted by placing his nose on the car. Id. The district court summarized the facts as follows: Varner still has not presented any facts, based on personal knowledge, to dispute that the dog alerted by pressing his nose against the vehicle and pointing, not by jumping. Additionally . . .Varner testified that he could not see what occurred right before the “smack” or on the passenger side of the vehicle, where Zeke alerted according to Johnson. Thus, Varner cannot dispute that the alert occurred as Johnson described it. Johnson’s undisputed testimony, then, establishes probable cause for the subsequent search of his vehicle. Id. As for Varner’s insistence that it was the smack that led to the positive alert, the district court concluded that did not create a genuine dispute of material fact because “Varner has no training or expertise in how K-9 dogs alert generally, let alone any knowledge of how Zeke, in particular, alerts.” Id. The district court also briefly stated that, even if a Fourth Amendment violation were demonstrated, Roane would be protected by qualified immunity. Id. at *5 . III. A. On appeal, Varner argues that he did not consent to Officer Roane’s search of his person outside the restaurant. We review de novo a dismissal for failure to state a claim, taking all plausible facts pleaded by the nonmoving party as true. Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62 , 71 (4th Cir. 2016). The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not 4 be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. A person is seized within the meaning of the Fourth Amendment “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1 , 19 n.16 (1968). A person is not unlawfully searched or seized when he consents to the encounter. Florida v. Bostick, 501 U.S. 429 , 434, 439 (1991). No seizure implicating the Fourth Amendment occurs unless, taking into account all of the circumstances surrounding the encounter, an objectively reasonable person would have believed “that he was not at liberty to ignore the police presence and go about his business.” Michigan v. Chesternut, 486 U.S. 567 , 569 (1988). American law on whether a seizure is consensual accounts for two principles. On the one hand, our law does not permit law enforcement officers to roam around and constrain people without justification. A country defined by such suspicionless seizures would be a police state with all the citizen mistrust and unrest attendant thereto. The rules thus give Americans security and protect them from being arbitrarily targeted by the authorities. This encapsulates “a set of values reflecting society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice.” Schneckloth v. Bustamonte, 412 U.S. 218 , 225 (1973). And the police may not circumvent that important constitutional safeguard by coercing consent through “implied threat or covert force.” Id. at 228 . 5  On the other hand, law enforcement officers can approach people in the normal course of duty and ask to speak with them. This is essential for the police to do their job. Many individuals are willing to speak to the police because they “know that their [cooperation] enhances their own safety and the safety of those around them.” United States v. Drayton, 536 U.S. 194 , 205 (2002). Such voluntary conversations between citizens and officers can take place because “[w]ithout such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved.” Schneckloth, 412 U.S. at 225 . These conversations, if respectfully handled, can promote trust and mutual regard, giving the public greater confidence in law enforcement. Courts must therefore be careful not to discourage voluntary interactions that could assist officers in appreciating the humanity of those they encounter on their beats. The Fourth Amendment need not presume an adversarial relationship between police officers and the communities they protect. As noted, this claim comes to us as a challenge to a motion to dismiss, and our review is limited to the facts as alleged. Several factors convince us that Varner failed to allege facts in his complaint sufficient to draw into question the district court’s ruling that Varner consented to his initial encounter with Officer Roane. First, Officer Roane did not make a show of authority to suggest that Varner had to speak with him. Officer Roane “did not brandish a weapon or make any intimidating movements.” Drayton, 536 U.S. at 204 . Roane did not use or threaten to use force, did not block Varner from leaving, did not restrain Varner, did not make any misrepresentation as to a warrant, and did not take any property from Varner. See id. 6  Second, Officer Roane did not accuse Varner of wrongdoing before asking to speak with him. If a police officer accuses someone of having committed a crime and then asks to speak with that person, that may well suggest lack of consent. See United States v. Jones, 678 F.3d 293 , 300 (4th Cir. 2012). The absence of such an accusation weighs toward finding the encounter to be consensual. See United States v. Mendenhall, 446 U.S. 544 , 554 (1980) (plurality opinion) (explaining that an officer’s “use of language or tone of voice indicating that compliance with the officer’s request might be compelled” is highly relevant to determining whether a seizure is voluntary). In response, Varner argues that Officer Roane did make a show of authority because he alleged in his complaint that Roane “commanded” him to exit the restaurant. J.A. 20. But this is a conclusory allegation, unsupported by detail. Varner alleged nothing about Officer Roane’s tone of voice or anything about what Roane specifically said. If, for example, Roane said, “Let’s go outside and talk,” that could be interpreted either as a polite request or as a command. More detail is needed to tell the difference, and Varner needed to plead more to survive a motion to dismiss. Further, Varner argues that Roane singled him out from a group of individuals in the bar. But his complaint makes no mention of other individuals being present, and nothing in the complaint hints at Varner being singled out. This case is thus markedly different than United States v. Jones, 678 F.3d at 302 , where the police followed the defendant in a car, parked the police car in a way to stop the parked defendant from leaving a private property, and then showed an interest only in him and not the other passengers who had been in the car. Id. at 302-03 . 7  The Supreme Court has explained that the question of whether a person feels free to terminate a police encounter and leave is an objective one. See Mendenhall, 446 U.S. at 554 ; United States v. Stover, 808 F.3d 991 , 995 (4th Cir. 2015). Because the application of the objective test indicates that the events at issue here were consensual, we affirm the district court’s dismissal of this claim. B. Varner next argues that Roane unlawfully searched his car because of an alleged conspiracy between Officer Johnson (who is not a party to this case) and Roane to manufacture a positive alert by Zeke, the drug-sniffing dog. We review the district court’s grant of summary judgment de novo to decide if a genuine dispute of material fact exists, drawing all reasonable inferences in favor of Varner. See Glynn v. EDO Corp., 710 F.3d 209 , 213 (4th Cir. 2013). Summary judgment must be granted “unless a reasonable jury could return a verdict for the nonmoving party on the evidence presented.” McLean v. Patten Cmtys., Inc., 332 F.3d 714 , 719 (4th Cir. 2003). Both parties acknowledge that the police can have a drug-sniffing dog circle a vehicle without individualized suspicion or a warrant. See, e.g., United States v. Jeffus, 22 F.3d 554 , 557 (4th Cir. 1994). And both parties agree that the police had probable cause to search Varner’s car based on Zeke’s positive alert. See Appellant Brief at 5. This concession is sensible because the Supreme Court has explained that “[i]f a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume . . . that the dog’s alert provides probable cause to search.” Florida v. Harris, 568 U.S. 237 , 246-47 (2013). Zeke had proven himself reliable in field testing and had 8 been certified by the Virginia Police Canine Association. Because Zeke was manifestly a capable dog, the only question is whether the police manufactured Zeke’s alert. We conclude summary judgment was appropriate because Varner has failed to present evidence rebutting Officer Johnson’s testimony that Zeke gave a legitimate alert. Officer Johnson testified that Zeke gave his positive alert by pressing his nose against the car while all four of his paws were on the ground, and that this was done on the side of the car facing away from where Varner and Roane were standing. Uncontroverted evidence shows that this is precisely how Zeke was trained to alert to drugs. Varner’s ipse dixit assertion that Zeke alerted when Johnson slapped the side of the car facing him is speculative and unsupported. Varner knew nothing about drug-sniffing dogs, nor about Zeke’s training in particular. And he was not standing in a position where he could even see the alert that Officer Johnson testified occurred. His assertion that Zeke did not alert as Officer Johnson testified is not based on personal observation. Indeed, Varner admitted in a deposition that he could not see what Zeke was doing on the other side of the car. J.A. 454–55. Unsupported speculation cannot rebut Officer Johnson’s testimony, based on personal observation and experience with Zeke, that Zeke alerted on the side of the car facing away from Varner. Moreover, there is nothing to suggest that Johnson and Roane were engaged in some sort of conspiracy to manipulate Zeke’s behavior. We thus conclude that Varner has failed to create a genuine dispute of material fact, and we affirm the district court’s grant of summary judgment. We need not reach the question of whether Officer Roane would be protected by qualified immunity. 9  IV. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED 10

2020-12-02 20:00:29.236328+00

http://www.ca4.uscourts.gov/Opinions/191862.P.pdf

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-1862 JUAN CARLOS BLANCO AYALA, Plaintiff – Appellant, v. UNITED STATES OF AMERICA, Defendant – Appellee. ------------------------------ AMERICAN IMMIGRATION COUNCIL; NATIONAL IMMIGRANT JUSTICE CENTER, Amici Supporting Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:18-cv-01012-TSE-JFA) Argued: October 29, 2020 Decided: December 2, 2020 Before WILKINSON, HARRIS, and RICHARDSON, Circuit Judges. Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Harris and Judge Richardson joined. ARGUED: Mark Alastair Stevens, MURRAY OSORIO PLLC, Fairfax, Virginia, for Appellant. Elizabeth A. Spavins, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Tamara L. Jezic, JEZIC & MOYSE, LLC, Wheaton, Maryland, for Appellant. G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Mark Fleming, NATIONAL IMMIGRANT JUSTICE CENTER, Chicago, Illinois; Mary Kenney, Washington, D.C., Trina Realmuto, Emma Winger, AMERICAN IMMIGRATION COUNCIL, Brookline, Massachusetts, for Amici American Immigration Council and The National Immigrant Justice Center. 2 WILKINSON, Circuit Judge: Juan Carlos Blanco Ayala brings this Federal Tort Claims Act (FTCA) suit against the United States for wrongful investigation, arrest, and detention. The district judge held that the discretionary function exception to the FTCA’s waiver of sovereign immunity operated to defeat plaintiff’s claims. See 28 U.S.C. § 2680 (a). For the following reasons, we affirm. I. Plaintiff Blanco was born in El Salvador in 1978 and moved to the United States as a young child. In 1983, his parents divorced without a decree of custody. He became a lawful permanent resident in 1987, and his father was naturalized in 1995. At the time of his father’s naturalization, Blanco lived with his father in Washington, D.C. In February 2004, Blanco traveled from the United States to El Salvador. Upon his return to the United States, he was questioned several times by Customs and Border Protection (CBP) about his criminal convictions. He allegedly informed the officers that he lived with his father as a lawful permanent resident, that his father was a U.S. citizen, and that his parents had divorced without a custody decree. Blanco also claimed he asked the officers to investigate whether he was a U.S. citizen. According to CBP emails, the officers concluded that Blanco was not a U.S. citizen because “his father d[id] not have legal custody in writing” and therefore Blanco “did not 3 qualify for derivative citizenship.” 1 J.A. 9. The CBP informed Blanco of this, took him into immigration detention, and began removal proceedings. At the removal hearing, Blanco allegedly conceded all charges against him, including that he was not a U.S. citizen. In September 2004, an immigration judge ordered him removed, after which Blanco did not seek relief from removal or appeal the decision. He was removed from the United States to El Salvador in December. Shortly after his removal, Blanco returned to the United States. U.S. Immigration and Customs Enforcement (ICE) officers took him into custody and detained him in November 2015. His 2004 removal order was reinstated. While he was in custody, his attorney presented evidence that Blanco was a citizen to the government, and ICE released him in April 2016. After his release, Blanco obtained a certificate of citizenship from the U.S. Citizenship and Immigration Services that showed a date of citizenship of June 8, 1995. Blanco filed an administrative claim for damages with the Department of Homeland Security (DHS) in 2017. DHS denied his claims. Thereafter, he sued the United States under the FTCA in the Eastern District of Virginia in August 2018 for (1) assault and battery, (2) false arrest and imprisonment, (3) intentional infliction of emotional distress, 1 Under the statute operative when Blanco’s father was naturalized in 1995, “[a] child born outside of the United States of alien parents . . . becomes a citizen of the United States upon . . . [t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents” if the “naturalization takes place while such child is unmarried and under the age of eighteen; and [s]uch child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent.” 8 U.S.C. § 1432 (a) (1994) (repealed 2000). 4 (4) negligence, and (5) negligent infliction of emotional distress. The district court dismissed the case under Rule 12(b)(1) for lack of subject matter jurisdiction, finding that the allegedly tortious conduct fell within the discretionary function exception to the FTCA’s waiver of sovereign immunity. Blanco Ayala v. United States, 386 F. Supp. 3d 635 , 637 (E.D. Va. 2019). Plaintiff timely appealed the district court’s decision. We have jurisdiction under 28 U.S.C. § 1291 to review the final judgment of the district court. We review this Rule 12(b)(1) dismissal de novo. Holbrook v. United States, 673 F.3d 341 , 345 (4th Cir. 2012). II. As a general rule, the United States is immune from claims for money damages in civil suits. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 , 686–90 (1949). The FTCA waives the United States’ sovereign immunity for civil suits for money damages “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346 (b)(1). Where the FTCA’s waiver is operative, the government is liable in tort “in the same manner and to the same extent as a private individual under like circumstances.” Id. § 2674. However, this broad waiver of sovereign immunity is cabined by a list of exceptions. See id. § 2680. As relevant to the instant case, the FTCA’s waiver does not apply to “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” Id. § 2680(a). 5  The exceptions to the FTCA’s immunity waiver work to defeat the subject matter jurisdiction of the federal courts. Indemnity Ins. Co. of N. Am. v. United States, 569 F.3d 175 , 180 (4th Cir. 2009). Thus, the burden is on the plaintiff in such a civil suit to establish “that the discretionary function exception does not foreclose their claim.” Seaside Farm, Inc. v. United States, 842 F.3d 853 , 857 (4th Cir. 2016). This exception represents one limit to the extent of “Congress’ willingness to impose tort liability upon the United States.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 , 808 (1984). It exists to prevent interference by the judiciary in the policy-laden balancing that accompanies the exercise of executive discretion. See Baum v. United States, 986 F.2d 716 , 720 (4th Cir. 1993); Tiffany v. United States, 931 F.2d 271 , 276 (4th Cir. 1991). Most importantly, the exception protects that “discretion of the executive . . . to act according to [his] judgment of the best course, a concept of substantial historical ancestry in American law.” Dalehite v. United States, 346 U.S. 15 , 34 (1953). Taken together, these considerations make manifest the important separation-of-powers principles that animate the discretionary function exception. See Holbrook v. United States, 673 F.3d 341 , 345 (4th Cir. 2012). To determine whether the exception applies, we must first ascertain whether the acts in question “are discretionary in nature,” such that they “involv[e] an element of judgment or choice.” United States v. Gaubert, 499 U.S. 315 , 322 (1991) (quoting Berkovitz v. United States, 486 U.S. 531 , 536 (1988)). The exception does “not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Berkovitz, 586 U.S. at 536. 6  Second, we must determine whether the challenged “governmental actions and decisions” were “based on considerations of public policy.” Id. at 537. When statutes, regulations, or agency guidelines grant discretion to a government agent, “it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.” Gaubert, 499 U.S. at 324 . In conducting this analysis, we do not “inquire whether policy considerations were actually contemplated in making a decision.” Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201 , 208 (4th Cir. 2002). Rather, we consider only whether “the nature of the challenged decision in an objective, or general sense, . . . is one which we would expect inherently to be grounded in considerations of policy.” Baum, 986 F.2d at 721. III. Having reviewed the discretionary function exception’s framework, we now turn to Blanco’s claims in the instant case. He has alleged that DHS officers are liable for assault, battery, false arrest, false imprisonment, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress arising out of their arrest, detention, transportation, and incorrect citizenship determination of Blanco. See J.A. 11– 13. Plaintiff argues that DHS officers do not have discretion to arrest, detain, and deport U.S. citizens, and thus the discretionary function exception does not apply. We are unpersuaded. Discretion lies at the heart of the DHS law enforcement function. See Arpaio v. Obama, 797 F.3d 11 , 16 (D.C. Cir. 2015) (recognizing DHS enforcement discretion). In deciding whom to investigate, detain, and then remove, DHS officers must make all the kinds of classic judgment calls the discretionary function exception was meant to exempt 7 from tort liability. See Suter v. United States, 441 F.3d 306 , 311 (4th Cir. 2006) (recognizing discretion in FBI’s investigative choices); see also Tsolmon v. United States, 841 F.3d 378 , 382–84 (5th Cir. 2016) (recognizing discretion in CBP’s investigation and detention of H1-B temporary worker). A. We begin by considering the first Berkovitz prong—whether the government conduct “involves an element of judgment or choice.” 486 U.S. 531 , 536 (1988). Plaintiff and the government offer two different frames for analyzing the DHS officers’ decisions to investigate, arrest, detain, and deport in this case. Blanco claims we should segment this sequence. While he concedes that investigation may be a discretionary undertaking, he claims that the same cannot be said for arrest and detention. The government frames these actions as a single immigration enforcement process. We think plaintiff’s attempt to slice up the process is unfounded. The law enforcement function is a continuum where the products of the investigation are integrally related to the decision on whether to proceed further with detention and removal. “No one can doubt that the investigation of (potential) crimes” is a “discretion-laden subject[].” Linder v. United States, 937 F.3d 1087 , 1091 (7th Cir. 2019). The later steps of detention and removal depend in part upon facts gathered during the investigation and the conclusions drawn from those facts. Thus, the decisions to detain and remove are discretionary because they are bound up in the decisions surrounding the investigatory step. 8  But that is not the only way in which the decisions to detain and remove are discretionary. They are discretionary even independently of the investigation because they depend on a further decision to prosecute and remove. See Medina v. United States, 259 F.3d 220 , 227 (4th Cir. 2001) (recognizing INS’ prosecutorial discretion). There may be many situations with similar facts and legal considerations that lead to different decisions depending, in part, on “whether [a] particular enforcement action . . . best fits the agency’s overall policies.” Heckler v. Chaney, 470 U.S. 821 , 831 (1985). Thus, this process is infused with discretion thrice-over—whether to investigate a possible violation of immigration law, how to conduct that investigation, and then whether to bring an enforcement action after drawing factual and legal conclusions. And none of those discretion-laden questions can be disentangled from the other two. The statutory language supports the government’s view of the discretion afforded to DHS officers. The grant of arrest authority to DHS officers is when he or she “has reason to believe that the alien so arrested is in the United States in violation of” federal law. 8 U.S.C. § 1357 (a)(2); see also id. § 1357(a)(4). When there is a warrant, “an alien may be arrested and detained.” Id. § 1226(a) (emphasis added). Plaintiff attempts to locate a mandatory directive that no law enforcement officer may arrest and detain a U.S. citizen. It would be an odd corpus of law, however, that did not contain somewhere within it some provision that could be seen as a mandatory directive. But we must “construe the nature of the statutory and regulatory regime as a whole,” not isolate an individual provision from its context. Seaside Farm, Inc. v. United States, 842 F.3d 853 , 859 (4th Cir. 2016); see also Holbrook v. United States, 673 F.3d 341 , 348 (4th Cir. 2012) (recognizing that “[t]he 9 existence of some mandatory language does not eliminate discretion” (quoting Miller v. United States, 163 F.3d 591 , 595 (9th Cir. 1998))). In this case, federal law has explicitly underscored the discretion of law enforcement by using a “reason to believe” standard. Such a standard recognizes that judgment calls must be made about the significance of the evidence DHS officers have collected. Plaintiff’s argument fails for a second, related reason. Having recognized that the DHS officers’ choice to investigate Blanco and how they conducted that investigation were discretionary, he nonetheless argues that they did not have discretion to “incorrectly appl[y] the law to the facts and wrongly identif[y] Blanco as a noncitizen.” Opening Br. of Appellant at 24; see also id. at 24–25. This is effectively arguing that the officers’ actions were not discretionary because they were negligent in executing their mandate. But the discretionary function exception protects government decisions “even when made negligently.” Wood v. United States, 845 F.3d 123 , 128 (4th Cir. 2017). And the statutory language goes further—it provides protection from suit “whether or not the discretion involved be abused.” 28 U.S.C. § 2680 (a); see also Holbrook, 673 F.3d at 350 (noting that the “exception applies ‘even if the discretion has been exercised erroneously’” (quoting United States v. Gaubert, 499 U.S. 315 , 338 (1991) (Scalia, J., concurring in part and concurring in the judgment)). The ultimate decisions of law enforcement officers need not be correct in order to be exempted from the FTCA’s waiver of sovereign immunity under the discretionary function exception. Plaintiff’s position would be akin to concluding that a district court did not exercise discretion in applying law to facts when its decision is later 10 overturned on appeal. This misunderstands both the nature of discretion and how human judgment is exercised. It is of course the case that many grants of immunity expressly contemplate that a mistake may be made without loss of a legal shield. See, e.g., Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347–51 (1871) (discussing judicial immunity). In this particular case, there is a dispute over the DHS officers’ mistake as to plaintiff’s derivative citizenship and plaintiff’s alleged concession of alienage before the immigration judge. We do not, however, see the debate over these particular facts as one that is dispositive. An immunity expresses a willingness to tolerate the occasional mistake in the service of a larger public good. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800 , 814 (1982) (including public goods such as protecting the public fisc from “the expenses of litigation,” preventing “the diversion of official energy from pressing public issues,” and avoiding “the deterrence of able citizens from acceptance of public office”). The discretionary function exception’s language—“whether or not that discretion be abused”—makes perfectly clear that the FTCA regime accepts a similar tradeoff. And, for immunity to have meaning, it must work to protect the government from the burdens of litigation, not just the burdens of an adverse judgment. See, e.g., Mitchell v. Forsyth, 472 U.S. 511 , 526–27 (1985). The common good here is, in part, grounded in the need for effective enforcement of immigration policy—a policy which touches upon vital national interests in law enforcement at the borders. See, e.g., United States v. Flores-Montano, 541 U.S. 149 , 152–53 (2004) (recognizing heightened government interest in law enforcement at its borders). And while it may not appear that an individual arrest and detention has broad 11 policy implications, it is inescapable that when considered in the aggregate, the drawbacks of accepting plaintiff’s position are quite large. A system in which every instance of mistaken arrest or detention could give rise to a suit in tort would seriously hamstring DHS in its efforts to enforce immigration law. Not surprisingly, Judge Learned Hand put it best: “[T]o submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579 , 581 (2d Cir. 1949). B. Next, we turn to the second Berkovitz prong—whether the DHS officers’ actions were “based on considerations of public policy.” Berkovitz, 486 U.S. at 537 . The relevant inquiry here is not whether the decisions in question occurred at a “planning” level or “whether policy considerations were actually contemplated in making a decision,” Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201 , 208 (4th Cir. 2002); rather, the proper inquiry is whether, considering “the inherent, objective nature of the challenged decision[s],” they are “actions of the type normally thought to involve policy choices,” Baum, 986 F.2d at 721. As the Supreme Court has noted, the grant of discretion “creates a strong presumption that a discretionary act” so authorized “involves consideration[s]” of public policy. Gaubert, 499 U.S. at 324 . In the instant case, it is clear for many of the reasons above discussed that plaintiff has failed to meet his burden of establishing that there are no considerations of public policy in this case. DHS officers’ decisions in investigating and responding to potential 12 violations of immigration law are infused with public policy considerations. See Medina, 259 F.3d at 228–29 (holding that the decision to arrest and detain immigrant was “clearly clothed in public policy considerations”); see also Gray v. Bell, 712 F.2d 490 , 513 (D.C. Cir. 1983) (“Prosecutorial decisions as to whether, when and against whom to initiate prosecution are quintessential examples of governmental discretion in enforcing the criminal law, and, accordingly, courts have uniformly found them to be immune under the discretionary function exception.”). First, since they cannot catch all violators, DHS officials must allocate limited agency resources so as to prioritize the most important cases. See Borzilleri v. Mosby, 874 F.3d 187 , 191 (4th Cir. 2017) (recognizing in the First Amendment context that prosecutors must make policy judgments in allocating limited resources). In deciding how to investigate Blanco’s claims and what to do with that information, the officers exercised discretion in allocating their time, legal resources, and detention capacity. Second, in making these immigration enforcement decisions, the executive must confront issues which have “the natural tendency to affect diplomacy, foreign policy, and the security of the nation.” Tun-Cos v. Perrotte, 922 F.3d 514 , 526 (4th Cir. 2019) (quoting Mirmehdi v. United States, 689 F.3d 975 , 983 (9th Cir. 2012)). Taken together, these resource and foreign policy considerations demonstrate that Blanco has not met his burden on the second Berkovitz prong. C. Plaintiff is correct that this decision, combined with our Tun-Cos opinion on the availability of a Bivens suit, leaves potential victims of allegedly tortious actions by immigration officials without recourse to money damages. But that absence is not due to 13 the judiciary, but rather Congress, which need not have waived immunity at all. Going back to the English Chancery, waivers of immunity have always been acts of grace, not of right. See 1 William Blackstone, Commentaries *243 (“[I]f any person has, in point of property, a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion.”). The safeguards against unfortunate mistakes in this whole field lie not in a tort action but in the elaborate administrative removal process, which involves multiple proceedings before an immigration judge, the Board of Immigration Appeals, and, finally, the federal courts. See 8 U.S.C. §§ 1229a, 1252; 8 C.F.R. §§ 1003.1 –.3. Finally, we note that plaintiff’s position would throw us into conflict with other courts, which is never desirable in an area such as immigration, where the national interest across many different regions is the same as we have annunciated here. See Arteaga-Ruiz v. United States, 705 F. App’x 597, 598 (9th Cir. 2017). Discretionary decisions by DHS officials lie at the heart of national immigration policy and the potential interference of plaintiff’s tort suit with the effectuation of that policy is clear. IV. The government advances many other reasons why Blanco’s claim should be defeated: the FTCA’s due care exception, the FTCA’s judicial immunity exception, the FTCA’s statute of limitations, and the Immigration and Nationality Act’s jurisdictional bar. Because the discretionary function exception applies so plainly here, we need not consider the government’s other arguments. For the foregoing reasons, the judgment is AFFIRMED. 14

2020-12-02 20:00:39.96308+00

http://www.ca10.uscourts.gov/opinions/19/19-2119.pdf

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS December 2, 2020 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 19-2119 v. JESUS GOMEZ-ARZATE, Defendant - Appellant. _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 19-2121 GUILLERMO MARTINEZ-TORRES, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. Nos. 1:18-CR-01960-WJ-2 and 1:18-CR-01960-WJ-1) _________________________________ Sylvia Baiz, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant Martinez-Torres; and Michael Garey, Santa Ana, California for Defendant-Appellant Gomez-Arzate. Nicholas Ganjei, Assistant United States Attorney (and John C. Anderson, United States Attorney, on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee. _________________________________ Before LUCERO, KELLY, and BACHARACH, Circuit Judges.  _________________________________ KELLY, Circuit Judge. _________________________________ Defendant-Appellants Guillermo Martinez-Torres and Jesus Gomez-Arzate entered a conditional plea of guilty to conspiracy to possess with intent to distribute methamphetamine, 21 U.S.C. § 846 , 841(b)(1)(A), reserving a right to appeal the district court’s denial of their motions to suppress physical evidence and statements made during a traffic stop. See United States v. Martinez-Torres, No. 1:18-cr-1960 WJ-1, 2019 WL 113729 (D.N.M. Jan. 4, 2019). Each was sentenced to 63 months’ imprisonment and five years of supervised release. On appeal, they contend that their initial traffic stop was invalid, the resulting detention was unlawfully extended and without valid consent, and the deputies’ search of their car exceeded the scope of consent.1 We have jurisdiction under 28 U.S.C. § 1291 and we affirm. Background On the morning of May 17, 2018, defendants were driving their vehicle (a Kia Soul) eastbound on I-40. Bernalillo County Sheriff’s Deputy Joshua Mora was conducting routine traffic enforcement. He noticed the defendants’ vehicle swerving within the right-hand lane and crossing over the white shoulder line twice. He also noticed that the front driver’s side tire appeared to be angled or out of alignment. 1 We grant Mr. Gomez-Arzate’s unopposed motion to incorporate Mr. Martinez-Torres’ arguments pursuant to Federal Rule of Appellate Procedure 28(i). 2  After pulling the vehicle over and activating his audio recorder, Deputy Mora approached the passenger side window where Mr. Gomez-Arzate was seated. He immediately sensed a strong odor of air freshener. He attempted to explain to the defendants why he pulled them over, but realized there would be difficulty in communicating due to a language barrier. Upon request, Mr. Martinez-Torres provided a California driver’s license, a Texas vehicle registration in the name of a third party, and proof of insurance. Deputy Mora then asked Mr. Martinez-Torres to exit the vehicle and join him on the passenger side. About three minutes into the stop, Deputy Mora radioed Deputy Daniel Mauricio for assistance in translating. While waiting for Deputy Mauricio, Deputy Mora began filling out a warning citation. Mr. Martinez-Torres explained that the misaligned tire was due to a previous accident, and he asked Deputy Mora if he wanted to know the “motive of [their] trip.” 3 Aplt. Gomez-Arzate App. 335. However, Deputy Mora told Mr. Martinez-Torres to hold off until Deputy Mauricio arrived. Approximately 10 minutes into the stop, Deputy Mauricio arrived and explained to Mr. Martinez-Torres that Deputy Mora had seen the vehicle swerve and there appeared to be a problem with the left front tire. Mr. Martinez-Torres explained that a bent wheel was due to a previous accident. The deputies then asked Mr. Martinez-Torres for permission to check the vehicle’s VIN numbers and Mr. Martinez-Torres replied that it was “okay.” Id. at 339 . This request occurred about 11 minutes into the stop and approximately one 3 minute after Deputy Mauricio arrived. They also told Mr. Gomez-Arzate that they were going to check the VIN numbers, and he also said “okay.” Id. at 340 . While checking the VIN numbers, Deputy Mauricio asked Mr. Gomez-Arzate whether he could ask him some additional questions about his travel plans. Mr. Gomez-Arzate said “[o]h, yes,” id. at 340–41, and told the deputies that he and Mr. Martinez-Torres were traveling from California to Dalhart, Texas, then on to Dumas, Texas, both near Amarillo. When asked who owned the vehicle, Mr. Gomez-Arzate responded that it belonged to a man in Dumas, Texas who let them borrow it. They were travelling from California to Texas, staying three or four days to make a house habitable, and then returning with family. About 15 minutes into the stop, the deputies told Mr. Martinez-Torres that they were going to give him back his documents as well as a warning citation for careless driving, N.M. Stat. § 66-8-114, and that he would not have to go to court or pay anything. Mr. Martinez-Torres signed the citation approximately 16 minutes into the stop. As Mr. Martinez-Torres began walking back to his vehicle, Deputy Mora yelled to him, “Guillermo!” Id. at 346. When he walked back, the deputies asked, “do you understand you’re free to go? But we wanted to ask you some more questions, if that’s okay.” Id. And again, “[d]o you – do you understand that you are – you are free to go?” Id. Mr. Martinez-Torres responded “[y]es.” Id. The deputies began asking him questions about their travel plans. Mr. Martinez-Torres told the deputies that they were travelling from Santa Ana, 4 California, to Amarillo, Texas. He and Mr. Gomez-Arzate were going for three or four days to see a house and visit friends. But, Mr. Martinez-Torres said that he did not know the name of the person they planned to visit. When asked who owned the vehicle, Mr. Martinez-Torres said that it was Mr. Gomez-Arzate’s, and that they had picked it up in Amarillo and driven to California. The deputies then returned to the vehicle to talk to Mr. Gomez-Arzate. They told him that they gave Mr. Martinez-Torres a warning and said, “we told him that he’s free to go, and we’re going to ask you more questions. Do you understand you’re free to go? But we wanted to ask you some more questions, if that’s fine with you.” Id. at 353. Mr. Gomez-Arzate said that he understood and that it was no problem. Mr. Gomez-Arzate proceeded to reiterate their travel plans: they were going to Dumas, Dalhart, and Hartley, Texas, where there was a cattle ranch and they planned to clean a house. He obtained the vehicle from the ranch when his truck broke down. When asked the name of the owner of the vehicle, Mr. Gomez-Arzate said that he did not know the owner’s name but knew the owner’s friend, whose name was Jackie or Ezequiel. The deputies turned back to Mr. Martinez-Torres and asked if he was responsible for everything in the vehicle. He claimed responsibility for only his clothes and bookbag. He denied having any drugs, weapons, or large bulk currency. The deputies then asked if they could search the car, but Mr. Martinez-Torres’ response was inaudible on the recording. 5  While Mr. Martinez-Torres waited, Mr. Gomez-Arzate claimed responsibility for his bag and a cooler and also denied that the vehicle contained any drugs, weapons, or large bulk currency. Finally, the deputies asked him, “[c]an we check the car and your – your things?” Id. at 367. Mr. Gomez-Arzate responded, “[y]es, you can check.” Id. The deputies provided each of the men with a Spanish consent-to-search form, which they signed. The deputies asked the men to stand about 25–50 yards away while they searched the vehicle and told Mr. Martinez-Torres that he was free to call his daughter. At this point the audio recording concluded, approximately 33 minutes after the initial stop, and the deputies began their search of the car. During the search, they noticed that the car’s fender was not flush, so they removed it but later reattached it. One of the defendants even offered to assist with reattaching the fender. The deputies also removed the air filter, but nothing else was done to the engine. Finally, Deputy Mora noticed tooling marks on the right rear quarter panel, so he pulled back the panel slightly and discovered a circular void. He removed the panel and discovered two packages, wrapped in black tape. The packages contained approximately seven pounds of methamphetamine. The entire search of the vehicle lasted a total of 90 minutes. Discussion When reviewing a district court’s denial of a motion to suppress, we review findings of fact for clear error, and view the evidence in the light most favorable to 6 the government. United States v. Hernandez, 847 F.3d 1257 , 1263 (10th Cir. 2017). We review de novo the determination of whether the search and seizure were reasonable under the Fourth Amendment. Id. A. Fourth Amendment We first consider whether the traffic stop was invalid, whether the stop was unconstitutionally prolonged, and whether the deputies’ search of the car exceeded the scope of consent. The Fourth Amendment provides: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. A traffic stop constitutes a “seizure” and “therefore must be conducted in accordance with the Fourth Amendment.” Heien v. North Carolina, 574 U.S. 54 , 60 (2014). a. Initial Justification for the Traffic Stop At the outset, Mr. Gomez-Arzate and Mr. Martinez-Torres argue that the initial traffic stop was not justified, claiming that Deputy Mora did not have reasonable suspicion to initiate the traffic stop. The district court concluded that, by swerving within his lane and twice touching the solid white line, there was reasonable suspicion that Mr. Martinez-Torres violated two driving laws: New Mexico Statutes § 66-7-317(A) (driving on roadways laned for traffic) and § 66-8-114 (careless driving). Martinez-Torres, 2019 WL 113729 , at *4–5. We agree that there was reasonable suspicion that Mr. Martinez-Torres violated the roadways-laned-for- traffic statute, and we need not address the other. 7  A traffic stop is reasonable if it is “justified at its inception and, in general, the officer’s actions during the stop must be reasonably related in scope to the mission of the stop itself.” United States v. Mayville, 955 F.3d 825 , 829 (10th Cir. 2020) (quoting United States v. Cone, 868 F.3d 1150 , 1152 (10th Cir. 2017)). A traffic stop is justified when the officer has “reasonable suspicion — that is, a particularized and objective basis for suspecting the particular person stopped of breaking the law.” Heien, 574 U.S. at 60. New Mexico law provides that “a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” N.M. Stat. Ann. § 66-7-317 (A) (1978). Defendants contend that the initial stop was not justified by reasonable suspicion because, even if the car had touched the solid white line twice, Mr. Martinez-Torres had not violated § 66-7-317(A). In determining whether a violation occurs, New Mexico courts have adopted a totality of the circumstances approach that “takes into account whether there were any weather conditions, road features, or other circumstances that could have affected or interfered with a driver’s ability to keep his or her vehicle in a single lane.” State v. Siqueiros-Valenzuela, 404 P.3d 782 , 787 (N.M. Ct. App. 2017). Here, the district court credited Deputy Mora’s account of the vehicle swerving and straddling the solid white line two times. See Martinez-Torres, 2019 WL 113729 , at *5. Given that there were no additional circumstances — such as adverse weather conditions or 8 obstructions in the road, id. — it was objectively reasonable for Deputy Mora to conclude that Mr. Martinez-Torres violated § 66-7-317(A). b. Deputies’ Conduct During the Traffic Stop We turn next to the defendants’ argument that the deputies unreasonably prolonged the detention by asking questions related to their travel plans and checking the car’s VIN number. This argument turns on “whether the stop’s ‘manner of execution unreasonably infringe[d]’ upon Defendant’s Fourth Amendment rights.” United States v. Mayville, 955 F.3d 825 , 829 (10th Cir. 2020) (alteration in original) (quoting Illinois v. Caballes, 543 U.S. 405 , 407 (2005)). The length of a traffic stop is analyzed in the context of the stop’s “mission,” which covers “address[ing] the traffic violation that warranted the stop and attend[ing] to related safety concerns.” Rodriguez v. United States, 575 U.S. 348 , 354 (2015) (citation omitted). The deputies’ authority to seize the vehicle’s occupants “ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.” Id. A traffic stop cannot be constitutionally prolonged unless “(1) the seized individual consents or (2) the officer has independent reasonable suspicion of criminal wrongdoing on behalf of the seized individual that justifies further investigation.” United States v. Cortez, 965 F.3d 827 , 833 (10th Cir. 2020). A traffic stop’s “mission” includes determining whether to issue a ticket and “ordinary inquiries incident to [the traffic] stop.” Rodriguez, 575 U.S. at 355. These types of inquiries will include “checking the driver’s license, determining whether 9 there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Id. Furthermore, officers may take “negligibly burdensome precautions” in order to ensure their own safety during the stop. Id. at 356. Merely because officers could have possibly performed their task more quickly, does not, by itself, create a Fourth Amendment violation. Cortez, 965 F.3d at 837– 38. The district court broke the traffic stop into three segments. Minutes 0 to 11 occurred when Deputy Mora pulled over the vehicle, radioed Deputy Mauricio, and the officers explained to Mr. Martinez-Torres the reason he was pulled over. Minutes 11 to 16 involved the deputies checking the VIN numbers on the car, asking the defendants about their travel plans, and issuing Mr. Martinez-Torres the warning citation. Finally, minutes 16 to 33 of the stop involved further questioning about the defendants’ travel plans and concluding with signed consent-to-search forms. i. Minutes 0 to 11 The first 11 minutes of the traffic stop were conducted in a constitutionally valid manner. Although Deputy Mora was able to obtain Mr. Martinez-Torres’ driver’s license, the car registration, and proof of insurance, he believed it was prudent to have a translator to facilitate communication.2 This decision was entirely reasonable and did not impermissibly extend the stop. See United States v. Martinez, 2 Counsel for Mr. Gomez-Arzate conceded during oral arguments that Deputy Mora could call Deputy Mauricio in order to translate. See Oral Argument at 14:00, United States v. Martinez-Torres, Nos. 19-2119, 19-2121 (10th Cir. argued Sept. 24, 2020), https://www.ca10.uscourts.gov/oralarguments/19/19-2121.mp3. 10  983 F.2d 968 , 976 (10th Cir. 1992) (stating that the circumstances of the traffic stop justified calling a Spanish-speaking officer to assist in questioning); see also United States v. Ruiz, 412 F.3d 871 , 880 (8th Cir. 2005) (concluding that a stop that was extended 10 minutes so a Spanish-speaking officer could arrive was reasonable in scope and duration). Indeed, within the first minute of Deputy Mauricio arriving, he was able to explain to Mr. Martinez-Torres why he was pulled over, and Mr. Martinez-Torres was able to explain the reason his front tire appeared out of place. Thus, the first 11 minutes of the traffic stop — most of which was spent waiting for Deputy Mauricio — did not violate the Fourth Amendment. ii. Minutes 11 to 16 What occurred after the first 11 minutes forms much of the basis of defendants’ objections. During this five-minute interval, the deputies asked Mr. Martinez-Torres and Mr. Gomez-Arzate whether they could check the VIN numbers. After Mr. Martinez-Torres said it was okay, Deputy Mauricio asked Mr. Gomez- Arzate whether the deputies could ask him some questions about their travel plans. Mr. Gomez-Arzate said, “[o]h, yes.” 3 Aplt. Gomez-Arzate App. 340–41. This questioning lasted about three minutes, at which time the deputies returned to Mr. Martinez-Torres to explain and issue the warning citation. The defendants object to the VIN check and additional questions about their travel plans. They argue that the citation had already been written and explained 11 minutes in, such that the traffic stop had effectively been completed. The district court rejected the defendants’ arguments concluding that questions about travel plans 11 and VIN searches are within the scope of a traffic stop and were permissible. Martinez-Torres, 2019 WL 113729 , at *5–7. We disagree because in this particular case the traffic stop had effectively been completed once Deputy Mora had completed the paperwork and Deputy Mauricio had translated the paperwork to Mr. Martinez-Torres.3 As a result, the traffic stop was improperly prolonged from minutes 11 to 16. See Rodriguez, 575 U.S. at 354 (“Authority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.”). However, this does not automatically mean the evidence should be suppressed. “Evidence will not be suppressed as fruit of the poisonous tree unless an unlawful search is at least the but-for cause of its discovery.” United States v. Chavira, 467 F.3d 1286 , 1291 (10th Cir. 2006). A “but-for cause” is understood as the “factual nexus between the illegality and the challenged evidence.” Id. (quoting United States 3 With that said, the district court appears correct in its assessment that VIN searches and questions about travel plans can ordinarily be within the scope of a traffic stop. See, e.g., New York v. Class, 475 U.S. 106 , 115 (1986) (“[A] demand to inspect the VIN, like a demand to see license and registration papers, is within the scope of police authority pursuant to a traffic violation stop.”); United States v. Moore, 795 F.3d 1224 , 1229 (10th Cir. 2015) (“An officer may also generally inquire about the driver’s travel plans and ask questions . . . .”) (citation omitted); United States v. Williams, 271 F.3d 1262 , 1267 (10th Cir. 2001) (“[W]e have repeatedly held (as have other circuits) that questions relating to a driver’s travel plans ordinarily fall within the scope of a traffic stop.”); see also United States v. Chavira, 467 F.3d 1286 , 1289 n.1 (10th Cir. 2006) (explaining that there is no unlawful detention when the officer remains physically outside the car when examining the VIN). Here, though, the traffic stop had effectively been completed before the VIN search and questioning about travel plans. 12 v. Nava-Ramirez, 210 F.3d 1128 , 1131 (10th Cir. 2000)). In Chavira, we held that there was no but-for causation because the unlawful VIN search “uncovered no contraband” and there was no connection between the cell phone officers discovered and the subsequent search. Id. at 1291–92. We also concluded that there was “no indication that the trooper would not have requested or obtained consent to search the truck but for the inspection of the VIN on the doorjamb.” Id. at 1292. As in Chavira, there is no indication that Deputy Mora would not have requested (and obtained) consent to ask defendants additional questions. Deputy Mora testified that he had harbored suspicions from the outset of the stop based upon discrepancies in the driver’s documents, the overwhelming smell of air freshener, and the fact that defendants were travelling along a common contraband trafficking route. In contrast, he obtained largely innocuous information while performing the VIN search and briefly questioning Mr. Gomez-Arzate. It seems likely that Deputy Mora would have asked for consent to ask additional questions based on his initial suspicions even without the information he gleaned during minutes 11 to 16. Moreover, we conclude that both defendants would have given voluntary consent for additional questioning regardless of what occurred during minutes 11 to 16. As the district court found, “[e]ach time the Deputies requested permission to do something, Defendants freely gave consent.” Martinez-Torres, 2019 WL 113729 , at *12. Early on, Mr. Martinez-Torres asked Deputy Mora if he wanted to know the motive of the trip. There is no evidence suggesting coercion — the encounter was pleasant and cordial from start to finish. The defendants have simply failed to show 13 that “the evidence sought to be suppressed would not have come to light but for the government’s unconstitutional conduct.” Chavira, 467 F.3d at 1291 (quoting Nava- Ramirez, 210 F.3d at 1131 ). iii. Minutes 16 to 33 Next, we turn to what occurred after Deputy Mora returned Mr. Martinez- Torres’ documents and issued him a warning citation for careless driving. After issuing the citation, Mr. Martinez-Torres began walking back to the car when Deputy Mora turned around and yelled, “Guillermo!” 3 Aplt. Gomez-Arzate App. 346. Deputy Mora, through Deputy Mauricio, explained to Mr. Martinez-Torres that he was “free to go,” but asked if he could ask him some additional questions. After confirming that Mr. Martinez-Torres understood that he was free to go, the deputies began asking questions about their travel plans and who owned the vehicle. The deputies also went to Mr. Gomez-Arzate, who was sitting in the passenger’s seat of the car, and told him that they had issued Mr. Martinez-Torres a warning and that they told Mr. Martinez-Torres that he was free to go. The deputies then said to Mr. Gomez-Arzate, “[d]o you understand you’re free to go? But we wanted to ask you some more questions, if that’s fine with you.” Id. at 353. Mr. Gomez-Arzate responded that he understood and that it was no problem. At the conclusion of this additional questioning, both defendants signed a Spanish consent-to-search form. Defendants contend that after the documents had been returned, the encounter did not become consensual and the deputies lacked reasonable suspicion that would warrant prolonging the stop. The district court concluded that Deputy Mora had 14 reasonable suspicion to continue the stop due to the smell of air freshener; discrepancies with the license, registration, and proof of insurance; and the route they were traveling along. Martinez-Torres, 2019 WL 113729 , at *7–8. Furthermore, the district court concluded that reasonable suspicion grew due to the “implausible and inconsistent story” about the purpose of their travel, their explanations about who owned the car, and the defendants’ apparent nervousness. Id. at *8 . In the alternative, the district court held that after the traffic stop ended, there was a valid consensual encounter. Id. at *8–10. We agree with the district court and hold that the additional questioning during this time was pursuant to a consensual encounter. As mentioned, once a traffic stop is completed, the driver must be allowed to leave unless “(1) the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring, or (2) the initial detention has become a consensual encounter.” United States v. Bradford, 423 F.3d 1149 , 1156–57 (10th Cir. 2005); see United States v. Harmon, 742 F.3d 451 , 458–59 (10th Cir. 2014) (“An officer may continue questioning the driver if the stop has transitioned from a detention to a consensual encounter.”). A traffic stop can turn into a consensual encounter, which does not require reasonable suspicion, when the driver consents to additional questioning. Bradford, 423 F.3d at 1158 . However, a prerequisite for a consensual encounter is that the driver’s documents are returned. Id. The fundamental question we ask in these cases is whether “a reasonable person under the circumstances would believe [he] was free to leave or disregard the 15 officer’s request for information.” Id. (quoting United States v. Elliot, 107 F.3d 810 , 814 (10th Cir. 1997)). We follow a bright-line rule that requires the driver’s documents to be returned before the stop may be considered a consensual encounter, recognizing that merely handing back documents is not “always sufficient to demonstrate that an encounter has become consensual.” Id. Factors that we have found relevant to our analysis include: the location of the encounter, particularly whether the defendant is in an open public place where he is within the view of persons other than law enforcement officers; whether the officers touch or physically restrain the defendant; whether the officers are uniformed or in plain clothes; whether their weapons are displayed; the number, demeanor and tone of voice of the officers; whether and for how long the officers retain the defendant’s personal effects such as tickets or identification; and whether or not they have specifically advised defendant at any time that he had the right to terminate the encounter or refuse consent. United States v. Spence, 397 F.3d 1280 , 1283 (10th Cir. 2005) (quoting United States v. Zapata, 997 F.2d 751 , 756–57 (10th Cir. 1993)). While this list is not exclusive and no one factor is dispositive, we focus on “the coercive effect of police conduct, taken as a whole on a reasonable person.” Id. Once Deputy Mora returned Mr. Martinez-Torres’ paperwork, the traffic stop turned into a consensual encounter. The district court found that the deputies did not brandish their weapons, they were conversational in tone, there were only two or three deputies on the scene — none of which were positioned in a coercive manner, and it occurred in daylight and in public view. Martinez-Torres, 2019 WL 113729 , at *9. 16  As it relates to Mr. Martinez-Torres, who was standing outside of the car talking with the deputies, he was specifically asked twice whether he understood that he was free to go. Mr. Martinez-Torres responded, “yes.” See Spence, 397 F.3d at 1283 (stating that a relevant factor is “whether or not they have specifically advised defendant at any time that he had the right to terminate the encounter or refuse consent”); United States v. Sandoval, 29 F.3d 537 , 544 (10th Cir. 1994) (considering “whether the driver was informed of his right to refuse consent or to proceed on his way” as an important factor). Moreover, the deputies allowed Mr. Martinez-Torres to call his daughter and make sure she was up for school, which bears on the officers’ demeanor and whether the interaction was coercive. Mr. Martinez-Torres further argues that by calling him back to the police car, Deputy Mora was making a show of authority. We do not agree. The district court found that the officers were “polite and pleasant” and “did not convey an overbearing show of authority.” Martinez-Torres, 2019 WL 113729 , at *9. Merely calling out Mr. Martinez-Torres’ name to ask whether he would be willing to answer additional questions does not preclude finding a consensual encounter. Cf. United States v. Villegas, 554 F.3d 894 , 899 (10th Cir. 2009) (finding that consent was not involuntary simply because consent was solicited while the defendant had not completely exited the patrol car); Bradford, 423 F.3d at 1159 (finding that consent was not involuntary even though it was requested while the defendant was still in the patrol car). Thus, as to Mr. Martinez-Torres, this was a consensual encounter. 17  Mr. Gomez-Arzate, who was sitting in the passenger’s seat of the car, also consented to the additional questioning and was not unlawfully detained. Although he was not the driver and therefore did not give the deputies any documents, he was informed that Mr. Martinez-Torres had received his documents and a warning citation, and that Mr. Martinez-Torres was free to leave. The deputies also informed Mr. Gomez-Arzate that he was free to leave but sought his permission to ask further questions. Like Mr. Martinez-Torres, Mr. Gomez-Arzate agreed to answer the deputies’ questions. And again, there was no show of authority or coercion. Mr. Gomez-Arzate asserts that he did not voluntarily consent because he was a passenger in the car and was not privy to the conversation between the deputies and Mr. Martinez-Torres. However, merely being the passenger of the car does not render his consent involuntary. Rather, we must consider whether Mr. Gomez-Arzate could reasonably “believe [he] was free to leave or disregard the officer’s request for information.” Bradford, 423 F.3d at 1158 . Mr. Gomez-Arzate was informed of all the circumstances and was explicitly told that both he and Mr. Martinez-Torres were free to leave. Yet, Mr. Gomez-Arzate agreed to further questioning. Therefore, Mr. Gomez-Arzate’s reliance on Guerrero-Espinoza is misplaced. In that case, we determined that the passenger could have reasonably believed he was not free to leave because he was not aware that the warning had been issued and it appeared that the driver continued to be detained. United States v. Guerrero-Espinoza, 462 F.3d 1302 , 1309–10 (10th Cir. 2006); see also United States v. Yeomans, 211 F. App’x 753, 758 n.8 (10th Cir. 2007) (discussing Guerrero-Espinoza in the context of a case 18 where the driver and passenger remained together). Here, the deputies fully explained to Mr. Gomez-Arzate the circumstances of the stop and that both he and Mr. Martinez-Torres were free to go. Therefore, this was also a consensual encounter as to Mr. Gomez-Arzate. Even though we conclude that this was a consensual encounter, we note that the deputies also had sufficient reasonable suspicion to justify the extension of the traffic stop. When Deputy Mora first approached the car, he noticed the “overwhelming” scent of air freshener. The district court found that Deputy Mora knew from his training and experience that this was one method used to mask the smell of drugs. Next, he learned that Mr. Martinez-Torres had a California driver’s license, but the car was registered in Texas to an absent third party. See United States v. Pettit, 785 F.3d 1374 , 1382 (10th Cir. 2015) (“[I]n our case law, driving a vehicle registered to an absent third party can indicate drug trafficking.”). Moreover, Mr. Martinez-Torres was listed on the insurance but not on the registration, creating an additional layer of confusion. Then, once Deputy Mauricio arrived on the scene and the deputies were able to ask some questions about the defendants’ travel plans, suspicion grew. When Mr. Gomez-Arzate was asked who owned the vehicle, he indicated that it was loaned to him, but he could not recall the person’s name. However, when Mr. Martinez-Torres was asked who owned it, he said that it was Mr. Gomez-Arzate. This unusual story about who owned the car — especially when coupled with the fact that Mr. Martinez- Torres was listed on the insurance — only added to the deputies’ reasonable 19 suspicion. The defendants’ stories about what their plans were in Texas also did not help their cause. Pettit, 785 F.3d at 1381 (“We have consistently held that implausible travel plans can contribute to a reasonable suspicion.”). They told the deputies that they were going to Texas to see a ranch and clean up a house, but neither knew the name of the owner of the ranch, or the “friends” they were going to stay with. Although this questioning was under the umbrella of a consensual encounter, the totality of the circumstances created more than sufficient reasonable suspicion to justify the officer’s additional questions. c. Consent to Search the Vehicle The deputies finally obtained valid consent from both defendants to search the vehicle. As we have discussed, this traffic stop had transitioned into a consensual encounter, and there is no indication that the deputies had applied coercive measures. Thus, it is difficult to question the voluntariness of both defendants’ consent to allow the deputies to search the vehicle. Both defendants were orally asked whether they would agree to allowing a search of the car, and further, they both signed a Spanish language consent-to-search form. See United States v. Warwick, 928 F.3d 939 , 945 (10th Cir. 2019) (“A signed consent form indicates voluntary consent.”). The deputies also ensured that the defendants could read and understand the consent form. The district court’s conclusion that there was express and voluntary consent to search the car is amply supported by the record. 20  d. Scope of the Vehicle Search Mr. Martinez-Torres and Mr. Gomez-Arzate finally argue that the manner and duration of the deputies’ search of the car exceeded the scope of consent. We review for clear error the question of whether a search exceeds the scope and duration of consent, “which turns on what a reasonable person would have understood to be the scope and duration of his consent under the circumstances.” United States v. Rosborough, 366 F.3d 1145 , 1150 (10th Cir. 2004). While the consenting party can limit the scope of consent, absent such a limitation “[a] general grant of permission to search an automobile typically extends to the entire car.” Id. Additionally, we will consider whether the deputies conducted the search of the car diligently. Id. at 1151 . As the district court highlighted, Mr. Martinez-Torres and Mr. Gomez-Arzate did not provide any limitations on the scope of the car nor did they object to the duration of the search. This lack of objection indicates that the defendants’ consent was not confined by time or location. Id. Furthermore, the search lasted 90 minutes, which is in the realm of reasonable duration under our case law. See id. at 1151 n.1 (collecting cases). Mr. Martinez-Torres and Mr. Gomez-Arzate also contend that the search exceeded the scope of consent by being especially intrusive. However, as indicated, the defendants’ general consent to search the car undercuts that argument. We have allowed deputies searching a car under a grant of general consent to effect some dismantling, and minor damage “does not by itself render a search excessive.” United States v. Mendoza, 817 F.3d 695 , 701 (10th Cir. 2016); see United States v. 21 Marquez, 337 F.3d 1203 , 1209 (10th Cir. 2003) (noting that many of our cases allow “an officer’s partial dismantling of an automobile pursuant to a general consent to search when the suspect did not object”). Here, the district court found that the deputies removed the air filter, took items out of the trunk, and removed and replaced the fender. Deputy Mora removed a rear quarter panel after seeing tooling marks and noticing a void behind the panel. Otherwise, the district court determined that “[t]here [was] no evidence of any further dismantling of the car.” Martinez-Torres, 2019 WL 113729 , at *3 (quotations omitted). As with the duration of the search, this case is not beyond the realm of reasonable searches of the car, and again, the defendants never objected. Indeed, one of the defendants even offered to help replace the fender, further buttressing the district court’s conclusion that the search was within the scope of consent. Defendants rely on United States v. Osage to argue that the deputies took the car apart and effectively dismantled it, thus exceeding the scope of consent. In Osage, the court held that “before an officer may actually destroy or render completely useless a container which would otherwise be within the scope of a permissive search,” the officer needs either explicit consent or another valid justification. United States v. Osage, 235 F.3d 518 , 522 (10th Cir. 2000). Although the deputies may have removed parts of the car, there is no indication that they destroyed or rendered the car completely useless. Indeed, the deputies appear to have reattached the fender that was removed and replaced the air filter. While the rear quarter panel may not have been replaced, we do not think this was the “complete 22 and utter destruction or incapacitation” that was at issue in Osage. Id. at 521 n.2. The search was pursuant to consent and lawful. AFFIRMED. 23

2020-12-02 20:00:47.537757+00

http://media.ca11.uscourts.gov/opinions/unpub/files/202011390.pdf

USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 1 of 22 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-11390 Non-Argument Calendar ________________________ D.C. Docket No. 1:18-cv-24554-CMA YOELMY FERNANDEZ RODRIGUEZ, Plaintiff - Appellant, versus NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant - Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (December 2, 2020) Before ROSENBAUM, ANDERSON and DUBINA. PER CURIAM:  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 2 of 22 Appellant Yoelmy Fernandez Rodriguez (“Rodriguez”) appeals the district court’s order adopting the magistrate judge’s report and recommendation (“R&R”) that granted summary judgment to the Social Security Commissioner (“Commissioner”), concluding that the Administrative Law Judge (“ALJ”) properly denied Rodriguez’s applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Based on our review of the record, and after reading the parties’ briefs, we affirm the district court’s order. I. Rodriguez is a 43-year old male, who has a 12th grade education and difficulty communicating in English. He previously worked as a warehouse worker/stocker before his alleged disability. He applied for DIB and SSI on July 28, 2015, alleging a disability onset date of June 1, 2013. In his disability report, Rodriguez stated that the conditions limiting his ability to work were his nerves and his bipolar disorder. He noted that he stopped working because his employer dismissed him for reasons unrelated to his health. In his functional report, Rodriguez asserted that his conditions limited his ability to work because he was disoriented, could not cope with stress, and suffered from insomnia. He stated that he was very depressed, stayed in bed most of the day and did not leave his house often. He explained that his conditions limited his communication skills, memory, concentration, understanding, and completion of tasks. 2  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 3 of 22 Rodriguez’s friend and roommate, Yohan Torres (“Torres”), completed a third-party function report, stating his observations that Rodriguez’s conditions limited his ability to work because he was not able to perform well in a social environment. Torres also explained that Rodriguez’s close friends noticed that Rodriguez had changed significantly since the onset of his conditions. Torres reported that Rodriguez performed light housework, went grocery shopping, handled money, and spent time with family and close friends. The Commissioner denied Rodriguez’s claim initially and on reconsideration. Rodriguez requested a hearing before an ALJ. At the hearing in October 2017, Rodriguez’s counsel amended his disability onset date to August 19, 2015. Rodriguez testified that he had completed his high school education in Cuba, had never married, and did not have children. He stated that he previously worked in supermarkets and similar stores stocking merchandise and that he held these jobs from 2002 to 2012. He explained that his psychiatric problems began around the time his long-term partner raped his 12-year-old nephew. He stated that he began hearing voices, he enjoyed nothing, had no desires, slept very little during the night, did not enjoy being around other people, and mainly reclined during the day. At the time of the hearing, he lived with his mother, who did most of the cooking and cleaning for him. He admitted to using social media and playing video games on his phone, drinking alcohol when he was desperate and smoking 3  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 4 of 22 cigarettes. He testified that he could not work because he did not have the desire to do anything and at times he gave “bad responses to people.” (R. Doc. 14 at 40– 49.) A vocational expert (“VE”) testified that Rodriguez previously worked as a warehouse worker, which equated to medium level work. The ALJ asked the VE to assume a hypothetical: whether an individual of Rodriguez’s age, education, and work history, who was limited to simple, routine and repetitive tasks that were not conducted at production rate pace, only had occasional interaction with supervisors, co-workers, and the public and did not engage in tasks concerning the safety and welfare of others, could perform Rodriguez’s past work as a warehouse worker. The VE responded that the individual could perform such work. The ALJ also asked the VE to assume the same hypothetical scenario, but the individual was off task 20% of the day. The VE responded that such an individual would not be able to maintain employment. Rodriguez’s attorney questioned the VE and asked her to assume the same hypothetical individual described by the ALJ, but with the limitations described by Dr. Carlos Danger, a consultative psychiatrist: that Rodriguez had mild limitations in understanding, remembering, and carrying out simple instructions and that he had marked limitations with more complex instructions, interacting with others, and responding appropriately to usual work 4  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 5 of 22 situations. The VE admitted that such an individual, with these limitations, would not be able to engage in substantial gainful activity. (R. Id. at 49–53.) The ALJ also had medical evidence in the record postdating Rodriguez’s application. This evidence showed that on August 19, 2015, Rodriguez visited Vivian Gonzalez-Diaz, Ph.D. for a consultative psychological examination at the request of the state agency. At the exam, Rodriguez reported loss of energy, lack of motivation to perform tasks or chores, increased appetite, difficulties concentrating, feelings of worthlessness, occasional auditory hallucinations, lack of motivation to get out of bed at times, tremors at times, passive death wishes at times, and weekly panic attacks characterized by an abrupt period exhibiting accelerated heart rate, tremulousness, and sweatiness. (R. Id. at 357–60.) Rodriguez stated that his symptoms began four years before, when his ex-partner sexually abused his nephew. Rodriguez denied suicidal thoughts and did not complain of delusions but stated that he had daily auditory hallucinations. Dr. Gonzalez-Diaz reported that Rodriguez’s behavior, attitude, and cooperation were adequate. Dr. Gonzalez-Diaz observed that Rodriguez was fully oriented in all spheres with goal-oriented associations, that his mental status examination revealed appropriate speech, a depressed mood, congruent affect, full orientation, logical associations and thought processes, normal stream of thought, and mild preoccupation and worries for his nephew. Dr. Gonzalez-Diaz diagnosed 5  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 6 of 22 Rodriguez as having low average intelligence and noted that his attention and concentration were adequate. He diagnosed Rodriguez with major depressive disorder, recurrent and severe, with psychotic features; tobacco use disorder, severe; and ruled out bipolar disorder, depressed type. He listed Rodriguez’s prognosis as fair/guarded. (R. Id.) The medical evidence also included a Psychiatric Review Technique form (“PRTF”) completed by Dr. Jennifer Meyer, Ph.D., a psychologist. The form indicated that Rodriguez had no restriction of activities of daily living, mild difficulties in maintaining social function, moderate difficulties in maintaining concentration, persistence or pace, and no repeated episodes of decompensation. In an accompanying Mental Residual Functional Capacity form, Dr. Meyer opined that Rodriguez had moderate limitations in his abilities to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and to respond appropriately to changes in the work setting. She further stated that Rodriguez would have difficulty responding to high-stress and fast- paced work environments, but he appeared capable of completing simple, repetitive tasks and adapting to simple, gradual changes in the work environment. 6  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 7 of 22 (R. Doc. 14 at 66–76.) In connection with a second state agency review of Rodriguez’s file, Dr. George Grubbs, a state agency psychological consultant, affirmed Dr. Meyer’s opinions and statements. (R. Id. at 81–90, 91–100.) The medical evidence also included a report from Dr. Geraldine Mattia, a psychiatrist with Jackson Health System. Rodriguez visited Dr. Mattia for treatment for his depression, which he disclosed began after his ex-partner molested a relative. Dr. Mattia noted that Rodriguez had a history of major depression with psychotic features. He observed Rodriguez to be withdrawn and tearful, prescribed medication, and directed him to return. Rodriguez visited Dr. Mattia again, complaining of occasional poor sleep. Dr. Mattia noted that Rodriguez had coherent and relevant speech. Rodriguez saw Dr. Mattia again two months later, complaining of poor sleep, anger, and irritability. Dr. Mattia believed that an increase in one of the prescriptions would help because Rodriguez was difficult, had limited insight and judgment, a paucity of words, and a high degree of irritability. (R. Id. at 364–70.) When Rodriguez returned to Jackson Health System in July 2016, Louis Antoine, M.D., reported that Rodriguez’s condition was stable. He had normal orientation, normal activity, fair eye contact, broad affect, logical thoughts, and no suicidal thoughts. In September 2016, Rodriguez went to Jackson Behavioral Health Outpatient for a follow-up on his major depression, and an advanced 7  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 8 of 22 practice registered nurse met with him and noted that Rodriguez exhibited labile affect and mood, was angry, verbally explosive, and biting his nails. In November 2016, Dr. Antoine reported that Rodriguez was less agitated, was oriented with fair eye contact, had logical thoughts, no delusions, and no suicidal ideas. In January 2017, Rodriguez reported increased depression due to a recent family member’s death. Dr. Antoine documented that Rodriguez had regular orientation and activity, fair eye contact, a broad affect, a normal mood, logical thought processes, no delusions, and fair judgment. In March, Rodriguez saw Dr. Antoine, who noted that Rodriguez’s judgment and insight appeared fair and he had no suicidal ideas. Because Rodriguez reported no side effects from his medications, Dr. Antoine directed him to continue them. (R. Id. at 380–96.) In April 2017, Rodriguez had a consultative psychiatric examination with Carlos Danger, M.D., at the request of the ALJ. Rodriguez reported feelings of anxiety, unwellness, depression, thoughts of helplessness and hopelessness, low self-esteem, difficulty functioning and maintaining a job, and auditory hallucinations. Dr. Danger noted that Rodriguez was taking multiple medications that made diagnosis on the bipolar spectrum a possibility. Dr. Danger stated that although Rodriguez may have exaggerated his symptoms, Rodriguez appeared to have an underlying psychiatric illness that interfered with employability. Following the examination, Dr. Danger opined that Rodriguez had mild limitations 8  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 9 of 22 in understanding, remembering, and carrying out simple instructions and that he had marked limitations with more complex instructions, interacting with others, and responding appropriately to usual work situations. Dr. Danger completed an accompanying Mental Medical Source Statement of Ability to do Work-Related Activities wherein he stated that, among other things, Rodriguez exhibited “marked” limitations in his abilities to carry out complex instructions, make judgments on complex work-related decisions, interact appropriately with the public, with supervisors, and with coworkers, and respond appropriately to usual work situations and to changes in routine work setting. (R. Id. at 372–76.) In May 2017, Rodriguez met with Dr. Antoine, who reported that Rodriguez had no marked limitations. In July, however, Rodriguez informed Dr. Antoine that he was continuing to hear voices, was agitated, had mood swings, anxiety, paranoia, difficulty sleeping, and nightmares. Dr. Antoine documented that Rodriguez had moderate limitations with normal orientation, logical thought process, and a stable mental status. Dr. Antoine directed Rodriguez to continue his medications. In September, Rodriguez reported to Dr. Antoine that he was not doing well because a recent hurricane had knocked out his electricity and he was afraid of the dark. Dr. Antoine documented that Rodriguez’s mental status examinations revealed moderate limitations with normal orientation, logical thought process, fair insight and judgment, and a stable mental status. Dr. Antoine 9  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 10 of 22 also noted that Rodriguez exhibited fair eye contact, labile affect, dysphoric mood, obsessional thought process, and paranoid delusions. (R. Id. at 392–96, 417–18.) II. After the hearing, the ALJ denied Rodriguez’s applications, concluding that he was not disabled. The ALJ applied the five-step sequential approach set forth in the regulations and found that Rodriguez had not engaged in substantial gainful activity since the alleged onset date and that he had severe impairments of affective mood disorder with psychosis and anxiety disorder (steps one and two). At step three, the ALJ found that Rodriguez did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ assessed Rodriguez’s residual functional capacity (“RFC”) (defined in 20 C.F.R. § 404.1545 as “the most you can still do despite your limitations”), to determine if he could perform his past relevant work (step four). The ALJ concluded that Rodriguez had the RFC to perform a full range of work at all exertional levels and limited him to simple, routine, and repetitive tasks, but not at production rate pace; only occasional interaction with supervisors, coworkers, and the public; and no tasks involving the safety and welfare of others. The ALJ found that Rodriguez’s allegations were inconsistent with his mild objective medical findings, his daily activities, and the opinions of the state agency 10  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 11 of 22 psychological consultants. The ALJ considered the treatment records of the doctors and explained that she did not give great weight to Dr. Danger’s opinion because Rodriguez’s medical examinations did not reveal he was as limited as Dr. Danger opined. The ALJ gave weight to the opinions of Drs. Meyer and Grubbs, finding their opinions consistent with Rodriguez’s medical evidence. After assessing the RFC, the ALJ utilized the testimony of the VE to determine that Rodriguez could still perform his past work despite his impairments. Hence, the ALJ concluded that Rodriguez was not disabled as defined in the Social Security Act from his alleged onset date through the date of the decision. Rodriguez requested review of the ALJ’s decision, but the Appeals Council denied his request. Subsequently, Rodriguez filed a complaint in federal district court, seeking judicial review of the Commissioner’s decision. Rodriguez moved for summary judgment, arguing that the ALJ improperly assessed the medical opinions, that the ALJ failed to evaluate properly his paragraph B criteria and assess his RFC, and that the ALJ improperly assessed his subjective symptoms. The Commissioner opposed the motion and moved for summary judgment. In its R&R, the magistrate judge recommended that the district court deny Rodriguez’s motion for summary judgment and grant the Commissioner’s motion for summary judgment. The magistrate judge concluded that substantial evidence supported the ALJ’s evaluation of the opinion evidence in the record, and it 11  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 12 of 22 supported the ALJ’s evaluation of Dr. Danger’s opinion because he was a consultative physician and his opinion was not entitled to the same deference as a treating physician’s opinion. The magistrate judge found that the ALJ did not err in affording great weight to Drs. Meyer’s and Grubbs’s opinions because they were consistent with Rodriguez’s treatment records. The magistrate judge also concluded that the ALJ’s paragraph B criteria findings and RFC determination were supported by substantial evidence, in part, because the ALJ relied on Rodriguez’s treatment notes. The magistrate judge lastly concluded that the ALJ’s evaluation of Rodriguez’s subjective complaints was supported by substantial evidence because the ALJ relied on Rodriguez’s treatment notes to find that his description of his symptoms was not consistent with the medical evidence. Rodriguez objected to the R&R, reiterating his arguments from his motion for summary judgment. He also objected on the basis that the ALJ should have accorded more deference to Dr. Danger’s opinion. The district court overruled both objections, adopted the R&R, granted the Commissioner’s motion for summary judgment, and denied Rodriguez’s motion for summary judgment. Rodriguez filed a timely appeal. III. In Social Security appeals, we review the Commissioner’s decision for substantial evidence and its application of legal principles de novo. Moore v. 12  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 13 of 22 Barnhart, 405 F.3d 1208 , 1211 (11th Cir. 2005). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek v. Berryhill, ___ U.S. ___, ___, 139 S. Ct. 1148 , 1154 (2019). Substantial evidence requires more than a scintilla of evidence and is such relevant evidence as a reasonable person would accept as sufficient to support a conclusion. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176 , 1178 (11th Cir. 2011). “A preponderance of the evidence is not required.” Hunter v. Comm’r of Soc. Sec. Admin., 808 F.3d 818 , 822 (11th Cir. 2015). “A court may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].” Id. (quoting Phillips v. Barnhart, 357 F.3d 1232 , 1240 n.8 (11th Cir. 2004)). Thus, so long as the Commissioner’s decision is supported by substantial evidence, the court will defer to the decision, even if the evidence may preponderate against it. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155 , 1158–59 (11th Cir. 2004). The substantial evidence threshold “is not high” and defers to the presiding ALJ, who heard testimony and reviewed the medical evidence. Biestek v. Berryhill, ___ U.S. at ___, 139 S. Ct. at 1157 . IV. A. Whether substantial evidence supports the ALJ’s evaluation of opinion evidence from Rodriguez’s medical record 13  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 14 of 22 On appeal, Rodriguez argues that the ALJ failed to articulate the weight she accorded to Drs. Mattia’s and Antoine’s opinions, accorded inadequate weight to Dr. Danger’s opinion, and accorded too much weight to Drs. Meyer’s and Grubbs’s opinions. Specifically, Rodriguez contends that the ALJ did not accord any weight to the opinions of his treating physicians, and this court cannot conduct a meaningful review because the ALJ did not state clearly the weight, if any, accorded to their opinions. Rodriguez also claims that the ALJ did not provide substantial evidence to support her decision to give Dr. Danger’s opinion only partial weight, and the ALJ failed to explain how the evidence was inconsistent with his opinions. Furthermore, Rodriguez argues that the ALJ did not provide any examples of how Drs. Meyer’s and Grubbs’s opinions were more consistent with the treatment records than Dr. Danger’s opinions. Thus, Rodriguez asserts that the ALJ committed reversible error. The Commissioner responds that the ALJ fully considered the medical opinions in the record and properly explained the weight she gave to each opinion. The ALJ relied on the treatment notes of Drs. Mattia and Antoine to determine that Rodriguez could perform work within his RFC. Although Rodriguez challenges the ALJ’s consideration of these treatment notes, he does not point to an actual opinion by these doctors that was inconsistent with the ALJ’s RFC finding. The Commissioner further contends that the ALJ properly considered Dr. Danger’s 14  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 15 of 22 opinion and gave it partial weight because he was a non-treating physician and his opined limitations were not supported by Rodriguez’s medical examinations. Additionally, the Commissioner claims that the ALJ properly gave weight to Drs. Meyer’s and Grubbs’s opinions because their opinions were consistent with the medical evidence. Thus, the Commissioner asserts that the record in its entirety supports the ALJ’s decision. In evaluating an individual’s eligibility for SSI benefits, the Commissioner considers medical opinions from acceptable medical sources, including licensed physicians and licensed psychologists. 20 C.F.R. § 404.1502 (a) (2012).1 Medical opinions are “statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant’s] impairment(s), including [his] symptoms, diagnosis and prognosis, what [he] can still do despite impairment(s), and [his] physical or mental restrictions.” Id. at §§404.1527(a)(2), 416.927(a)(2) (2012). In determining an individual’s eligibility for DIB, the Commissioner considers the medical opinions and evidence in the record and generally gives more weight to an opinion from a treating source because the treating source is “likely to be the medical professional[] most able to provide a detailed, longitudinal picture” of the individual’s medical impairment. Id. at § 1 We cite to the relevant year’s rules that were in effect at the time of the ALJ’s decision and before the 2017 amendments. 15  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 16 of 22 404.1527(c)(2) (2012). Indeed, if the Commissioner finds a treating source’s opinion on the nature and severity of an impairment is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the record, the Commissioner will give the opinion “controlling weight.” Id. On review, an ALJ is not required to refer to every piece of evidence in her decision. See Dyer v. Barnhart, 395 F.3d 1206 , 1211 (11th Cir. 2005). Nevertheless, the ALJ must clearly articulate reasons for giving less weight to a treating physician’s opinion, and the failure to do so is reversible error, unless the correct application of the regulations would not contradict the ALJ’s ultimate findings. See Diorio v. Heckler, 721 F.2d 726 , 728 (11th Cir. 1983). “We will not second guess the ALJ about the weight the treating physician’s opinion deserves so long as he articulates a specific justification for it.” Hunter, 808 F.3d at 823. Based on our review of the record, we conclude that substantial evidence supports the ALJ’s evaluation of the opinion evidence in Rodriguez’s medical record. Drs. Mattia’s and Antoine’s treatment notes constituted medical opinions because they recorded the nature and severity of Rodriguez’s impairments, and his symptoms, diagnosis, and prognosis. 20 C.F.R. §§ 404.1527 (a)(2), 416.927(a)(2). Because the ALJ failed to articulate the weight she assigned to their opinions, she arguably erred in this respect; however, any error was harmless. The physicians’ 16  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 17 of 22 findings did not contradict the ALJ’s conclusion that Rodriguez was not disabled. Their treatment notes indicated that Rodriguez had fair judgment, insight, and logical thought process, and that he was responding well to treatment. In addition, their treatment notes did not provide any findings as to possible work-related limitations that Rodriguez might encounter, but rather support the ALJ’s finding that Rodriguez was able to perform simple, routine tasks and engage in structured interactions with others. Significantly, Rodriguez does not identify any of Drs. Mattia’s and Antoine’s opinions that are inconsistent with the ALJ’s finding. We also conclude that substantial evidence supports the weight that the ALJ accorded to Dr. Danger’s opinion. As a consultative physician, Dr. Danger was not entitled to the same deference that an ALJ would accord to a treating physician. 20 C.F.R. § 404.1527 (c)(1)-(4); § 404.1527(c)(2). Some of Rodriguez’s treatment notes undercut the severity of the limitations that Dr. Danger described and explain the ALJ’s decision to give partial weight to Dr. Danger’s opinion. Indeed, the ALJ relied on those treatment notes to determine that Rodriguez’s limitations were not as severe as Dr. Danger opined and to adjust his range of work to exclude working at production rate pace or performing tasks involving the safety and welfare of others. We also conclude that the ALJ did not err in according Drs. Meyer’s and Grubbs’s opinions great weight. The ALJ’s determination was consistent with 17  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 18 of 22 Rodriguez’s treatment notes because those notes revealed that he had fair judgment and insight, logical thought process, and was responding well to his treatment. Drs. Mattia, Antoine, and Danger also noted the same in their treatment notes. Additionally, Drs. Meyer’s and Grubbs’s opinions were consistent with Rodriguez’s treatment notes that indicate he was not limited to the severity that he described. Accordingly, based on the record, we affirm the district court’s order in this respect. B. Whether substantial evidence supports the ALJ’s paragraph B criteria ratings and evaluation of Rodriguez’s RFC On appeal, Rodriguez argues that substantial evidence does not support the ALJ’s finding regarding his RFC at step four because the ALJ’s rationale was entirely inconsistent with Dr. Danger’s opinions about his RFC. Rodriguez also challenges the ALJ’s reliance on Drs. Meyer’s and Grubbs’s opinions because they did not examine him, and he argues that because the ALJ’s determination regarding his paragraph B ratings is inaccurate, the ALJ’s RFC assessment is invariably flawed as well. The Commissioner responds that the ALJ fully evaluated Rodriguez’s condition using the PRTF, and the ALJ supported her ratings when she discussed Rodriguez’s daily activities, which did not support greater restrictions/limitations. The Commissioner also posits that Rodriguez’s medical records support the ALJ’s 18  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 19 of 22 ratings, and, importantly, Rodriguez does not identify what limitations were missing from his RFC. Thus, because the ALJ considered the entire record and provided substantial evidence to support her assessment of Rodriguez’s RFC, the Commissioner urges this court to affirm as to this issue. Social Security regulations outline a five-step, sequential evaluation process to determine whether an individual is disabled. See 20 C.F.R. § 404.1520 (a)(4). The ALJ must evaluate whether (1) the individual engaged in substantial gainful activity; (2) the individual has a severe impairment; (3) the severe impairment meets or equals an impairment in the Listing of Impairments; (4) the individual has the RFC to perform past relevant work; and (5) in light of the individual’s RFC, age, education, and work experience, there are other jobs the individual can perform. Phillips v. Barnhart, 357 F.3d 1232 , 1237 (11th Cir. 2004) (citing regulations). If the ALJ determines that the individual is not disabled at any step of the evaluation process, the inquiry ends. 20 C.F.R. §§ 404.1520 (a)(4), 416.920(a)(4). The RFC is “that which an individual is still able to do despite the limitations caused by his or her impairments.” Phillips, 357 F.3d at 1238 . The ALJ makes this determination by considering the individual’s ability to lift weight, sit, stand, push, pull, etc. 20 C.F.R. § 404.1545 (b). The individual’s residual functional capacity is then used to determine his or her capability for performing 19  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 20 of 22 various designated levels of work, such as sedentary, light, medium, heavy, and very heavy. See id. at § 404.1567. The ALJ considers all the record evidence in making the determination of the individual’s RFC. Phillips, 357 F.3d at 1238 . Based on our review of the record, we conclude that substantial evidence supports the ALJ’s findings regarding Rodriguez’s paragraph B criteria and his RFC at step four. The medical evidence showed that Rodriguez could care for himself, could prepare simple meals and perform housework, venture out of his home alone, and handle money. The medical evidence also noted that Rodriguez was consistently oriented to all spheres during his mental status examinations. Rodriguez did not report side effects from his medications, and Drs. Mattia, Antoine, and Danger noted that he was responding well to his treatment. As to the RFC, the ALJ discussed the treatment notes, noted that Rodriguez had not been hospitalized for his mental disorder, and that his daily activities reflected that he could function independently. The ALJ specifically accounted for the mild limitations that Rodriguez presented by limiting his RFC to exclude working at production rate pace or performing tasks involving the safety and welfare of others. Accordingly, based on the foregoing, we affirm the district court’s order as to this issue. C. Whether substantial evidence supports the ALJ’s evaluation of Rodriguez’s subjective allegations 20  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 21 of 22 Rodriguez asserts on appeal that the ALJ failed to assess properly his alleged symptoms because his description of his symptoms was consistent with the medical evidence. The Commissioner responds that the ALJ properly applied the standard for reviewing Rodriguez’s subjective complaints and that Rodriguez’s statements concerning the intensity, persistence, and functionally limiting effects of his symptoms were inconsistent with the medical evidence. The Commissioner posits that the ALJ articulated explicit, adequate reasons for her findings, and that Rodriguez fails to cite evidence from the medical record that allegedly supports his allegations. In sum, the Commissioner contends that the ALJ properly considered the entire record and provided substantial evidence to support her evaluation of Rodriguez’s subjective allegations. “In order to establish a disability based on testimony of pain and other symptoms, the claimant must satisfy two parts of a three-part test showing: (1) evidence of an underlying medical condition; and (2) either (a) objective medical evidence confirming the severity of the alleged pain; or (b) that the objectively determined medical condition can reasonably be expected to give rise to the claimed pain. Wilson v. Barnhart, 284 F.3d 1219 , 1225 (11th Cir. 2002); see also 20 C.F.R. § 416.929 (a). “If the ALJ discredits subjective testimony, he must articulate explicit and adequate reasons for doing so.” Wilson, 284 F.3d at 1226 . “Failure to articulate the reasons for discrediting subjective testimony requires, as a 21  USCA11 Case: 20-11390 Date Filed: 12/02/2020 Page: 22 of 22 matter of law, that the testimony be accepted as true.” Id. Additionally, “credibility determinations are the province of the ALJ, and [a court] will not disturb a clearly articulated credibility finding supported by substantial evidence.” Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780 , 782 (11th Cir. 2014). Based on our review of the record, we conclude that the ALJ’s determination that Rodriguez’s symptoms were not as severe as he alleged is supported by substantial evidence. Rodriguez’s treatment notes indicate that he had fair judgment and insight, logical thought process, and was responding well to his treatment. Moreover, the treatment notes undercut his description of his symptoms that he attested to during the hearing before the ALJ. In addition, his former roommate stated that Rodriguez was able to function independently, with only minor limitations. Accordingly, we conclude that substantial evidence supports the ALJ’s evaluation of Rodriguez’s subjective symptoms, and we affirm the district court’s order on this issue as well. We conclude from the record that substantial evidence supports the ALJ’s determination that Rodriguez is not disabled. Accordingly, based on the aforementioned reasons, we affirm the district court’s order adopting the magistrate judge’s R&R granting summary judgment to the Commissioner on Rodriguez’s claims for SSI benefits and DIB. AFFIRMED. 22

2020-12-02 20:02:26.058186+00

https://www.courts.ca.gov/opinions/nonpub/A158859.PDF

Filed 12/2/20 Yurasek v. Kesala CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO JASON YURASEK, Petitioner, Appellant and Cross-Respondent, A158859 v. (San Francisco County BOHDANNA KESALA, Super. Ct. No. FDI-12-778342) Respondent, Respondent and Cross-Appellant. Jason Yurasek, as guardian ad litem for his three sons, sought a domestic violence restraining order (DVRO) against his ex-wife Bohdanna Kesala. Following seven days of trial, the court entered a DVRO, and Kesala appeals, contending that the DVRO cannot stand for four separate reasons: (1) the trial court erroneously applied the law, and the DVRO is (2) not supported by substantial evidence, (3) violates due process, and (4) is overbroad. Kesala also asserts error in the exclusion of one item of evidence. We conclude none of Kesala’s arguments has merit, and thus affirm the DVRO. In the course of trial, Kesala filed a request for attorney fees, seeking $150,000. The trial court awarded her $80,000, the amount involved to contest the change in custody dispute between the parties. Yurasek appeals 1 that order, contending it is not supported by the Family Code and is against public policy. We disagree, and thus affirm that order as well. BACKGROUND The General Setting Yurasek and Kesala were married in 1994 and divorced in 2012. They have three boys, S. (born in 2004), O. (born in 2007), and L. (born in 2008). All three children testified at the 2019 trial, at which time they were 14, 12, and 10, giving testimony, we note, that the trial court expressly found to be “credible.” Yurasek and Kesala are both well educated professionals. Yurasek is the general counsel at a social media company. And Kesala has Bachelor of Science and Master of Fine Arts degrees, and currently earns a significant salary running the global licensing program at a university. Yurasek and Kesala separated in 2012, and in November of that year Yurasek filed a petition for dissolution. Working with Deepa Pulipati of the San Francisco Family Court Services, Yurasek and Kesala resolved the custody issue through mediation. And in 2014, the court entered a final judgment of dissolution providing for support and shared custody of the minor children—shared custody that remained the status until the 2019 trial here. According to the register of actions, there were no further contested proceedings relating to the dissolution of the marriage until 2017.1 But while there apparently were no issues necessitating court involvement, there were issues in the relationship, issues caused by various incidents where Kesala engaged in physical contact with the children. For example, in July 2014, In 2016 the trial court entered a stipulation and order 1 modifying child support. 2 Kesala grabbed S. by the shirt and twisted it, leaving an abrasive burn on his neck and shoulder, and in March 2018, she grabbed S. around the upper neck, leaving visible marks on his face. As to O., one time Kesala slammed his finger in a shower door, causing his nail to fall off; another time, she hit him in the back, leaving what was described as a “five star” mark. As 14-year-old S. described the incidents, there were “just random times when she’s mad or she can’t handle herself,” and “[y]ou never know when that’s going to happen.” Or as 12-year-old O. put it, “my mom can get really mad really easily,” and “she starts arguments very quickly.” In an incident Yurasek describes as “particularly troubling,” on an outing to buy a Christmas tree, Kesala left the boys unattended in a running car in the middle of a busy intersection to confront “four or five adult males wearing football jerseys and carrying dixie cups of beer” whom she felt were obstructing the intersection. Another driver stopped to intervene, and the men went away, but not before throwing a cup of beer that hit Kesala and one of the boys. When Yurasek learned of the incident, he told Kesala “you need to call the police”; she responded, “I can’t call the police because if I call the police they will arrest me because I punched him first.” Incidents with the children caused Yurasek concern over Kesala’s self- control and the well-being of the children. Yurasek attempted to address the concerns with her, but her fundamental response was to deny she had engaged in any abusive conduct with the children, and to cast blame on others, including Yurasek or the children. As Yurasek would put it at trial, “Whenever confronted with anything, she would always say it didn’t happen. I didn’t do it.” Yurasek contacted Ms. Pulipati, the Family Court Services mediator who, as noted, had negotiated the custody aspect of the dissolution. She was 3 unable to assist, and told Yurasek he would need “to get a private person,” that there was no “open matter” at the court. In October 2016, following an incident where Kesala had hit L. with a shoe, Yurasek was referred to Dr. Charles Brinamen, a family psychologist. Dr. Brinamen began working with the family, including regularly meeting with Yurasek and Kesala, in the course of which he counseled the parents against being physical with the children. In March 2018, after the incident in which Kesala grabbed S. by the neck, Yurasek went to Dr. Brinamen to, in Yurasek’s words, figure out “how are we going to stop this from happening again, and how can we make sure the kids have the ability to leave if their mom is losing it.” Kesala promised Dr. Brinamen that she would call Yurasek “when she was feeling overwhelmed,” and that the children could call Yurasek if “they were uncomfortable at their Mom’s” and the children could go to his house earlier than planned. And Yurasek agreed that if he were called on to take custody of the children from Kesala in these situations, he would not “use it against her.” Then came March 27, 2019. The March 27, 2019 Incident On the afternoon of March 27, a Wednesday, the boys were at Kesala’s house after school. Kesala went upstairs to her bedroom with the door closed to work, leaving the boys downstairs. L. and S. began arguing about a piece of cake and L. told S. he was going to go to his room. They both ran upstairs and shortly thereafter came back down, with S. sitting at the dining room table. L. pushed S., and S. may have tickled L. As O. described it, Kesala “got really mad” and “stumbled downstairs” and approached S. without pausing to give the boys the opportunity to speak. 4 She “like skip hops or leaps” at S., and grabs his face “really, really hard . . . with both of her hands” and pushes him “back . . . towards the corner of the room” about 10 feet away, holding his “face the entire time,” yelling “why do you have to hit your brothers?” S. was scared, thinking, “I want to get the hell out of here,” and protested, “mom, I didn’t do anything.” Kesala grabbed S.’s phone and “slammed it” on the dining room table, “started screaming at S. more,” “shoved his face into the chair,” and hit him with her fist, saying “this is what you do to your brothers. This is what you do, you hit them.” She yelled in S.’s ear “as close as possible,” causing S. to fall off the chair onto the floor and, while still grabbing his face, telling him, “you’re not feeling pain. This is not pain.” Kesala then grabbed S.’s arm and yanked him off the floor, yelling “why aren’t you looking at me, I’m your mother.” She then grabbed S. by the face again, scratching his chin, and pulled him to the stairs. S. went to his room and started crying, and Kesala “busted open” the door and began screaming about how S. was “disrespecting” her. When Kesala had first come downstairs, O. and L. were together in the living room. O. saw that Kesala was “really mad,” and told L. “get upstairs now,” which he did. O. then sent this text message to Yurasek: “Dad mom is abusing S. She started choking him and slapping him soo hard I was crying just staring at it. Mom kept in slapping so so so hard she was beating him like he was a punching bag she’s crazy. “Starring. “[S.]’s tromatized. [Sic.] “I’m scared. “See you at the spring concert.” 5  Yurasek, who was having a late lunch with a friend, called O. O. answered, and in a whisper told Yurasek he was hiding under the dining room table, and then cut the call short because he did not want Kesala to hear. Yurasek attempted to call Dr. Brinamen, who was unavailable, and then sent him a text message describing his call with O., summing up: “we are in another example of what do I do[?]” Dr. Brinamen did not immediately respond, and Yurasek called the police to ask them to check on the children. Officer Steve Colgan of the San Francisco Police Department went to Kesala’s house and asked to speak with the children alone. Kesala would not let him, and he left, but remained outside with other officers. While Officer Colgan was outside, Kesala told the children, “oh my God. Guys, why? Like why? This is all your fault. This is all your fault.” She demanded to see the text O. had sent Yurasek, and then “got, like really mad,” and said, “you guys are just like, horrible.” She then told S. “I’m going to get in serious trouble for this,” and, S. said, he “was scared that she was going to jail.” Yurasek had forwarded O.’s text to Officer Colgan, who determined that despite Kesala’s resistance he needed to talk to the children alone. He reentered the house, first interviewing Kesala and then each of the children. As all three would later describe it, they were afraid Kesala might get in trouble and in the interviews downplayed their mother’s conduct.2 Despite S. testified he “told the story, but in a very—I was really scared, 2 and I told, like, a—story not as, like what it is. I told it a little less intense. Asked what he was scared of, S. said, “my mom was going to jail.” O. testified, “So I didn’t want, like, my mom to get in trouble. So I didn’t really, like, say a lot what happened.” 6 the children’s interviews, Officer Colgan reported the incident to Child Protective Services, believing he had an obligation to do so. Kesala spoke with Dr. Brinamen by phone on the day of the incident, admitting she had grabbed S. by the face, hit him in the arm, and pushed him into a chair. She acknowledged that her conduct was “unacceptable” and that “things had gotten out of hand.” Dr. Brinamen asked Kesala and Yurasek to meet with him the next day. Yurasek agreed and Kesala initially did too. She later changed her mind and refused to meet, sending this email to Dr. Brinamen: “I’m not coming in to talk to Jason. It’s time that he stop himself from escalating and realize his behavior is detrimental to the boys because if he keeps doing this, the boys will not forgive him. They are already very upset with him and see him as the cause of this entire situation.” Kesala met with Dr. Brinamen two days later, who told her that the incident “was real problematic” and that even her own version of the story “was not ideal. And it wasn’t good for her or S.” Kesala responded by nodding her head and becoming teary-eyed.3 The Proceedings Below L. testified, “I told the story in a less—in, like, a lower exaggerated way of like how it actually happened. Because I thought when the police officers came that maybe, like, I would—it would affect my mom if I said something too bad.” 3 At trial Kesala would give an account of the incident in which she was not responsible. She essentially accused S. of giving perjured testimony. And she denied that she grabbed him by the face (“I just forcefully, but gently held his face”), and denied she pushed him, slammed his phone on the table, hit him, yelled at him, or that he was ever on the ground. In her mind, S. “wasn’t scared as hell. He was being obstinate,” claiming that S. deserved the treatment because he had a “smug look on his face.” She also blamed Yurasek, testifying that he had “gone way too far” by calling the police in response to the text from O. 7  On April 5, 2019, Yurasek, on behalf of the three minor children, filed a request for a DVRO based on the March 27 incident, stating that the application was sought “only reluctantly and only after our efforts to address the health and safety of our children were unsuccessful.” The court appointed Yurasek as guardian ad litem and issued a temporary restraining order (TRO) the same day, which TRO provided that Yurasek would have temporary legal and physical custody of the children, who would have supervised visitation with Kesala one day every weekend from 11:00 a.m. to 6:00 p.m. Two weeks after the TRO issued, Yurasek requested the court appoint a child custody evaluator as a court-appointed expert under Evidence Code section 700 and California Rules of Court, rule 5.250, and place the trial on the long-cause calendar. Kesala filed opposition and requested that the court “change the visitation orders that are attached to th[e] TRO.” The matter came on for hearing, during which Kesala’s counsel made an oral motion to remove Yurasek as guardian ad litem, on which the court ordered briefing.4 The court did not address Yurasek’s request for a custody evaluator as a court-appointed expert, but did modify the TRO by adding three hours to Kesala’s supervised visitations on Saturdays. Trial took place over seven days from May 21 to July 25. Yurasek, Kesala, Officer Colgan, and Dr. Brinamen testified in open court with traditional direct and cross-examination. The three children testified in the court mediator’s office, without counsel present, accompanied by Donna On the first day of trial, Kesala withdrew her objection to 4 Yurasek’s appointment as guardian ad litem. 8 Guillory, the Family Court Services Supervisor, who questioned the children, as did the court. On the last day of trial, Kesala sought to introduce a 26-minute videotape from the body camera worn by Officer Colgan, who had testified on the second day of trial. The trial court excluded the video as cumulative. On July 25, the court heard closing argument and, following a brief recess, announced its extensive findings and orders. Among other things, the court found that Kesala had committed domestic violence and issued a one- year restraining order for the protection of the three minor children. The court specifically found each of the children’s testimony to be “credible,” and specifically rejected Kesala’s contention that their testimony was “coached or somehow influenced by their father, Mr. Yurasek.” And the court expressly rejected Kesala’s argument that her conduct was nothing more than “the exercise of a parent’s authority to guide and discipline” children. The court ordered Kesala to continue with individual therapy, and granted temporary sole legal and physical custody to Yurasek, maintaining the visitation schedule set by the TRO. The court also ordered a “tier 2 interview for Family Court Services mediator to interview” the children, and a custody evaluation. On August 20, the court entered its DV-130 restraining order after hearing, from which Kesala filed her notice of appeal. The Attorney Fees Request On June 24, the fourth day of trial, Kesala filed an ex parte application seeking among other things modification of the TRO and an “order for attorneys’ fees of $150,000 and costs of $20,000 pursuant to Family Code section 2030.” Yurasek objected, and the court did not immediately rule on Kesala’s ex parte application, stating essentially that the request should be 9 made in the law and motion department. However, and as will be discussed in detail below, at the conclusion of trial the court announced it would deny Kesala “fees and costs related to the DVRO proceedings,” but that it was “going to order attorneys’ fees for the purpose of proceeding with the child custody proceedings under section 2030.” The court directed Kesala’s counsel to “break out the attorneys’ fees request and indicate what is needed on the child custody portion of the case, and separate it out from the fees incurred on the DVRO proceedings.” Following further briefing, by order of September 5 the court awarded Kesala $80,000 in attorney fees and costs. Yurasek paid those fees under protest and filed an appeal. DISCUSSION Summary of Kesala’s Argument Kesala’s brief sums up her appeal on page 13, that she appeals “on the following grounds”: “Kesala’s exercise of her fundamental right to engage in reasonable parental discipline constituted a complete defense. “The trial court’s application of law was erroneous; “The orders were not supported by substantial evidence; “The erroneous exclusion of video evidence was prejudicial; “The trial court violated Kesala’s procedural due process rights; and “The protective order is overbroad.” Page 41 of the brief elaborates on this, in the “Summary of Argument”: “The finding of disturbing the peace is not supported by substantial evidence of mens rea, thereby creating a strict liability offense. Kesala engaged in reasonable parental discipline, thereby affording her a complete defense. Reasonable parental discipline is a fundamental right that cannot be 10 enjoined. There was no substantial evidence the boys’ mental or emotional calm was destroyed or of causation. The trial court erroneously excluded the police video tending to disprove the boys’ peace was disturbed and which was the best evidence of their mental state resulting from the incident. The trial court violated Kesala’s due process rights by finding against her on an issue not advance[d] at trial. The protective order is overbroad because it prohibits lawful behavior and includes O. who was not afraid of Kesala.” Kesala is wrong on all counts. The Trial Court Properly Applied the Law in Finding Abuse The Statutory Scheme and the Standard of Review California law has a comprehensive statutory scheme aimed at the prevention of domestic violence: the Domestic Violence Protection Act (DVPA) found at Family Code sections 6200 et seq.5 Section 6220 sets forth the purpose of the DVPA: (1) to prevent the recurrence of acts of domestic violence and (2) to provide for a separation of those involved in order to resolve the underlying causes of the violence. Our colleagues in Division One distilled the applicable law in In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416 , 1424 (Evilsizor): “A court may issue an order enjoining specific acts of ‘abuse’ (§ 6218, subd. (a)), which are defined as, among other things, behavior that could be enjoined under section 6320. [Citation.] Section 6320, in turn, permits a court to enjoin a party from engaging in various types of behavior, including ‘disturbing the peace of the other party.’ (§ 6320, subd. (a).) ‘[T]he plain meaning of the phrase “disturbing the peace of the other party” in section 6320 may be properly understood as conduct that destroys the mental 5Statutory references are to the Family Code unless otherwise indicated. 11 or emotional calm of the other party.’ (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483 , 1497 (Nadkarni).)” In short, “abuse” is “not limited to the infliction of physical injury or assault,” but also includes “mental or emotional” harm as well. (Evilsizor, supra, 237 Cal.App.4th at p. 1425; see generally Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2019) ¶ 5:67b and numerous cases there cited.) And the phrase “disturbing the peace” must be broadly construed in order to accomplish the purpose of the DVPA. (Nadkarni, supra, 173 Cal.App.4th at pp. 1497–1498.) We review an order granting a DVRO for abuse of discretion. (Nadkarni, supra, 173 Cal.App.4th at p. 1495.) And as Evilsizor also noted: “In considering the evidence supporting such an order, ‘the reviewing court must apply the “substantial evidence standard of review,” meaning “ ‘whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,’ supporting the trial court’s finding. [Citation.] ‘We must accept as true all evidence . . . tending to establish the correctness of the trial court’s findings . . . , resolving every conflict in favor of the judgment.’ ” [Citation.]’ (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140 , 1143.)” (Evilsizor, supra, 237 Cal.App.4th at p.1424.) Our review under the abuse of discretion standard is based on well- settled principles, including these from the Supreme Court: Discretion is “abused” only when, in its exercise, the trial court “ ‘exceeds the bounds of reason, all of the circumstances before it being considered.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557 , 566; see Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 , 773 [“A ruling that constitutes an abuse of discretion has been described as one that is ‘so irrational or arbitrary that no reasonable person could agree with it’ ”].) 12  Finally, the trial court’s exercise of its discretion is measured against its “consisten[cy] with the statute’s intended purpose” (People v. Rodriguez (2016) 1 Cal.5th 676 , 685), which, as quoted above, are the two express purposes enshrined in the DVPA, both referencing the future. In short, while past acts of abuse “may” form an adequate basis on which to issue a DVRO, the purpose of such an order is still entirely prospective: to “prevent acts of domestic violence [and] abuse” in the future and to “provide for a separation of the persons involved . . . .” (§ 6220.) Faced with these principles, Kesala has a daunting challenge—a challenge she has not met. Kesala acknowledges that the “trial court found domestic violence on the lesser nonviolent [sic] ground of section 6320’s ‘disturbing the peace’ ” and argues that such a finding contains an “implicit” negation of any other form of abuse. This argument turns the standard of appellate review on its head, as we indulge every reasonable inference to support the trial court’s order, not to undermine it. More fundamentally, the argument provides no grounds for reversal, since the “disturbing the peace” standard in section 6320 provides ample grounds for the DVRO here. (Nadkarni, supra, 173 Cal.App.4th at pp. 1497–1498.) Kesala argues that she lacked the mens rea or “wrongful intent,” asserting that the trial court erred because her subjective intent “was to effect reasonable parental discipline, not to disturb the children’s peace or to hurt them,” and that “the Legislature expressly included a mental state requirement” in the DVPA, in essence requiring proof that she acted with “wrongful intent.” And, she claims, the trial court applied the wrong legal standard by creating a “strict liability offense” that dispenses with “a mens rea, scienter, or wrongful intent element.” 13  To begin with, Kesala has cited nothing supporting that section 6320 imposes a “mental state requirement” for all forms of abuse. The purpose of a DVRO is to protect victims of domestic abuse, and “the Legislature intended that the DVPA be broadly construed in order to accomplish [its] purpose.” (Nadkarni, supra, 173 Cal.App.4th at p. 1498.) We agree with Yurasek that “A child’s need for protection is just as great whether the abuser acts from malicious intent, the heat of passion, irresistible impulse, or a misguided sense of parental discipline.” But even if Kesala were correct, that the statute implicitly applies only to abuse committed intentionally, such was present here. Intentionally simply means “[t]o do something purposefully, and not accidentally.” (Black’s Law Dictionary (6th ed. 1990) p. 810.) Kesala admits she acted with “intent . . . to effect reasonable parental discipline.” And the trial court found that Kesala carried out this intent in a manner that constitutes “abuse” under the DVPA. Kesala argues that she has a “fundamental right” to discipline the children that “is not enjoinable,” and that her imposition of discipline cannot constitute “abuse” under the DVPA. This is very wrong, as perhaps best shown by Kesala’s acknowledgement in the first paragraph of her brief that “when discipline is excessive, a parent commits domestic violence or child abuse.” In any event, the trial court was fully cognizant of “a parent’s authority to guide and discipline your children,” and found that Kesala had crossed the line into “behavior that is enjoinable under the [DVPA].” And that finding is supported by substantial evidence. 14  The Trial Court’s Finding of Abuse is Supported by Substantial Evidence Introduction As will be discussed to some extent below, Kesala’s position on appeal is premised on her version of events, essentially disregarding the evidence adverse to her. For example, Kesala’s brief references her testimony that “I don’t hit my kids in anger” and “I don’t punish them with physical punishments for being bad,” but omits Dr. Brinamen’s testimony that Kesala had admitted to him that she “had hit [S.] in the arm” and “pushed him into a chair,” and that she referred to “her own conduct as unacceptable.” Kesala states that Officer Colgan “found no abuse,” but omits that all three children testified they toned down what they told Officer Colgan. Indeed, Kesala devotes an entire section of her brief—over five pages—challenging “S.’s credibility,” asserting that his version of the incident was “suspect” and “was contradicted by Yurasek,” all this in the face of the trial court’s express finding that S. and his brothers were credible, a finding binding here.6 (In re Marriage of Roe (1993) 18 Cal.App.4th 1483 , 1488.) This is most improper. California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant’s opening brief shall “[p]rovide a summary of the significant facts.” And the leading California appellate practice guide instructs about this: “Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias; and likewise as to the applicable law. [¶] Misstatements, misrepresentations and/or material 6 This is illustrated in Kesala’s brief which in its “Statement of Relevant Facts,” has headings describing O.’s “false text to Yurasek,” S.’s version of the incident was “suspect,” and there were “no indications of fear.” 15 omissions of the relevant facts or law can instantly ‘undo’ an otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions [citation], and may well cause you to lose the case!” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 9:27, p. 9-8 (rev. # 1, 2010, italics omitted.) Kesala’s brief ignores this instruction. Kesala’s brief also ignores the precept that all evidence must be viewed favorably to Yurasek. (Nestle v. Santa Monica (1972) 6 Cal.3d 920 , 925–926; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875 , 881.) In sum, what Kesala attempts here is merely to reargue the “facts” as she would have them, an argumentative presentation that violates the rules noted above, a treatment of the record that disregards the most fundamental rules of appellate review. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 365, 368 421–424, pp. 425–426.) As Justice Mosk well put it, such “factual presentation is but an attempt to reargue on appeal those factual issues decided adversely to it at the trial level, contrary to established precepts of appellate review. As such, it is doomed to fail.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388 , 398–399.) There was substantial evidence of abuse, substantial evidence to support the trial court’s express finding that Kesala “disturbed the peace” of the children, i.e., destroyed their mental or emotional calm. (Nadkarni, supra, 173 Cal.App.4th at p. 1497.) All three children testified to their fear of Kesala. And as shown above, Kesala physically and verbally attacked S. in front of O. and L., with O. so scared he told his younger brother to “get upstairs right now.” L. did, and shut his bedroom door and sat with his back against it, afraid Kesala was going to attack him like she had S. Meanwhile, O., who had texted his father, said in a phone call that he was under the 16 dining room table, a call he cut short because he was scared his mother would hear. And S. was so afraid after Kesala’s attack that he went to his room and cried until the police arrived. Moreover, Kesala’s conduct had repercussions on the children. Fourteen-year-old S. began crying while testifying about the incident, and still did not feel safe visiting Kesala without the nanny present. O.’s best friend noticed a change in O.’s demeanor after the incident. And L. thought about the incident “a lot” and, like S., felt safer at Kesala’s house when the nanny was present. Kesala herself acknowledged to Dr. Brinamen that her conduct during the March 27 incident had been unacceptable, that it was not good for her or S. In her words, for S. “there’s always going to be a before and after . . . this incident.” Dr. Brinamen agreed, testifying that Kesala’s behavior had been “problematic,” that she had subjected the children to “a really upsetting incident.” Such evidence is more than sufficient to support a finding that Kesala’s conduct destroyed the children’s peace and calm. That is disturbing the peace. (See, e.g., Nadkarni, supra, 173 Cal.App.4th at p. 1483; Burquet v. Brumbaugh, supra, 223 Cal.App.4th at pp. 1146–1147 [legal standard for disturbing the peace under DVPA different from that under Penal Code].)7 7 Kesala did not request a statement of decision. “In the absence of a request for specific findings, a reviewing court must imply in support of the judgment all reasonably necessary factual findings that may be inferred from the findings actually made.” (Union Bank v. Ross (1976) 54 Cal.App.3d 290 , 297.) In light of this, there is also substantial evidence to support an implied finding that Kesala attacked S. causing bodily injury and causing him to reasonably fear imminent serious harm. (§ 6203, subds. (a)(1), (a)(3).) As the boys testified, Kesala pounced on S. in the dining room, grabbing him by the face “really, really hard” and pushing him down into a chair, and then onto 17  The DVRO Did Not Violate Due Process Kesala argues that the trial court violated due process because she lacked notice that “the trial court was considering disturbing the peace” as a basis for the DVRO. The essence of the argument is that “disturbing the peace” was not the thrust of the trial and entered the case only in closing argument, when counsel for Yurasek argued it. By way of brief background, following the argument by Yurasek’s counsel, Kesala’s counsel had the opportunity to respond. This is what he said about “disturbing the peace”: “MR. O’KEEFE [counsel for Kesala]: So she made an argument that they proved that the kids—you know, that there was a disturbance of the peace. That’s not the standard in this case. You know, there’s a right to parental discipline and a right to use force. We didn’t even get to that level. “But the standard in this case is defined under Penal Code section 11165.6 which requires intent—the willful intent to harm or injure a child. So it’s not disturbing the peace. That’s not true. “She made a lot of references to [O.’s] texts and used that to show [O.] was scared because he said he was scared, but we know [O.] said that text was not true, including the part about him being scared.” That was it. There was no objection to “disturbing the peace.”8 the floor, hitting him multiple times with a closed fist. The attack left S. with scratches and bruises, an attack, it can be inferred, that caused all three boys to fear bodily injury. 8 Sixteen pages later, after the trial court announced its decision, counsel for Kesala referred again without objection to “the finding here is that it’s disturbance of the children’s peace and well-being.” 18  Then, when the trial court announced its decision, among other things finding Kesala’s conduct “enjoinable as disturbing the peace of the children,” counsel for Kesala again voiced no objection. In light of this, the argument Kesala raises here—that disturbing the peace was not involved—was not raised below. It was thus waived or forfeited. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784 , 1794 [“It must appear from the record that the issue argued on appeal was raised in the trial court. If not, the issue is waived”]; City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668 , 685 [contentions or theories raised for the first time on appeal are not entitled to consideration].) In any event, the argument would lose on the merits. To begin with, Kesala’s assertion that she lacked notice about “disturbing the peace” is belied by the record. The mandatory form DV-100 Yurasek filed expressly references the statutory definition of “abuse,” which includes disturbing a party’s peace. Even more importantly, the form had attached to it Yurasek’s declaration setting forth the facts regarding the incident on March 27 and numerous other facts. The declaration was nine pages long, and had 24 paragraphs, which among other things referred to the boys confirming “the physical and emotional abuse inflicted by their mother.” Kesala was on notice of what was involved, and it included emotional abuse. Beyond that, Kesala has not shown the claimed lack of notice was prejudicial such that a more favorable result would have been probable, which is what is required. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) While Kesala argues that “she would have approached the case differently,” she does not elaborate as to how, nor does she identify any evidence that contradicts or undermines the trial court’s findings. 19  The DVRO is Not Overbroad In a brief 16-line argument, and citing no cases involving the DVPA, Kesala argues that the DVRO is overbroad because it prohibits lawful behavior, specifically, “any behavior that could cause . . . emotional discomfort” or “would cause the children to become anxious or fearful.”9 Kesala has once again forfeited the issue, as she did not challenge the language below. Indeed, not only did she not object to it, her own form of order agreed with it, which “constitutes a waiver of the issue, since appellant and counsel acquiesced in and contributed to any such error.” (Sperber v. Robinson (1994) 26 Cal.App.4th 736 , 742–743.) In any event, Kesala does not specify what “lawful behavior” is prohibited, that is, what “law” authorizes her to inflict “fear and anxiety” on her children. Kesala also asserts, however briefly, that the DVRO was overbroad because it “included O., who was not afraid of Kesala.” Section 6320 gives the trial court discretion as to whom to include in a protective order. (§ 6320, subd. (a).) And the trial court acted within its discretion by including O., who Kesala had slapped in the past, who had witnessed Kesala’s attack on S., and who sent Yurasek a text telling him he was scared. Kesala may assert that O. was “not afraid of Kesala,” but O. testified that his mother “was, like hitting [S.], and it was, like, really scary.” 9 The excerpted language is found in this paragraph of the DVRO: “The parents will not subject the children to corporal or harsh punishment such as yelling in the children’s face; intimidation of any kind; berating comments; threats of self-harm; spanking; hitting or striking with any instrument; hitting with a closed fist; hitting with head or face; choking; kicking; shaking; grabbing a child’s face; or any behavior that could cause injury, bruising, or physical or emotional discomfort. Additionally, the parents will not engage in any other type of behavior that would cause the children to become anxious or fearful.” 20  Exclusion of the Body Camera Video Was Not Error As noted, on June 10, the second day of trial, Kesala called Officer Colgan out of order,10 and did not seek to introduce his body camera video during his testimony. On July 25, the last day of trial, Kesala sought to introduce 26 minutes of video footage from the body camera. Doing so, Kesala’s counsel conceded the video provided no direct evidence of the truth of any disputed fact, and was offered as circumstantial evidence of the “mental state” of Kesala and the children, going so far as to concede the video “may be duplicative in some respects” of evidence already admitted. The trial court excluded the video, stating “[a]t this point I think it’s cumulative.” This, of course, is a discretionary ruling. (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234 , 249–250; Evid. Code, § 352.) And Kesala has shown no abuse, nor that the exclusion of the video resulted “in a miscarriage of justice.” (Evid. Code, § 354.) Yurasek’s Appeal Has No Merit: The Order Awarding Fees Was Not Error11 Introduction and the Standard of Review As noted above, following various post trial proceedings the trial court awarded $80,000 in need-based attorney fees to Kesala under section 2030.12 10 Officer Colgan had been subpoenaed and had apparently come to court on two prior occasions. 11 Months after briefing was completed, counsel for Kesala filed letters with this court, one of which attached a transcript from an August 2020 hearing, the thrust of which was to seek to have Yurasek’s appeal dismissed under the disentitlement doctrine. We reject the attempt and address the merits of Yurasek’s appeal. 12 Which provides in relevant part: “In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal 21 The trial court enjoys broad discretion in awarding attorney fees in marital- based disputes (In re Marriage of Sullivan (1984) 37 Cal.3d 762 , 768), and its decision whether and in what amount to award such fees is reviewed for abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269 , 282–283.) Yurasek does not challenge the findings that Kesala demonstrated need or that he had the ability to pay, nor does he claim that the amount awarded was unreasonable. Rather, Yurasek’s appeal is premised on the arguments that there must be a statutory basis for attorney fees, which the DVPA does not provide; that he brought the request for DVRO as guardian ad litem and was thus not a party against whom fees could be awarded; and that to award fees to one against whom a DVRO was entered is against public policy. Based on that, Yurasek asserts that the standard of review is de novo, relying on this quotation from the Supreme Court in Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169 , 1175, quoting Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132 , 142: “ ‘On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law.’ ” So, Yurasek contends, the standard of review is de novo representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party . . . to pay the other party . . . whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” (§ 2030, subd. (a)(1).) 22 “because whether fees are available depends on the construction of section 2030 and the DVPA.” We disagree, especially because Yurasek’s treatment of the record is less than complete, and indeed suffers from similar infirmities as does Kesala’s brief. Put otherwise, Yurasek’s brief utterly ignores that custody was involved in the proceeding—put there by Yurasek himself. As indicated above, Yurasek started the DVRO proceeding with his request on April 5, a request that not only sought temporary custody pending hearing on the DVRO, but affirmatively requested modification of the parties’ joint custody order. Specifically, following instructions to “check the orders you want,” Yurasek checked the box in item 12 that said: “I have a child custody or visitation order and I want it changed.” Yurasek attached form DV-105, “Request for Child Custody and Visitation Orders,” identifying himself as “Dad” for purposes of requesting modification of a current custody order, and as such, sought sole legal and physical custody of the boys, stating, “I want to change a current child custody or visitation court order” in case number “FDI-12-778342.” On the next page, Yurasek checked the box that represented as a “Party” he was “involved in” the “Other Custody Case,” i.e., “FDI-12778342,” a case he described as a “Divorce” case in which the trial court issued a custody order dated “9/12/2017.” In sum, Yurasek in his individual capacity as “Dad” and a “Party” to the divorce case, initiated a custody modification proceeding by affirmatively seeking modification of the joint custody order. On June 11, the third day of trial, the trial court granted Yurasek’s request for a custody evaluation, with the understanding that it would not be completed in time for use in the trial. This is what the court said: “[L]et me just also provide some feedback about the child custody evaluation that both 23 sides seem to acknowledge is going to happen. [¶] . . . [¶] Given how long it takes to select, retain, and then get started with a custody evaluator, I’m going to suggest to both sides, if you agree that there needs to be a custody evaluation, that you start talking now about the selection of that person, how the person is going to be paid, and then start inquiring about availability. [¶] . . . [¶] Because I understand that Ms. Kesala’s concerned about doing a custody evaluation under the current temporary visitation orders. But I think the fact of the matter is, by the time your selected evaluator gets started and does home visits, this trial should be long over.” The court went on to describe the DVRO and custody modification proceedings “as two separate issues.” In late June, apparently the 24th, Kesala served her ex parte request for change of custody, attorney fees, and costs under section 2030, and the trial court set hearing on the request for July 25. At the hearing on June 24, Yurasek’s counsel took issue with Kesala’s “motion asking for emergency relief and new custody orders,” and complained that Kesala did not agree to an evaluator who would not be available for six months. The trial court again stated its view that custody issues were separate from the DVRO proceeding: “I know that the child custody issues are complex and highly contested, but I would like to deal with the domestic violence issue first.” And the court again indicated its ruling regarding custody evaluation was in anticipation of future events: “So I am trying to, because we know custody evaluations take time under the best of circumstances, I am trying to get the parties to start working on it now so that it can be completed in as timely a fashion as possible. [¶] . . . [¶] I would say six months is probably too long to wait to get started.” 24  On July 19, having received no substantive opposition from Yurasek to her request for fees and custody, Kesala submitted a brief in support of her request. Among other things, Kesala argued that a DVRO action is “related” for purposes of awarding fees under section 2030 because “post-dissolution custody modification proceedings [are] ‘related’ to the dissolution proceeding for purposes of a need-based fee request.” Kesala further argued that “although [Yurasek] could have pursued a modification of custody by motion, he chose the heavy-handed tactic of an ex parte restraining order, notwithstanding the contrary reports/advice he received from Officer Colgan and Dr. Brinamen. [Yurasek’s] strategy gained him advantage of an immediate change from 50% to full custody without notice and a hearing. Thus, the substance and effect of [Yurasek’s] DV[RO] action was the modification of custody.” Kesala requested a fee award and reinstatement of her right to joint legal custody. As noted, the DVRO trial concluded on July 25, and following closing arguments the trial court announced its findings and decision to issue a DVRO against Kesala and related items, going on for over four pages. After all that, the trial court said: “The next major step in your case is to participate in and complete the child custody evaluation. In regards to the scope of the child custody evaluation, Mr. O’Keefe, the scope of evaluation that you proposed is acceptable to the court. And I will add on a question for the evaluator to directly answer whether or not there’s any reason to believe there’s parental alienation on either side. . . .” The court then turned to the issue of attorney fees, saying this: “Regarding attorneys’ fees, the court is not going to order Mr. Yurasek to pay attorneys’ fees to Ms. Kesala for fees and costs related to the DVRO proceedings. . . . 25  “However, I am going to order attorneys’ fees for the purpose of proceeding with the child custody proceedings under section 2030. The court definitely finds that Mr. Yurasek has greater access to funds. “What I need to know, Mr. O’Keefe, is I need you to break out the attorneys’ fees request and indicate what is needed on the child custody portion of the case, and separate it out from the fees incurred on the DVRO proceedings. And the court will make a reasonable grant of attorneys’ fees to enable Ms. Kesala to have even footing on the child custody part of the case and move forward with the next set of proceedings, which I know there will be. “So I’m going to make an order for [section] 2030 attorneys’ fees, but I need some information, Mr. O’Keefe, on what the amount incurred was related to custody and visitation— so the child custody evaluation for example—and what the expected need is moving forward.” The trial court set the matter for hearing on September 5. On August 16, in a further effort to modify the temporary custody order, Yurasek filed an ex parte application seeking an emergency order that Kesala should only be allowed to visit with the boys once per week. On August 20, Yurasek filed another ex parte request to change the temporary custody order. And on August 23, Yurasek filed a belated opposition to the fee request, raising the same arguments the trial court had already considered on July 25. Yurasek also asserted that Kesala pay him prevailing party fees and costs of $389,422, under section 6344. On August 29, counsel for Kesala filed his apportionment of fees, along with opposition to Yurasek’s motion for reconsideration and request for prevailing party fees. 26  On August 30, Yurasek reiterated his request for modification of the “custody schedule and parenting plan . . . as requested in [his] ex parte request filed on August 20.” The August 30 filing not only argued for denial of the fees to Kesala, it also accused Kesala and her counsel in engaging in unethical conduct. And it reiterated Yurasek’s claim to attorneys’ fees under section 6344. On September 3, Kesala filed her response to Yurasek’s charge of unethical conduct and his request for fees. Prior to the scheduled September 5 hearing, the court issued a tentative ruling. Yurasek contested it, and a lengthy hearing ensued, which began with the court noting: “I . . . read everything that both sides gave me. . . . About three inches high. . . . And I have reviewed the numerous filings that were given to me by both sides and so I do understand.” Then, five pages later, and as relevant here, the court explained its reasoning for awarding fees: “[T]here’s been a parallel subaction running alongside the DVRO hearing, which was the child’s custody evaluation. . . . I have ruled on the domestic violence restraining order. I have granted the request. I have found that there’s been an act of abuse under the DVPA. Now we are moving to the next phase of the case, which is going to be—and I have made temporary custody orders, and now we need to move forward to the custody evaluation and getting back to a more permanent custody arrangement down the road, assuming the presumption against custody is rebutted.” The trial court then noted that “Mr. Yurasek has filed another request for order regarding custody and visitation separate from the DVRO. So procedurally there is a custody issue going on.” To which counsel for Yurasek responded, Kesala “may be entitled to fees if there is a motion for a change in custody.” Then following brief argument by Kesala’s counsel, the court 27 announced it would adopt its “tentative ruling with some modifications,” saying this: “In terms of the amount of attorney’s fees, the court is going to award [section] 2030 attorney’s fees to mother. The $80,000 breakdown for your information was $45,000 in prospective fees, 100 hours, and $40,000 for incurred fees related to the custody evaluation and issues on the 2030 motion as identified in Mr. O’Keefe’s invoice. I didn’t give the full amount of fees associated with those activities, but I awarded $35,000 related to fees incurred for the custody evaluation and motion issues related to the ex parte request from Mr. Yurasek and the 2030 motion. [¶] . . . [¶] “I went through the invoice submitted by Mr. O’Keefe and identified . . . I previously ruled that Ms. Kesala is not going to recover fees on a DVRO as she is not the prevailing party. And I went through the invoice by Mr. O’Keefe and identified the fees incurred that were related to the child custody evaluator, the ex parte motion that’s on calendar for today, and the 2030 fees request. Okay? So I am going to maintain that amount. [¶] . . . [¶] And just to be clear, the court anticipates that this fee award is going to cover the completion of the next phase of the case on the child custody evaluation.” On that same day, the trial court filed its findings and order after hearing, a comprehensive four-page, single-spaced order reflecting all—and we mean all—that the court had done. It was a model order, ending with this: “Mother’s request for attorney’s fees and costs for the child custody and visitation issues is GRANTED IN PART. The court finds that the appropriate amount is $35,000 for fees and costs already incurred related to the child custody evaluation and the two motions on calendar today, and $45,000 for anticipated future fees to complete the phase of the case related to the pending child custody evaluation. Father is ordered to pay the total 28 amount of $80,000 to Mother as and for attorney’s fees and costs pursuant to [Family] Code [section] 2030 in two equal payments. . . .” The ruling by the trial court was spot on, manifesting conduct of the trial court about as far from abuse of discretion as imaginable. But even were our review de novo, the trial court had it right, as the issue of custody was in the case from the beginning, put there by Yurasek’s request for DVRO and the boxes he checked and the attachments he filed. As the trial court properly held, the DVRO and the custody dispute were “two separate proceedings,” with the understanding that the latter would not be completed before the end of the DVRO trial. Were all that not enough, as Yurasek’s own counsel acknowledged at the September 5 hearing, “if there is a motion for change in custody,” Kesala “may be entitled” to attorney fees. Indeed. There was no error. DISPOSITION The DVRO and the order of September 5, 2019 are affirmed. Each side will bear its respective costs on appeal. 29  _________________________ Richman, J. We concur: _________________________ Kline, P.J. _________________________ Miller, J. Yurasek v. Kesala (A158859) 30

2020-12-02 20:02:26.692763+00

https://www.courts.ca.gov/opinions/nonpub/G057632.PDF

Filed 12/2/20 P. v. Sosa CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G057632 v. (Super. Ct. No. 18CF3098) ANTONIO SOSA, OPINION Defendant and Appellant. Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.  Antonio Sosa appeals from a judgment after a jury convicted him of first degree burglary. He argues the trial court erred in instructing the jury and by imposing fines, fees, and assessments. Neither claim has merit, and we affirm the judgment. FACTS One Halloween morning, E.J. was riding her bicycle around her neighborhood when she saw Sosa picking through trash cans down the street. She continued riding her bicycle past him. When she looked back, E.J. saw Sosa walking up the driveway of *** E. R. Avenue (the Property). E.J. saw Sosa walk to the threshold of the open garage. Sosa reached into and touched a couple of items inside the garage. He simultaneously pulled on a piece of plywood and bicycle handlebar to free the bicycle from behind the plywood, but he was unsuccessful. E.J. yelled out, “Stop, get out of there.” Sosa stopped momentarily but resumed trying to dislodge the bicycle. E.J. yelled at him again. Sosa stopped and walked away. E.J. called the police, described Sosa as “a male, possibly [B]lack, carrying two trash bags[,]” and indicated the direction in which he walked. E.J. did not see anyone else that day matching that description. About 10 minutes later, police arrived at the scene. Nearby, an officer saw Sosa carrying two bags of recyclables over his shoulder and digging through trash cans. The officer described Sosa as having dark skin consistent with the report of a Black man. There was no one else in the area matching E.J.’s description. The officer parked his patrol vehicle, approached Sosa on foot, and asked him to put his belongings on the ground. Sosa complied and was initially cooperative. However, Sosa placed his hands inside his front pockets. Because the officer had not done a patdown search, the officer was concerned Sosa may be drawing a weapon. The officer twice ordered him to keep his hands out of his pockets. Sosa refused to comply, continued to dig into his pockets, and stepped away from the officer. The officer reached for Sosa’s wrists, but he continued to back 2 away. Another officer arrived, and they told him to take his hands out of his pockets, but he refused. Using moderate force, the officers grabbed Sosa around his waist, lifted him up, brought him down on some grass, and handcuffed him. At that point, E.J. arrived on her bicycle. Based on his clothing and belongings, E.J. identified Sosa as the person who tried to take the bicycle from the garage. Specifically, while pointing at Sosa, E.J. said, “‘I saw that man’” go into the garage and “‘grab a bike.’” However, E.J. indicated she could not identify his face. An information charged Sosa with first degree burglary (Pen. Code, §§ 459, 460, subd. (a), all further statutory references are to the Penal Code, unless otherwise indicated) (count 1), and misdemeanor resisting and obstructing an officer (§ 148, subd. (a)(1)) (count 2). The information alleged a non-accomplice was present during the commission of count 1 (§ 667.5, subd. (c)(21). At trial, E.J. testified she told officers that Sosa was the culprit based on his “clothing and stuff,” but she could not recognize his face. When asked whether she could identify the man in court, she answered, “I can’t say that I recognize his face, no.” Sosa’s defense focused on lack of intent and not on identity. Counsel argued there was insufficient evidence to demonstrate he was doing anything more than examining the bicycle. The jury convicted Sosa of count 1 but found the enhancement not true and acquitted him of count 2. The trial court sentenced him to the low term of two years in prison. The trial court imposed the following fines, fees, and assessments: $300 restitution fine (§ 1202.4, subd. (b)); $40 court operations assessment (§ 1465.8, subd. (a)(1)); $30 criminal conviction assessment (Gov. Code, § 70373); stayed $300 parole revocation restitution fine (§ 1202.45); and “$10 fee to the Crime Prevention Fund.” 3  DISCUSSION I. CALCRIM No. 315 Sosa argues CALCRIM No. 315 is constitutionally infirm. This issue is currently pending before the California Supreme Court in People v. Lemcke, review granted October 10, 2018, S250108. The current state of the law and the state of the evidence foreclose his claims. Without objection, the trial court instructed the jury with CALCRIM No. 315, as relevant here, as follows: “You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following question[]: [¶] . . . [¶] How certain was the witness when . . . she made an identification? [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty.” The Attorney General argues Sosa forfeited this claim because he did not request a modification. We agree. “If defendant had wanted the court to modify the instruction, he should have requested it. The trial court has no sua sponte duty to do so. [Citations.]” (People v. Sánchez (2016) 63 Cal.4th 411 , 461 (Sánchez).) Sosa did not request a modification, and thus he forfeited this contention. Assuming his claim is preserved, there was no error. Our Supreme Court has repeatedly approved the use of certainty as a factor in evaluating eyewitness identifications. (Sánchez, supra, 63 Cal.4th at pp. 461-462 [discussing cases approving CALJIC No. 2.92, CALCRIM No. 315’s predecessor].) Sosa’s reliance on scientific evidence and out-of-state authority is misplaced. Until the Supreme Court overrules its prior precedent, we are bound by its decision, as was the trial court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 , 455; People v. Rodriguez (2019) 4  40 Cal.App.5th 194 , 199-200.) In light of Sánchez, Sosa has not demonstrated any objection to the certainty factor would have been successful. He admits as much in arguing trial counsel’s failure to object would have been futile based on Sánchez. Assuming there was error, Sosa was not prejudiced because it was not reasonably probable he would have obtained a more favorable result had the trial court deleted the certainty factor. (Sánchez, supra, 63 Cal.4th at p. 463.) Like in Sánchez, the instruction did not suggest certainty equals accuracy but only that the jury could consider certainty. Again, we note that at trial Sosa’s theory was lack of intent not misidentification, and on appeal, he does not challenge the sufficiency of the evidence on count 1. Based on Sosa’s efforts to dislodge the bicycle after E.J. yelled at him to stop, the jury could reasonably infer he intended to steal the bicycle. (People v. Lewis (2001) 25 Cal.4th 610 , 643 [intent for burglary inferred from totality of evidence].) Additionally, there was strong evidence Sosa was the person E.J. observed. Minutes after E.J. called the police, Sosa was at the scene. Sosa matched the description of the person E.J. gave to the police. E.J. said the man was “possibly Black” and had two trash bags. The officer saw a man who had dark skin and carried two trash bags. Neither E.J. nor the officer saw anyone else who matched the description. “Indeed, we would find giving the instruction harmless beyond a reasonable doubt.” (Sánchez, supra, 63 Cal.4th at p. 463.) II. Fines, Fees & Assessments Sosa asserts the matter must be remanded for the trial court to determine whether he has the ability to pay the fines, fees, and assessments. We disagree. Sosa first complains the $10 crime prevention fund was unlawful because the trial court did not specify the legal basis for the fine, and the fine is not included on the abstract of judgment. The fine was lawful, but the court records must be corrected. “In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. [Citation.]” (People v. Scott (2012) 203 Cal.App.4th 1303 , 1324.) The abstract of judgment is a contemporaneously prepared “clerical record of the conviction 5 and sentence.” (People v. Delgado (2008) 43 Cal.4th 1059 , 1070.) In general, if the “abstract of judgment is different from the oral pronouncement of judgment, the oral pronouncement controls. [Citations.]” (People v. Mullins (2018) 19 Cal.App.5th 594 , 612.) Section 1202.5, subdivision (a)(1), states a trial court “shall” impose a $10 fine for inter alia a burglary conviction to fund crime prevention programs. (People v. Uffelman (2015) 240 Cal.App.4th 195 , 200.) Although the trial court did not specify the legal authority for the fine, the fine was lawful. However, not only is the fine not in the abstract of judgment, it is not in the court’s minutes. We order the court clerk to amend the minutes and the abstract of judgment to reflect the trial court imposed a $10 fine pursuant to section 1202.5, subdivision (a). We turn to his ability to pay the claim. In People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), an indigent mother of two who subsisted on public aid because she was unable to work due to cerebral palsy challenged the constitutionality of imposing mandatory court facilities and operations assessment fees and restitution fines without first determining the defendant’s ability to pay them. The court held that imposing the fees and fine on an indigent defendant violated due process. (Id. at pp. 1168, 1171.) As to the court facilities and operations fees, which the Legislature intended to be revenue raisers and not punishment, the court reasoned imposing these fees on indigent defendants was tantamount to “inflict[ing] additional punishment.” (Id. at p. 1166, capitalization omitted.) As to the restitution fine, which the Legislature intended to be additional punishment, the court explained imposing a restitution fine on indigent defendants punished them differently than wealthy defendants because it deprived them of the opportunity to obtain mandatory expungement of the conviction as a matter of right. (Id. at pp. 1170-1172.) Much has been written throughout the state on whether Dueñas was correctly decided. We need not weigh in on this issue again because any error here was 6 harmless beyond a reasonable doubt. (People v. Johnson (2019) 35 Cal.App.5th 134 , 139-140, citing Chapman v. California (1967) 386 U.S. 18 , 24.) “‘Ability to pay does not necessarily require existing employment or cash on hand.’ [Citation.] ‘[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant’s present ability but may consider a defendant’s ability to pay in the future.’ [Citation.] This include[s] the defendant’s ability to obtain prison wages and to earn money after his release from custody. [Citation.]” (People v. Hennessey (1995) 37 Cal.App.4th 1830 , 1837; People v. Ramirez (1995) 39 Cal.App.4th 1369 , 1377; People v. Frye (1994) 21 Cal.App.4th 1483 , 1487.) We infer Sosa has the ability to pay the fees and fine from probable future wages, including prison wages. (People v. Douglas (1995) 39 Cal.App.4th 1385 , 1397 (Douglas); see § 1202.4, subd. (d) [ability to pay restitution fine includes future earning capacity].) “Prison wages range from $12 to $56 per month, depending on the prisoner’s skill level. [Citations.] The state may garnish between 20 and 50 percent of those wages to pay the section 1202.4, subdivision (b), restitution fine. [Citations.]” (People v. Aviles (2019) 39 Cal.App.5th 1055 , 1076 (Aviles).) Although no hearing was held or requested, the record suggests Sosa had an ability to pay the $380 in fines, fees, and assessments. As Sosa recognizes, the fact he was represented in the trial court and on appeal by appointed counsel does not necessarily demonstrate an inability to pay. “[A] defendant may lack the ‘ability to pay’ the costs of court-appointed counsel yet have the ‘ability to pay’ a restitution fine[]” or other fees imposed by the trial court. (Douglas, supra, 39 Cal.App.4th at p. 1397.) Nor is there any indication Sosa, a then 47-year-old felon sentenced to prison for two years, is unable to work. Although the record includes evidence Sosa is transient, the evidence demonstrates he is physically able to work. He wandered the neighborhood searching for recyclables, and he tried to dislodge a bicycle from behind a 7 piece of plywood. Additionally, he initially resisted an officer before two officers wrestled him to the ground and took him into custody. Finally, in his sentencing brief, Sosa stated he worked in construction most of his life until 2017 when he lost his job. These facts demonstrate Sosa is physically capable of working and earning money in custody and will be able to pay the $380 in fines, fees, and assessments from his future prison wages. (Aviles, supra, 39 Cal.App.5th at p. 1077 [ability to pay from prison wages or monetary gifts from family and friends].) To the extent debt remains following his release, it is not reasonable to conclude he would be unable to work and pay that balance. Thus, Sosa will not be without the ability to pay the fines, fees, and assessments while imprisoned. DISPOSITION The judgment is affirmed. The clerk of the superior court is directed to do the following: (1) correct the court’s minutes to reflect the trial court imposed a $10 crime prevention fund fine pursuant to section 1202.5, subdivision (a)(1); and (2) prepare and transmit an amended abstract of judgment to include the $10 fine imposed under section 1202.5, subdivision (a)(1), to the Department of Corrections and Rehabilitation, Division of Adult Operations. O’LEARY, P. J. WE CONCUR: IKOLA, J. GOETHALS, J. 8

2020-12-02 20:02:27.136895+00

https://www.courts.ca.gov/opinions/nonpub/B296119.PDF

Filed 12/2/20 P. v. Castellano CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN THE PEOPLE, B296119 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA097909) v. LINDA LIZETT CASTELLANO, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Laura C. Ellison and Victor L. Wright, Judges. Affirmed as modified. Jason Szydlik, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.  Linda Lizett Castellano appeals from the judgment of conviction entered after a jury found her guilty of one count of assault with a semiautomatic firearm. The jury also found true the allegations Castellano committed the crime for the benefit of a criminal street gang and used a firearm in the commission of the crime. On appeal, Castellano contends there was not sufficient evidence the firearm was loaded to support her conviction. She also argues the trial court erred in failing sua sponte to instruct the jury on the lesser included offense of assault with a firearm. She further requests we remand for the trial court to conduct a hearing on her ability to pay the assessments and fines imposed by the trial court, in accordance with our opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Finally, Castellano contends, the People concede, and we agree the minute order from the sentencing hearing reflects the imposition of a criminal protective order that was not part of the trial court’s oral pronouncement of judgment and should be stricken. We order the minute order modified to strike the reference to a criminal protective order and otherwise affirm. FACTUAL AND PROCEDURAL BACKGROUND A. The People’s Case 1. The assault of Munoz About 6:45 a.m. on March 14, 2018 Ismael Munoz Rodriguez1 was standing on the sidewalk along Buford Avenue in 1 Following the parties’ practice at trial, we refer to Ismael Munoz Rodriguez as Munoz. 2 the Lennox area of Los Angeles County. Munoz, who lives on Buford Avenue, was preparing to cross the street to reach his parked car to go to work. As Munoz was about to cross the street, a four-door Nissan drove by, the rear window came down, and a woman in a hooded sweatshirt said something Munoz could not understand. Munoz crossed the street, got into his car, and drove off. The Nissan then turned around and pulled up next to Munoz’s car while he was stopped at a stop sign. The woman in the rear passenger seat of the Nissan, whom Munoz later identified as Castellano,2 raised her arm, pointed a gun at Munoz through the open window, and said, “Fuck Lennox[.] Tepas.” Munoz understood Castellano’s statement was “gang talk,” and he was frightened. Castellano was about six or seven feet from Munoz when she pointed the gun at him. Munoz testified he “wasn’t going to stand [t]here and let her fire it,” and after a few seconds, he drove off. Munoz testified Castellano’s gun “was a black color. It was like a semi-automatic.” Asked what he meant when he said the gun was a semiautomatic, Munoz testified, “It was the kind of gun that police use.” When the prosecutor asked whether Munoz knew what a revolver was, Munoz responded, “Yes.” Munoz agreed a revolver looked “[l]ike those cowboy guns.” Munoz described Castellano’s gun as flat, without a cylinder in the middle like a revolver. 2 Munoz identified Castellano in a photographic lineup and at trial. 3  2. The incident at Felton Elementary School Sandra Marroquin was a teacher at Felton Elementary School in the Lennox area of Los Angeles County. About 7:30 a.m. on March 14, 2018 Marroquin was walking toward the school’s gate when she was approached by a woman who was trembling and nervous. The woman told Marroquin she had just seen some men get out of a car and “put[] a gun on this kid.”3 The woman asked for Marroquin’s cell phone number so she could send Marroquin a photograph she had taken of the men’s car. The woman sent Marroquin the photograph, which Marroquin forwarded to the school principal and later showed it to the police. The woman told Marroquin the driver of the car was female. 3. The investigation Shortly after 6:45 a.m. on March 14, 2018 Los Angeles County Sheriff’s Department (LASD) Deputy Erik Felix responded to a call regarding Munoz’s assault. Deputy Felix took Munoz’s statement and photographed the scene on Buford Avenue. About an hour later Deputy Felix was dispatched to Felton Elementary School, about half a mile away, where he interviewed Marroquin regarding the second incident. Marroquin showed Felix the photograph of the vehicle she had received from the unidentified woman. The vehicle was a Nissan 3 After an Evidence Code section 402 hearing, the trial court ruled Marroquin’s testimony concerning the unidentified woman’s statement was admissible under the hearsay except for spontaneous statements (Evid. Code, § 1240). Castellano does not challenge that ruling on appeal. 4 Maxima with a California license plate number that matched the license plate of the vehicle owned by Castellano. Later that night or early the next morning, Sheriff’s Deputy Alex Partida stopped a silver Nissan Maxima matching the description of the car involved in the Felton Elementary School incident. Castellano’s sister Silvia was driving the car. The car was towed and held for evidence and fingerprinting. On March 22, Castellano called the LASD South Los Angeles station and stated she wanted her car released to her. When Castellano came into the station to retrieve her car, she was detained and searched. A sheriff’s deputy recovered Castellano’s cell phone during the search, and forensic detectives obtained photographs and text messages from the phone. 4. Gang expert testimony Detective David Chevez, a gang investigator for the LASD South Los Angeles area, testified as the People’s gang expert. Detective Chevez testified with respect to Hispanic street gangs that upon initiation into a gang, the gang member operates as a “soldier.” Once the soldier “put[s] in” work by committing crimes for the gang, he or she can move up to a higher status, and “the more violent the crimes you commit the higher status you’re able to attain.” Respect from fellow gang members and fear within the community are important to gangs and their members. Fear within the community allows gangs to operate because it discourages community members from reporting crimes out of fear of retaliation. Gang members put in the work by committing violent crimes like murder, attempted murder, and carjackings, but also lesser crimes such as tagging with graffiti. A gang 5 member’s reputation for violence allows the member to commit more crimes because victims will not want to come forward. Respect from rival gangs is also important, and it allows gangs to “protect their turf.” Sometimes gang members will commit crimes in rival territory to show disrespect for the rival gang. Detective Chevez explained, “[W]hen a rival goes into enemy territory, it’s usually to put in work to commit crimes, shoot people, rob people, tag, vandalize.” Members may even “announce” these crimes by committing them in daylight in front of witnesses. Rival gang members deem such intrusions as a “big form of disrespect.” Detective Chevez was familiar with the Tepa 13 gang and had investigated crimes committed by its members, including felony possession of firearms, burglaries, robberies, carjackings, vehicle theft, assaults, attempted murders, and murders. Tepa 13 members sometimes use the shortened name “Tepa.” Tepa 13 operates principally within the City of Inglewood. The Lennox 13 gang is Tepa 13’s biggest rival. Tepa 13 and Lennox 13 have had an ongoing feud since the 1970’s, and rival members “shoot at each other all the time.” Lennox 13’s territory includes the Lennox area west of Hawthorne Boulevard—to the west of Tepa 13’s territory. The attack on Munoz occurred “deep within Lennox 13 territory.” Felton Elementary School is also within Lennox 13 territory. Detective Chevez opined Castellano was an active member of Tepa 13 based on her tattoos and photographs recovered from her phone showing her posing with gang members with weapons displaying gang signs. Castellano was at the “soldier” level. Detective Chevez testified based on a hypothetical mirroring the facts of the case that the assault would have been committed to 6 benefit Tepa 13. Detective Chevez explained, “I believe someone pointing a gun at someone else yelling, ‘Fuck Lennox. Tepas.’ That [victim] is probably going to tell his neighbor, his significant other, his children, he’s probably going to tell of the incident, and that alerts the community, ‘Hey, Tepas just banged on Lennox.’” Further, committing a crime in broad daylight increases the boldness of the crime and benefits the gang “because it gives the gang [a] very violent reputation.” “[B]anging” on an individual in rival territory would also “show[] the rival gang, which is Lennox 13 in this case, ‘Hey, this is your hood and we’re going to come into your hood, and disrespect your hood, and we’re not scared of you.’” On cross-examination, Detective Chevez admitted that if a gang member “banged on” someone in rival territory who was not a member of the rival gang, the nonmember would typically be able to walk away without further violence. However, on redirect examination, Detective Chevez qualified his response and testified that if the encounter with the nonmember were to occur in rival gang territory and the non-member “were to just walk away, or put up some type of resistance[,] then something would happen.” Detective Chevez also testified he and most police officers carry a semiautomatic firearm, which is “the opposite of a revolver” and “is automatically fed [ammunition] with a magazine.” This is in contrast to a revolver, which shoots about five or six shots and has a round cylinder. B. The Defense Case Castellano testified she had been a member of Tepa 13 when she was a child because the men in her family were 7 members, but she left the gang in 2013. Castellano admitted she owned a Nissan Maxima matching the license plate number shown in the photograph received by Marroquin. But she testified she was asleep at home on the morning of March 14, 2018, and she denied driving through Lennox, displaying a gun, threatening anyone, or saying, “F[uck] Lennox. Tepas.” Castellano’s sister, Kristine Ramoz Perez, testified Castellano lived with her, and when Perez left for work at 6:40 a.m. on March 14, 2018, Castellano’s car was parked on the street. Further, Castellano was not a morning person and was likely to have been sleeping. Perez also testified that in 2018 Castellano was not a gang member. C. The Rebuttal Case In rebuttal, Detective Chevez identified text messages sent in March 2018 that had been retrieved from Castellano’s cell phone, in which Castellano was greeted as “Tepa” and the death of a Tepa 13 member was discussed. Detective Chevez also identified a photograph taken of Castellano on November 12, 2017 in which Castellano did not have any tattoos on her face, and a photograph taken on January 3, 2018 that showed Castellano with Tepas 13 gang tattoos visible on her face. The text messages and photographs were admitted into evidence. D. Jury Instructions, Verdict, and Sentence The trial court instructed the jury on assault with a semiautomatic firearm, as follows: “In order to prove this crime, each of the following elements must be proved: [¶] [1.] A person was assaulted; [¶] and; [¶] [2.] The assault was committed with a semiautomatic firearm. [¶] In order to prove an assault, 8 each of the following elements must be proved: [¶] [1.] A person willfully committed an act which by its nature would probably and directly result in the application of physical force on another person; [¶] [2.] The person committing the act was aware of facts that would lead a reasonable person to realize as a direct natural and probable result of this act that physical force would be applied to another person; [¶] and [¶] [3.] At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another. [¶] A semiautomatic firearm is a firearm that extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger.” Castellano’s attorney did not request an instruction on the lesser included offense of assault with a firearm. The jury found Castellano guilty of assault with a semiautomatic firearm (Pen. Code,4 § 245, subd. (b); count 1) and found true she committed the offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)) and used a firearm in the commission of the offense (§ 12022.5). On February 25, 2019 the trial court sentenced Castellano to nine years in state prison comprised of the middle term of six years for assault with a semiautomatic firearm and the lower term of three years for the firearm enhancement. The court imposed and stayed a 10-year sentence for the gang enhancement. The court also imposed a $40 court operations assessment (§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), and a parole/postrelease 4 All further undesignated statutory references are to the Penal Code. 9 community supervision restitution fine in the same amount, which the court suspended (Pen. Code, § 1202.45). Castellano did not object to imposition of the fines and assessments or raise her inability to pay. The trial court’s February 25, 2019 minute order states the criminal protective order that had been issued under section 136.2 on June 6, 2018 would remain in effect through June 6, 2021. However, the reporter’s transcript shows the trial court did not address the protective order during the sentencing hearing. Castellano timely appealed. DISCUSSION A. Substantial Evidence Supports Castellano’s Conviction of Assault with a Semiautomatic Firearm 1. Standard of review “When a defendant challenges the sufficiency of the evidence for a jury finding, we review the entire record in the light most favorable to the judgment of the trial court. We evaluate whether substantial evidence, defined as reasonable and credible evidence of solid value, has been disclosed, permitting the trier of fact to find guilt beyond a reasonable doubt.” (People v. Vargas (2020) 9 Cal.5th 793 , 820; accord, People v. Penunuri (2018) 5 Cal.5th 126 , 142 (Penunuri) [“‘To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.’”].) “‘“Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the 10 credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.”’” (Penunuri, at p. 142; accord, People v. Mendez (2019) 7 Cal.5th 680 , 703.) “‘“The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.”’” (People v. Vargas, supra, 9 Cal.5th at p. 820; accord, People v. Rivera (2019) 7 Cal.5th 306 , 324.) “‘We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.’” (People v. Westerfield (2019) 6 Cal.5th 632 , 713; accord, Penunuri, supra, 5 Cal.5th at p. 142 [“‘A reversal for insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury’s verdict.’”].) 2. Assault with a semiautomatic firearm “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.)5 “Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to 5 Section 245, subdivision (b) provides, “Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.” 11 establish that the act by its nature will probably and directly result in such injury.” (People v. Miceli (2002) 104 Cal.App.4th 256 , 269; accord, People v. Murray (2008) 167 Cal.App.4th 1133 , 1139.) “To point a loaded gun in a threatening manner at another . . . constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury.” (Miceli, at p. 269.) Conversely, “[a] long line of California decisions holds that an assault is not committed by a person’s merely pointing an (unloaded) gun in a threatening manner at another person,” because without evidence the gun was loaded, the proof is insufficient a defendant had the present ability to inflict a violent injury. (People v. Rodriguez (1999) 20 Cal.4th 1 , 11, fn. 3 (Rodriguez); Penunuri, supra, 5 Cal.5th at p. 147; Miceli, at p. 269; People v. Lochtefeld (2000) 77 Cal.App.4th 533 , 542 (Lochtefeld).) “A defendant’s own words and conduct in the course of an offense may support a rational fact finder’s determination that [the defendant] used a loaded weapon.” (Rodriguez, supra, 20 Cal.4th at p. 13; see People v. Mearse (1949) 93 Cal.App.2d 834 , 837 [“The acts and language used by an accused person while carrying a gun may constitute an admission by conduct that the gun is loaded.”].) “[T]he fact that the gun was loaded may be inferred from circumstantial evidence, and we will uphold an assault conviction if the inference is reasonable.” (Penunuri, supra, 5 Cal.5th at p. 147; see Rodriguez, at p. 11, fn. 3 [“[W]e address the required quantum of circumstantial evidence necessary to demonstrate present ability to inflict injury and thus to sustain a conviction of assault with a firearm.”].) 12  Rodriguez is instructive. There, the defendant, a gang member, threatened a witness to a shooting the defendant had committed the previous day. (Rodriguez, supra, 20 Cal.4th at pp. 7-8.) Confronting the witness, the defendant “raised his shirt, revealing a gun in his waistband. When [the witness] remained standing in place, defendant took out his gun, put the barrel just under [the witness’s] chin, and told him to keep quiet because ‘I could do to you what I did to them.’” (Id. at p. 7.) The Court of Appeal reversed the defendant’s assault conviction, observing the gun from the prior day’s shooting was never recovered, and therefore the gun the defendant used must have been different because the defendant would have logically disposed of the murder weapon. (Id. at p. 12.) The Supreme Court reversed the judgment of the Court of Appeal, criticizing the appellate court for focusing “on what it found lacking in the prosecution’s case and the strength of the inferences it drew from the evidence presented, rejecting contrary (but, in our view, equally logical) inferences the jury might have drawn.” (Ibid.) Because the defendant told the witness “‘I could do to you what I did to them,’” “the jury could reasonably have interpreted the warning as an admission by defendant of his present ability to harm [the witness].” (Ibid.) And while the absence of evidence the defendant sought out the witness “might tend to support a conclusion contrary to that reached by this jury, [that] absence does not so undermine the jury’s reasoning as to warrant overturning its verdict.” (Id. at p. 14.) The Supreme Court in Rodriguez cited with approval People v. Montgomery (1911) 15 Cal.App. 315 , 317-319, in which the Court of Appeal held that despite the absence of direct evidence the gun used in an assault was loaded and defendant’s 13 testimony it was not, the jury could have reasonably found the gun was loaded based on evidence the defendant was enraged when he left a fight with the victim and later returned and declared, “‘I have got you now,’” as he pointed a gun at the victim. (Rodriguez, supra, 20 Cal.4th at p. 13; see Lochtefeld, supra, 77 Cal.App.4th at pp. 541-542 [defendant’s displaying the handle of a gun and threatening to shoot a woman if she did not move, then later pointing a gun at police officers with his finger on the trigger was sufficient evidence from which the jury could infer the gun was operable].) 3. Substantial evidence supports the jury’s conclusion Castellano’s gun was loaded Castellano contends there was not substantial evidence to support an inference the gun used in the assault on Munoz was loaded. The evidence was sufficient. As discussed, the People presented evidence Castellano was a “soldier” in the Tepa 13 gang who entered “deep within Lennox 13 territory,” rolled down her car window, and pointed a gun at Munoz while declaring her gang affiliation and cursing the rival Lennox 13 gang. As Detective Chevez testified, when a gang member goes into rival territory, “it’s usually to put in work to commit crimes,” including to shoot people. Further, Castellano made the threat openly during the daytime, which would disrespect the rival gang. Tepa 13 and Lennox 13 were feuding archrivals whose members “shoot at each other all the time.” Although Detective Chevez testified a gang member would not generally fire a gun at someone who was not a gang member, if the nonmember walked away or resisted, “then something would happen.” Further, by disrespecting Lennox 13, Castellano’s conduct could have provoked a violent 14 response from a member of Lennox 13 in the area at the time of Castellano’s “banging” on Munoz. Based on this evidence, the jury could reasonably have concluded Castellano would not have entered Lennox 13 territory and confronted Munoz in a manner that disrespected Lennox 13 by pointing an unloaded gun because she needed to be prepared to respond to a possible violent response. (See Rodriguez, supra, 20 Cal.4th at p. 13; Lochtefeld, supra, 77 Cal.App.4th at p. 542.) Castellano contends Rodriguez and Lochtefeld are distinguishable because in those cases the defendants expressly threatened to shoot the victims. But even if the absence of specific threats to shoot could have supported a finding the gun was not loaded, it does not mean there was not substantial evidence to the contrary. (Rodriguez, supra, 20 Cal.4th at p. 14.) B. The Trial Court Did Not Have a Duty To Instruct the Jury on the Lesser Included Offense of Assault with a Firearm 1. Applicable law and standard of review “Under California law, trial courts must instruct the jury on lesser included offenses of the charged crime if substantial evidence supports the conclusion that the defendant committed the lesser included offense and not the greater offense.” (People v. Gonzalez (2018) 5 Cal.5th 186 , 196; accord, People v. Smith (2013) 57 Cal.4th 232 , 239 [even in the absence of a request, a trial court must instruct “‘on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged’”]; People v. Breverman (1998) 19 Cal.4th 142 , 154-156.) “The jury’s exposure to ‘the full range of possible verdicts—not limited by the strategy, 15 ignorance, or mistake of the parties . . . ensure[s] that the verdict is no harsher or more lenient than the evidence merits.’” (Gonzalez, at p. 196; accord, Smith, at p. 239 [“‘[T]he rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other.’”].) “‘“[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.”’” (People v. Wyatt (2012) 55 Cal.4th 694 , 698; accord, People v. Landry (2016) 2 Cal.5th 52 , 96 [“‘Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense.’”].) “In this regard, the testimony of a single witness, including that of a defendant, may suffice to require lesser included offense instructions.” (Wyatt, at p. 698.) However, the trial court has no duty to instruct on a lesser included offense where “it would be speculative at best to construe the trial evidence . . . as supporting a verdict of only [the lesser offense].” (Id. at p. 704.) We independently review whether the trial court erroneously failed to instruct on a lesser included offense. (People v. Trujeque (2015) 61 Cal.4th 227 , 271; People v. Wang (2020) 46 Cal.App.5th 1055 , 1069.) In determining whether the trial court erred, we consider the evidence in the light most favorable to the defendant. (People v. Cortez (2018) 24 Cal.App.5th 807 , 811; People v. Brothers (2015) 236 Cal.App.4th 24 , 30.) 16  2. The trial court had no duty to instruct the jury on assault with a firearm because there was no evidence Castellano committed an assault with a firearm that was not semiautomatic Castellano contends the trial court erred in not instructing the jury sua sponte on the lesser included offense of assault with a firearm (§ 245, subd. (a)(2)). Castellano is correct that assault with a firearm is a lesser included offense of assault with a semiautomatic firearm. (People v. Martinez (2012) 208 Cal.App.4th 197 , 199.) But there was not sufficient evidence to support a finding by the jury Castellano committed an assault with a firearm that was not semiautomatic. The record contains substantial evidence the gun used to assault Munoz was semiautomatic. Munoz, who was only six or seven feet from Castellano, testified Castellano’s gun was “like a semi-automatic.” Asked what made him think the gun was semiautomatic, Munoz explained, “It was the kind of gun that police use.” Munoz testified he knew what revolvers looked like, describing them as having a cylinder in the middle, “[l]ike those cowboy guns.” By contrast, Castellano’s gun was flat and did not have a cylinder in the middle. Munoz’s testimony was corroborated by Detective Chevez, who testified he and most police officers carry semiautomatic firearms. Detective Chevez explained a semiautomatic gun is “the opposite of a revolver,” which has a round cylinder. He added that a semiautomatic gun automatically feeds ammunition from the magazine. Castellano identifies no contrary evidence that the gun was not semiautomatic, nor did his attorney expose weaknesses in Munoz’s testimony through cross-examination. Instead, Castellano argues Munoz’s testimony did not establish he had the 17 expertise to determine whether the gun “extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger,” which is the definition of a semiautomatic firearm in the jury instructions. But recourse to the technical definition of a semiautomatic firearm was not necessary here because Munoz testified the gun was semiautomatic based on his description of the gun as flat, like those used by the police, without a round cylinder, which Detective Chevez confirmed describes a semiautomatic gun, not a revolver. Detective Chevez also testified a semiautomatic firearm is one that “is automatically fed [ammunition] with a magazine.” Castellano also contends Detective Chevez did not testify that all flat guns are semiautomatic, although he testified semiautomatic weapons were the “opposite” of revolvers, which have round cylinders. Had Castellano presented evidence that flat guns could be nonsemiautomatic guns, this would be sufficient to support a conclusion Castellano committed the lesser offense of assault with a firearm and not the greater offense of assault with a semiautomatic firearm. But she did not, nor did she otherwise challenge Detective Chevez’s testimony. The absence of an opinion by Detective Chevez as to the possibility of a hypothetical flat, nonsemiautomatic gun is not evidence “‘“‘substantial enough to merit consideration’ by the jury.”’” (People v. Wyatt, supra, 55 Cal.4th at p. 698; accord, People v. Landry, supra, 2 Cal.5th at p. 96.) C. Remand Is Not Warranted for an Ability-to-pay Hearing on the Fines and Assessments Imposed by the Trial Court Castellano contends she is entitled to an ability-to-pay hearing as to the fines and assessments imposed by the trial 18 court, relying on this court’s opinion in Dueñas, supra, 30 Cal.App.5th 1157 . Castellano acknowledges Dueñas was filed on January 8, 2019—six weeks before her sentencing hearing on February 23, 2019—but she argues forfeiture should not apply because her counsel was unaware of the decision and Dueñas marked a dramatic change in the law implicating her fundamental right to due process. Forfeiture is proper here. In Dueñas, this court concluded “the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution.” (Dueñas, supra, 30 Cal.App.5th at p. 1168; accord, People v. Belloso (2019) 42 Cal.App.5th 647 , 654-655 (Belloso), review granted Mar. 11, 2020, S259755.)6 In contrast to court 6 Several Courts of Appeal have applied this court’s analysis in Dueñas (e.g., People v. Santos (2019) 38 Cal.App.5th 923 , 929- 934; People v. Kopp (2019) 38 Cal.App.5th 47 , 95-96, review granted Nov. 13, 2019, S257844 [applying due process analysis to court assessments]; People v. Jones (2019) 36 Cal.App.5th 1028 , 1030-1035), or partially followed Dueñas (e.g., People v. Valles (2020) 49 Cal.App.5th 156 , 162-163, review granted July 22, 2020, S262757 [concluding due process requires ability-to-pay hearing before imposition of court facilities fee, not restitution fines]). Other courts have rejected this court’s due process analysis (e.g., People v. Cota (2020) 45 Cal.App.5th 786 , 794-795; People v. Kingston (2019) 41 Cal.App.5th 272 , 279-281; People v. Hicks (2019) 40 Cal.App.5th 320 , 326, review granted Nov. 26, 2019, S258946), or concluded the imposition of fines and fees 19 assessments, a restitution fine under section 1202.4, subdivision (b), “is intended to be, and is recognized as, additional punishment for a crime.” (Dueñas, at p. 1169; accord, Belloso, at p. 655.)7 Section 1202.4, subdivision (c), expressly provides a defendant’s inability to pay a restitution fine may not be considered as a “compelling and extraordinary reason” not to impose the statutory minimum fine. However, as this court held in Dueñas, to avoid the serious constitutional questions raised by imposition of such a fine on an indigent defendant, “although the trial court is required by . . . section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine.” (Dueñas, at p. 1172; accord, Belloso, at p. 655.) should be analyzed under the excessive fines clause of the Eighth Amendment (e.g., People v. Cowan (2020) 47 Cal.App.5th 32 , 42, review granted June 17, 2020, S261952; People v. Aviles (2019) 39 Cal.App.5th 1055 , 1061; Kopp, at pp. 96-97 [applying excessive fines analysis to restitution fines]). The Supreme Court granted review of the decision in Kopp to decide the following issues: “Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant’s inability to pay?” (Supreme Ct. Minutes, Nov. 13, 2019, p. 1622; see Kopp, supra, 38 Cal.App.5th 47 .) 7 Our analysis of restitution fines under section 1202.4, subdivision (b), also applies to parole/postrelease community supervision restitution fines under section 1202.45, because these fines must be imposed “in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” (§ 1202.45, subd. (a).) 20  In People v. Castellano (2019) 33 Cal.App.5th 485 , 489 (Castellano), we held a defendant’s failure to object to the imposition of fines and fees before Dueñas was filed does not constitute forfeiture of that issue. As we explained, “[N]o California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant’s ability to pay. . . . When, as here, the defendant’s challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture.” (Castellano, at p. 489; accord, Belloso, supra, 42 Cal.App.5th at p. 662; People v. Santos (2019) 38 Cal.App.5th 923 , 931-932; People v. Johnson (2019) 35 Cal.App.5th 134 , 137- 138; contra, People v. Bipialaka (2019) 34 Cal.App.5th 455 , 464 [defendant forfeited challenge by not objecting to the assessments and restitution fine at sentencing]; People v. Frandsen (2019) 33 Cal.App.5th 1126 , 1153-1154 [same].) The People contend, and we agree, Castellano forfeited her challenge because Castellano was sentenced six weeks after Dueñas was decided. Unlike in Castellano, her challenge on appeal is not “based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial.” (Castellano, supra, 33 Cal.App.5th at p. 489.) Additionally, there are no special circumstances or legal issues that would warrant us to exercise our discretion to excuse forfeiture. (In re S.B. (2004) 32 Cal.4th 1287 , 1293 [“application of the forfeiture rule is not automatic,” although “the appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue”]; Unzueta 21 v. Akopyan (2019) 42 Cal.App.5th 199 , 215 [“‘[N]either forfeiture nor application of the forfeiture rule is automatic.’”].) D. The February 25, 2019 Minute Order Must Be Corrected To Strike Reference to a Continuing Criminal Protective Order Castellano contends, the People concede, and we agree the February 25, 2019 minute order must be corrected to strike any reference to a criminal protective order extending through June 6, 2021 because the order lacks statutory authorization and is not reflected in the trial court’s oral pronouncements at the sentencing hearing. The trial court8 issued the criminal protective order at a pretrial hearing on June 6, 2018 pursuant to section 136.2, which permits a court to enter orders to protect witnesses and victims. (§ 136.2, subd. (a)(1) [court may issue criminal protective order “[u]pon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur”]; People v. Selga (2008) 162 Cal.App.4th 113 , 118.) “[P]rotective orders issued under section 136.2 [are] operative only during the pendency of the criminal proceedings and as prejudgment orders.”9 (Selga, at pp. 118-119; accord, People v. Ponce (2009) 173 Cal.App.4th 378 , 382.) Thus, the statement in the February 25, 2019 minute order that the criminal protective order would continue in effect until June 6, 2021 was erroneous. 8 Judge Victor Wright. 9 Section 136.2, subdivision (i), allows a criminal protective order to remain in place for up to 10 years in specified circumstances not applicable here. 22  In addition, there is no reference to a protective order in the reporter’s transcript of the February 25, 2019 sentencing hearing. “The record of the oral pronouncement of the court controls over the clerk’s minute order . . . .” (People v. Farell (2002) 28 Cal.4th 381 , 384, fn. 2, accord, People v. Sanchez (2019) 38 Cal.App.5th 907 , 919.) Appellate courts may correct clerical errors in a clerk’s minute order to reflect the court’s oral pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181 , 185.) Accordingly, we order the February 25, 2019 minute order corrected to strike any reference to a criminal protective order. DISPOSITION We order the February 25, 2019 minute order corrected to strike any reference to a criminal protective order. We otherwise affirm. FEUER, J. I concur: RICHARDSON, J.* * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 23  SEGAL, Acting P. J., Concurring and Dissenting. I agree that, with the evidence Castellano declared her gang affiliation and cursed a rival gang when she pointed a firearm at Munoz, there was substantial evidence the gun Castellano pointed was loaded (although I don’t think it matters she made the gang challenge during the daytime) and that Castellano committed the crime of assault with a semiautomatic firearm. But without that evidence the question whether substantial evidence supported the finding the gun was loaded is a closer call. Absent evidence of the gang challenge, we would essentially be holding that, any time a gang member points a gun, jurors may presume it is loaded, at least when the gang member is in rival gang territory. In my view, however, the trial court erred in not instructing the jury on the lesser included offense of assault with a (not necessarily semiautomatic) firearm. Munoz did say that the firearm he saw “was like a semiautomatic” gun and that he thought it was semiautomatic because it looked more like the guns he has seen police use than those he has seen cowboys use. Hardly an expert opinion, but admissible and relevant to the issue whether the firearm Castellano pointed at him was a semiautomatic firearm. But there was no evidence Munoz had any experience with firearms or riding the range; his opinion was essentially speculation based on observing police officers and watching movies and television shows about cowboys. In addition, Munoz only saw the gun for a “matter of seconds” from six to seven feet away. While Detective David Chevez did say most police officers use semiautomatic firearms, he did not say all of them do.10 By not instructing the jury on the lesser included offense of assault with a firearm, the court improperly presented “the jury with ‘an “unwarranted all-or-nothing choice”’” (People v. Eid (2014) 59 Cal.4th 650 , 657): convicting Castellano of assault with a semiautomatic firearm or, even if the jurors believed the People proved beyond a reasonable doubt the firearm Munoz saw for a few seconds was a firearm but not a semiautomatic one, acquitting her. (See People v. Vargas (2020) 9 Cal.5th 793 , 827 [“A trial court must instruct a jury on lesser included offenses when the evidence raises questions regarding whether every element of a charged offense is present.”]; People v. Richards (2017) 18 Cal.App.5th 549 , 559-560 [trial court erred in not instructing on a lesser included offense where the jury could have found the People did not prove one or two elements of the greater offense]; People v. Walker (2015) 237 Cal.App.4th 111 , 116-117 [trial court erred in not instructing on possession of marijuana, as a lesser included offense of possession of marijuana for sale, where “[w]ithout a simple possession instruction, the jury had only two choices: convict on the felony sales count or acquit altogether,” which “is precisely the all-or-nothing choice [the Supreme Court] concluded was improper,” and “the jury should 10 The official website for the Los Angeles Police Department identifies the guns officers “are authorized to use, as their on duty primary weapon.” (.) None of them appears to be a revolver. But the statement on the website is carefully limited to an officer’s “primary” weapon. As we all know from the movies and television shows Munoz watches, officers often carry a “secondary” weapon in an ankle holster, shoulder holster, or other concealed area. 2 have been instructed on a third choice, to wit, simple possession”].) In concluding the trial court did not have a duty to instruct on the lesser included offense of assault with a firearm, the majority states the “record contains substantial evidence the gun used to assault Munoz was semiautomatic.” (Maj. opn. ante, at p. 17.) I agree with the latter statement, but the majority’s conclusion does not follow from it. Certainly Munoz’s testimony was substantial evidence the gun he saw was semiautomatic. But that’s not the test for determining whether the trial court has a duty to instruct on a lesser included offense. The correct test is not whether there was substantial evidence to support the verdict, but whether there was substantial evidence from which a reasonable factfinder could have found the defendant guilty of the lesser but not the greater offense. (See People v. Breverman (1998) 19 Cal.4th 142 , 178, fn. 25 [“That the jury chose the greater over acquittal, and that the evidence technically permits conviction of the greater, does not resolve the question whether, ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears reasonably probable the jury would nonetheless have elected the lesser if given that choice.”]; People v. Brown (2016) 245 Cal.App.4th 140 , 155 [“‘it does not matter that the jury chose to convict the defendant of the greater offense over acquittal or that the defendant was convicted of the greater offense on sufficient evidence’”]; People v. Woods (2015) 241 Cal.App.4th 461 , 475 [“the question is not whether substantial evidence supports [the defendant’s] conviction on the greater offenses,” but “whether, in assessing and weighing the evidence independently, the jury could have reasonably concluded that [the defendant] committed” the lesser 3 offense].) The two inquiries are quite different. Although there was substantial evidence Castellano committed an assault with a semiautomatic firearm, there was also substantial evidence she committed an assault with a non-semiautomatic firearm. (See People v. Huggins (2006) 38 Cal.4th 175 , 215 [“‘When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.’”]; People v. Campbell (2020) 51 Cal.App.5th 463 , 501 [same].) I acknowledge the trial court does not have a duty to instruct on a lesser included offense if “there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged . . . .” (People v. Kraft (2000) 23 Cal.4th 978 , 1063; see People v. Walker, supra, 237 Cal.App.4th at p. 117.) But rejection of the prosecution’s evidence here was easily explainable. The prosecution did not recover the firearm or present any expert testimony about firearms in general, the difference between semiautomatic and other kinds of firearms, or even what kind of firearm Castellano may have used. There was only one witness—with no evidence of his knowledge of or expertise in firearms—led by a prosecutor on direct examination to say the gun was flat and not the kind of gun used in the Wild West. The trial court did not instruct the jury to consider, in determining whether Castellano used a semiautomatic firearm, what kinds of guns cops and cowboys use. The court instructed the jury that a “semiautomatic firearm is a firearm that extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger,” and there was no 4 evidence of any of that. It does not take much to explain why one or more jurors could have rejected this evidence as proving beyond a reasonable doubt that Castellano used a semiautomatic firearm. Finally, on the issue of prejudice, there is a reasonable probability the jury would have convicted Castellano of assault with a firearm had the court instructed on that lesser included offense. (See People v. Gonzalez (2018) 5 Cal.5th 186 , 200, fn. 4 [“[People v. Watson (1956) 46 Cal.2d 818 ] applies to the failure to instruct on lesser included offenses”].) Given the relatively weak testimony about what the gun looked like, the absence of any expert testimony about different kinds of firearms and how to tell them apart, and the failure to recover the gun Castellano used, the jury easily could have found that the People proved beyond a reasonable doubt that the weapon Castellano pointed at Munoz was a firearm, but that the People did not prove beyond a reasonable doubt it was a semiautomatic firearm. For these reasons, I would reverse the judgment with directions to allow the People to retry Castellano on the charge of assault with a semiautomatic firearm, with the court giving an instruction on the lesser included offense of assault with a firearm, or to accept a reduction of her conviction to the lesser offense. (See People v. Richards, supra, 18 Cal.App.5th at pp. 560-561 [“When a greater offense must be reversed, but a lesser included offense could be affirmed, ‘we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense.’”].) Castellano would have an opportunity to request a hearing on her ability to pay any fines or fees the court imposes at resentencing. SEGAL, Acting P. J. 5

2020-12-02 20:02:27.818687+00

https://www.courts.ca.gov/opinions/nonpub/D075466.PDF

Filed 12/2/20 Lastavich v. Nob Hill Homeowners Assn. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA LOUIS LASTAVICH, D075466 Plaintiff and Appellant, v. (Super. Ct. No. 37-2017- 00019472-CU-OR-NC) NOB HILL HOMEOWNERS ASSOCIATION et al., Defendants and Respondents. APPEAL from a judgment and postjudgment order of the Superior Court of San Diego County, Ronald Frazier, Judge. Affirmed. Curran & Curran, Michael D. Curran and Susan M. Curran; Williams Iagmin and Jon R. Williams, for Plaintiff and Appellant. Gatzke Dillon & Ballance, Mark J. Dillon and John W. Dillon, for Defendants and Respondents. Plaintiff Louis Lastavich appeals from the judgment, and a postjudgment award of attorney fees, in favor of defendants Nob Hill Homeowners Association (Nob Hill HOA), Bill Cima (Cima), and Spiro Demis (Demis) (sometimes, Nob Hill HOA, Cima, and Demis are collectively referred to as defendants). Lastavich, Cima, and Demis each own a unit in the four- unit Nob Hill condominium complex located in the coastal zone in Carlsbad, California (sometimes, Nob Hill) that is subject to the Nob Hill Declaration of Covenants, Conditions & Restrictions recorded in July 1986 (CC&Rs). After a bench trial based on a stipulated record without the presentation of oral testimony, the court made a series of findings/rulings including, as relevant to this appeal, that short-term vacation rentals (sometimes, STVR(s)) are not a “business” and therefore, such rentals do not violate the CC&Rs as a whole, and section 3.1 in particular, which section requires each of the units at Nob Hill to “be used as a single family residence and for no other purpose or purposes”; that, while an “owner may receive rental income, the use of the property [as a STVR] remains a ‘single family residence’ ” under section 3.1; and that at least since 2005, Lastavich has known that other Nob Hill unit owners have rented their units on a short- term basis. Among other arguments, Lastavich on appeal contends that the trial court improperly construed the CC&Rs including section 3.1. He argues the “plain meaning” of the CC&Rs “contemplate residential use by owners, the owners’ guests, and the owners’ ‘tenants,’ ” but not “transient vacation lodgers”; and further argues use of the Nob Hill units as STVRs involve a “commercial” enterprise prohibited by the unambiguous language of section 3.1. Defendants in response agree with Lastavich that section 3.1 is unambiguous. But that’s where the parties’ agreement ends. As relevant to this appeal, defendants instead argue that, although Nob Hill owners who rent their units as a STVR receive income, their use of such units remains a “single-family residence” within the meaning of section 3.1; 2 that the uncontroverted evidence shows that such owners “rent their entire units for single-family use within the coastal zone one family at a time, in which their renters and guests inhabit the entire unit and make residential use of each unit by eating, sleeping, cooking, cleaning, and recreating therein,” which are all “quintessential uses within a single-family residence”; and that Lastavich’s contention section 3.1 and the CC&Rs as whole prohibit expressly or implicitly STVRs would impermissibly require the addition of “new, non-existent language” to the existing CC&Rs. Exercising our independent review and construing, as we must, the restrictive covenants strictly against Lastavich and in favor of the unencumbered use of the Nob Hill property, we conclude based on the undisputed evidence that the CC&Rs as a whole, and section 3.1 in particular, do not prohibit STVRs in the four-unit Nob Hill condominium complex. As a result of our decision, we deem it unnecessary to reach the other issues raised by the parties. Affirmed. BACKGROUND1 In 1985, Albert Bovenzi and Sandra Bovenzi purchased the four-unit Nob Hill condominium complex located in the City of Carlsbad (sometimes, City) in a bankruptcy sale. After their purchase, they hired an attorney who prepared the CC&Rs that were recorded in July 1986. In May 1995, Lastavich purchased his Nob Hill unit. Since at least 1998 through the August 2018 trial, he has continuously resided in the unit. Lastavich’s preliminary title report shows the CC&Rs were in his “chain of 1 As noted, the parties stipulated to a bench trial without oral testimony. The material facts are therefore undisputed, as the key issue for purposes of this appeal turns on the interpretation of the CC&Rs, and section 3.1 in particular, and whether STVRs are prohibited under such. 3 title to the property,” and he admitted receiving a copy of the CC&Rs and reading them when he purchased his unit. Defendant Cima declared under penalty of perjury that he and his wife Saundra Cima purchased their Nob Hill unit in May 1998; that between January 2000 to August 2005, they used their unit as a long-term rental; and that beginning in September 2005, they have continuously used their unit as a STVR. Defendant Cima further declared that since 2005 up to the time Lastavich filed his lawsuit, they have “never had a noise complaint from [their] neighbors”; they “have never had a City code enforcement inquiry or violation for noise disturbances, trash, parking, or any other incident”; they have “never had the police called to the building for short-term vacation rental issues”; they have “visited the Nob Hill complex between the hours of approximately 6:00 p.m. to 10:00 p.m. at least 200 times over the past 12 years, mostly in the summer months, and have never had to tell any tenant to control the noise level”; and they “also strictly prohibit parties and other social gatherings in all of [their] rental contracts.” Defendant Cima also declared that Lastavich did not complain about any of the units being used as STVRs until November 2016, more than 11 years after the Cimas began renting their unit on a short-term basis. Lastavich at his deposition confirmed he has known since about 2005 that the Cimas have been using their Nob Hill unit as a STVR. Lastavich further testified he considered a STVR to be “30 days or less.” In addition to the Cimas, other Nob Hill owners at times have used their units as a STVR. Justin Ferayorni2 declared under penalty of perjury that he owned a Nob Hill unit from about June 2004 to April 2008; that 2 Ferayorni is not a party in this lawsuit. 4 starting in 2005, he “continuously” used his unit both as a “short-term vacation rental and a long-term rental,” until he sold his unit to defendant Demis in about 2008; and that before he began using his unit as a STVR, he reviewed the CC&Rs and determined there was no prohibition of such rentals “either explicitly or by implication.” Ferayorni further declared that he attended a Nob Hill HOA meeting in 2005, and announced during the meeting he had reviewed the CC&Rs and concluded they did not prohibit STVRs; that during the meeting he asked other members in attendance, including Lastavich, if they agreed with his interpretation of the CC&Rs with respect to STVRs; that no one at the meeting opposed his interpretation of the CC&Rs, and, in fact, there was “general agreement that short-term vacation rentals did not violate the CC&Rs”; and that he in response then informed other members of the Nob Hill HOA of his “intent to rent [his] unit as a short-term vacation rental.” Ferayorni also declared that no other Nob Hill owner, including Lastavich, ever complained about his use of his unit as a STVR, nor did any such owner assert that his doing so violated the CC&Rs; and that shortly after he began renting his Nob Hill unit on a short-term basis, defendant Cima “also began renting his unit as a [STVR].” Lastavich at his deposition testified that he was in attendance at the 2005 HOA meeting when Ferayorni, joined by defendant Cima, announced their intention to rent their units for what Lastavich recalled would be about a “week” at a time. Lastavich further testified that Ferayorni began such rentals “[m]aybe the following spring”; and that the Cimas began using their unit for “[s]hort-term . . . vacation rentals” “shortly after” the 2005 HOA meeting. 5  As noted, Ferayorni in 2008 sold his Nob Hill unit to defendant Demis. Lastavich testified Demis then began to also use his unit “as a vacation rental.” Lastavich further testified he knew Demis was using his newly acquired unit as a vacation rental from the “amount of traffic, people coming in and out” of the unit, and from a conversation they had had when Demis told Lastavich he bought the unit for “rental use.” Demis confirmed Lastavich’s testimony. Demis declared under penalty of perjury that since his purchase of the unit in May 2008, he has “continually” used it as a “residential short term vacation rental property”; that once he began using his unit as a STVR, Demis has “never had a City code enforcement inquiry or violation for noise disturbances, trash, parking, or any other incident”; and that the “[p]olice have never been called for a problem at [his] rental.” Demis further declared that when he purchased his unit from the “previous homeowners[] association president [i.e., Ferayorni],” the “president already was renting his unit as a residential vacation rental and it was rented and booked through the VRBO.com website.” In connection with his purchase, Demis was provided with “residential vacation income data that was a material basis for [his] decision to purchase the property.” Demis also confirmed that since his purchase of the Nob Hill unit in 2008, he has had “several conversations with Mr. Lastavich,” adding: “[Lastavich] at all times . . . knew that my unit (and at times both other units in the building besides his) were used as residential short-term vacation rentals.” Sandra Bovenzi declared under penalty of perjury that she sold her Nob Hill unit to Don Richardson and Debbie Richardson in October 2005.3 3 Neither Sandra Bovenzi nor the Richardsons are parties in this lawsuit. 6 Sandra further declared that earlier in 2005, she took issue with signs that defendant Cima and Ferayorni had each placed on the balcony of their respective units, advertising them as “short-term vacation rentals.” Sandra took down the signs and defendant Cima in response brought up the sign- issue at a Nob Hill HOA meeting. Sandra in her declaration added, “At [the] meeting, we discussed the short-term vacation rental sign placement, and the Board came to an agreement on where the signs were to be placed. At no time did any Board member express the opinion that the use of the units as short-term vacation rentals was in violation of the Nob Hill CC&Rs. All members of Nob Hill were present at the meeting (including Mr. Lastavich).” Lastavich in his deposition testified that shortly after the Richardsons bought their unit, he was aware they were using it as a “vacation rental”; and that the Richardsons continued to use their unit as such for the next “four or five years,” although Lastavich believed they did so “sparingly.” Don Richardson declared under penalty of perjury that, although at the time of trial he and his wife were not renting their Nob Hill unit, in the past they had done so, a fact Lastavich was aware of as early as 2006. Don further declared he did not object to other owners using their units as “vacation rentals.” Lastavich thus admitted that beginning in the latter part of 2005 or early 2006, he knew that Ferayorni, defendant Cima, and the Richardsons were using their units as STVRs. Lastavich’s knowledge of such was based not only on the fact that there was increased “traffic” at Nob Hill, but also on separate conversations he had had with each of these current and former owners regarding their use of the units as STVRs, as also confirmed by them by their sworn testimony. 7  In early November 2016, Lastavich’s legal counsel sent the other Nob Hill owners a letter demanding they “cease and desist” using their units as STVRs, arguing such use was a “clear violation” of the CC&Rs. The NOB Hill board consulted various attorneys in response. At a November 10, 2016 HOA meeting where “all” unit owners were represented including Lastavich, the board advised its members that the attorneys it had consulted “were identical in their position that vacation rental use is part of the single-family residence use and that such use was permitted by the CC&Rs. Therefore a motion was passed and carried with a vote of three to zero with one abstention (Mr. Lastavich) that the Nob Hill HOA Board hire an attorney to represent the HOA and to write a reply to Mr. [Lastavich’s] demand letter.” In May 2017, Lastavich filed his original complaint, alleging nine causes of action against the Nob Hill HOA, Cima, and Demis for breach of fiduciary duty, fraud, trespass, negligence, intentional and negligent infliction of emotional distress, violation of the CC&Rs, an accounting, and declaratory relief. In addition to general damages, Lastavich sought punitive damages from defendants, injunctive relief, and attorney fees and costs. In early June 2017, Lastavich filed an ex parte application seeking a temporary restraining order to enjoin defendants “from using the NOB Hill Association for Short Term Vacation Rentals . . . as such use violates the [CC&Rs] which has and will cause irreparable injury before certain legal/contractual/factual issues in this lawsuit are adjudicated.” Defendants opposed the request. The court ordered further briefing. Lastavich’s request for a restraining order was denied in late August. The court found Lastavich failed to establish both a reasonable probability of success on the merits of his claims and irreparable harm if the injunction was not granted. The court also found that, in balancing the hardships borne by 8 the parties, the “individual homeowners [would] suffer greater harm if the injunction [was] granted.” In response to a demurrer and motion to strike, Lastavich in September 2017 filed a first amended complaint (sometimes, FAC), omitting only his fraud cause of action, but again seeking both general and punitive damages from defendants among other relief. Defendants again demurred to, and moved to strike portions of, the FAC. In December, Lastavich filed a motion seeking a judicial declaration that STVRs violated section 3.1 of the CC&Rs and requesting appointment of a receiver. That motion was denied in late February 2018. The court that same month also sustained in part the demurrer to the FAC, dismissing Lastavich’s causes of action for trespass and intentional infliction of emotional distress, and granted defendants’ motion to strike Lastavich’s request for punitive damages. In March 2018, Lastavich filed a motion for summary adjudication, which the court subsequently denied both on procedural and substantive grounds. Substantively, the court found that Lastavich “failed to meet his burden to prove that the CC&Rs prohibited use of the Nob Hill single-family residences as short term rentals.” As noted, at the August 28 bench trial the parties stipulated to waive witness testimony. The parties’ stipulation further provided the court would decide the case based on the following: “(a) Evidence cited in parties’ trial briefs and any attached exhibits; [¶] (b) Notice of Lodging Evidence, filed on August 29, 2018, including an index of the lodged documentary evidence (Tabs 1-7); and [¶] (c) Deposition Transcripts of Bill Cima and Louis Lastavich.” 9  At the continued September 6 hearing, after indicating it had read the evidence based on the parties’ stipulation, and, after hearing the lengthy argument of counsel, the court orally announced its decision. As relevant to the issues we consider on appeal, the court disagreed with Lastavich’s interpretation of the CC&Rs, finding that “short term vacation rentals are not a business and that their use do[es] not violate the CC&Rs,” including section 3.1; and that all of Lastavich’s remaining causes of action were derivative of his declaratory relief cause of action. Defendants subsequently filed a motion to recover $313,721 in attorney fees and $6,156.95 in costs. In support of their motion, defendants argued the award requested was necessary and reasonable and was incurred to “(i) defend against numerous, largely unsuccessful motions filed by Plaintiff [Lastavich], (ii) engage in discovery, and (iii) successfully prevail after the bench trial.” Lastavich opposed the fees motion, essentially rearguing the merits of the trial court’s ruling on his declaratory relief cause of action; and noting that once such ruling was reversed on appeal, he would be seeking an award of fees and costs from defendants. In addition, Lastavich also argued the amount of fees sought by defendants was unreasonable, as his fees allegedly were “less than a third of the Defendants claimed fees.” The record shows the court on its own motion twice continued the hearing on the fees motion, wisely allowing the trial judge that had presided over the case and bench trial to hear and rule on said motion. At the continued February 1, 2019 hearing, the court granted the motion for attorney fees, but reduced the award to $260,625. Lastavich appealed this post-judgment order in connection with this main appeal. 10  DISCUSSION A. Guiding Principles The interpretation of a written instrument, such as the CC&Rs at issue here, is essentially a judicial function to be exercised according to the generally accepted canons of interpretation of contracts so that the purpose of the instrument may be given effect. (Fourth La Costa Condominium Owners Assn. v. Seith (2008) 159 Cal.App.4th 563 , 575 (Seith); Greater Middleton Assn. v. Holmes Lumber Co. (1990) 222 Cal.App.3d 980 , 989.) When there is no conflict in the evidence as to the document in question, an appellate court is not bound by a trial court’s interpretation of the terms of the written instrument, but should make an independent determination of the terms. (Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111 , 1121 (Ekstrom).) Key to the instant case, restrictive covenants such as the CC&Rs must be construed strictly against those seeking to enforce them, and in favor of the unencumbered use of the property. (See Wing v. Forest Lawn Cemetery Assn. (1940) 15 Cal.2d 472 , 479 [recognizing “any provisions of an instrument creating or claimed to create a [restrictive easement] will be strictly construed, any doubt being resolved in favor of the free use of the land”]; Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360 , 1377 (Chee) [noting “ ‘ “restrictive covenants are construed strictly against the person seeking to enforce them,” ’ ” in favor of the unencumbered use of property]; Smith v. North (1966) 244 Cal.App.2d 245 , 248 (Smith) [noting when a restrictive covenant is “subject to more than one interpretation, that construction consonant with the unencumbered use of the property will be adopted,” and “any doubt therein is resolved against enforcement of the restriction”].) 11  Keeping these principles in mind, we nevertheless strive to give the instrument a just and fair interpretation, so that the intent of the parties— typically determined at the time when the instrument is formed, governs. (See Westrec Marina Management, Inc. v. Arrowood Indemnity Co. (2008) 163 Cal.App.4th 1387 , 1392 (Westrec); Civ. Code,4 § 1636 [providing: “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful”].) “We ascertain that intention solely from the written contract, if possible.” (Westrec, at p. 1392; § 1639 [providing in part: “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible”].) However, “[r]estrictions on the use of land will not be read into a restrictive covenant by implication, but if the parties have expressed their intention to limit the use, that intention should be carried out, for the primary object in construing restrictive covenants, as in construing all contracts, should be to effectuate the legitimate desires of the covenanting parties.” (Hannula v. Hacienda Homes (1949) 34 Cal.2d 442 , 444–445.) As noted, in this case the parties stipulated to the evidence the court could rely on in determining whether the CC&Rs as a whole, and section 3.1 in particular, prohibited the use of the Nob Hill units as STVRs. Because there was no conflict in the evidence regarding the interpretation of the CC&Rs, we independently determine their meaning. (See Ekstrom, supra, 168 Cal.App.4th at p. 1121; Seith, supra, 159 Cal.App.4th at p. 575.) B. Analysis As noted ante, Lastavich contends that the “plain meaning” of section 3.1 of the CC&Rs prohibits the use of the Nob Hill units as STVRs. For 4 All further statutory references are to the Civil Code. 12 purposes of this appeal only, we deem a STVR to mean a rental of less than 30 days, as Lastavich stated at his deposition, and as defined in Ordinance No. CS-272, section 5.60.020,5 of the City Council of City. Section 3.1 is found under the heading, “Use of Units and Common Area,” and provides: “Single-Family Residence Only. Each Unit shall be used as a single family residence and for no other purpose or purposes except that a sales office and/or sales display area may be maintained by Developer in any of the units until sales of all of the Condominiums in the Project have been consummated.” Section 1.2 of the CC&Rs defines “[u]nit” to “mean and refer to those portions of the Condominium Property shown and described as such on the Condominium Plan and shall consist of a Living Area Airspace and Garage Airspace.” The CC&Rs do not, however, define the term “used as a single family residence.” Nor do they include the term “transient vacation lodgers,” which term Lastavich relies on to distinguish section 3.1 and its requirement that the units be used only as a “single family residence.” 5 This section provides: “ ‘Short-term vacation rental’ is defined as the rental of any legally permitted dwelling unit as that term is defined in Chapter 21.04, Section 21.04.120 of this code, or any portion of any legally permitted dwelling unit for occupancy for dwelling, lodging or sleeping purposes for a period of less than 30 consecutive calendar days. Short-term vacation rental includes any contract or agreement that initially defined the rental term to be greater than 30 consecutive days and which was subsequently amended, either orally or in writing to permit the occupant(s) of the owner's short-term vacation rental to surrender the subject dwelling unit before the expiration of the initial rental term that results in an actual rental term of less than 30 consecutive days.” (Italics added.) We note that section 5.60.030 of Ordinance CS-272 provides: “Short-term vacation rentals which comply with the requirements of this Chapter are permitted only in the coastal zone,” which, as noted ante, includes Nob Hill. 13  As is clear from the undisputed evidence summarized ante, Lastavich’s interpretation of section 3.1 would severely limit the remaining Nob Hill owners’ free use of their property. (See Wing, supra, 15 Cal.2d at p. 479; Smith, supra, 244 Cal.App.2d at p. 248; Chee, supra, 143 Cal.App.4th at p. 1377.) As such, we must strictly construe the CC&Rs against him. Initially, we note that it would have been relatively simple to have included a single sentence in the CC&Rs, when originally drafted in 1986 or as amended, to limit the rental of the Nob Hill units to a certain minimum number of days. Such a sentence could have read something along the lines of, “no rental of any ‘unit,’ as that term is defined in section 1.2, shall be for a period of less than [fill in] days, which rental shall, in any event, be used only as a ‘single family residence and for no other purpose,’ as provided in section 3.1,” or words to that effect. Indeed, as is also clear from the undisputed evidence, it cannot be said the use of the Nob Hill units as vacation rentals was unexcepted or unanticipated. As noted, the complex is comprised of only four units; is located in the coastal zone of City, a beach resort; and most of the former and current owners of such units, other than Lastavich, have used their units as a STVR, dating back to 2005. In addition, Sandra Bovenzi’s sworn testimony shows she had no intention of limiting the rental of the Nob Hill units to a minimum number of days. As noted, she along with Arthur Bovenzi were identified as the “Declarant” in the CC&Rs when they were recorded in 1986. As such, her testimony is relevant to our interpretation of the CC&Rs. (See Westrec, supra, 163 Cal.App.4th at p. 1392; see also § 1647 [providing: “A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates”].) 14  On the issue of whether Bovenzi intended to restrict STVRs at Nob Hill or to otherwise limit the rental of such units to a certain minimum number of days, she testified: “I had no intent to prohibit the use of the Nob Hill condominium units as short-term vacation rentals. Further, I had no intent to restrict or prohibit any rental use of such units. I formulated my intent prior to or at the time the CC&Rs were completed, and my intent is reflected in the various provisions of the CC&Rs.” She went on to identify sections 3.1, 3.8, 3.11, and 4.8, all of which are summarized post, as indicative of her intent as a “Declarant.” Moreover, as we have repeatedly noted, the undisputed record evidence stipulated to by the parties shows that various owners since at least 2005 have used their units as a STVR; that in 2005, defendant Cima and Ferayorni began advertising their respective units as STVRs by posting signs on their units’ respective balconies; that shortly after they purchased their unit from Sandra Bovenzi in 2005, the Richardsons also used their unit as a “vacation rental”; and that Demis in 2008 bought his unit from Ferayorni specifically for use as a rental, including as a STVR. (See City of Hope Nat. Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375 , 393 (Genentech) [noting that a “party’s conduct occurring between execution of the contract and a dispute about the meaning of the contract’s terms may reveal what the parties understood and intended those terms to mean,” and further noting that for “this reason, evidence of such conduct . . . is admissible to resolve ambiguities in the contract’s language”].) But that’s not all. The undisputed evidence also shows that at a Nob Hill HOA meeting in 2005 attended by Lastavich, defendant Cima and Ferayorni both expressed their intention to use their units as STVRs; that the owners discussed whether such use was prohibited by the CC&Rs; and 15 that there was general agreement among the owners that no such prohibition existed. The undisputed evidence further shows that, shortly after this meeting, Ferayorni began using his unit as STVR; and that defendant Cima and his wife Debbie Cima not long afterwards also began using their unit as a STVR, and have continuously done so for almost 13 years, up to the time of trial. (See Genentech, supra, 43 Cal.4th at p. 393.) Furthermore, multiple sections of the CC&Rs expressly contemplate the Nob Hill units can be rented and/or leased by nonowners without regard to any minimum number of days or time period. (See Ezer v. Fuchsloch (1979) 99 Cal.App.3d 849 , 861 [concluding a declaration of restrictions is to “be ‘construed as a whole’ so as ‘to give effect to every part thereof [citations], and particular words or clauses must be subordinated to general intent’ ”]; see also § 1641 [providing: “The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other”].) The opening section of the CC&Rs in part provides the “Declarant” (i.e., Albert Bovenzi and Sandra Bovenzi) pronounce that the “Project, and every component thereof, shall be held, used, sold, conveyed, leased, and encumbered subject to the following assessments, restrictions, covenants and conditions.” (Italics added.) There is no language in this prefatory section limiting the “leas[ing]” of units to a certain minimum number of days. Section 3.6 of the CC&Rs addresses use of the Nob Hill common area. It provides in part such area, excluding buildings, may be used for “recreational use by the Condominium Owners[6] and occupants of the Units 6 “Owner” is defined in section 1.6 of the CC&Rs in part to mean the “owner of record of fee simple title to any condominium or, in the event a condominium has been sold under a real property sales agreement.” 16 and their guests, subject to rules and regulations established” by the Nob Hill HOA. (Italics added.) Thus, section 3.6 expressly distinguishes “[o]wners” from “occupants” and “their guests”; does not define the term “occupant” or “guest”; and similar to the opening section of the CC&Rs and section 3.1, it contains no express limitation on the minimum number of days a unit may be rented by an “occupant” and his or her “guest.” Section 3.8 provides additional support for a construction of the CC&Rs allowing a Nob Hill unit to be rented and/or leased by nonowners without regard to the duration of such. It provides: “Sign Limitations. No Condominium Owner shall place any sign (for rent, sale, or exchange) on the interior walls of his Units, except where such sign is of reasonable dimensions, as determined by the City of Carlsbad” and California law. (Italics added.) Again, if the “rent[al]” of a Nob Hill unit was prohibited for less than 30 days, as Lastavich argues, it would have been simple to include such language in this section. Section 3.11 also distinguishes between an “Owner” and an “occupant of such Owner’s unit” when addressing liability for damages to common areas or any improvements thereof. (Italics added.) As is the case with other sections in the CC&Rs, “occupant” is undefined and occupancy is not restricted to a certain minimum stay. Section 4.8, governs the rights of the Nob Hill HOA to adopt reasonable rules consistent with the CC&Rs “relating to the use of the Common Area by Owners and their tenants or guests, and the conduct of such persons with respect to automobile parking, outside storage of boats, trailers, bicycles and other objects, . . . and other activities which, if not so regulated, might detract from the appearance of the Project or offend or cause inconvenience or danger to persons residing or visiting therein.” (Italics added.) 17  As is the case with other provisions in the CC&Rs, section 4.8 makes a clear distinction between owners, on the one hand, and “tenants” and “guests” on the other hand, again without defining “tenants” or “guests.” As is also the case with respect to sections 3.1, 3.6, 3.8, and 3.11, section 4.8 does not include any language excluding tenancy to less than 30 days. In sum, based on the rules of construction we must apply to Lastavich’s interpretation of the CC&Rs, including strictly construing them against him in favor of the free use of property; the lack of any express, unambiguous prohibition in the CC&Rs of the use of the Nob Hill units as STVRs, despite references in various sections to nonowners such as renters, occupants, and guests; the undisputed evidence provided by (i) Sandra regarding her intent as a Declarant under the CC&Rs not to limit the rental of units to a minimum stay or to preclude STVRs, and (ii) present and former owners regarding their use of the Nob Hill units as STVRs since about 2005, all of which was known to Lastavich; we independently conclude the CC&Rs do not expressly or by implication prohibit the use of the Nob Hill units as STVRs. Based on our decision, we find it unnecessary to reach the myriad other arguments raised by the parties on appeal, including that even if the CC&Rs prohibited STVRs, such a prohibition would be unenforceable under the California Costal Act of 1976 (Pub. Resources Code, § 30000 et seq.) and public policy underlying its enactment, as discussed in Greenfield v. Mandalay Shores Community Assn. (2018) 21 Cal.App.5th 896 ; or that Lastavich’s actions, or, more appropriately, inaction, prevent the relief he seeks under the doctrine of laches. Finally, as a result of our decision affirming the judgment, we decline to reverse the award of attorney fees to defendants. We note on appeal 18 Lastavich did not challenge the amount of such an award “per se,” but claimed such an award could not stand if the judgment was reversed. DISPOSITION The judgment is affirmed, as is the postjudgment award of attorney fees. Defendants to recover their costs of appeal. BENKE, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J. 19

2020-12-02 20:02:28.026252+00

https://www.courts.ca.gov/opinions/nonpub/B303873.PDF

Filed 12/2/20 In re Jayden G. CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT In re Jayden G., a Person Coming B303873 Under the Juvenile Court Law. ______________________________ (Los Angeles County LOS ANGELES COUNTY Super. Ct. No. DEPARTMENT OF CHILDREN 19CCJP07021A) AND FAMILY SERVICES, Plaintiff and Respondent, v. SANDY G., Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Sabina A. Helton, Judge. Affirmed. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.  _______________________ We affirm the juvenile court’s order removing a child from his mother’s custody. I Sandy G. and Jonathan M. had a son named Jayden born in April of 2018. The mother and the father are not married but lived together in a place shared with Jayden’s parental grandfather and parental uncle. The mother had witnessed domestic violence as a child. In her relationship with the father, the mother repeatedly perpetrated domestic violence on him—repeatedly in the presence of their son. One incident involved the mother striking the father many times and pulling him off the bed. Another incident was on March 26, 2019. The mother got on top of the father and struck him several times with closed fists. She also brandished a knife. This was inside their apartment. Their son was in the apartment at the time. Another incident was on October 5, 2019. The father pushed the mother. The mother hit the father’s face and body. Then she hit him with a candlestick holder. She again brandished a knife. Her son watched her attack his father. Police arrested the mother for intimate partner battery. She was incarcerated but released within days when the charges were dropped. The Department of Children and Family Services learned of the October 5, 2019 episode. On October 21, 2019, the father told a social worker he was filing for a restraining order against the mother. He said the 2 mother had verbally and physically abused him for the last two years. He had not reported her abuse because he feared her. On October 24, 2019, the mother moved out of the apartment in response to the father’s restraining order against her. The paternal grandfather reported seeing the mother hit the father 15 or 20 times. This grandfather had videotaped some events. The Department filed a petition on behalf of the son on October 30, 2019. Both parents appeared for a detention hearing on October 31, 2019. The court released the child to the father with monitored visits by the mother. On November 12, 2019, the court held a hearing about the father’s request for a temporary restraining order. The court granted re-issuance of the order. On December 27, 2019, the father announced he would let the restraining order lapse in favor of a mutual stay-away order. The court ordered the mother and father to stay 100 yards away from each other. On December 31, 2019, the juvenile court sustained a petition on behalf of the son and removed him from the mother’s custody. The son’s attorney supported the Department’s petition. At the same hearing, the court took up the matter of disposition. County counsel and the child’s counsel again joined forces. Both attorneys argued for placing the child in the father’s home. The child’s counsel underlined that both parents continued to deny the domestic violence. The court expressed concerns about the young age of the child and the fact only two months had elapsed since detention. The court set a three-month rather than a six-month review “to 3 see if we can do a return to home of mother.” The court removed the child from the mother’s custody and ordered the father not to monitor the mother’s visits. The mother appealed. Neither the father nor the child has appealed. II We state the pertinent legal principles. If a juvenile court has sustained its jurisdiction over a child, the court must decide where the child will live while under court supervision. The dispositional hearing is for this purpose. (In re N.M. (2011) 197 Cal.App.4th 159 , 169–170.) The Welfare and Institutions Code regulates when the juvenile court may take children from the physical custody of the parent. The statute requires clear and convincing evidence. The juvenile court must determine there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the child from the parent’s physical custody. (Welf. & Inst. Code, § 361, subd. (c)(1).) The parties agree our standard of review is for substantial evidence. Our duty is to determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by the clear and convincing evidence standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989 , 1005, 1009.) We do not reweigh the evidence. (Id. at p. 1008.) 4  III Substantial evidence supported the court’s removal order, which we affirm. On appeal, the mother does not challenge the jurisdictional ruling. She contests neither her violent abuse of the father nor her persistent denial of her own physical abuse. The mother’s argument is limited: she contends there was no evidence her son would be exposed to danger in her custody, because she was violent only towards the father and not towards her son. The mother contends the couple’s plan was to embark on peaceful coparenting and not to try to reconcile, and so this plan eliminated the prospect of further violence. On this record, the juvenile court was entitled to conclude the mother had two problems: a violence problem, and a denial problem. These two problems created a substantial danger to her son’s safety. First, the mother’s violence problem was she had resorted to violence repeatedly, without apparent concern for its effect on her son. The mother consistently was the aggressor. Her level of violence was significant. She struck with closed fists. She beat the father with a candlestick holder. She threatened the father with a kitchen knife. What is past is often prologue. (Cf. Evid. Code, § 1109 [past acts of domestic violence admissible in criminal prosecution for domestic violence].) Second, the mother’s denial problem was that she denied her violence problem. This suggested she lacked insight, and created an inference she lacked resolve to change her behavior. (See In re A.F. (2016) 3 Cal.App.5th 283 , 293 [denial is a common factor for determining whether people are likely to change their behavior].) 5  Mother cites the Anthony case, but that holding goes the wrong way for her: that court affirmed the juvenile court’s removal order. (In re Anthony Q. (2016) 5 Cal.App.5th 336 , 354.) We do the same. The mother can petition the court to revise these arrangements in the future. She will strengthen her case if she maintains a record of nonviolent conduct and can demonstrate she has fully acknowledged her violent past and the risks it poses to her impressionable young son. DISPOSITION We affirm the order. WILEY, J. WE CONCUR: BIGELOW, P. J. STRATTON, J. 6

2013-10-30 06:42:53.133027+00

Stewart

41 B.R. 528 (1984) In the matter of TRANSPORT CLEARINGS-MIDWEST, INC., Bankrupt. H.T. POINDEXTER & SONS MERCHANDISING CO., Claimant, v. Mendel SMALL, trustee in bankruptcy, Respondent. Bankruptcy No. 78-01179-B-W-4. United States Bankruptcy Court, W.D. Missouri, W.D. June 8, 1984. *529 Ford R. Nelson, Jr., Roy R. Darke, Foster C. Collins, Dietrich, Davis, Dicus, Rowlands, Schmitt & Gorman, Kansas City, Mo., for claimant. James C. Mordy, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, Mo., for respondent. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ALLOWING THE CLAIMANT'S CONTESTED CLAIM AS A PRIORITY EXPENSE OF ADMINISTRATION IN THE SUM OF $5,900.00 DENNIS J. STEWART, Bankruptcy Judge. Three claims have been filed against the within bankruptcy estate by H.T. Poindexter & Sons Merchandising Company. The first claim was filed on May 31, 1979, for the sum of $251,674.60, the amount of the then remaining rent payments under the lease between claimant and bankrupt. Two more claims were filed on July 1, 1981. Each of these two claims is substantially identical in nature. One is asserted as a priority claim under section 64a(1) of the Bankruptcy and the other has been filed alternatively as an unsecured, nonpriority claim. Neither of these two claims sets forth any specific amount claimed, but they are apparently based upon allegations of negligence of the trustee and his agents in inflicting damages upon the claimant's premises. A hearing on the claims was conducted by this court on January 5, 1984. Pursuant to stipulation at the hearing, the first claim was allowed as a general unsecured claim in the amount of $65,071.20, the amount of the rent reserved by the lease, without acceleration, for the year next succeeding the date of surrender of the premises to the landlord.[1] This is the maximum amount allowable on the claimant's claim for damages resulting from the rejection of the unexpired lease according to the provisions of section 63a(9) of the Bankruptcy Act. The trustee challenges the portions *530 of the other two claims which are for damages allegedly inflicted by negligence, as opposed to rent. It is his contention that these claims are not properly allowable and that, even if allowable in whole or part, they are not properly allowable as priority administrative expense claims under section 64a(1) of the Bankruptcy Act. Findings of Fact By means of a written lease made on February 2, 1977, the claimant, as lessor, leased to Transport Clearings-Midwest, Inc., as lessee, a portion of the first floor of a building located at 801 Broadway, Kansas City, Missouri, for a term of six years, one month and fourteen days, beginning February 15, 1977, and ending on March 31, 1983. This lease provided for a total rental of $395,849.80, payable in 73 monthly installments of $5,422.60, due and payable on the first day of each month of the term. On September 21, 1978, an involuntary petition for bankruptcy was filed against the bankrupt corporation. Thereafter, on October 2, 1978, the bankrupt corporation filed a petition for an arrangement under chapter XI of the Bankruptcy Act. Transport Clearings-Midwest, Inc., remained a debtor-in-possession under chapter XI for two years. On September 18, 1980, this court entered an order converting the chapter XI case to a straight bankruptcy case under chapter VII and appointing the respondent, Mendel Small, as the trustee in bankruptcy. By a sublease made and entered into on May 18, 1980, prior to the appointment of the trustee and while Transport Clearings-Midwest, Inc., was yet a debtor-in-possession under chapter XI of the Bankruptcy Act, Transport Clearings-Midwest, Inc., subleased to Carrier Credit and Collection, Inc., all of the leased premises covered by the above-mentioned lease, except the rooms used by Transport Clearings-Midwest, Inc., for its general manager's office, its executive secretarial and bookkeeping office, its conference room, the corridors and restrooms adjacent to that office, and the area in the southwest corner of the leased premises between the west wall of the leased premises and the west wall of the conference room projected south to the south wall of the leased premises. On May 29, 1981, the trustee in bankruptcy sent a letter notifying the claimant that, after June 30, 1981, the trustee would no longer use and occupy the previously occupied portion of the first floor of 801 Broadway or the storage space in the basement of that building. Transport Clearings-Midwest, Inc., paid the claimant the sum of $5,422.60 for each of the 43 successive months beginning in March 1977 and ending with September 1980. For each of the nine months beginning with October 1980 and ending with June 1981, the trustee paid claimant $5,422.60 for the continued use and occupation of the formerly leased premises. Neither Transport Clearings-Midwest, Inc., nor the trustee has paid claimant any amount for any period subsequent to June 30, 1981. On Saturday, June 28, 1981, Carrier Credit and Collection, Inc., which had acted under the direction and control and supervision of the trustee in bankruptcy, moved out of the premises that had formerly been leased by Transport Clearings-Midwest from the claimant. Since that date, neither Carrier Credit and Collection, Inc., nor the trustee has occupied any part of the formerly leased premises. The subject matter of the claim in this case pertains to the damage allegedly inflicted on the premises during their use and occupancy by Carrier Credit and Collection, Inc., under the control and supervision of the trustee in bankruptcy. Thus, in a claim filed by the claimant on May 29, 1981, it was asserted by the claimant that: "(u)pon June 30, 1981, inspection of said premises, claimant discovered damages to said premises, including removal of required improvements. Upon information and belief, claimant states that said damage was caused by the negligence of trustee or his agents and constitutes waste. * * * * * * "(Claimant) asserts this claim in full as a priority claim under section 64a(1) of the *531 Bankruptcy Act, but has filed its other proof of claim in the alternative as a general unsecured claim." The court, in setting its hearing on the alternative claims has, as is justified by their content, treated them in substance as one claim. The evidence which was adduced at the hearing tended to show that, in some respects, the contents of the preexisting lease may be relevant to disposition of the matter at bar. As pertinent, the lease obligated the lessor (claimant) to provide at its own expense certain renovations and alterations to the leased premises. These renovations and alterations obligated the lessor not only to construct new restroom and lounge facilities, but also to install a new 40 ton air conditioning system and duct work for the work area, a supplementary sprinkler system, and new partitions to replace older partitions. It was also contemplated that the lessor would rehang the exit doors, resurface the dock and vestibule and replace the dock steps. Some $10,000 was to be contributed for the construction of a new computer room and the installation of a suspended ceiling and of carpet "with 100% nylon looped office type (texture)" and of tile in the restrooms, lounge area and hallway. It was contemplated that the walls and columns would all be painted. The obligations of the lessee which were imposed by the terms of this lease were to "provide all electrical labor and materials required in the entire leased premises" and to "remove existing fixtures in work area; repair existing fixtures in office areas; furnish and install complete electrical service including, but not limited to, separate meter for lessee's electricity, air conditioning and ventilation wiring, 272 2' × 4' recessed flourescent light fixtures to provide 100 candle power light at desk heighth, 84 duplex outlets at 42 locations or the equivalent thereof, transformer and feeder and all other electrical work, lighting or equipment required for lessee's operation." According to the uncontradicted testimony adduced by the claimant in the course of the hearing, the description "84 duplex outlets at 42 locations" was intended to refer to 42 power poles which would contain two electrical outlets on each pole. These provisions of the lease agreement are said by the parties to bear upon the level of use and activity which was within the contemplation of the parties at the time they entered into the lease. The evidence of damage inflicted to the premises, as those premises existed at the time of the trustee's agent quitting occupancy of the premises is extensive in volume. This evidence purports to show that, with court approval, Carrier Credit and Collection, Inc., became the trustee's agent for performing the tasks of collection and disposition of the uncollected freight bills which were on file with the bankrupt corporation and that it had sole and exclusive use of the premises from October 1980 to June 28, 1981. At the end of that period of time, on July 1, 1981, the lessor (claimant) had photographs taken of the premises. These photographs demonstrated the existence as of that date, of broken drywall, stains on the walls, broken ceiling tiles, stains, tears and ripples in the carpet and missing doors and switchplates. There is virtually no question that nearly all of this damage was caused by the action of the trustee's agents in removing the equipment which had been used by them from the premises. Admittedly, they did not take some precautions which might have been taken in the removal, such as placing boards or other protective paths over the carpet to prevent the damage done by rolling carts and dollies. It was further demonstrated that damage to the premises resulted from the removal of the 42 power poles from the premises; and there was also varying damage to 142 ceiling tiles. Evidence as to the cost of the repairs which was adduced by the claimant tended to show that such was approximately $9,863.00. This evidence was based on estimates and, further, tended to be contradicted by the testimony of Robert M. Line, President of the Line Construction Company, *532 to the effect that the cost of repairs necessary to restore former value was $4843 as measured by 1981 costs. In addition, as of the present time, all of the 14 power poles which had been taken and not returned as of the time of the hearing have been returned. But they are not yet re-installed. The estimated cost of the reinstallation is about $50 each. Certain wooden pallets of uncertain value and uncertain number are also missing.[2] Additionally, the claimant's chief executive officer, W.R. Poindexter, testified that the property had a difference in value of some $100,000 resulting from the damages which are above described. He stated that, after the renovations had been made which were required by the lease between the parties, the building provided a "first rate office space"; that the value of the building before the damages were inflicted was $1,450,000; that the current value of the building is $1,350,000; that he recently contracted to sell the building plus the parking lot for a total selling price of $1,500,000; that the parking lot had some 15,000 square feet in it; and that it had a value itself of some $150,000. The evidence which was adduced by the trustee tended to demonstrate that, during the tenancy of his agent, the Carrier Credit and Collection, Inc., reasonable care was taken of the premises. According to the testimony of Richard High, the managing officer of the agent corporation, he was physically present in such capacity during the period in question. He stated that, in such capacity, he had made every reasonable effort to prevent damage to the premises by promulgating rules to his employees and enforcing them. He further testified that, with respect to at least a portion of the nylon carpet which had been installed on the premises, the quality was not such that it could withstand the traffic of regular office work and consequently had extensively rippled prior to the time when the trustee took over the premises.[3] He further stated that nearly all the tearing of the carpet had been done before the time when the trustee took over the premises. Some damage, according to his testimony, was admittedly attributable to the work which was carried out in order to evacuate the premises at the end of June 1981. At this time, the uncontradicted evidence shows, no boards or other solid bridges were made over the carpet over which carts and dollies could roll. Only some heavy brown paper was used, causing some creasing of the carpet. Despite Mr. High's efforts to prevent employees from making coffee and cigarette stains on the carpet, he admitted that sometimes it happened, although a rule was finally invoked which greatly restricted smoking and coffee drinking, except in certain defined areas. Some difficulty was also had with employees throwing cokes and other liquids in waste baskets, resulting in some staining of the carpet, both during the time of the trustee's tenure and prior thereto. It was Mr. High's belief, however, and that of one of his chief lieutenants, who was called to testify in the hearing of this matter, that such damage as was done was ordinary wear and tear and therefore not attributable to negligence. It was admitted that there was no filler plastic in the wastebaskets, but otherwise, Mr. High and his assistant believed that the damage which was done was relatively minor—and consistent with the "normal routine of traffic" of 200 office employees. There was evidence adduced through these witnesses to the effect that some prevention and prophylactic measures were repeatedly taken *533 by Mr. High and his employees.[4] The evidence remains uncertain as to the causation of the damage of the tiling and the holes in the ceiling and walls.[5] Some evidence also exists that, in hiring the temporary employees who would aid in the evacuation of the premises, there may have been some ignoring of the background of some of them as it bore upon the likelihood that they would use ordinary care in their operations in evacuating the premises.[5a] But there is no direct evidence which traces causation of any of the damages to this possible absence of care in selection of the employees. Conclusions of Law The parties have devoted extensive portions of their briefs to the question of whether the lease is applicable with its provisions for liability of a tenant to the landlord for negligence.[6] The court does not deem this supposedly threshold issue to be a material one. The evidence, as recited above, demonstrates that the trustee, although not affirmatively accepting the lease, nevertheless paid according to its terms and, at least, accepted the status as a tenant. As such, he is liable for damages caused by his negligence as a tenant.[7] Further, the evidence which has been adduced demonstrates some negligence, relatively minor in character, and some damage which may reasonably be attributed thereto. It can be characterized as negligence not to have protected the carpet against the rolling of heavy carts, as were used in the evacuation of the premises, by anything more than heavy brown paper. Certainly, it was contemplated that use of the premises would involve heavy traffic, but it is hardly excusable that some doors were removed and holes in the ceilings and walls inflicted during the tenure of the trustee. The measures to prevent frequent staining of the carpets by coffee and cigarettes should have obviously been taken before such staining commenced, rather than after. This court therefore concludes that some of the damages have been caused by negligence of the trustee's agent, although not to the extent which the claimant has alleged and contended. The evidence which was presented by the claimant next presents the question of how much in damages should be considered to have been inflicted by the trustee and what measure of damages should be utilized in awarding the damages. The claimant seeks, "alternatively,"[8] either the difference *534 in value wrought by reason of the trustee's negligence—a sum of $100,000 according to his claims—or the cost of repair, a sum which, according to the evidence, is only about one tenth of that figure. Ideally, according to the authorities, difference in value and cost of repairs should be approximately the same, inasmuch as they are conceived of as alternative methods of remedying the same injury to property. "In many instances, the two rules . . . will produce the same measure of recovery." 22 Am.Jur.2d Damages sec. 132, p. 191 (1965). In particular respect of real estate, in the absence of exceptional circumstances which are not shown to be present in this case, "(t)he diminution in market value of a piece of real estate is often measured by the cost of repairing the injury to an interest therein." Id. These principles, in the action at bar, lead the court to conclude that the difference-in-value believed by the claimant to exist must necessarily be regarded as greatly inflated, when it is several times the cost of repair. Further, under the law of the State of Missouri, it is the rule that the measure of damages which produces the lesser value must be employed. "Cases in this state do recognize that where damaged property can be restored to its former condition at a cost less than the diminution in value, the cost of restoration is the proper recovery." Jack L. Baker Cos. v. Pasley Mfg. and Distrib. Co., 413 S.W.2d 268, 273 (Mo. 1967). "[T]he general rule [is] that the measure of damages for tortious injury to real property is the difference in fair market value of the property before and after the injury or the cost of restoring the property, whichever is the lesser amount." Casada v. Hamby Excavating Company, 575 S.W.2d 851, 858 (Mo.App.1978). This court therefore concludes that the cost of repairs is the appropriate measure of damages to be employed in this case. It is a more vaguely defined issue as to what figure the court must arrive at in computing those damages. The claimant's evidence, as noted above, would require the imposition of some $10,000 in damages plus those which are attributable to the replacement of the returned power poles and the lost wooden pallets. According to the facts which have been found above, the only certain element of these damages is the $50 cost for the reinstallation of the 14 returned power poles. Thus, an award of $700 is an appropriate figure to compensate the claimant in this regard. Nuances of uncertainty attach to the consideration of the other elements to be awarded. This uncertainty derives not only from the fact that some undefined portion of the damage existed prior to the trustee's taking over the premises, but from sundry other factors as well: the attributability of at least some of the cost of repairs to "ordinary wear and tear" which cannot, under the applicable law, be regarded as the product of negligence;[9] the contemplation by the parties to the lease, as evidenced by its provisions, of some heavy wear and tear in the future;[10] and the fact that, according to the evidence, the premises may well have been sold by the claimant for as much as they would have brought even without the evidenced damages.[11] All of these factors work to reduce the elements of damage remaining to be found. *535 Nevertheless, the two estimates of costs of repair must be regarded as evidence of sufficient character to prevent any finding in this regard from being purely speculative. The court accordingly finds that the reasonable cost of repairs exceeds the $4843 testified to by Mr. Line (a figure which is admittedly under the costs which were applicable as of the date of the hearing) and is less than the $10,000 figure otherwise evidenced. A figure of $5,200 amply covers the cost of repair other than the cost of reinstallation of the power poles. According to the evidence presented, this figure is the one which is correctly attributable to the negligence evidenced and omits the damages due to ordinary wear and tear and that which was already extant when the trustee took over the premises. Accordingly, when the $700 attributable to the cost of reinstalling the power poles is added, the total award is $5,900.00. Finally, the claimant contends that these damages must be awarded as an expense of administration within the meaning of section 64a(1) of the Bankruptcy Act, as an actual and necessary expense of administration. The trustee, on the other hand, contends that the authority cited by the claimant in support of this proposition is distinguishable as applying only to the operation of a business during reorganization proceedings, not during liquidation proceedings.[12] But the letter of section 64a(1) of the Bankruptcy Act makes no such distinction. It plainly and simply provides for a priority allowance to "the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition." It can hardly be doubted that the activity being carried out in the premises which were damaged as a result—the collection and proper disposition of the freight bills which it was the duty and business of the debtor corporation (and hence the trustee) to collect and properly distribute—was necessary to the process of estate administration and to preservation of the assets of the estate. This court therefore concludes that the $5,900 should be allowed as a priority claim pursuant to section 64a(1) of the Bankruptcy Code. The Timing of This Decision Counsel for the claimant have frequently, since the date of the hearing held on this claim, solicited the court to render its decision. They have done so both orally and in writing. Their contentions in this regard, further, seem to be underlined by the relative simplicity of the legal issues which the court was required to resolve. But the simplicity of these issues is belied by another factor which gave the court great difficulty in rendering its decision. The claim was potentially a large one—at its best from the point of view of the claimant, it was a $100,000 claim—and also contended to be awardable as an expense of administration. And the posthearing briefs of the claimant contend that "only 5-10% of the $100,000.00 diminution in value was the result of ordinary wear and tear"; that it resulted from the "disregard" of the trustee's agents "for the condition of claimant's premises"; that the parties did not "contemplate . . . the wilful disregard for the premises by TCM employees" (emphasis added); that such "disregard for the safety of the premises" was "evidenced by the hiring of two `winos' to assist in the June 1981 vacation"; and that "(c)laimant seeks only to recover the diminution in value attributable to the Trustee's wrongful acts." (Emphasis added.) If, however, the damages caused by the trustee or his agents were really caused by the willful and deliberate conduct of the trustee or his agents, then the liability of the trustee might be individual and personal.[13] Of such an action, the bankruptcy *536 court might well not have jurisdiction. Even with implied or express consent of the parties, jurisdiction in bankruptcy ordinarily and traditionally could not extend to actions which will have no effect on the bankruptcy estate.[14] Nor would concern over this jurisdictional issue be relieved by any holding that the assertions made in the posttrial briefs of the claimant were without any factual basis and were not supported by the evidence which had been adduced. For this would, of course, amount to a ruling on the merits of the claimant's potential claim for damages in this respect, a ruling which could, as noted above, only be based upon an infirm jurisdictional basis. So the fact that these assertions were made, without more, foisted a most troublesome issue on the bankruptcy court. By the time the briefing schedules had been completed, it was commonly said that the Congress of the United States was on the verge of passing a new jurisdictional statute which might have conceivably obviated the serious jurisdictional problem presented by this matter. But the new jurisdictional statute which was passed on March 29, 1984, and which constitutes the sole source from which the bankruptcy court might lay claim to jurisdiction in both old Act and new Code cases, only compounded the pre-existing jurisdictional uncertainty. As this court has elsewhere analyzed, the statute appears to accomplish only a simple resurrection of the jurisdictional statute which was stricken as unconstitutional in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982).[15] Under such a statute, the bankruptcy court, it appears must somehow be held to be qualified to exercise the jurisdiction of an Article III court or else indulge in the vain exercise of void jurisdiction.[16] The interim emergency rule for bankruptcy administration offers little or no aid in this situation. Under the text of that rule, the bankruptcy court may not refer this case to the district court, either by way of a report and recommendation or otherwise.[17] This is especially so when any power of the *537 bankruptcy court to make such references, if employed regularly in a matter such as this, would defeat the purpose of the emergency rule—to prevent inundation of the district court with bankruptcy matters. Yet, to keep the case in the bankruptcy court is to exercise the federal judicial power pursuant to Article III of the Constitution. For, when jurisdiction is conferred by statute to determine justiciable matters, the bankruptcy court may no longer avoid exercise of the federal judicial power by electing to exercise the nonstatutory, inherent jurisdiction of a court of equity with a res in its possession.[18] Further, even though the court has now awaited two additional deadlines for Congressional action—May 1, 1984, and May 26, 1984—, they have only resulted in Congressional repassage of the same statute. Accordingly, it is incumbent upon the court at this juncture, in view of the claimant's persisting demands for action, to find a rational basis for its exercise of the federal judicial power, if possible. In this regard, it is sometimes said that a non-Article III court may exercise the federal judicial power for a transitory period.[19] But, to date, that doctrine has been held to be applicable only in territories and nascent states where local exigencies are such that territorial courts are the only courts available to exercise the federal judicial power.[20] In all other contexts, the emergency exercise of Article III power by non-Article III courts has not been envisaged[21] and has held any resulting judgment to be subject to reversal on appeal on review initiated sua sponte by the reviewing court.[22] The exercise of such power by this court on such a basis would be especially risky in view of the bankruptcy court's not coming within any of the categories of courts which have been permitted temporarily to exercise Article III power on a temporary emergency basis.[23] Can there be any other basis for this court's exercise of such power? Formerly, the Supreme Court of the United States, in Glidden Co. v. Zdanok, 370 U.S. 530, 82 S. Ct. 1459, 8 L. Ed. 2d 671 (1962), held that an Article I court could mature into an Article III court by virtue of Congress' conferring upon it such responsibilities as necessarily engage the federal judicial power;[24]*538 that, although the statutory declaration of Congress as to a court's classification could not be ignored, it is the courts themselves who have the power and duty to determine a court's constitutional status;[25] that, even if the judges on a court were not invested with Article III status at the time of their initial investiture, their status matures into Article III status when the court on which they sit becomes an Article III court;[26] and that their reappointment is not a necessary prerequisite to their being accorded Article III status in such a manner, so long as their prior appointment was presidential.[27] The authorities hold with universality that a legislative court which performs only duties which are capable of being performed by an administrative officer as by a judicial officer may, in the discretion of Congress, be denominated either an Article I court or an Article III court.[28] But a court which is assigned duties by statute which are necessarily judicial must be regarded as an Article III court. Can it be said that, under these longstanding principles, Congress' resurrecting section 241 as the bankruptcy court jurisdictional statute in the wake of the Marathon decision, supra, and, at the same time, making the bankruptcy judges' appointments presidential in character has converted the current interregnum court into an Article III court? That is a determination which cannot be made with any *539 assurance of finality by this court and accordingly must await future decision. It is further to be noted that the interregnum jurisdictional statute may not be applicable to the matter at bar, which arises out of an old Act case. The transition period, during which old Act cases and matters arising in them are to be determined as if the new Code had not come into being, see § 403(a) of P.L. 95-598, has not yet ended. If so, the foregoing observations apply with even greater telling force to the applicable jurisdictional statute under the former Act. For, in the recent decision of Lindsey v. Ipock, 732 F.2d 619 (8th Cir.1984), our court of appeals has intimated that Marathon, supra, although it has prospective application only, applies to decisions made after its effective date. Accordingly, until June 5, 1984, the court could find no basis upon which to render its final order on this matter. But, on that date, the court received a letter from counsel for the claimant which appears to forego and drop any claim based on wilful and deliberate conduct.[29] By relieving the court from the possibility of deciding a matter distinctly not within its jurisdiction, this action by counsel for the claimant has made it possible for the court to render its decision and yet remain within the bounds of traditional bankruptcy court jurisdiction. It is recognized that the letter of counsel is not really sufficient, however, to relieve the court of the possibility that simply adjudicating a claim under a statute directly conferring judicial powers upon it constitutes an exercise of the federal judicial power.[30] In this respect, however, the bankruptcy court may rely upon a very recent decision of our district court in Matter of Hamilton, Civil Action No. 83-6070-CV-SJ (W.D.Mo. May 14, 1984), in which it was held that the bankruptcy court has no authority to render advisory opinions. This seems to recognize—if not the constitutional status of the bankruptcy court—at least its authority to render decisions in an exercise of the federal judicial power. For it is only constitutional courts which cannot render advisory opinions. "A federal court that is not subject to the limitations of Article III may, of course, be required to render an advisory opinion." 6A Moore's Federal Practice para. 57.12, p. 57-109, n. 2 (1983). This court therefore concludes that the Hamilton decision may provide a basis for the bankruptcy court's current exercise of the federal judicial power.[31] Accordingly, now that these developments have occurred, the court will enter its final order in this matter. It is accordingly ORDERED that claimant's claim be, and it is hereby, allowed as a priority expense of administration in the sum of $5,900.00. NOTES [1] The date of surrender of the premises, according to the evidence in this matter, was June 30, 1981. [2] It is said in the posthearing briefs that these pallets were worth about $10 each. But their number and quality is not otherwise evidenced with any certainty. [3] In rendering this testimony, Mr. High purported to qualify as an expert on the ability of the carpet to withstand the traffic to be expected and also in the quality of carpet itself. He testified to an extensive prior experience in the carpet industry. It appears that thereby a satisfactory foundation for his opinion testimony was laid under the requirements of Rule 702 of the Federal Rules of Evidence. [4] Also, extensive painting was undertaken at one point, according to Mr. High's testimony. This was apparently done at his own expense or that of his employees. [5] It was the testimony of Mr. Poindexter that he made periodic visits to the premises during the time periods before and after the appointment of the trustee, and that this damage took place after the appointment of the trustee. [5a] As is noted below in the text of this memorandum, this has given rise to an allegation made by the claimant in his posttrial briefing that the claimant's property was injured through wilful misconduct which was involved in hiring two "winos". [6] The trustee contends that the lease provisions are not applicable because they were not affirmatively accepted by the trustee and therefore must be deemed rejected. [7] Even if the lease was not governing, see note 6, supra, there can be little question that the trustee was a tenant of the claimant. That relationship, without more, imposes the obligation not to inflict injury upon the premises by negligence. Ordinary wear and tear is acceptable, but to harm the premises by negligence is forbidden under the common law. "(A)n obligation upon a tenant (results) from the relationship of landlord and tenant to refrain from injury to the demised premises by his negligence or willful misconduct; and if, by his negligence or misfeasance, the premises are materially injured, he is liable in damages." Sparks v. Lead Belt Beer Company, 337 S.W.2d 44, 45 (Mo.1960). Nor can it be said that the trustee would not be liable for the negligence of the lessee, who must necessarily, under the law of bankruptcy, have worked under the supervision and control of the trustee during the period of administration of the within bankruptcy estate. [8] In his posthearing brief, the claimant states that he "seeks only to recover the diminution in value attributable to the Trustee's wrongful acts (excepting ordinary wear and tear) as established by the testimony of William Poindexter or, alternatively, the cost of repair of those damages to the premises which William Poindexter in his virtually daily visits to the premises observed to have been caused by the June 1981 vacation." [9] Negligence necessarily produces compensable damage, not ordinary wear and tear. Conversely, wear and tear must be excepted from the damage award attributable to negligence. "The effects of negligence are not wear and tear, and they do not become wear and tear merely because they may be anticipated." Moran Towing Corp. v. M.A. Edmming Const. Co., 363 F.2d 108, 114 (1st Cir.1966). [10] The renovations which the claimant was required to make under the terms of the lease recited above are evidence of some expectation of the type of usage and traffic which necessitated periodic repairs and reconstruction. [11] As noted above, Mr. Poindexter's attribution of $150,000 in value to a parking lot is not amply supported by underlying fact. And his estimate of a great degree of diminution in value seems belied by a cost of repairs which is only a fraction of that estimate. [12] The trustee cites no persuasive authority to support his contention that the claim should not be allowed as an expense of administration. Rather, he attempts to distinguish the authority relied upon by the claimant by noting that it is a reorganization case. But, as the court notes, the broad and clear letter of the statute is sufficient to control this case. [13] "(A) trustee in bankruptcy may not be held personally liable unless he acts willfully and deliberately in violation of his fiduciary duties." Sherr v. Winkler, 552 F.2d 1367, 1375 (10th Cir.1977). But he is liable in his official capacity for negligence and "(t)he rule applies to the trustee's selection and supervision of his agents and employees." Id. [14] "Thus, consent cannot operate to confer jurisdiction on the bankruptcy court as to a claim asserted by strangers to the proceedings over a matter in no way connected with the administration or distribution of the bankrupt estate." 2 Collier on Bankruptcy para. 23.08, p. 534, n. 7 (1976). [15] The statute currently in existence purports to extend the effectiveness of sections 404(a) and (b) of the Bankruptcy Reform Act of 1978 to June 20, 1984. Section 404(b), in turn, provides that, during the period for which it is extended, the currently sitting bankruptcy judges "shall serve in the court of bankruptcy . . . in the manner prescribed by this title." (Emphasis added.) That title, Title IV of the Bankruptcy Reform Act of 1978, Pub.L. 95-598, provides at sections 405(a) and (b) that the bankruptcy judges now sitting may exercise the "jurisdiction and powers conferred by," inter alia, section 241 of the Bankruptcy Reform Act, the same section which the plurality opinion in Marathon, supra, held to be within the competence only of an Article III court. [16] "(W)here the invalidity of an act or a portion thereof goes to the power of the legislature to enact the law, and not merely to the form of the enactment, no rights or correlative obligations may arise under such invalid statute." 16 Am. Jur.2d Constitutional Law section 257, p. 728 (1979). In the Marathon case, supra, the Supreme Court held that it was beyond the power of Congress to confer the judicial power of the United States upon non-Article III courts. "We conclude that section 241(a) of the Bankruptcy Act of 1978 has impermissibly removed most, if not all, of `the essential attributes of the judicial power' from the Article III district court, and has vested those attributes in a non-Article III adjunct. Such a grant of jurisdiction cannot be sustained as an exercise of Congress' power to create adjuncts to Art. III courts." (Emphasis added.). [17] An ordinary claim, such as this would conceivably be in the view of the district court, is not such a matter as may be referred to the district court under the emergency rule. This would likely be so even though, under the circumstances of this case, the claims of personal liability appear to be inextricably intertwined with the ordinary claim against the estate. Both actions, however, when power to adjudicate them is conferred by statute, involve an exercise of the federal judicial power. [18] Jurisdiction of justiciable matters conferred by congress is, by definition, the federal judicial power. "All federal courts, other than the Supreme Court, derive their jurisdiction wholly from the exercise of the authority to `ordain and establish' inferior courts, conferred on Congress by Article III, section 1, of the Constitution." Lockerty v. Phillips, 319 U.S. 182, 187, 63 S. Ct. 1019, 1022, 87 L. Ed. 1339 (1943). The inherent jurisdiction which this court would be able to exercise in the absence of statute, see, e.g., Matter of Isis Foods, Inc., 26 B.R. 122 (Bkrtcy.W.D. Mo.1983), cannot, for the foregoing reasons, be exercised by a non-Article-III court when its jurisdiction is conferred by statute. [19] "Where necessary and justified by an exigency a non-Article III judge may exercise the judicial power of the United States for a transitory period." In re Johnson County Gas Co., Inc., 30 B.R. 690, 701 (Bkrtcy.E.D.Ky.1983). [20] "The touchstone of decision in all these cases has been the need to exercise the jurisdiction then and there and for a transitory period. Whether constitutional limitations on the exercise of judicial power have been held inapplicable has depended on the particular local setting, the practical necessities, and the possible alternatives . . . Since the conditions obtaining in one territory have been assumed to exist in each, this Court has in the past entertained a presumption that even those territorial judges who have been extended statutory assurances of life tenure and undiminished compensation have been so favored as a matter of legislative grace and not of constitutional compulsion. . . . the presumption should be reversed when Congress creates courts the continuing exercise of whose jurisdiction is . . . to carry into effect powers . . . over subject matter . . . and not over localities." Glidden v. Zdanok, 370 U.S. 530, 547, 548, 82 S. Ct. 1459, 1471, 1472, 8 L. Ed. 2d 671 (1962). See also Marathon, supra, 102 S.Ct. at 2870, n. 23. [21] See United States v. Woodley, 726 F.2d 1328 (9th Cir.1983), in which it was held that an exercise of Article III power by a short-term "vacation" appointment could not withstand the test of the constitutional requirements. [22] See note 21, supra. [23] The decision in the Marathon case, supra, to the effect that the bankruptcy court is not a legislative court is binding on this issue. [24] Glidden Co. v. Zdanok, 370 U.S. 530, 82 S. Ct. 1459, 8 L. Ed. 2d 671 (1962). "(W)hether a tribunal is to be recognized as one created under Article III depends basically upon . . . whether . . . its business is the federal business there specified and its judges and judgments are allowed the independence there expressly or impliedly made requisite." 370 U.S. at 552, 82 S.Ct. at 1474. [25] Courts "may not disregard" the expressed intention of Congress, but "congress may not by fiat overturn the constitutional decisions of the (Supreme Court)." Glidden v. Zdanok, supra note 24, at 541, 82 S.Ct. at 1468. [26] Even when not "invested upon confirmation with Article III tenure and compensation," 370 U.S. at 538, 82 S.Ct. at 1466, judges might become so invested, "depending upon the constitutional status of the courts to which they were primarily appointed." 370 U.S. at 541, 82 S.Ct. at 1468. [27] "It is my belief that prior to 1953 the Court of Claims had all of the characteristics of an Article III court—jurisdiction over justiciable matters, issuance of final judgments, judges appointed by the President with consent of the Senate—save as to the congressional reference matters. It was the fact that a substantial portion of its jurisdiction consisted of congressional references that compelled (a former Supreme Court decision) that it was not an Article III court and therefore the salaries of its judges could be reduced. Since that time the Article III jurisdiction of the Court of Claims has been enlarged by including original jurisdiction under several Acts. . . . The result is that practically all of the court's jurisdiction is now comprised of Article III cases. And I read the 1953 Act as unequivocally expressing Congress' intent that this court—the jurisdiction of which was then almost entirely over Article III cases— should be an Article III court, thereby irrevocably establishing life tenure and irreducible salaries for its judges . . . I see nothing in the argument that the 1953 and 1958 Acts so changed the character of these courts as to require new presidential appointments. Congress was merely renouncing its power to terminate the functions or reduce the tenure or salary of the judges of the courts. Much more drastic changes have been made without reappointment . . ." Glidden Co. v. Zdanok, 370 U.S. 530, 531, 586, 589, 82 S. Ct. 1459, 1463, 1491, 1493, 8 L. Ed. 2d 671 (1962) (concurring opinion of Clark, J.) [28] See, e.g., the discussion in 1 Moore's Federal Practice para. 0.4[1] et seq., making it clear that, when a court's duties include the federal judicial power, it is to be an Article III court and exceptions are allowed only in the territories. This authoritative work summarizes the relevant decisions of the Supreme Court as follows: "(1) a court exercising jurisdiction only over cases and controversies within Article III is a constitutional court (a proposition questioned in one of the cases); (2) a court exercising jurisdiction only of cases or controversies that are outside Article III is necessarily a legislative court . . .; (3) a court exercising jurisdiction of matters that can be the subject of a case or controversy within Article III, but can be disposed of by executive action, is a legislative or constitutional court at the discretion of Congress . . . (4) a court that exercises jurisdiction over cases and controversies within Article III, but also over matters not within Article III is a hybrid court, partaking of both types . . ., but (5) in the case of the territorial courts, because of their ephemeral character, they may be created as legislative courts." In further excursis on these doctrines, it is pointed out that a "hybrid" court can be a non-Article-III court only in the territories. Id., para. 0.4[4], p. 79. [29] Counsel have further stated orally to the undersigned that the claimant desires to pursue no individual or personal liability of the trustee. [30] The determination of an ordinary claim against an estate, when jurisdiction to make the determination is directly conferred by statute, appears to involve the federal judicial power. [31] In the Hamilton case, the bankruptcy court had responded to a request of a debtor to determine the secured status of a junior lienholder under section 506 of the Bankruptcy Code which permits a determination to be made of the extent to which a creditor is secured and to which he is unsecured. It was clear that, if the junior lienholder's balance due, when added to that of the senior lienholder, was less than the value of the property, the equity may have been claimed as exempt by the debtor, in whole or in part. But, on the basis of the bankruptcy court's finding that the total balance due exceeded the value of the property, the district court found that the bankruptcy court was without authority to make any finding of the extent to which the junior lienholder was secured and the extent to which it was unsecured.

2020-01-17 22:01:53.146356+00

Fossan

*496OPINION. VaN FossaN : The condition precedent to the assessment of income and profits taxes under sections 327 and 328 of the Revenue Acts of 1918 and 1921 is the existence of abnormal conditions affecting petitioner’s capital or income, resulting in- an exceptional hardship evidenced by gross disproportion between the tax computed under section 328 and the tax computed without the benefit of sections 327 and 328. Simply defined, “ abnormal ” connotes departure from the normal. In attempting to establish the fact of an abnormal condition a double burden rests on petitioner. He must prove the fact of his own situation, and, unless upon such proof the abnormality is self-evident, he must submit evidence of what constitutes a normal condition. In the instant case we find no proof whatever of the normal condition of capital and income in the industry. We must, therefore, examine the picture presented to ascertain if the abnormality is self-evident. Petitioner began operations in 1910 and experienced a small loss during its first year. During the second year a strike on the part of its employees interrupted to some extent its orderly production. Consequent on the strike larger losses were suffered during 1911 and 1912. The following three years showed small net profits and in 1916 a comparatively large profit. By 1917 the losses of former years had been wiped out and the company was on a profitable basis. There is nothing in this history that would mark the experience of the petitioner as exceptional or that bears any pronounced relation to the taxable years. In 1918, anticipating a rising market, petitioner providently bought a large stock of raw materials, using principally borrowed money to finance the purchase. The materials were manufactured into shoes and sold during the high-price period of 1919 and 1920, resulting in a large profit. That petitioner’s foresight as thus rewarded is not, *497of itself, a ground of special assessment. The statute expressly jiro-vides that section 327 shall not apply merely because petitioner has earned a high rate of profit on a normal invested capital. Petitioner pins its faith in the fact that it used a large amount of borrowed capital to purchase the raw materials. This condition is not shown to be abnormal. Some industries exist largely on borrowed capital. Nor does the evidence establish that petitioner’s income was, during the taxable years, produced by this borrowed money. During the 1919 period petitioner’s actual invested capital was $236,753.61, its average inventory was $325,617.85 and its average notes payable $211,425.45, while its income for the three-month period was $55,837.18. During 1920 its invested capital was $265,-672.58, its average inventory $216,748.50 and its average notes payable $78,097.61, while its net income was $191,225.52. We have no figures as to its inventory or notes payable for 1921 and know only that with an increased invested capital of $330,769.25 its net income was $73,691.75. Looking at this composite of figures we are unable to determine what, if any, causal relation existed between the several elements or what percentage of income was due to borrowed capital. This is something that should have been demonstrated by petitioner’s evidence. We can not supply evidentiary deficiencies by inference or conjecture. The fact that the percentage of raw materials to net sales varies from 70.83 in 1918 to 28.80 in 1920 does not necessarily demonstrate the accuracy of petitioner’s contention. To speculate as to the many factors that may have influenced this ratio would be idle. Certainly the conclusion that an abnormality existed in petitioner’s capital or income is not self-evident on the mere statement of the ratio. We are of the o}:>inion that petitioner has not proven the existence of an abnormal condition affecting its capital or income. Judgment will be entered for the respondent.

2020-12-02 21:00:27.050319+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/19-72215.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TERESA REYES VILLANUEVA, No. 19-72215 Petitioner, Agency No. A200-006-207 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 16, 2020 Seattle, Washington Before: GOULD and FRIEDLAND, Circuit Judges, and BOUGH,** District Judge. Teresa Reyes Villanueva, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture. We * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. have jurisdiction under 8 U.S.C. §1252 . We review for substantial evidence the agency’s factual findings. Garcia-Milian v. Holder, 755 F.3d 1026 , 1031 (9th Cir. 2014). We grant the petition for review, and we remand. The agency accepted as credible Reyes Villanueva’s testimony and that of an expert witness, but found that Reyes Villanueva failed to establish that the Salvadoran government was unable or unwilling to control her former partner, Hector, and his fellow gang members. Substantial evidence does not support this finding. Hector severely and repeatedly abused Reyes Villanueva and her family. The Salvadoran government prosecuted and imprisoned Hector but, from prison, Hector extorted Reyes Villanueva, threatened her family, and ordered Reyes Villanueva’s death. Gang members attempted to carry out the kill order and brutally murdered a friend who was helping Reyes Villanueva. Documentary evidence, including the Department of State Human Rights Report and expert declarations, indicate that gang members perpetrate criminal activity, including murder, from within prison; prison guards and officials are sometimes complicit in this activity; and gangs have consolidated and expanded their networks from within prison. In finding that Reyes Villanueva did not establish that the Salvadoran government was unable or unwilling to control Hector, the BIA erred by relying on Hector’s imprisonment without considering evidence that gang members order 2 19-72215 crimes from within prison. See Davila v. Barr, 968 F.3d 1136 , 1143 (9th Cir. 2020) (holding that the agency erred by selectively citing evidence); Bringas- Rodriguez v. Sessions, 850 F.3d 1051 , 1069 (9th Cir. 2017) (en banc) (explaining that the agency “must examine all the evidence in the record that bears on the question of whether the government is unable or unwilling to control a private persecutor”); Madrigal v. Holder, 716 F.3d 499 , 506 (9th Cir. 2013) (holding that the agency erred by focusing “only on the Mexican government’s willingness to control Los Zetas, not its ability to do so”). Viewed as a whole, the record here does not provide substantial evidence for the agency’s conclusion that the Salvadoran government is both willing and able to protect Reyes Villanueva.1 See Davila, 968 F.3d at 1142-43 (holding that the agency’s selective reading of the record did not support its conclusion that the Nicaraguan government was both willing and able to protect the petitioner). We do not reach the parties’ contentions as to whether the unable-or- unwilling standard requires a showing that the government is “completely helpless” because the agency did not rely on the “completely helpless” formulation. See Simeonov v. Ashcroft, 371 F.3d 532 , 538 (9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary to the results they 1 For the same reasons that we grant and remand the petition as to Reyes Villanueva’s claim for asylum, we also grant the petition and remand to the BIA to reconsider Reyes Villanueva’s application for withholding of removal. 3 19-72215 reach). The BIA did not address whether Reyes Villanueva belonged to a cognizable social group or was persecuted on account of her membership in that social group. We remand so that the BIA may consider these issues for the first time. See INS v. Ventura, 537 U.S. 12 , 16-18 (2002) (per curiam); see also Najmabadi v. Holder, 597 F.3d 983 , 986 (9th Cir. 2010) (“[O]ur review is limited to the actual grounds relied upon by the BIA.” (citation and internal quotation marks omitted)). As to CAT, the BIA determined that Reyes Villanueva did not establish the requisite state action, relying on the Salvadoran government’s willingness to imprison Hector and other gang members. Because the BIA’s reasoning suffers from the same flaws discussed above, substantial evidence does not support this determination. See Davila, 968 F.3d at 1144 (holding that, where the agency applied the same erroneous reasoning to CAT that it applied to the unable-or- unwilling standard, substantial evidence did not support the agency’s state action finding). We remand for the agency to consider whether Reyes Villanueva suffered past torture and whether it is more likely than not she would be tortured upon removal to El Salvador. See id. The motion for a stay of removal (Docket Entry No. 1) is granted. Reyes Villanueva’s removal is stayed pending a decision by the Board of Immigration Appeals. 4 19-72215 The government must bear the costs for this petition for review. PETITION FOR REVIEW GRANTED and REMANDED. 5 19-72215

2020-12-02 21:00:27.145178+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/19-70377.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SALITO JOAQUIM DA CRUZ No. 19-70377 CHILUVANE, Agency No. A088-735-590 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 6, 2020 Seattle, Washington Before: CALLAHAN and CHRISTEN, Circuit Judges, and RAKOFF,** District Judge. Salito Joaquim Da Cruz Chiluvane (Chiluvane), a native and citizen of Mozambique, petitions for review of the Board of Immigration Appeals (BIA)’s determination that he had been convicted of a particularly serious crime (PSC), * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. which pretermitted his application for asylum and withholding of removal, and the BIA’s denial of protection under the Convention Against Torture (CAT).1 We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.2 We review questions of law de novo and factual findings for substantial evidence. Davila v. Barr, 968 F.3d 1136 , 1141 (9th Cir. 2020). For a petitioner to prevail under the substantial evidence standard, the petitioner must show that the evidence compels the conclusion that these findings are erroneous. Id. Where the BIA incorporates the Immigration Judge (IJ)’s analysis as its own, we review both the decisions of the BIA and the IJ. Ahir v. Mukasey, 527 F.3d 912 , 916 (9th Cir. 2008). We lack jurisdiction over the BIA’s discretionary determination that an alien committed a particularly serious crime. 8 U.S.C. § 1252 (a)(2)(B)(ii); Flores- Vega v. Barr, 932 F.3d 878 , 884 (9th Cir. 2019). “But we retain jurisdiction to determine whether the BIA applied the correct legal standard.” Id. (internal quotation marks omitted). The BIA’s determination of whether an alien’s crime is 1 Because the parties are familiar with the facts, we restate only those necessary to explain our decision. 2 At oral argument, the DHS asserted for the first time that the Court may lack jurisdiction because Petitioner has been removed. However, “[a]bsent extraordinary circumstances,” Immigration and Customs Enforcement (ICE) will facilitate the return of a removed alien whose petition for review is granted “if [] the court’s decision restores the alien to lawful permanent resident (LPR) status.” See ICE Policy Directive 11061.1 (Feb. 24, 2012), https://www.ice.gov/doclib/foia/dro_policy_memos/11061.1_current_policy_facilit ating_return.pdf. Thus, Chiluvane’s removal does not render the petition moot. See Del Cid Marroquin v. Lynch, 823 F.3d 933 , 936 (9th Cir. 2016). 2 a PSC is reviewed under an abuse of discretion standard. Id. (citing Arbid v. Holder, 700 F.3d 379 , 385 (9th Cir. 2012)). “In particular, we review whether ‘the agency relied on the appropriate factors and proper evidence to reach [its] conclusion.’” Id. (quoting Avendano-Hernandez v. Lynch, 800 F.3d 1072 , 1077 (9th Cir. 2015)). Chiluvane contends that in making its PSC determination, the BIA impermissibly considered his history of abuse of his wife and evidence of the long- lasting psychological harm and the fear it caused her. However, “the BIA may consider ‘all reliable information’ in determining whether a crime constitutes a particularly serious crime, which is a wide-reaching inquiry and includes consideration of conviction records, sentencing information, and ‘other information outside the confines of a record of conviction.’” Bare v. Barr, 975 F.3d 952 , 964 (9th Cir. 2020) (internal citation omitted). This includes “evidence about the alien which does not go to an element of the crime ‘as part of the separate determination of dangerousness.’” Id. at 965 (internal citation omitted). Here, although evidence of Chiluvane’s history of abuse and the harm and fear it caused were outside the record of his conviction, the BIA permissibly considered such evidence as part of the determination of dangerousness. Chiluvane also claims that the BIA failed to consider his mental health at the time of his commission of the offense, in contravention of Gomez-Sanchez v. 3 Sessions, 892 F.3d 985 (9th Cir. 2018). However, the BIA did consider his mental health. It reviewed and agreed with the IJ’s decision, which explicitly considered Chiluvane’s mental health at the time of his commission of the offense, ultimately determining that his mental health condition did not counteract the circumstances surrounding his conviction. Here, the BIA relied on the “appropriate factors and proper evidence” to conclude that Chiluvane committed a PSC. See Flores-Vega, 932 F.3d at 885 (also stating “[i]t is not our role to reweigh the evidence and reach our own determination about the crime’s seriousness”) (internal citation omitted). Chiluvane argues that his CAT claim should be remanded to a different IJ because the IJ’s findings amounted to an adverse credibility determination based on inconsistencies between his testimony and the record. However, the IJ did not make an adverse credibility determination. Rather, she accepted that where a mental health concern may affect the reliability of a petitioner’s testimony, an IJ generally accepts that the petitioner subjectively believes what he has presented. See Matter of J-R-R-A, 26 I. & N. Dec. 609 , 612 (B.I.A. 2015). The IJ focused on whether the proffered objective evidence demonstrated any likelihood of future torture. We find that the BIA’s decision is adequately supported by the record and does not compel reversal. First, the IJ found insufficient evidence that a police officer caused Chiluvane’s brain injury. The IJ noted that even Chiluvane himself conceded that 4 the source of the brain injury was unclear. At one point during his testimony, he indicated that being hit by a door caused his mental health issues, and there are reports that his cognitive problems did not emerge until after this door incident. Also, his mother wrote a letter stating that Chiluvane had an accident and suffered a skull fracture in 2002, five years after his 1997 encounter with the police. Second, regarding Chiluvane’s allegations of police beatings when he was caught begging, the IJ noted that Chiluvane testified that he did not have a clear recollection of these events and his own expert characterized him as a poor historian. The IJ looked to the record for corroboration but found little there to corroborate Chiluvane’s assertions. We find that the record does not compel reversal of the IJ’s finding that he did not meet his evidentiary burden. Even taking Chiluvane at his word, he has not shown that his “severe pain or suffering was specifically intended.” See Villegas v. Mukasey, 523 F.3d 984 , 989 (9th Cir. 2008). Third, the IJ accepted Chiluvane’s subjective belief that he was beaten and restrained in the mental hospital in Mozambique, but also considered medical evidence, country conditions evidence, and letters from Chiluvane’s family members. The IJ noted that the only corroborating evidence of mistreatment in the mental hospital was a letter from his mother indicating that she once noticed marks on his body consistent with restraints. The record indicates that Chiluvane 5 received a diagnosis, treatment, and care, even if not on par with international standards, and does not compel a finding of torture. Indeed, there is little to suggest that the hospital staff’s treatment was specifically intended to inflict severe pain and suffering. See id. Finally, Chiluvane has not shown that he is more likely than not to be tortured in the future. Though Chiluvane’s family has limited financial means, the record is not clear that Chiluvane will not obtain medication, or that lack of medication will lead to his mistreatment by police and mental hospital staff. See In re J-F-F-, 23 I. & N. Dec. 912 , 919 (A.G. 2006) (finding that “[i]f one cannot know from the evidence whether he will have access to medication, then respondent has by definition failed to show he is more likely than not to be denied access”). Under the substantial evidence standard for factual findings, “[e]ven if we might have reached a conclusion different from that reached by the BIA, we may not reverse unless we determine that any reasonable factfinder would have been compelled to reach that conclusion.” Lolong v. Gonzales, 484 F.3d 1173 , 1178 (9th Cir. 2007). We find that the record does not compel reversal of the denial of Chiluvane’s CAT claim. PETITION DENIED. 6

2015-09-15 03:19:46.987635+00

http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=7801&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa14%5cOpinion

Affirmed and Memorandum Opinion filed May 22, 2008 Affirmed and Memorandum Opinion filed May 22, 2008.   In The   Fourteenth Court of Appeals ____________   NO. 14-07-00230-CR ____________   MARCUS TERRELL GARRETT, Appellant   V.   THE STATE OF TEXAS, Appellee     On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1037288     M E M O R A N D U M   O P I N I O N Appellant entered a plea of guilty to the offense of aggravated robbery.  On March 16, 2006, the trial court entered an order, deferring adjudication of guilt and placing appellant on five years of community service probation.  The State subsequently moved to adjudicate guilt.  On March 14, 2007, the trial court sentenced appellant to confinement for thirty-five years in the Institutional Division of the Texas Department of Criminal Justice.  Appellant filed a pro se notice of appeal. Appellant=s appointed counsel filed a brief in which she concludes the appeal is wholly frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807, 811-12 (Tex. Crim. App. 1978). A copy of counsel=s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record and file a pro se response.  See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).  As of this date, more than sixty days has elapsed and no pro se response has been filed. We have carefully reviewed the record and counsel=s brief and agree the appeal is wholly frivolous and without merit.  See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005).  Further, we find no reversible error in the record.  A discussion of the brief would add nothing to the jurisprudence of the state.  Accordingly, the judgment of the trial court is affirmed.   PER CURIAM   Judgment rendered and Memorandum Opinion filed May 22, 2008. Panel consists of Justices Yates, Anderson, and Brown. Do Not Publish C Tex. R. App. P. 47.2(b).

2020-06-05 13:08:42.570538+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007131PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/05/2020 08:08 AM CDT - 648 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 Herchel H. Huff, appellee, v. Doug Brown, sheriff of Furnas County, appellant. ___ N.W.2d ___ Filed April 23, 2020. No. S-19-271. 1. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s factual findings have the effect of a jury verdict, and an appellate court will not disturb those findings unless they are clearly erroneous. 2. Mandamus. Whether to grant a writ of mandamus is within the trial court’s discretion. 3. Public Officers and Employees: Records. The duty, if any, to provide public records stays with the office of the records’ custodian and is transferred to a new holder of the office. 4. Mandamus: Proof. A party seeking a writ of mandamus under Neb. Rev. Stat. § 84-712.03 (Cum. Supp. 2018) has the burden to satisfy three elements: (1) The requesting party is a citizen of the state or other person interested in the examination of the public records, (2) the docu- ment sought is a public record as defined by Neb. Rev. Stat. § 84-712.01 (Reissue 2014), and (3) the requesting party has been denied access to the public record as guaranteed by Neb. Rev. Stat. § 84-712 (Reissue 2014). 5. ____: ____. If the public body holding the record wishes to oppose the issuance of a writ of mandamus, the public body must show, by clear and conclusive evidence, that the public record at issue is exempt from the disclosure requirement under one of the exceptions provided by Neb. Rev. Stat. § 84-712.05 (Cum. Supp. 2018) or Neb. Rev. Stat. § 84-712.08 (Reissue 2014). 6. Mandamus: Words and Phrases. Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding  - 649 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary court of law. 7. Mandamus: Proof. Under Neb. Rev. Stat. § 84-712.03(1)(a) (Cum. Supp. 2018), the requesting party’s initial responsibility includes demon- strating that the requested record is a public record that he or she has a clear right to access under the public records statutes and that the public body or custodian against whom mandamus is sought has a clear duty to provide such public records. Appeal from the District Court for Furnas County: James E. Doyle IV, Judge. Affirmed in part, and in part reversed and remanded. Melodie T. Bellamy, Special Counsel for Furnas County, and Morgan R. Farquhar, Furnas County Attorney, for appellant. Herchel H. Huff, pro se. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ. Miller-Lerman, J. NATURE OF CASE Doug Brown, the sheriff of Furnas County, appeals the order of the district court for Furnas County, Nebraska, which granted in part a writ of mandamus requiring him to provide records to Herchel H. Huff pursuant to the public records statutes. Brown argues, inter alia, that the court erred when it substituted him as a party for the prior sheriff, when it granted the writ based solely on Huff’s affidavit, when it granted the writ despite Huff’s failure to respond to the prior sheriff’s response which required Huff to deposit fees before certain records would be produced, and when it waived fees that were authorized by statute. We conclude that although the district court did not err when it substituted Brown’s name for that of the former sheriff, the court erred when it determined that Huff had shown that Brown had a clear duty to provide the records requested. We  - 650 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 therefore affirm in part the order to the extent it denied Huff’s petition but reverse in part the order to the extent it granted the writ of mandamus. STATEMENT OF FACTS On September 23, 2018, Huff sent to then Furnas County sheriff Kurt Kapperman a 4-page letter which included 15 numbered paragraphs of requests for public records. Huff is an inmate serving sentences for convictions including motor vehi- cle homicide. The documents requested by Huff included, inter alia, records relating to the investigation of charges against him, criminal history records of jurors who had convicted him, criminal history records of and fees and expenses paid to witnesses and prosecuting attorneys in his trial, information regarding the salaries paid to the sheriff, and records relating to the impoundment of his vehicle. Kapperman responded in writing to Huff’s requests on October 2, 2018. Kapperman stated that “no responsive records exist[ed]” as to 14 of the 15 paragraphs of requests. The remaining paragraph, denominated as “request 3,” included requests for jail records, including medical records, maintained pursuant to Neb. Rev. Stat. § 47-204 (Reissue 2010). In request 3, Huff requested his own jail records as well as records for certain jurors from his trial that he asserted had been “con- victed [of] or cited for DWI.” In his response, Kapperman stated with respect to the request for jail records relating to jurors that “no responsive records exist, and the request seeks protected medical information.” With respect to the request for Huff’s jail records, Kapperman estimated that “the inspection and copying of records would cost approximately $750.00” and stated that he therefore required “a deposit of $750.00 before fulfilling such a request.” Kapperman cited Neb. Rev. Stat. § 84-712(3)(f) (Reissue 2014) as authority for requiring the deposit. On October 15, 2018, Huff filed a petition for writ of man- damus under Neb. Rev. Stat. § 25-2156 (Reissue 2016) and  - 651 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 the public records statutes, Neb. Rev. Stat. § 84-712 et seq. (Reissue 2014 & Cum. Supp. 2018). Huff named “Sheriff Kurt Kapperman” as the defendant in the petition. Huff sought an “order compelling . . . Kapperman to release all requested documents per the [public records] statutes.” Kapperman filed an answer on January 21, 2019, in which he generally denied the allegations in Huff’s petition. Kapperman also asserted that Huff had failed to state a claim against him upon which relief could be granted, because Brown had been sworn into office on January 3 and Kapperman was no longer sheriff. On January 30, 2019, the court held a telephonic hearing. The court first took up and overruled Huff’s motion to dis- qualify the judge. The court then turned to the petition for a writ of mandamus. The court referred to an affidavit of Huff dated November 13, 2018, which had been offered into evi- dence by Huff and marked as exhibit 3. It generally asserted that Huff had requested documents from Kapperman, that the documents were public records subject to disclosure, and that Kapperman had failed to comply with Huff’s request and was refusing to release records, in violation of the public records statutes. Kapperman objected to exhibit 3 “on the basis that [he had not] had an opportunity to cross-examine” Huff regarding statements in the affidavit. The court overruled Kapperman’s objection and admitted exhibit 3 into evidence. Neither Huff nor Kapperman offered additional evidence, and the court heard argument by both parties. In addition to arguing that he could not comply with Huff’s request because he was no longer the sheriff of Furnas County, Kapperman argued that Huff was barred from proceeding with his claim because Huff had failed to timely respond to Kapperman’s response of October 2, 2018, in violation of § 84-712(4), which requires a deposit before Kapperman would provide the requested records that were in his possession. On February 14, 2019, the district court filed an order in which it granted in part and denied in part Huff’s petition for a writ of mandamus. The court addressed Kapperman’s argument  - 652 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 that Huff failed to state a claim against Kapperman because he was no longer the Furnas County sheriff. The court stated that the fact that Kapperman was no longer the sheriff was “of no consequence” because the petition was directed at the office of the sheriff, not at the specific individual occupying the office at any given time. Accordingly, the court permitted Huff “to substitute . . . Brown, the current Furnas County Sheriff[,] in the caption of the case in place of Kapperman.” Turning to the merits of Huff’s request, the court stated that the sheriff’s response that he had “no responsive records” to most of Huff’s requests was “not sufficient.” The court cited Nebraska precedent which it read to provide that the refer- ence in § 84-712.01(1) to public records “of or belonging to” a public custodian “should be construed liberally to include documents or records that a public body is entitled to possess, regardless of whether the public body actually has posses- sion of the documents.” Based on that reading of precedent, the court reviewed Huff’s specific requests and categorized them into three general groups: (1) records the sheriff was not required to produce, (2) records the sheriff appeared to be entitled to possess, and (3) records the sheriff appeared not to be entitled to possess. The court included in the first category—records the sher- iff was not required to produce—medical records related to persons other than Huff and a report of the names of all county officials. In his request 3, Huff requested, inter alia, jail records, including medical records, for certain jurors in his trial. The court determined that medical records relat- ing to persons other than Huff were exempt from production under § 84-712.05(2). In another request, Huff requested records maintained pursuant to Neb. Rev. Stat. § 23-1306 (Reissue 2012) regarding “all the county officers with their official signatures and seals of their respective offices.” The court noted that § 23-1306 gave the county clerk the duty to maintain such records regarding county officers. The court determined that the sheriff might be entitled to possess such  - 653 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 records with regard to his own office, and it therefore included records regarding the office of sheriff in the second category, discussed below. However, the court concluded that with regard to records regarding other county officials, the sheriff did not have a duty to respond. The court therefore denied in part Huff’s petition for mandamus, because it pertained to the requests for medical records of others and information regard- ing other county officers. The court generally granted mandamus as to Huff’s remain- ing requests and set forth different requirements as to each request depending on how certain the court was that the sher- iff was entitled to possess the requested record. The requests were generally denominated as records the court presumed the sheriff was entitled to possess or records the court thought the sheriff might not be entitled to possess. This categorization was consistent with the second and third categories identi- fied above. Regarding records it presumed the sheriff was entitled to possess, the court ordered the sheriff to conduct a due and dili- gent investigation to determine whether such records existed and, if so, to provide them to Huff. If after a due and diligent investigation the sheriff determined he was not entitled to pos- sess the records, the sheriff would be granted the opportunity to rebut the presumption by affidavit evidence. Such affidavit would need to include the facts necessary to support the sher- iff’s determination, as well as the identity and location of any other custodian of records that the sheriff believed was entitled to possess the records. Regarding records the court thought the sheriff might not be entitled to possess, the court ordered the sheriff to con- duct a due and diligent investigation to determine whether such records existed and, if so, to provide them to Huff. If the records were no longer available, the sheriff would be required to explain in writing why such records were no longer available. If the sheriff determined his office was not entitled to possess the records, the sheriff needed to report  - 654 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 facts supporting such determination and identify any other public custodian the sheriff believed was entitled to possess the records. In its order, the court also addressed the requirement that Huff deposit a fee before the sheriff would provide Huff’s jail records, which the sheriff had determined he could provide. The court stated that § 84-712(3)(b) and (f) authorizes a pub- lic records custodian to charge a fee that “‘shall not exceed the actual added cost of making the copies available’” and to require a deposit if the cost is estimated to exceed $50. The court concluded that “[t]his provision authorized the deposit requested by the sheriff.” The court noted, however, that Huff was indigent and had been permitted to proceed in forma pau- peris in this action. The court acknowledged that neither the public records statutes nor the in forma pauperis statutes explicitly supported a waiver of the fees chargeable under § 84-712. Nevertheless, the court determined that in enacting the public records stat- utes, “the [L]egislature intended to make all public records readily available to the public,” and the court “infer[red that] the [L]egislature intended to avoid the imposition of copying expenses as [a] means to avoid the obligation to produce pub- lic records.” The court noted that as an inmate, Huff did not have the ability to examine public records in situ, and that therefore, his only access to records would be by obtaining copies; the court further noted that as a prisoner, Huff had little financial resources to pay the costs. Therefore, in order to fulfill what it determined to be the Legislature’s intent and the court’s author- ity under § 84-712.03(2) “to grant such other equitable relief as may be proper,” the court determined that fees were subject to waiver in an appropriate circumstance. The court determined that Huff’s requests were not frivolous, and it therefore con- cluded that the fees associated with his requests were subject to waiver and should in fact be waived. The court applied this holding to both the $750 deposit that the sheriff had required  - 655 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 and any fees that might be chargeable in connection with the additional production of records ordered by the court. In conclusion, the court ordered that the sheriff would have 30 days from the date of the order to conduct the investigations and inquiries required, to deliver to Huff the records required by this order or state under oath he is not entitled to possess such records and the identity and location of any custodian of the public body he believes is entitled to possess such records and to contemporaneously file with the court a report of his responses to the requests and his responses to this writ. Brown appeals the order of the district court. ASSIGNMENTS OF ERROR Brown claims, renumbered and restated, that the court erred when it (1) substituted Brown for Kapperman as the defendant; (2) found that the sheriff had a duty to provide certain records even after Huff failed to pay a fee or timely respond as required under § 84-712(4); (3) received exhibit 3 into evidence and ordered a writ of mandamus without admitting any other evi- dence; (4) ordered the sheriff (a) to provide records without the payment of an authorized fee, (b) to provide records that were not in his possession, and (c) to conduct an investigation and to report on other requested records by identifying and locating the custodian of such records; and (5) waived fees and costs authorized under § 84-712 and ordered the sheriff to produce records without the payment of such fees and costs. STANDARDS OF REVIEW [1,2] Mandamus is a law action, and it is an extraordi- nary remedy, not a writ of right. Aksamit Resource Mgmt. v. Nebraska Pub. Power Dist., 299 Neb. 114 , 907 N.W.2d 301 (2018). In a bench trial of a law action, the trial court’s fac- tual findings have the effect of a jury verdict, and we will not disturb those findings unless they are clearly erroneous. Id. Whether to grant a writ of mandamus is within the trial court’s discretion. Id. - 656 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 ANALYSIS Petition for Writ of Mandamus and Request for Public Records Were Directed at Person Holding Office of Sheriff, and Therefore, Court Did Not Err When It Allowed Substitution of Brown’s Name for Kapperman’s. Brown first claims that the district court erred when it substituted his name as sheriff for that of Kapperman as the defend­ant in this action. We determine that the district court fairly interpreted Huff’s records request and petition for a writ of mandamus as being directed at the office of the Furnas County sheriff as the custodian of public records and that therefore, the court did not err when it allowed the caption for this action to be updated to reflect the name of the current holder of that office. The district court noted that “Huff’s request for the produc- tion of public records was directed to the office of the sheriff of Furnas County . . . not to the individual who occupied the office at the time of the delivery of the request.” We agree with the district court’s interpretation of the request and of Huff’s petition for a writ of mandamus as seeking compliance with that request by the sheriff. A request under the public records statutes is directed to the custodian of the records being sought, and although a request is made to the specific person holding the position of custodian, in substance it is inherently directed at the holder of the office that acts as the custodian of the records. [3] We note that Neb. Rev. Stat. § 23-1709 (Reissue 2012) provides in relevant part that “[w]hen a sheriff goes out of office he or she shall deliver to his or her successor all books and papers pertaining to the office . . . .” We read the require- ment under § 23-1709 that a sheriff leaving office deliver “all books and papers” to his or her successor to include public records for which the sheriff is custodian. We further note that with regard to the naming of parties to an action, Neb. Rev. Stat. § 25-322 (Reissue 2016) provides in relevant part:  - 657 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 An action does not abate by . . . the transfer of any interest therein during its pendency, if the cause of action survives or continues. . . . In case of [a] transfer of inter- est, the action may be continued in the name of the origi- nal party or the court may allow the person to whom the transfer is made to be substituted in the action. Reading these statutes together, we determine that Huff’s action for mandamus to enforce his public records request directed to the holder of the office of sheriff did not abate as a result of the transfer of public records of the sheriff’s office from Kapperman as custodian to Brown as custodian. The duty, if any, to provide public records stays with the office of the records’ custodian and is transferred to the new holder of the office. We therefore conclude that the district court did not err when it allowed the substitution of Brown’s name for Kapperman’s name as custodian of the public records at issue in this action. In Order for Court to Issue Mandamus, Huff Needed to Show That Sheriff Had Clear Duty to Provide Requested Records. The remaining issues on appeal deal with Huff’s requests for public records and whether he was entitled to a writ of manda- mus requiring the sheriff to provide the requested records. We therefore review standards relating to mandamus in the context of a public records request. [4,5] A person denied access to a public record may file for speedy relief by a writ of mandamus under § 84-712.03. Aksamit Resource Mgmt. v. Neb. Pub. Power Dist., 299 Neb. 114 , 907 N.W.2d 301 (2018). We have stated that a party seek- ing a writ of mandamus under § 84-712.03 has the burden to satisfy three elements: (1) The requesting party is a citizen of the state or other person interested in the examination of the public records, (2) the document sought is a public record as defined by § 84-712.01, and (3) the requesting party has been denied access to the public record as guaranteed by § 84-712.  - 658 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 Aksamit Resource Mgmt., supra . Where a suit is filed under § 84-712.03, the Legislature has imposed upon the public body the burden to “‘sustain its action.’” Aksamit Resource Mgmt., 299 Neb. at 123 , 907 N.W.2d at 308. If the public body holding the record wishes to oppose the issuance of a writ of mandamus, the public body must show, by clear and conclusive evidence, that the public record at issue is exempt from the disclosure requirement under one of the exceptions provided by § 84-712.05 or § 84-712.08. See Aksamit Resource Mgmt., supra . In the present case, the only documents that the sheriff asserted were exempt from disclosure under a statutory excep- tion were medical records that the sheriff asserted to be exempt under § 84-712.05(2). The court agreed that such records were exempt from disclosure, and it therefore denied mandamus as to those records. Huff did not appeal or cross-appeal to assign error to the court’s denial of mandamus regarding these records; therefore, the court’s denial of mandamus as to those records is affirmed and whether the records are exempt from disclosure is not at issue in this appeal. The issues on appeal involve records for which the court granted a writ of mandamus. In his response to Huff’s request, Kapperman did not assert, and Brown does not argue on appeal, that these records were exempt from disclosure pursu- ant to a statutory exception. Instead, in his response to Huff’s request, Kapperman either (1) asserted that no responsive records existed or (2) acknowledged that the records existed but required the deposit of a fee before the records would be provided. The standard set forth above placing a burden on the public body to show by clear and convincing evidence that a record is exempt does not apply when the public body’s reason for denying a records request is not that the record is exempt from disclosure under a statutory exception. Instead, we have acknowledged: Requiring the public body to demonstrate that an exception applies to the disclosure of a particular public  - 659 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 record does not, however, change the fact that it is the initial responsibility of the relator to demonstrate that the record in question is a public record within the meaning of § 84-712.01. Under § 84-712.03, a writ may be sought by “[a]ny person denied any rights granted by sections 84-712 to 84-712.03 . . . .” In order to establish stand- ing and jurisdiction, therefore, it must be shown that the party seeking mandamus has been denied rights under § 84-712. A necessary component of this showing is that the party was seeking a record that is a “public record” within the meaning of § 84-712.01. State ex rel. Neb. Health Care Assn. v. Dept. of Health, 255 Neb. 784 , 789-90, 587 N.W.2d 100 , 105 (1998). [6,7] The requesting party’s initial responsibility to demon- strate a prima facie claim for a writ of mandamus requiring release of public records must be understood in the context of general requirements for mandamus. Mandamus is a law action and is defined as an extraordinary remedy, not a writ of right, issued to compel the performance of a purely ministerial act or duty, imposed by law upon an inferior tribunal, corporation, board, or person, where (1) the relator has a clear right to the relief sought, (2) there is a corresponding clear duty existing on the part of the respondent to perform the act, and (3) there is no other plain and adequate remedy available in the ordinary court of law. State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241 , 917 N.W.2d 903 (2018). Therefore, under § 84-712.03(1)(a), the requesting party’s initial responsibility includes demonstrating that the requested record is a public record that he or she has a clear right to access under the public records statutes and that the public body or custodian against whom mandamus is sought has a clear duty to provide such public records. As noted above, the district court denied mandamus with regard to medical records the sheriff asserted were exempt from disclosure. The court also denied mandamus with regard to records regarding county officials other than the county  - 660 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 sheriff. Because Huff does not appeal or cross-appeal that rul- ing, the denial of mandamus as to those records is affirmed. With Regard to Records for Which Sheriff Required a Deposit of Fees, Huff Failed to Show He Timely Responded to the Request and Therefore Failed to Show the Sheriff Had a Clear Duty to Provide Such Records. As we have indicated above, the remaining issues on appeal relate to records with respect to which the court granted man- damus and that the sheriff asserts he has no duty to provide either because no such record existed or because the records existed but Huff did not timely respond to the sheriff’s request for a deposit of fees before the records would be provided. We first address the records that in his response Kapperman acknowledged were in his possession but for which he required a deposit of fees before the request could be fulfilled. We determine that because Huff did not timely respond as required under § 84-712(4), the sheriff did not have a clear duty to pro- vide the records and the court erred when it granted mandamus as to these records. In his response to Huff’s request, Kapperman asserted that most of the requested records did not exist but he acknowl- edged that jail records relating to Huff as sought in request 3 existed and were public records that could be provided to Huff. However, Kapperman estimated that “the inspection and copying of records would cost approximately $750.00,” and he therefore required from Huff “a deposit of $750.00 before fulfilling such a request.” We note that § 84-712(3)(b) provides in part that “the custodian of a public record may charge a fee for providing copies of such public record . . . , which fee shall not exceed the actual added cost of making the copies avail- able.” Also, § 84-712(3)(f), which was cited by Kapperman in his response, provides that “[i]f copies requested in accordance with . . . this section are estimated by the custodian of such public records to cost more than fifty dollars, the custodian  - 661 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 may require the requester to furnish a deposit prior to fulfilling such request.” Brown claims on appeal that the district court erred when it found that the sheriff had a duty to provide these records even after Huff failed to respond to Kapperman’s request for a deposit before providing the records. Brown cites § 84-712(4), which provides in relevant part that after the custodian has provided to the requester an estimate of the expected cost of the copies: The requester shall have ten business days to review the estimated costs, including any special service charge, and request the custodian to fulfill the original request, negoti- ate with the custodian to narrow or simplify the request, or withdraw the request. If the requester does not respond to the custodian within ten business days, the custodian shall not proceed to fulfill the request. Kapperman’s response to Huff’s request was dated October 2, 2018. Huff does not assert, and there is nothing in the record that indicates, that within 10 business days thereafter, Huff either requested Kapperman to fulfill the original request, attempted to negotiate with Kapperman to narrow or simplify the request, or withdrew his request. Instead, on October 15, Huff filed a petition for a writ of mandamus in the district court. Brown argues that because Huff did not respond within 10 business days in one of the ways set forth in § 84-712(4), and because the statute provides that in such circumstance, “the custodian shall not proceed to fulfill the request,” the sher- iff no longer had a duty to fulfill the request. We agree with the sheriff. Huff attached to his petition copies of his request and Kapperman’s response. Huff did not assert in his petition that he had responded within 10 business days to Kapperman’s request for a deposit of fees; nor did he attach a copy of any such response. The only additional evidence Huff offered at the hearing was his affidavit, in which he made no asser- tion that he had timely responded. Without a response, under  - 662 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 § 84-712(4), Kapperman was no longer under a duty to fulfill the request for jail records. Therefore, we determine that with respect to these records, Huff failed his initial responsibility to demonstrate that he had been denied access to the public record as guaranteed by § 84-712, because he failed to demonstrate that the sheriff had a clear duty under § 84-712 to fulfill the request. See Russell v. Clarke, 15 Neb. Ct. App. 221 , 724 N.W.2d 840 (2006) (affirming denial of petition for writ of mandamus where evidence established that there were no public records maintained by custodian other than those of which copies were provided or of which custodian offered to provide copies upon payment of reasonable expense of copying, and requester failed to adduce evidence to contrary). We note in connection with this request that in his petition, Huff asserted that Kapperman was “charging [an] amount more than what it would cost to copy these records.” However, Huff did not assert a factual basis to support his claim of unreason- ableness; nor did he present evidence to show that the $750 requested by Kapperman exceeded the reasonable expense of copying. There was no showing indicating the volume of docu- ments requested and therefore no way to determine whether $750 was a reasonable cost, and in addition, the district court made no finding that the requested fee was excessive or unrea- sonable. Instead, in its order, the court stated that § 84-712(3)(f) “authorized the deposit requested by the sheriff.” Although the court thereafter determined that the fee should be waived, such determination was based on Huff’s inability to pay rather than the reasonableness of the fee. Because the sheriff has been relieved of his duty, if any, to provide records encompassed by request 3, we do not comment on the court’s ruling that the fees provided for in § 84-712(3)(f) can be waived. Compare 5 U.S.C. § 552(a)(4)(A) (2018) (providing for statutory waiver of fee). On the record before the district court, Huff did not show a clear duty on the part of the sheriff as custodian of the jail records to provide the records which the sheriff offered to  - 663 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 provide upon a deposit of fees. We therefore conclude that the court abused its discretion when it granted mandamus as to those records. Huff Failed to Demonstrate That Sheriff Had a Clear Duty to Provide Records That Sheriff Asserted Did Not Exist. Regarding the majority of the records requested by Huff, the sheriff responded that no responsive records existed. The district court granted mandamus with regard to those requests encompassed by this response under the reasoning that such records were records “‘of or belonging to’” the sheriff because the sheriff was “‘entitled to possess’” the records. We deter- mine that the court misapplied this court’s precedent in reach- ing that conclusion, and we conclude that Huff failed to establish as a prima face case that the requested records were records that the sheriff had a clear duty to provide. The record from the district court does not contain evidence to support a finding that the sheriff was the custodian of the requested records. As noted above, Huff attached to his peti- tion Kapperman’s response in which Kapperman asserted that as to most of Huff’s requests, “no responsive records exist.” In his pleadings and in his affidavit, Huff made generalized allegations that Kapperman was withholding records and not fulfilling his duty. But there was no other evidence to establish that the sheriff was the custodian of the requested records. In its order, the court does not explicitly find that the sheriff was being untruthful and that the requested records were actually in his possession. Instead, the court reasoned that the sheriff was required to provide the records to Huff because the sher- iff was “‘entitled to possess’” the records. For purposes of the public records statutes, § 84-712.01(1) defines “public records” to “include all records and documents, regardless of physical form, of or belonging to this state, any county, city, village, political subdivision, or tax-supported district in this state, or any agency, branch, department, board,  - 664 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 bureau, commission, council, subunit, or committee of any of the foregoing.” In its order in this case, the district court cited Evertson v. City of Kimball, 278 Neb. 1 , 9, 767 N.W.2d 751 , 759 (2009), in which we stated that this definition “does not require a citizen to show that a public body has actual pos- session of a requested record” and we liberally construed the “‘of or belonging to’” language of § 84-712.01(1) to include “any documents or records that a public body is entitled to pos- sess—regardless of whether the public body takes possession.” We stated that “[t]he public’s right of access should not depend on where the requested records are physically located.” Id. The district court in its order interpreted Evertson “to require the custodian who receives a public records request to examine each of the requests to determine whether, as a custodian in the public body to which the request is directed, he or she is ‘entitled to possess the document’ requested.” The court then categorized the records requested by Huff as those that the sheriff “presumptively appears to be entitled to possess” and those “which it appears the sheriff may not be entitled to pos- sess.” As to each category, the court required the sheriff to investigate whether he was entitled to possess the requested documents and either provide the documents, explain why he could not possess them, or identify any other custodian the sheriff believed to be entitled to possess the records. We determine that the district court read Evertson too broadly. In Evertson, the city’s mayor had commissioned an investigation by a private entity and two citizens requested from the city a written report that was in the possession of the private entity. Although we ultimately concluded that the record was exempt from production based on a statutory excep- tion, as a preliminary step we determined that the report was a “public record” under § 84-712.01 even though the city had declined to take possession. In reaching that conclusion, we set forth the language relied on by the district court to the effect that public records include documents the public body is entitled to possess.  - 665 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 However, Evertson must be understood in the context of a request for documents in the possession of a private entity. In Evertson, we set forth tests for determining whether records in the possession of a private party are public records sub- ject to disclosure, and such tests generally focused on the public body’s delegation to a private entity of its authority to perform a government function and the preparation of the records as part of such delegation of authority. Thus, it was in the context involving the public body’s access to documents in the possession of a private entity that the “entitled to pos- sess” language in Evertson, 278 Neb. at 9 , 767 N.W.2d at 759, emerged. In the present case, Huff did not assert, and there is no indi- cation from the record, that any of the documents requested by Huff were in the possession of a private entity to whom the sheriff had delegated authority to perform a function of the sheriff’s office. The court made general findings that the requested records were records that the sheriff appeared to be entitled to possess; however, the court made no indication whether it thought that, contrary to the response that no respon- sive records existed, the records were actually in the sheriff’s possession or whether it thought the sheriff could obtain the records from some other unspecified custodian pursuant to some unspecified authority. Huff presented no evidence to con- tradict the sheriff’s response or to establish that the sheriff was the custodian of the requested records. The sheriff argued at the hearing that the records at issue were “not items that are kept by the sheriff’s department” and that instead, the custodians of certain requested records may have been other county officers such as the county attorney or the county clerk. Therefore, it is possible the court may have determined that the sheriff was “entitled to possess” such records in the performance of his duties because the sheriff could request the other county officers to provide the records. See Evertson v. City of Kimball, 278 Neb. 1 , 9, 767 N.W.2d 751 , 759 (2009). But we do not think that Evertson should  - 666 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 be extended to apply to records normally in the possession of other governmental custodians. Although the sheriff may be able to request records from another county office, it does not mean they are records “of or belonging to” the sheriff; instead, they are records “of or belonging to” the other county office. See § 84-712.01. The public records statutes are directed to “the custodian” of a requested public record, see § 84-712, and the duties imposed thereunder on a specific custodian relate only to the public records of which that specific office or person is the custodian. A specific custodian only has a clear duty under the public records statutes to provide the public records of which he or she is custodian. It is the obligation of the person requesting a record to determine the proper custodian and to make a request of that person or office. The record of proceedings in this case is that in his response, the sheriff asserted that as to most of Huff’s requests, no responsive records existed. The only evidence presented by Huff was his affidavit in which he made general allegations that the sheriff failed to comply with his requests. But there is no evidence to support a showing that the sheriff was in fact custodian of any of the records at issue, and therefore, Huff failed to make a prima facie showing that the sheriff had a clear duty under the public records statutes to provide the records. Although other county officers may have been custo- dians of the requested records, the public records statutes did not impose a duty on the sheriff to obtain those records on Huff’s behalf. For completeness, we note that in another request subse- quent to request 3, Huff sought the criminal history records of various individuals such as jurors and attorneys. Neb. Rev. Stat. § 29-3520 (Reissue 2016) provides in part that “[c]omplete criminal history record information maintained by a criminal justice agency shall be a public record open to inspection and copying by any person during normal busi- ness hours and at such other times as may be established by  - 667 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 the agency maintaining the record.” Further, Neb. Rev. Stat. § 29-3522 (Reissue 2016) states that if the requested criminal justice history record is not in the custody or control of the person to whom the request is made, such person shall notify the requester and state the agency, if known, which has custody or control of the record in question. In this case, the sheriff responded to this request by asserting “no responsive records exist.” With respect to Huff’s request for criminal histories, we read this response as being both that the sheriff did not have custody of such records and that the sheriff was not aware of any requested criminal histories that were in the custody and control of another agency. Although on this record as a whole, the sheriff has broadly addressed the concerns reflected in §§ 29-3520 and 29-3522, the better practice going forward when responding to a request for criminal history record infor- mation is an initial twofold response containing both an answer to whether the responder has custody and control of the infor- mation sought and, if not, which agency, if known, has custody or control of the record in question or an explicit statement that the responder is not aware of any criminal history in the custody of another agency. We further note, with respect to Huff’s requests for docu- ments other than criminal histories, that the public records statutes do not include a requirement similar to that in § 29-3522 for a custodian to inform the requester of another agency that has custody or control of the record requested. Therefore, to the extent the district court’s mandamus ordered the sheriff to provide such information with regard to records other than criminal histories, the sheriff had no clear duty to do so. We conclude that the district court abused its discretion when it granted the writ of mandamus as to the records for which the sheriff has responded that no responsive records exist. Because we conclude that Huff did not establish a prima facie case that he was denied public records that the sheriff had a clear duty to provide, we reverse the portions of the  - 668 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HUFF v. BROWN Cite as 305 Neb. 648 order granting mandamus. We therefore need not consider Brown’s remaining assignments of error. CONCLUSION We conclude that the district court did not err when it allowed Brown’s name to be substituted for Kapperman’s, because the present action was directed to the office of the sheriff of Furnas County. With regard to the merits of Huff’s petition for a writ of mandamus, to the extent the district court denied Huff’s petition in part, we affirm such denial. To the extent the district court granted the remainder of Huff’s petition and issued mandamus, we conclude that Huff failed to demonstrate a prima facie case that he had been denied a request for public records that the sheriff had a clear duty to provide under § 84-712. We therefore reverse the order to the extent the court granted mandamus, and we remand the matter with directions to the district court to deny Huff’s petition for a writ of mandamus in its entirety. Affirmed in part, and in part reversed and remanded. Freudenberg, J., not participating.

2020-06-05 13:08:48.237155+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007119PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/05/2020 08:08 AM CDT - 609 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA Cite as 305 Neb. 609 Great Northern Insurance Company, an Indiana corporation, appellee, v. Transit Authority of the City of Omaha, a governmental subdivision of the State of Nebraska individually and doing business as Metro Area Transit, appellant, and Jessica Johnson, an individual, appellee. ___ N.W.2d ___ Filed April 17, 2020. No. S-19-913. 1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court’s decision. 2. Statutes: Time. Statutes covering substantive matters in effect at the time of the transaction or event govern, not later enacted statutes. But where there has been an amendment to a statute which was a procedural change and not a substantive change, upon the effective date of the amendment, it is binding upon a tribunal. 3. ____: ____. Procedural amendments to statutes are ordinarily applicable to pending cases, while substantive amendments are not. 4. Statutes: Words and Phrases. A substantive amendment is one that creates a right or remedy that did not previously exist and which, but for the creation of the substantive right, would not entitle one to recover. A procedural amendment, on the other hand, simply changes the method by which an already existing right is exercised. Petition for further review from the Court of Appeals, on appeal thereto from the District Court for Douglas County, Thomas A. Otepka, Judge. Judgment of Court of Appeals reversed and remanded for further proceedings.  - 610 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA Cite as 305 Neb. 609 Robert M. Schartz and Timothy Mulliner, of Abrahams, Kaslow & Cassman, L.L.P., for appellant. Matthew D. Hammes, of Locher, Pavelka, Dostal, Braddy & Hammes, and Cheri MacArthur, of Cozen O’Connor, for appel- lee Great Northern Insurance Company. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Freudenberg, J. NATURE OF CASE The Transit Authority of the City of Omaha, doing business as Metro Area Transit (Metro), moved for summary judg- ment based on sovereign immunity in a suit brought by Great Northern Insurance Company (Great Northern). The district court denied this motion, and Metro appealed. The Nebraska Court of Appeals dismissed the appeal for lack of jurisdiction, explaining that the denial of a motion for summary judgment is interlocutory and not a final order. However, after the order denying summary judgment was entered but before the 30-day period to file a timely appeal expired and before Metro filed its notice of appeal, Neb. Rev. Stat. § 25-1902 (Reissue 2016) was amended to add denials of summary judgment based on a claim of sovereign immunity to the definition of a final order. 1 Metro petitioned for further review, and we granted the petition. BACKGROUND The underlying claim, not at issue here, is a subrogation action in which Great Northern is seeking compensation from Metro under the Political Subdivisions Tort Claims Act. 2 In the proceedings below, Metro challenged Great Northern’s compli- ance with the notice requirements of the Political Subdivisions Tort Claims Act. 1 See 2019 Neb. Laws, L.B. 179, § 1. 2 Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012).  - 611 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA Cite as 305 Neb. 609 Metro moved for summary judgment based on sovereign immunity. Metro claimed that Great Northern did not properly comply with the Political Subdivisions Tort Claims Act and that the failure to comply with the notice requirements meant that Metro never waived sovereign immunity. On August 23, 2019, the district court denied Metro’s motion on the ground that Metro was estopped from asserting immunity after Metro’s outside counsel responded to Great Northern’s notice. On September 3, Metro moved to reconsider. The motion was denied, and Metro filed an appeal on September 19. Metro’s notice of appeal stated that it was appealing the original order denying summary judgment. On October 11, the Court of Appeals summarily dismissed the appeal, explaining that a denial of a motion for summary judgment is interlocutory and not a final order pursuant to § 25-1902. However, § 25-1902 was amended effective September 1, 2019. 3 This change added language specifying that an order denying summary judgment when the motion is based on sov- ereign immunity is a final order. The relevant sections were amended to read: (1) The following are final orders which may be vacated, modified, or reversed: .... (d) An order denying a motion for summary judgment when such motion is based on the assertion of sovereign immunity or the immunity of a government official. (2) An order under subdivision (1)(d) of this section may be appealed pursuant to section 25-1912 within thirty days after the entry of such order or within thirty days after the entry of judgment. 4 Because the change to § 25-1902 took effect before the appeal was filed, but after the order itself was issued, the question pre- sented is which version of the final order statute should apply. 3 Neb. Rev. Stat. § 25-1902 (Supp. 2019). 4 See id. - 612 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA Cite as 305 Neb. 609 ASSIGNMENT OF ERROR Metro argues that the Court of Appeals erred by failing to recognize that the denial of Metro’s motion for summary judg- ment asserting sovereign immunity was a final order under § 25-1902 as of September 1, 2019. STANDARD OF REVIEW [1] A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion inde- pendent of the lower court’s decision. 5 ANALYSIS The sole issue in this case is whether the Court of Appeals had jurisdiction when the notice of appeal was filed on September 19, 2019. We find that the Court of Appeals did have jurisdiction when the notice of appeal was filed because the amended version of § 25-1902 had taken effect. In order to vest the court with appellate jurisdiction, the party seeking the appeal must comply with several statu- tory requirements. Section 25-1902 provides the definition of what is a final order, and Neb. Rev. Stat § 25-1912 (Cum. Supp. 2018) provides the methodology for how an appeal is perfected. In interpreting the requirements of § 25-1912, we have said that “[s]ection 25-1912 sets forth the only method by which a party may invoke the jurisdiction of an appellate court . . . .” 6 There are three steps required to invest the court with jurisdiction: (1) there must be a judgment or final order entered by the court from which the appeal is taken, 7 (2) a party must timely file a notice of appeal, 8 and (3) the appealing 5 Green v. Seiffert, 304 Neb. 212 , 933 N.W.2d 590 (2019). 6 State v. Schmailzl, 248 Neb. 314 , 316, 534 N.W.2d 743 , 745 (1995). 7 See, § 25-1902 (Supp. 2019); Fritsch v. Hilton Land & Cattle Co., 245 Neb. 469 , 513 N.W.2d 534 (1994). 8 See, § 25-1912; Green v. Seiffert, supra note 5.  - 613 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA Cite as 305 Neb. 609 party must pay the docket fee to the clerk of the court or file in forma pauperis. 9 [2,3] The order entered on August 23, 2019, did not meet the definition of a final order when entered. However, the amend- ment to § 25-1902 took effect before Metro’s 30-day window to appeal had expired. It is a well-established principle that statutes covering substantive matters in effect at the time of the transaction or event govern, not later enacted statutes. 10 But where there has been an amendment to a statute which was a procedural change and not a substantive change, upon the effective date of the amendment, it is binding upon a tri- bunal. 11 Thus, procedural amendments to statutes are ordinarily applicable to pending cases, while substantive amendments are not. 12 [4] We have explained that a substantive amendment is one that creates a right or remedy that did not previously exist and which, but for the creation of the substantive right, would not entitle one to recover. 13 A procedural amendment, on the other hand, simply changes the method by which an already existing right is exercised. 14 At issue in the larger case is the substantive question of whether Metro waived sovereign immunity under the Political Subdivisions Tort Claims Act. The change to § 25-1902 does not affect the substance of that claim. Rather, it changes the procedure governing when Metro can request review. By mak- ing the denial of a claim of sovereign immunity a final order, the amendment allows a sovereign to file an interlocutory appeal within 30 days of the order instead of waiting until the 9 See § 25-1912. 10 Dragon v. Cheesecake Factory, 300 Neb. 548 , 915 N.W.2d 418 (2018). 11 Id. 12 Id. 13 Id. 14 Id.  - 614 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports GREAT NORTHERN INS. CO. v. TRANSIT AUTH. OF OMAHA Cite as 305 Neb. 609 final judgment to seek review of the lower court’s decision on sovereign immunity. We hold that the amendment to § 25-1902 which took effect September 1, 2019, was a procedural change that was binding upon its effective date. Because Metro filed its notice of appeal after the effective date of the amendment to § 25-1902, the amendment governed whether that notice of appeal succeeded in divesting the lower court of jurisdiction and in bringing the matter of the lower court’s ruling on sovereign immunity to the Court of Appeals. Subsection (2) of the amended version of § 25-1902 provides that any order that meets the definition under subsection (1) (d) may be appealed pursuant to § 25-1912. The order subject to Metro’s notice of appeal meets that definition. Thus, the amended language of § 25-1902 allowed for Metro to file a notice of appeal based on the August 23, 2019, order. 15 The amended change to § 25-1902 allows for the appeal from an order denying summary judgment based on a claim of sovereign immunity as long as the appealing party com- plied with the requirements of § 25-1912. Metro has otherwise complied with the requirements for perfecting an appeal under § 25-1912. As such, the Court of Appeals erred in denying the appeal for a lack of jurisdiction. CONCLUSION We find that the Court of Appeals had jurisdiction pursuant to § 25-1902 (Supp. 2019), which was effective September 1, 2019. We reverse the dismissal of the appeal by the Court of Appeals and remand the cause for further proceedings. Reversed and remanded for further proceedings. 15 See § 25-1902(2) (Supp. 2019).

2020-01-17 22:01:53.538642+00

Maequette

OPINION. Maequette: The respondent, by registered letter dated December 24, 1926, notified the petitioner of a deficiency in income and profits tax for the year 1921 -in the amount of $578.33, and the petition herein was filed February 21, 1927. Upon leave duly granted, an amended petition was filed, in which it is alleged that the respondent erred in denying the petitioner affiliation with certain other corporations during the year 1921, and in failing to allow as a deduction from gross income a loss in the amount of $21,255.21, claimed to have been sustained through the failure of the Knickerbocker Corporation, a customer of the petitioner. The respondent filed an answer denying all the material allegations of the amended petition. The case was set for hearing on January 28, 1929, and the petitioner was notified thereof. The petitioner declined to appear at the hearing, but on January 11, 1929, mailed to the Clerk of this Board a letter as follows: January 11, 1929. Mr. B. D. Gamble, Cleric, United, States Board of Taw Appeals, Washington, D. C. Re: Wholesale Coal Company, Petitioner, v. Commissioner of Internal Revenue, Respondent. Docket No. 24532. Dear Sir: We acknowledge receipt of your letter dated December 8, 1928, advising that the above-entitled proceeding has been placed on the Board’s day calendar for hearing at Washington, D. C., on January 28, 1929. *551You are advised that the petitioner will submit the proceeding to the Board without argument or personal appearance of its attorney in accordance with Buie 29. The facts regarding the loss sustained by the petitioner through the failure of the Knickerbocker Corporation have already been determined by the Board in its finding of facts in the proceeding of the appeal of Wholesale Coal Company, Docket No. 4515, decided by the Board on January 26, 1926. No evidence will be submitted relative to the other alleged error, namely the consolidation with several other companies. Yours very truly, (Signed) Walter D. Wall, Counsel for the petitioner. A finding of fact by the Board is entitled to the presumption of correctness and, when introduced in a subsequent case, throws the burden of going forward on the opposing party. Union Metal Manufacturing Co., 4 B. T. A. 287; Goodell-Pratt Co., 6 B. T. A. 1235. If the petitioner herein desired to rely on the findings of fact made in a former proceeding, it was incumbent upon it to introduce such findings in evidence herein. As the record stands, all the material allegations of the amended petition are denied by the respondent, and there is no evidence before us to support the petitioner’s contention. The issues must be resolved in favor of the respondent. Judgment will he entered for the respondent.

2020-12-02 21:00:27.25199+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/19-16518.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RICKY LEE JARRETT, No. 19-16518 Petitioner-Appellant, D.C. No. 2:18-cv-00892-DLR v. MEMORANDUM* DAVID SHINN**; ATTORNEY GENERAL FOR THE STATE OF ARIZONA, Respondents-Appellees. Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding Submitted November 20, 2020*** Phoenix, Arizona Before: BYBEE, MURGUIA, and BADE, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** David Shinn, Director of the Arizona Department of Corrections, is substituted for Charles L. Ryan. See Fed. R. App. P. 43(c)(2). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).  Ricky Lee Jarrett appeals the district court’s denial of his petition for habeas corpus relief. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(1)(A). We affirm. This court reviews de novo the district court’s decision to grant or deny a petition for habeas corpus. See Lambert v. Blodgett, 393 F.3d 943 , 964–65 (9th Cir. 2004). Habeas review of a state court judgment is governed by the Anti- Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 (d). Habeas relief sought pursuant to § 2254(d) cannot be granted unless the defendant shows that the last reasoned decision of the state courts “was contrary to” federal law then clearly established in the holdings of the Supreme Court, or that the decision “involved an unreasonable application of” such law, or that it “‘was based on an unreasonable determination of the facts’ in light of the record before the state court.” Harrington v. Richter, 562 U.S. 86 , 100 (2011) (quoting 28 U.S.C. § 2254 (d); other citation omitted); Hibbler v. Benedetti, 693 F.3d 1140 , 1146 (9th Cir. 2012). 1. Jarrett first contends that the state trial court denied him the right to self-representation. We review the decision of the state post-conviction relief (“PCR”) court as it is the last reasoned decision of the state courts. The state PCR court concluded that Jarrett abandoned his request to represent himself and, thus, that his right to self-representation was not violated. Jarrett asserts that he is 2 entitled to habeas relief because that decision is based on an unreasonable determination of the facts and is an unreasonable application of clearly established federal law. We disagree. Denial of a defendant’s timely and unequivocal motion to represent himself violates the Sixth Amendment. Faretta v. California, 422 U.S. 806 , 818–19, 835– 36 (1975); Tamplin v. Muniz, 894 F.3d 1076 , 1085 (9th Cir. 2018) (stating that “a denial of self-representation in the face of” an “unequivocal and timely request” is a violation of the Sixth Amendment and the violation “is complete at the time of the court’s denial” (citing Faretta, 422 U.S. at 835–36)); cf. United States v. Hernandez, 203 F.3d 614 , 623 (9th Cir. 2000) (“It may also be true that a district court may under some circumstances properly reserve ruling until a later date.”), overruled on other grounds by Indiana v. Edwards, 554 U.S. 164 (2008). But a defendant who asserts his right to self-representation can later waive the right through his subsequent conduct. See McKaskle v. Wiggins, 465 U.S. 168 , 182 (1984). We first address Jarrett’s contention that the state PCR court’s decision relies on an unreasonable determination of the facts. The state PCR court concluded that Jarrett “abandoned his motion for waiver of counsel and self- representation” and that the trial court “made it clear that the plan was to see if new counsel would satisfy his concerns and, if not, clearly advised [Jarrett] that his 3 motion could be renewed.” And while the trial court expressed some skepticism about Jarrett’s ability to represent himself, it also specifically deferred ruling on Jarrett’s motion to waive counsel and indicated it wanted him “to have the full opportunity to have an attorney represent [him]” but that, “[i]f at some point after that [he]’d still like to renew [the] motion to go pro per,” he could do so. Jarrett did not again seek to represent himself until sentencing. Based on these facts, it was not unreasonable for the state PCR court to find that, although the trial court deferred ruling on Jarrett’s self-representation request, his subsequent conduct indicated that he was satisfied with his new counsel and had abandoned his request to represent himself. Accordingly, Jarrett has not shown he is entitled to habeas relief pursuant to § 2254(d)(2). Jarrett also failed to establish entitlement to habeas relief under § 2254(d)(1). Although Jarrett asserts that the state PCR court’s decision was contrary to clearly established law, he does not argue that the state PCR court identified the wrong legal standard or rule for analyzing his self-representation claim. See Lockyer v. Andrade, 538 U.S. 63 , 73 (2003). Nor does he cite to a Supreme Court decision that is factually indistinguishable from his case that came to a different result. See id. at 73–74. Indeed, Jarrett cites no Supreme Court case that has specifically addressed whether a court’s deferred ruling on a defendant’s motion to represent himself constitutes a denial of the motion or whether a 4 defendant who has failed to renew his request in response to a deferred ruling can be deemed to have abandoned it. Thus, Jarrett has not established that the state PCR court’s decision is contrary to clearly established federal law. Because Jarrett does not argue that the state PCR court failed to “identif[y] the correct governing legal principle,” the question here is whether the state PCR court “unreasonably applie[d] that principle to the facts of [Jarrett’s] case.” Id. at 75 (citation omitted). If “fairminded jurists could disagree” as to “the correctness of the state court’s decision,” then the state court’s decision is not an unreasonable application of clearly established federal law and habeas relief is unavailable. Harrington, 562 U.S. at 101 (citation omitted). A defendant may waive the right to self-representation after it has been timely and unequivocally invoked. See McKaskle, 465 U.S. at 182 . Here, the state PCR court determined that the state trial court deferred ruling on Jarrett’s self- representation request and that Jarrett later abandoned his request—findings that were not unreasonable based on the record. Given these findings, fairminded jurists could disagree on whether Jarrett waived his right to self-representation by failing to renew his request until sentencing after the state trial court deferred ruling on his initial request. See id.; Tamplin, 894 F3d at 1085. Thus, the state PCR court’s conclusion that Jarrett’s right to self-representation was not violated 5 because he waived his right to self-representation was not an unreasonable application of clearly established federal law. Jarrett has not established entitlement to habeas relief based on his self- representation claim. Accordingly, the district court did not err. 2. Jarrett also asks the court to expand his certificate of appealability to include claims that his constitutional right to effective assistance of counsel was violated because of the allegedly deficient performance of his trial counsel. See 9th Cir. R. 22-1(e) (stating that the inclusion of uncertified issues in a habeas petitioner’s briefing will be treated “as a motion to expand” the certificate of appealability); see Strickland v. Washington, 466 U.S. 668 , 687 (1984) (recognizing right to effective assistance of counsel). We deny that request because Jarrett did not make a substantial showing that he suffered prejudice as a result of any deficient performance due to the overwhelming evidence of his guilt. 28 U.S.C. § 2253 (c)(2); see Harrington, 562 U.S. at 113 . Moreover, as to Jarrett’s claim that trial counsel was deficient for failing to challenge the preclusion of evidence of the victim’s prior bad acts, the state PCR court determined that Jarrett’s claimed knowledge of relevant prior bad acts was raised for the first time during post-conviction relief proceedings and was “directly opposed” to his testimony at trial and, thus, that Jarrett was not credible. Jarrett has not overcome the deference we must accord a state court’s credibility determination. See Sexton 6 v. Cozner, 679 F.3d 1150 , 1156–57 & n.1 (9th Cir. 2012); Lambert, 393 F.3d at 976–78. We deny Jarrett’s request to expand the certificate of appealability to include his two claims of ineffective assistance of counsel because he has not made a substantial showing of a violation of his constitutional right to effective assistance of counsel. AFFIRMED. 7

2020-12-02 21:00:17.259273+00

https://www2.ca3.uscourts.gov/opinarch/201760np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 20-1760 _____________ JEFF S. PEARSON, Appellant v. COMMISSIONER OF SOCIAL SECURITY _______________ On Appeal from the United States District Court for the District of Delaware (D.C. No.1-18-cv-01137) District Judge: Hon. Leonard P. Stark _______________ Submitted Under Third Circuit L.A.R. 34.1(a) November 16, 2020 Before: JORDAN, KRAUSE, and RESTREPO, Circuit Judges. (Filed: December 2, 2020) _______________ OPINION _______________  This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge. Jeff Pearson appeals the District Court’s order affirming the Commissioner of Social Security’s denial of his claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”). Pearson argues that substantial evidence does not support the Administrative Law Judge’s conclusion that he was not disabled during the relevant period. We disagree and will affirm. I. BACKGROUND Pearson seeks DIB because, he says, back and hip impairments have precluded him from continuing to work as an attorney since the end of 2009. In 1994, he was in a car accident, which caused traumatic disc herniation. One year later, he received epidural steroid injections, but they did not afford him much relief. An MRI taken in February 2002 revealed mild progression of degenerative changes in his back condition. In 2003, he returned to his doctor, complaining of severe back pain. Pearson stopped working on December 31, 2009. In November 2010, an x-ray of his hip showed he had an abnormal femoral head and signs of aseptic necrosis. In January 2012, nurse practitioner Louise Diehl found that Pearson could not walk a block at a reasonable pace on rough or uneven surfaces and that it was medically necessary for him to use a cane. She indicated that he could, at most, sit for one hour and stand or walk for twenty minutes without interruption. She certified that Pearson could not perform any full-time job. Pearson’s “date last insured”, or when his disability insurance expired, was March 31, 2013. In August 2013, Pearson reported to Dr. Anuradha Amara that “[h]e 2 ambulates well without any support” and “is active with all activities ... of daily living.” (R. at 400-01.) In September 2013, Dr. Stephen Boone examined Pearson, finding that his back was nontender and his right hip appeared normal. In November 2013, Dr. Boone noted that Pearson walked unassisted in the doctor’s office and that “[h]e usually walks unassisted but occasionally uses a cane.” (R. at 466.) In February 2014, Dr. Bruce Lutz found Pearson did not need treatment for his back condition, but referred him to Dr. James Zurbach to evaluate surgical options for his worsening hip condition. On July 1, 2014, over a year after Pearson’s date last insured, Dr. Zurbach recommended hip replacement surgery. Pearson had a first hip replacement in August 2015 and a second hip replacement in January 2016. In December 2016, Dr. Zurbach noted that Pearson was severely limited in his ability to walk, and Dr. Brian Perry concluded that Pearson was unable to work. Two state agency medical consultants reviewed the medical evidence and opined that Pearson could stand and walk for four hours and sit for about six hours in an eight- hour workday in the relevant time period, or the time period between when Pearson stopped working and when his disability insurance expired. At the administrative hearing on his claim for DIB, Pearson testified that, during the relevant time period, he could alternate between sitting for 45 minutes to an hour and standing for twenty minutes, but would have to lie down for twenty minutes when he experienced muscle spasms. A vocational expert testified that a hypothetical person with Pearson’s physical limitations, such as alternating standing and sitting every twenty minutes, could perform Pearson’s past work. The Administrative Law Judge (“ALJ”) also posed a different hypothetical 3 question, adding an additional limitation of being off-task for fifteen percent of the work day, to which the expert responded that no jobs would be available for that hypothetical person in the national economy. The ALJ found that Pearson was not disabled under the Act from December 31, 2009, the alleged onset date, through March 31, 2013, the date last insured. The ALJ concluded that Pearson could perform sedentary work, but that he needed to alternate between sitting and standing in twenty- to thirty-minute intervals. Those limitations, the ALJ decided, would allow Pearson to perform his past relevant work as an attorney. The Appeals Council denied Pearson’s request for review. Pearson appealed the Commissioner’s denial of benefits to the District Court, Pearson v. Saul, No. 18-1137, 2020 WL 1248199 , at *1 (D. Del. Mar. 16, 2020), and moved for summary judgment, making essentially the same arguments he repeats here. Id. at *7. The Court denied the motion and granted the Commissioner’s cross-motion for summary judgment, affirming the ALJ’s decision that denied Pearson’s DIB claim. Id. at *1. This timely pro se appeal followed. II. Discussion1 A. Governing Law We uphold an agency’s factual findings if they are supported by substantial evidence. 42 U.S.C. § 405 (g); Biestek v. Berryhill, 139 S.Ct. 1148 , 1154 (2019). Substantial evidence means enough relevant evidence that “a reasonable mind might 1 We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 . The District Court had jurisdiction under 42 U.S.C. § 405 (g). 4 accept as adequate to support a conclusion.” Biestek, 139 S.Ct. at 1154 (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197 , 229 (1938)). The threshold for substantial evidence is “not high[,]” requiring “more than a mere scintilla” of evidence. Id. (quoting Consol. Edison Co., 305 U.S. at 229 ). Title II of the Act provides DIB to people who contributed to the program and who have a disability. 42 U.S.C § 423(a)(1). Congress defined “disability” as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A). A claimant is disabled “only if” his impairment is so severe that he not only cannot engage in his previous work but “cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy[.]” Id. § 423(d)(2)(A). There is a five-step analysis to determine whether a person is disabled. 20 C.F.R. § 404.1520 . First, the Commissioner considers whether the claimant is involved in any substantial gainful activity. Id. § 404.1520(a)(4)(i). If not, step two requires an analysis of the severity of the claimant’s impairment(s). Id. § 404.1520(a)(4)(ii). At step three, the Commissioner compares the claimant’s severe impairment “to a list of impairments presumed severe enough to preclude any gainful work” (“the Listings”). Plummer v. Apfel, 186 F.3d 422 , 428 (3d Cir. 1999); 20 C.F.R. § 404.1520 (a)(4)(iii). If the claimant’s impairment is not listed, the Commissioner considers at step four whether the claimant retains the residual functional capacity (“RFC”) to perform his past relevant 5 work. 20 C.F.R. § 404.1520 (a)(4)(iv). If the claimant can return to his past relevant work, he is not disabled. Id. Should the claimant successfully demonstrate he is unable to return to his past relevant work, the fifth step requires the Commissioner to determine whether the claimant’s impairment precludes him from adjusting to other work. Id. § 404.1520(a)(4)(v). The Commissioner classifies the type of work the claimant may do based on physical exertion requirements, ranging from sedentary work to very heavy work. Id. § 404.1567. The claimant bears the burden of establishing that he “became disabled at some point between the onset date of disability and the date that [his] insured status expired.” Zirnsak v. Colvin, 777 F.3d 607 , 612 (3d Cir. 2014); see 42 U.S.C § 423(a)(1)(A); 20 C.F.R. § 404.131 . While evidence generated after a claimant’s date last insured can shed light on his condition during the insured period, that evidence does not necessarily compel the Commissioner to conclude that the claimant’s condition during the insured period was as severe as it became after the date last insured. See Zirnsak, 777 F.3d at 614 (holding the ALJ did not err in giving little weight to an assessment of claimant’s “current mental status,” conducted over two years after date last insured). When considering evidence of disability, “treating and examining physician opinions often deserve more weight than the opinions of doctors who review records[.]” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356 , 361 (3d Cir. 2011). But an ALJ need not give a treating physician’s opinion controlling weight if it is inconsistent with other evidence in the record. See 20 C.F.R. § 404.1527 (c)(2). For claims filed before March 27, 2017, the treating physician rule did not encompass opinions of a nurse 6 practitioner. Id. §§ 404.1502(a)(7); 404.1527(a)(1-2), (c)(2). Further, the ALJ is not bound by the conclusion of a treating physician that the claimant is disabled or unable to work, as that decision is the ALJ’s to make. Id. § 404.1527(d)(1); Chandler, 667 F.3d at 361. When a claimant offers evidence to the courts that was not presented to the ALJ, that evidence may not be used to challenge the ALJ’s decision on substantial evidence grounds. Matthews v. Apfel, 239 F.3d 589 , 594 (3d Cir. 2001). But, pursuant to the sixth sentence of 42 U.S.C. § 405 (g) (“sentence six”), we may order remand if the evidence is new, material, and good cause is shown for failure to present the evidence originally. Id. Evidence is not “new” if it is “merely cumulative of what is already in the record.” Szubak v. Sec'y of Health & Human Servs., 745 F.2d 831 , 833 (3d Cir. 1984). To be material, there must “be a reasonable possibility that the new evidence would have changed the outcome” of the determination. Id. B. Pearson’s Arguments Pearson makes three arguments. First, he argues that his hip and back injuries constitute a listed impairment at step three. Second, he contends that substantial evidence does not support the ALJ’s step-four conclusion that he can perform his past relevant work. Central to his argument is his assertion that the ALJ violated the treating physician rule when he failed to give controlling weight to the opinion of nurse practitioner Diehl. Third, he argues that we should remand his case pursuant to sentence six because he 7 possesses new evidence that he did not previously submit to the Commissioner. We consider each in turn. i. The Step Three Conclusion Pearson says that the ALJ erred in finding his impairment did not meet or equal a listed impairment in the musculoskeletal system category at step three.2 The ALJ considered listing 1.02, “[m]ajor dysfunction of a joint(s),”3 but concluded that the record did not contain evidence satisfying the listing’s requirement that the claimant be unable to ambulate effectively. Pearson says that nurse practitioner Diehl’s 2012 assessment proves otherwise. Although Diehl checked a box which could support a finding of an inability to ambulate,4 the ALJ concluded that Diehl’s assessment was “not supported by the other medical evidence.” (R. at 31.) The ALJ cited Dr. Amara’s August 2013 exam notes stating Pearson “ambulates well without any support” and “is active with all activities ... of daily living.” (R. at 400-01, 31.) In addition, the ALJ gave only limited weight to Diehl’s assessment because her findings were not accompanied by exam notes, 2 To satisfy the severity requirements for a musculoskeletal system disorder under the Listings, a claimant must be unable “to ambulate effectively on a sustained basis for any reason, including pain associated with the underlying musculoskeletal impairment[.]” 20 C.F.R. Pt. 404, Subpt. P, App. 1. Examples of ineffective ambulation include the inability to walk without two canes, “the inability to walk a block at a reasonable pace on rough or uneven surfaces,” or “the inability to carry out routine ambulatory activities, such as shopping and banking.” Id. 3 The ALJ also considered listing 1.04, “[d]isorders of the spine[,]” but concluded the record did not show evidence meeting the criteria under this listing. 4 Diehl indicated that Pearson could not “walk a block at a reasonable pace on rough or uneven surfaces[.]” (R. at 700.) 8 while exam notes from Dr. Boone described normal ambulation. Substantial evidence thus supports the ALJ’s conclusion that Pearson’s impairment did not meet or equal a listing at step three. ii. The Step Four Conclusion Next, Pearson contends that substantial evidence does not support the ALJ’s conclusion that he had the RFC to perform his past work as an attorney as generally performed. In his findings, the ALJ first discussed the medical evidence which supported some of Pearson’s allegations, such as an x-ray showing possible necrosis of the hip in 2010. While Drs. Zurbach and Perry noted that Pearson was severely impaired, the ALJ gave their conclusions minimal weight because they evaluated Pearson several years after the date last insured. The ALJ concluded that, during the period between the alleged onset date and date last insured, little to no evidence of limitations related to his back and hip impairments supported a finding that Pearson was as limited as now alleged.5 For example, Pearson eventually had hip replacement surgeries, but the surgeries occurred more than two years after his date last insured and suggest that his hip issues deteriorated after the relevant time period. Several months after the date last insured, Drs. Amara and Boone noted that Pearson ambulated well, and Dr. Boone found that he had a nontender back, although he did complain of pain. The ALJ considered the measures Pearson pursued to alleviate his symptoms, including that Pearson did not continue to receive 5 Pearson argues his medical record is sparse during the relevant time period because he could not afford more extensive treatment until he obtained Medicaid in 2012. But Pearson’s medical records from 2012 and 2013 remained sparse, and do not support his allegations of severe limitations. 9 epidural injections during the relevant period. Overall, it is clear the ALJ comprehensively evaluated Pearson’s medical records and treatment history in reaching his conclusion. Pearson contends that the ALJ should have given Diehl’s 2012 documentation controlling weight under the treating physician rule. But for claims brought before March 2017, such as Pearson’s, an ALJ was not required to give controlling weight to a treating nurse practitioner’s medical opinion. See 20 C.F.R. §§ 404.1502 (a)(7); 404.1527(a)(1-2), (c)(2). And even if Diehl were viewed as a treating physician, that does not mean her opinion was entitled to controlling weight, as the ALJ found it to be inconsistent with other evidence in the record. See 20 C.F.R. § 404.1527 (c)(2). While the ALJ considered Diehl’s opinions, giving them some weight, he decided that her assessment of inability to ambulate contradicted other evidence and that her conclusion regarding Pearson being unable to work did not bind him. See 20 C.F.R. § 404.1527 (d)(1). Significantly, the ALJ found that Pearson had more limited exertional abilities than Diehl and the state agency medical consultants had concluded. The ALJ concluded that Pearson could perform sedentary work, the least physically exertional category, only if he could alternate between sitting and standing in twenty- to thirty-minute intervals. In January 2012, Diehl found that Pearson could, at most, stand or walk for twenty minutes and sit for one hour without interruption and could stand and walk, respectively, for a total of one hour in an eight-hour work day. The state agency medical consultants opined that Pearson could stand and walk for four hours and sit for about six hours in a workday. 10 The ALJ concluded that Pearson’s limitations were more severe and required more frequent intervals of sitting and standing, but that Pearson could perform past relevant work as an attorney. Pearson also says that the vocational expert who testified at his hearing supported the finding that he lacked the RFC to work. In contrast, the ALJ credited the vocational expert’s testimony that a person with Pearson’s limitations (as ultimately assessed by the ALJ) would be capable of performing his past work as an attorney, as that job is described by the Dictionary of Occupational Titles. The ALJ’s subsequent hypothetical question about a person who would be off-task fifteen percent of the time, does not bind him to the premise of the question, nor to the expert’s answer that such a hypothetical person would not be capable of performing past work. Instead, the ALJ’s first hypothetical question captured the RFC the ALJ later determined for Pearson. See Zirnsak, 777 F.3d at 614 (explaining an ALJ must include all “credibly established limitations” in a hypothetical to a vocational expert to credit the expert’s answer). In conclusion, substantial evidence supported the ALJ’s finding that Pearson’s RFC allowed him to perform his past work as an attorney. Biestek, 139 S.Ct. at 1154 . iii. Alleged New, Material Evidence Third and finally, Pearson argues that we should remand his case for a new hearing under sentence six of 42 U.S.C. § 405 (g) because he has new, material evidence. The evidence he seeks to introduce includes a comprehensive pain report, prescription records of opioid pain medication, and a 2009 treatment record. Pearson has not 11 established good cause for why he failed to timely submit that evidence to the ALJ. See 42 U.S.C. § 405 (g). That alone is a sound basis to deny remand. To the extent Pearson argues that the decision by the Department of Education (“DOE”) in 2018 to discharge his student loans due to his disability compels a sentence- six remand, his argument is also unavailing.6 A disability determination by another government agency is entitled to substantial weight. Kane v. Heckler, 776 F.2d 1130 , 1135 (3d Cir. 1985). To qualify for a DOE disability discharge, the applicant must be unable to engage in any substantial gainful activity due to physical impairment that has lasted, or can be expected to last, for a continuous period of at least five years. U.S. Dep’t of Educ., Federal Student Aid Office, Disability Discharge Description, https://studentaid.gov/manage-loans/forgiveness-cancellation/disability-discharge. Pearson alleges the DOE granted his disability discharge in November of 2018. Even if the DOE had determined that Pearson was disabled for the five years leading up to November of 2018, as opposed to determining that his disability would last five years beginning in November 2018, the period of disability would still not extend as far back as Pearson’s date last insured.7 Thus, there is no reasonable possibility that the DOE’s disability discharge would change the ALJ’s determination. See Szubak, 745 F.2d at 833 6 It is unclear whether Pearson argues the DOE’s 2018 student loan discharge is new evidence warranting remand or should have been considered by the ALJ. Because the ALJ could not have considered evidence not yet in existence, we consider that evidence in this sentence-six remand discussion. 7 Pearson did not attach the DOE’s disability discharge decision, so we do not know if the DOE decided whether Pearson had been, or would be, disabled for five years. 12 (“An implicit materiality requirement is that the new evidence relate to the time period for which benefits were denied, and that it not concern evidence of a later-acquired disability or of the subsequent deterioration of the previously non-disabling condition.”). III. CONCLUSION For the foregoing reasons, we will affirm the Judgment in favor of the Commissioner of Social Security and against Pearson entered by the District Court. 13

2020-12-02 21:00:26.701275+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/19-15876.pdf

FILED NOT FOR PUBLICATION DEC 2 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT WELLS FARGO BANK, N.A., No. 19-15876 Plaintiff-Appellant, D.C. No. 2:17-cv-01124-RFB-VCF v. RESOURCES GROUP, LLC, as trustee of MEMORANDUM* the Bourne Valley Court Trust; CORTEZ HEIGHTS HOMEOWNERS ASSOCIATION, Defendants-Appellees, and G&P ENTERPRISES NEVADA, LLC, DBA Allied Trustee Services, Defendant. Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Submitted November 30, 2020** San Francisco, California Before: IKUTA and HURWITZ, Circuit Judges, and TAGLE,*** District Judge. Wells Fargo Bank, N.A., appeals the district court’s grant of Resources Group, LLC’s motion to dismiss. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. Wells Fargo cannot state a claim under the Takings Clause because the enactment of section 116.3116 of the Nevada Revised Statutes predates the creation of Wells Fargo’s lien on the property. Wells Fargo Bank, N.A. v. Mahogany Meadows Ave. Tr., No. 18-17320, – F.3d – , 2020 WL 6498000 , at *6 (9th Cir. Nov. 5, 2020). Nor can Wells Fargo state a claim under the Due Process Clause because Wells Fargo received notice of the Cortez Heights Homeowners Association (HOA)’s intent to sell the property. Id. at *6 . Wells Fargo’s claim that the district court erred in declining to set aside the foreclosure sale under Nevada law also fails. Although the purchase price for the ** This appeal is ordered submitted on the briefs as of November 30, 2020, pursuant to Fed. R. App. P. 34(a)(2). *** The Honorable Hilda G. Tagle, United States District Judge for the Southern District of Texas, sitting by designation. 2 property was only two percent of the original loan amount, “mere inadequacy of price is not in itself sufficient to set aside the foreclosure sale.” Nationstar Mortg., LLC v. Saticoy Bay LLC Series 2227 Shadow Canyon, 133 Nev. 740 , 749 (2017) (Shadow Canyon). Absent evidence “that the sale was affected by fraud, unfairness, or oppression, [] the sale cannot be set aside.” Id. at 750 . The only unfairness argued by Wells Fargo is that the foreclosure notices did not specify the impact of the HOA foreclosure on Wells Fargo’s interest in the property. Sections 116.31162 and 116.311635 of the Nevada Revised Statutes, however, do not require the notices to address the effect of the superpriority foreclosure on the beneficiary of the first deed of trust. See SFR Invs. Pool 1 v. U.S. Bank, 130 Nev. 742 , 757 (2014), superseded by statute on other grounds as stated in Saticoy Bay LLC Series 9050 W Warm Springs 2079 v. Nev. Ass’n Servs., 135 Nev. 180 (2019). Because Wells Fargo alleged in the complaint that the notices required under Chapter 116 of the Nevada Revised Statutes were recorded, and the challenged inadequacy in the notices’ contents does not violate Nevada statutory requirements, Wells Fargo failed to sufficiently allege any “fraud, unfairness, or oppression” for its equitable set-aside claim. Shadow Canyon, 133 Nev. at 750. Because Wells Fargo failed to state an equitable set-aside claim against Resources, its argument 3 that Resources is not entitled to protection as a bona fide purchaser is inapposite. See Wells Fargo Bank, N.A. v. Radecki, 134 Nev. 619 , 621–22 (2018). AFFIRMED 4

2020-12-02 21:00:26.806148+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/19-10459.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10459 Plaintiff-Appellee, D.C. No. 4:18-cr-01255-RCC-DTF-1 v. CHEROKEE RAY DELAHANTY, AKA MEMORANDUM* Cherokee Delahanty, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding Argued and Submitted November 19, 2020 Phoenix, Arizona Before: TALLMAN, BYBEE, and BADE, Circuit Judges. Convicted of a serious assault in Indian Country, Cherokee Delahanty appeals the district court’s entry of an amended restitution order making him liable for his victim’s medical expenses despite the government’s failure to raise this unresolved amount of restitution at sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We vacate the amended restitution order and remand for further * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. proceedings. 1. The government erred when it sought to amend Delahanty’s restitution order without complying with the Mandatory Victim Restitution Act’s (“MVRA”) procedural requirements. 18 U.S.C. § 3664 . Although the magistrate judge warned Delahanty at his change-of-plea hearing that he would be subject to a claim for reimbursement of the victim’s medical expenses—a warning repeated in the Presentence Report—and his counsel had received copies of medical treatment records in pretrial discovery, the government failed at sentencing to identify the victim’s medical expenses as a non-ascertainable loss as required by law because the Arizona Medicaid agency, as the victim’s insurer, had not yet responded to the government’s request for the amount later claimed. See 18 U.S.C. § 3664 (d)(5). Prior to sentencing, the government and the defendant were aware that the victim sustained significant injuries and received extensive medical treatment arising from the assault. That the Medicaid agency did not timely respond to the government’s solicitation of its claim does not establish good cause for the government’s failure to raise what it knew to be a potential outstanding restitution claim at the time of sentencing. Id. We note that the government effectively conceded as much at the restitution amendment hearing before the district court. The United States Attorney’s Office easily could have avoided procedural error had it paid more careful attention to the MVRA’s requirements. 2  Nonetheless, the government’s procedural error was harmless. Failure to comply with the MVRA’s procedural requirements does not divest the court of jurisdiction to amend a restitution order. Dolan v. United States, 560 U.S. 605 , 610–11 (2010). Indeed, “because the procedural requirements of section 3664 were designed to protect victims, not defendants, the failure to comply with them is harmless error absent actual prejudice to the defendant.” United States v. Moreland, 622 F.3d 1147 , 1173 (9th Cir. 2010) (quoting United States v. Cienfuegos, 462 F.3d 1160 , 1163 (9th Cir. 2006)). We have declined to find actual prejudice where, despite the procedural error, a defendant was otherwise given notice that he would be obligated to pay restitution. See Moreland, 622 F.3d at 1173 ; United States v. Marks, 530 F.3d 799 , 812 (9th Cir. 2008); Cienfuegos, 462 F.3d at 1163 . Here, Delahanty had the following notice that he could be liable for his victim’s medical expenses: the Presentence Report advised Delahanty that restitution for a victim’s medical expenses was mandatory, not discretionary, under the MVRA; the written plea agreement and the magistrate judge’s comments during Delahanty’s change of plea advised him that he could be liable for the victim’s medical expenses; and the district court did order some restitution at sentencing, even if it later significantly changed the total amount of the restitution award. 2. The district court, however, erred in failing to make any findings on 3 Delahanty’s timely objection to the sufficiency of the evidence supporting the amended restitution award. The MVRA “recognizes that specific findings of fact are necessary at times and contemplates that the district court will set forth an explanation of its reasoning, supported by the record, when a dispute arises as to the proper amount of restitution.” United States v. Waknine, 543 F.3d 546 , 556 (9th Cir. 2008) (citation omitted). Even where it is “easy to reconstruct how the District Court arrived at” the restitution figure, the failure to make findings on a defendant’s challenge to the sufficiency of the evidence supporting a restitution award is reversible error. United States v. Tsosie, 639 F.3d 1213 , 1222–23 (9th Cir. 2011). On remand, the district court is instructed to conduct a new hearing in response to Delahanty’s objection to the sufficiency of the evidence supporting the amended restitution award to determine the proper amount of restitution and to make findings supporting the amount properly attributable to treatment arising from the victim’s extensive injuries. The Clerk will send a copy of this disposition addressed to the United States Attorney for the District of Arizona so that appropriate steps may be taken to train assistant United States attorneys in their obligations under the MVRA. VACATED AND REMANDED with instructions. 4

2020-12-02 21:00:26.923593+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/18-17383.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT U.S. BANK, N.A., as Trustee for Structured No. 18-17383 Asset Securities Corporation Mortgage Pass- Through Certificates, Series 2006-BC1, D.C. No. 2:17-cv-01220-JCM-VCF Plaintiff-counter- defendant-Appellant, MEMORANDUM* P v. SEASONS AT ALIANTE COMMUNITY ASSOCIATION; TERRA WEST COLLECTIONS GROUP, LLC, DBA Assessment Management Services, Defendants-Appellees, SFR INVESTMENTS POOL 1, LLC, Defendant-counter-claimant- Appellee. Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Submitted November 30, 2020** San Francisco, California * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: M. SMITH and HURWITZ, Circuit Judges, and ROYAL,*** District Judge. This action seeks to quiet title to a residential property. The district court held that a nonjudicial foreclosure sale to SFR Investments Pool 1, LLC (“SFR”), by Seasons at Aliante Community Associations (the “HOA”) pursuant to Nevada Revised Statutes Sections 116.3116 et seq. (“Chapter 116”) extinguished U.S. Bank’s deed of trust. We have jurisdiction under 28 U.S.C. § 1291 and affirm. 1. U.S. Bank’s argument that a nonjudicial foreclosure under Chapter 116 violates the Takings Clause is foreclosed by our decision in Wells Fargo Bank, National Ass’n v. Mahogany Meadows Avenue Trust, No. 18-17320, – F.3d – , 2020 WL 6498000 , at *6 (9th Cir. Nov. 5, 2020). 2. U.S. Bank’s due process claims fail because the bank received timely notice of the foreclosure sale that satisfied all statutory requirements. U.S. Bank’s argument that the notice provisions of Chapter 116 are constitutionally deficient is foreclosed by Bank of America, National Ass’n v. Arlington West Twilight Homeowners Ass’n, 920 F.3d 620 , 624 (9th Cir. 2019); see also Mahogany Meadows, 2020 WL 6498000 , at *6. *** The Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia, sitting by designation. 2  3. U.S. Bank’s claim that the HOA foreclosure sale was commercially unreasonable is also unavailing. Although the sale price was 8.4 percent of the fair market value estimated by U.S. Bank’s appraiser, “mere inadequacy of price is not in itself sufficient to set aside the foreclosure sale.” Nationstar Mortg., LLC v. Saticoy Bay LLC Series 2227 Shadow Canyon, 405 P.3d 641 , 648 (Nev. 2017). Rather, “there must also be a showing of fraud, unfairness, or oppression.” Shadow Wood HOA v. N.Y. Cmty. Bancorp., 366 P.3d 1105 , 1112 (Nev. 2016). U.S. Bank has not met this standard because it has not identified “any irregularity in the foreclosure proceedings affect[ing] the sale price.” SFR Invs. Pool 1, LLC v. U.S. Bank, N.A., 449 P.3d 461 , 466 (Nev. 2019). 4. SFR is a bona fide purchaser. “A subsequent purchaser is bona fide . . . if it takes the property for a valuable consideration and without notice of the prior equity, and without notice of facts which upon diligent inquiry would be indicated and from which notice would be imputed to him, if he failed to make such inquiry.” Shadow Wood, 366 P.3d at 1115 (cleaned up). There is no evidence that SFR “had any notice of the pre-sale dispute between” U.S. Bank and the HOA, id. at 1116, and the mere fact that SFR “purchased the property for an amount lower than the property’s actual worth . . . did not in itself put [SFR] on notice that anything was amiss with the sale,” id. at 1115 (cleaned up). AFFIRMED. 3

2020-06-05 13:09:00.981563+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007083PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/05/2020 08:09 AM CDT - 363 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 State of Nebraska, appellee, v. Timothy J. Britt, appellant. ___ N.W.2d ___ Filed March 27, 2020. No. S-18-557. 1. Trial: Photographs. The admission of photographs of a gruesome nature rests largely with the discretion of the trial court, which must determine their relevancy and weigh their probative value against their prejudicial effect. 2. Trial: Photographs: Appeal and Error. An appellate court reviews the decision by a trial court to admit photographs of the victims’ bodies for abuse of discretion. 3. Constitutional Law: Witnesses: Appeal and Error. An appellate court reviews de novo a trial court’s determination of the protections afforded by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution and reviews the underlying factual determinations for clear error. 4. Homicide: Photographs. Gruesome crimes produce gruesome photo- graphs. However, if the State lays proper foundation, photographs that illustrate or make clear a controverted issue in a homicide case are admissible, even if gruesome. 5. ____: ____. In a homicide prosecution, a court may admit into evidence photographs of a victim for identification, to show the condition of the body or the nature and extent of wounds and injuries to it, and to estab- lish malice or intent. 6. Photographs: Rules of Evidence. Neb. Evid R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), does not require the State to have a separate purpose for every photograph, and it requires a court to prohibit cumula- tive evidence only if it “substantially” outweighs the probative value of the evidence. 7. Constitutional Law: Witnesses. The right of an accused to confront the witnesses against him or her is guaranteed by the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution.  - 364 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge. Affirmed. Michael J. Wilson and Glenn Shapiro, of Schaefer Shapiro, L.L.P., for appellant. Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee. Timothy J. Britt, pro se. Miller-Lerman, Cassel, Stacy, and Papik, JJ., and Bishop and Arterburn, Judges. Miller-Lerman, J. NATURE OF CASE Following this court’s reversal of his convictions in State v. Britt, 293 Neb. 381 , 881 N.W.2d 818 (2016), Timothy J. Britt was retried in Douglas County District Court and convicted of three counts of first degree murder, three counts of use of a deadly weapon to commit a felony, and one count of posses- sion of a deadly weapon by a prohibited person. Britt appeals and claims that the district court erred when it admitted crime scene and autopsy photographs over his objection and violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution when it allowed the State to present its case at trial without the testimony of a separately tried alleged coconspirator, Anthony Davis. We find no merit to Britt’s assignments of error and, accordingly, affirm his convictions and sentences. STATEMENT OF FACTS The charges in this case arise from the July 9, 2012, deaths of Miguel E. Avalos, Sr. (Avalos), and two of his sons, Jose Avalos and Miguel E. Avalos, Jr., in their Omaha, Nebraska, home during an apparent attempted robbery. Each of them was shot multiple times, and each died as a result of his wounds.  - 365 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 Avalos’ oldest son, Francisco Avalos, was in the home in a downstairs bedroom with his wife and baby at the time the three victims were shot upstairs. He testified at trial that he woke up to the sound of gunshots. He locked the door to the bedroom, called the 911 emergency dispatch service, and while remaining on the telephone, heard more than one person come halfway down the stairs leading to the basement. He testified that a male voice unknown to him said “let’s go,” and he heard footsteps of multiple people running across the floor upstairs. Police responded to Avalos’ home around 3:45 a.m. and observed signs of forced entry at one of the entrances to the residence. A section of the doorjamb on the door to the north side of the residence was missing, and its strike plate was found lying at the bottom of the basement stairs, along with a wood screw. A second wood screw was found lying on the tile in the entryway near the door. Inside Avalos’ bedroom, police discovered methamphet- amine, drug records, drug paraphernalia, over $5,000 in cash, and a defaced .40-caliber semiautomatic pistol. Several .40-­caliber bullets were also recovered from various locations inside the residence. Bullets recovered from the victims’ bodies were consistent with .22- and .40-caliber firearms. The State contends that the three victims were killed by Davis and Britt during an attempted robbery. Avalos had been a known drug dealer. A plan to rob him originated with Greg Logemann, a drug dealer who resided in Council Bluffs, Iowa. Logemann testified for the State pursuant to several immunity agreements. Logemann was introduced to Avalos by Logemann’s brother-in-law, who was Avalos’ coworker. Logemann knew Avalos sold methamphetamine and, in mid-2012, approached Davis, a fellow drug dealer, about robbing Avalos. Logemann had known Davis for 20 years and had discussed robberies with him in the past. Logemann believed Avalos was an easy target and might have “[m]oney and dope.” Logemann advised Davis that the best time to rob  - 366 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 Avalos was between 4 and 5 a.m., because Avalos would likely be going to work. Logemann testified that he was not aware of any children living in Avalos’ home. Logemann did not intend to participate in the robbery, and he and Davis planned to divide the proceeds among themselves and others who would help execute the robbery. On the night of July 8, 2012, Charice Jones, the roommate of Davis’ friend, Crystal Branch, drove Davis, Logemann, and Branch to the area of 9th and Bancroft Streets where Logemann identified Avalos’ home for Davis. A third male accompanied the group on this trip, and he was identified in the testimony as either Britt or another man named “Mike.” Later that night, Branch, Jones, Davis, and Britt returned to Branch’s home where they remained for several hours using drugs and drinking alcohol. Britt was sitting on the couch “really quiet.” The group remained at the residence until Davis said it was time to go. Davis asked Jones to drive him, Britt, and Branch back to the area of Avalos’ home. According to Branch, Britt told Jones where to park down the street from Avalos’ home, took possession of Jones’ car keys, and told Branch and Jones to get in the back seat. Branch and Jones complied, and Davis and Britt walked north up 9th Street toward Avalos’ home. Branch and Jones testified that they assumed the two men were going to buy more drugs. Branch claimed that about 5 minutes later, Davis returned to the front passenger seat of the vehicle without saying a word. Branch did not see any weapons in Davis’ possession. A few minutes after Davis returned, Britt came running back, entered the vehicle, and sat in the driver’s seat. According to Branch, Britt wore gloves and a bandanna over his face. Britt drove “[f]ast” and “straight back” to Branch’s home. As soon as Davis, Britt, Branch, and Jones arrived at Branch’s home, Davis and Britt left the vehicle and walked to the end of the block to argue about something. After returning, Davis “looked sick” and went to the bathroom, where it “sounded like he was getting sick” according to Branch. Britt sat silently  - 367 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 on the couch in the living room. When Davis emerged from the bathroom, he asked Branch for her address because “[h]e was trying to find a ride.” At around 4 a.m., Davis began call- ing and sending text messages to his ex-girlfriend, Tiaotta Clairday. Branch testified that she spoke on a cell phone with an unknown woman to whom she provided directions to her home for Davis. An “older” gray or silver “Cutlass or Regal” pulled up, and Davis and Britt left together in it. Clairday testified that she began receiving several messages from Davis around 4:30 a.m. Davis told Clairday in “hushed tones” that he needed her to pick him up. Clairday recalled that Davis sounded agitated and frustrated. When Clairday arrived in a borrowed Buick Regal, Davis entered the front seat. Clairday asked Davis why he had called her to pick him up. Davis stated that Britt needed to come along with them too, because Britt had a gun. Clairday had met Britt once before, but she did not know him and did not want him in her vehicle. She and Davis argued briefly before Britt entered the vehicle. Clairday questioned Britt, and Britt handed his .22-caliber revolver to Clairday. Clairday stopped at a gas station and then proceeded to the apartment of her friend, Larry Lautenschlager, in Council Bluffs. At the apartment, Davis and Britt waited near the door as Clairday gave the .22-caliber revolver to Lautenschlager and asked him to get rid of it. Clairday also requested a change of clothing for both Davis and Britt, and then she took Davis to the bathroom to talk. Clairday testified that Davis was mum- bling, appeared scared, and had apparently soiled himself. Clairday helped Davis change his clothes and noticed that he had blood on his shoe. After Clairday left the bathroom, she walked outside and observed Britt burning a pair of gloves on a grill. Clairday transported Davis and Britt to Davis’ apartment. She accompanied Davis upstairs, while Britt remained down- stairs. Davis wanted to leave town, so Clairday helped him pack a bag. She also continued to speak with Davis, who still  - 368 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 appeared scared. They finished packing and went downstairs to load the vehicle. Clairday, Davis, and Britt then drove to Logemann’s apart- ment. Davis went inside alone. Back in the vehicle, Clairday asked Britt what was wrong with Davis, but Britt did not respond. When Davis returned, Clairday drove to a restaurant in Council Bluffs. Thereafter, she drove to the apartments behind another restaurant and waited in the vehicle while Davis and Britt went inside. Davis returned alone. Clairday testified that after this point, Davis appeared scared and was crying as he related to her why he had called her in the middle of the night and what had happened. Clairday then dropped Davis off at his apartment. After Branch and Jones observed television news reports about the shootings the morning of July 9, 2012, Branch rec- ognized the area of the crime and became concerned. Davis agreed to meet with Branch and Jones in Council Bluffs. After going to several different addresses given to them by Davis, they met with him later in the day on July 9. When they arrived at the final address, Davis sat in their vehicle and took their cell phones to search them and make sure they were not “try- ing to set him up.” Davis, Branch, and Jones discussed what Branch and Jones saw on the news, and then Davis returned their cell phones. Branch and Jones expressed concern for their safety, and Branch felt that she and her children needed to get out of town. Following this conversation, and without an invitation, Britt began living with Branch and Jones and went everywhere they went. He lived in the basement with Jones for “[p]robably a month or better.” The women never called police about their concerns. A few days after the murders, Clairday drove out to the country near Ashland, Nebraska, where she disposed of sev- eral items, including the .22-caliber revolver. She asked Lautenschlager to drive her to a lake north of Ashland. Clairday exited the vehicle alone and, after waiting for Lautenschlager to drive out of sight, threw the revolver into a culvert. The  - 369 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 revolver was wrapped up in a tank top secured by a headband. A crime laboratory technician testified about her understand- ing to the effect that following Clairday’s arrest, she led law enforcement to the hiding place where officers recovered the revolver, which was rusty and dirty and had a grip that was wrapped in black electrical tape. Comparisons of the revolver to the .22-caliber bullets recovered from the victims were inconclusive. Logemann also testified about his observations of Davis and Britt after the murders. At about 4:30 or 5 a.m. on the day of the shootings, he received either a call or text from Davis in which Davis “told [Logemann] he couldn’t do it because his girlfriend was tripping out on him.” Later that same morn- ing, an Omaha police officer contacted Logemann and asked him what he might know about a robbery at 9th and Bancroft Streets. Logemann met with police and lied to cover for him- self during their initial questioning. After his initial contact with police, Logemann met with Davis in person at a loca- tion between their homes; Davis’ girlfriend drove Davis to Logemann, picked Logemann up, and then Logemann and Davis discussed the robbery and what had happened. Later that night, Britt accompanied Davis on an unexpected visit to Logemann’s apartment. Davis requested to borrow Logemann’s laptop computer, and Logemann loaned him a laptop computer. While in Logemann’s apartment, Britt asked Logemann about a picture of his children that was hanging on his refrigerator. The questions made Logemann “uncomfort- able,” because he feared that Britt “might try to do something” to his children. Following this encounter with Davis and Britt, Logemann told Omaha police on July 20 and 24 and August 2 or 3, 2012, what he knew about Davis, Britt, and the shootings at 9th and Bancroft Streets. The coroner who performed autopsies on the three victims determined that each died due to gunshot wounds to the head. Several crime scene and autopsy photographs were introduced by the State and received in evidence over Britt’s objection.  - 370 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 Procedural History. The State charged Britt with three counts of first degree murder (Class IA felony), Neb. Rev. Stat. § 28-303(1) and (2) (Reissue 2008); three counts of use of a deadly weapon (gun) to commit a felony (Class IC felony), Neb. Rev. Stat. § 28-1205(1)(a) and (c) (Reissue 2016); and one count of pos- session of a deadly weapon (gun) by a prohibited person (Class ID felony), Neb. Rev. Stat. § 28-1206(1)(a) and (3)(b) (Reissue 2016). The State also charged that Britt met the definition of a “habitual criminal” as described in Neb. Rev. Stat. § 29-2221 (Reissue 2016). This case is related to State v. Davis, 290 Neb. 826 , 862 N.W.2d 731 (2015). Davis and Britt were allegedly cocon- spirators who were tried separately for their involvement in the Avalos murders. Both defendants were convicted by their respective juries. However, on April 22, 2016, we filed our opinion in State v. Britt, 293 Neb. 381 , 881 N.W.2d 818 (2016), in which we found that the district court had revers- ibly erred when it admitted the hearsay statements of Davis which implicated Britt in the murders. Following our mandate, Britt was retried to a jury and found guilty on all counts as charged, as follows: (1) guilty as to count I, first degree mur- der, a Class IA felony; (2) guilty as to count II, use of a deadly weapon to commit a felony, a Class IC felony; (3) guilty as to count III, first degree murder, a Class IA felony; (4) guilty as to count IV, use of a deadly weapon to commit a felony, a Class IC felony; (5) guilty as to count V, first degree murder, a Class IA felony; (6) guilty as to count VI, use of a deadly weapon to commit a felony, a Class IC felony; (7) guilty as to count VII, possession of a deadly weapon by a prohibited person, a Class ID felony. Sentencing. Britt’s sentencing hearing was conducted on May 3, 2018, at which time the district court received evidence relative to enhancement. The district court found that Britt met the defini- tion of a “habitual criminal” within the meaning of § 29-2221.  - 371 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 With respect to each of the three first degree murder convic- tions, Britt received a sentence of life imprisonment. For each of the three use of a deadly weapon (gun) to commit a felony convictions, Britt received a sentence of 40 to 45 years’ imprisonment. As to possession of a deadly weapon (gun) by a prohibited person, Britt received a sentence of 40 to 45 years’ imprisonment. The sentences for all convictions were ordered to be served consecutively to one another. Britt received 2,108 days’ credit for time served toward his sentence for possession of a deadly weapon by a prohibited person. Britt appeals. ASSIGNMENTS OF ERROR On appeal, Britt claims, summarized and restated, that the district court (1) erred when it admitted crime scene and autopsy photographs over his objection and (2) violated his right of confrontation by allowing the State to proceed at trial without calling Davis to testify. STANDARDS OF REVIEW [1,2] The admission of photographs of a gruesome nature rests largely with the discretion of the trial court, which must determine their relevancy and weigh their probative value against their prejudicial effect. State v. Dubray, 289 Neb. 208 , 854 N.W.2d 584 (2014). An appellate court reviews the deci- sion by a trial court to admit photographs of the victims’ bodies for abuse of discretion. See id. [3] An appellate court reviews de novo a trial court’s deter- mination of the protections afforded by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution and reviews the underlying factual determinations for clear error. State v. Smith, 302 Neb. 154 , 922 N.W.2d 444 (2019). ANALYSIS Crime Scene and Autopsy Photographs. Britt claims generally that the district court erred when, over his objection, it admitted numerous crime scene and autopsy  - 372 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 photographs generally showing the bodies of the murder vic- tims. He specifically claims that such admission violated Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016). Rule 403 provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the dan- ger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” We find no merit to this assignment of error. Britt identifies 13 of the admitted photographs and argues their probative value was outweighed by their prejudicial nature. He focuses on their gruesome nature and also contends that many of the photographs are duplicative. [4] We have often observed that gruesome crimes pro- duce gruesome photographs. State v. Stelly, 304 Neb. 33 , 932 N.W.2d 857 (2019). However, if the State lays proper founda- tion, photographs that illustrate or make clear a controverted issue in a homicide case are admissible, even if gruesome. Id.; State v. Dubray, supra . With respect to homicide cases, other authorities have noted, and we agree, that murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant; and . . . many attorneys tend to underestimate the stabil- ity of the jury. A juror is not some kind of a dithering nin- compoop, brought in from never-never land and exposed to the harsh realities of life for the first time in the jury box. There is nothing magic about being a member of the bench or bar which makes these individuals capable of dispassionately evaluating gruesome testimony which, it is often contended, will throw jurors into a paroxysm of hysteria. Jurors are our peers, often as well educated, as well balanced, as stable, as experienced in the realities of life as the holders of law degrees. The average juror is well able to stomach the unpleasantness of exposure to the facts of a murder without being unduly influenced.  - 373 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 People v. Long, 38 Cal. App. 3d 680 , 689, 113 Cal. Rptr. 530 , 536-37 (1974), disapproved on other grounds, People v. Ray, 14 Cal. 3d 20 , 533 P.2d 1017 (1975). [5] The State is allowed to present a coherent picture of the facts of the crimes charged, and it may generally choose its evidence in so doing. State v. Dubray, 289 Neb. 208 , 854 N.W.2d 584 (2014). In a homicide prosecution, a court may admit into evidence photographs of a victim for identifica- tion, to show the condition of the body or the nature and extent of wounds and injuries to it, and to establish malice or intent. Id. With respect to the crime scene and autopsy photographs challenged on appeal, the State has proffered a variety of pur- poses for their probative value. We agree with the State that the photographs show the positions of the bodies and wounds from several positions and were for the purpose of suggest- ing multiple shooters were present, corroborating testimony from Francisco Avalos that he heard footsteps of more than one shooter and countering Britt’s suggestion that he was not involved in the shootings. The photographs also show the vic- tims’ wounds and spent shell casings. The State was able to use these photographs to connect the crimes to a .22-caliber revolver owned by Britt and featured in the alleged coverup of the crimes. The autopsy photographs document the manner and cause of the victims’ deaths. [6] Although several photographs depict similar scenes from different angles as compared to other photographs in evidence, the general rule is that when a court admits photographs for a proper purpose, additional photographs of the same type are not unfairly prejudicial. State v. Jenkins, 294 Neb. 684 , 884 N.W.2d 429 (2016). Rule 403 does not require the State to have a separate purpose for every photograph, and it requires a court to prohibit cumulative evidence only if it “substantially” outweighs the probative value of the evidence. State v. Dubray, supra . We determine that the district court admitted the pho- tographs for a proper purpose and did not abuse its discretion  - 374 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 when it concluded that the photographs of the crime scene and autopsy were not unfairly prejudicial. Right to Confront Davis. [7] Britt, acting pro se, also claims that the district “court violated the confrontation clause when it did not call . . . Davis to the stand.” Pro se supplemental brief for appellant at 12. The right of an accused to confront the witnesses against him or her is guaranteed by the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution. Britt con- tends, restated, that his right of confrontation was violated because Davis, the alleged coconspirator, was not called to tes- tify about who he was with during the timeframe during which the murders were committed. Britt contends that this testimony was necessary to protect his rights because the State’s evidence was limited to individuals who did not claim to have directly witnessed the murders. Britt did not present a confrontation claim to the district court. We note that regardless of whether this claim was pre- served, Britt has directed us to no authority to the effect that the district court had an independent obligation to call a wit- ness or require the State to call a witness. Davis did not testify at trial, and Britt had the opportunity to cross-examine the sev- eral witnesses against him at trial. We have not been directed to, and we are unaware of, a separate proposition of law that would apply in this case to support Britt’s contention that the trial court should have independently required Davis to testify. And to the contrary, we have previously concluded that hearsay testimony from Davis was not admissible. State v. Britt, 293 Neb. 381 , 881 N.W.2d 818 (2016). As noted above, a major component of Britt’s argument on appeal is that the evidence against him was merely circumstan- tial and that this presented a confrontation issue without Davis’ testimony. To the extent that Britt contends the evidence was insufficient to support his convictions or, in the absence of Davis’ testimony, his Sixth Amendment rights were violated, we disagree. Testimony collectively showed that at least two  - 375 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. BRITT Cite as 305 Neb. 363 people were inside Avalos’ home at the time of the murders; Britt was the only person with Davis immediately before and after the murders; Britt possessed a .22-caliber revolver, which was consistent with one of the two types of firearms used to commit the murders; and Britt was seen performing acts of concealment, including burning a pair of gloves he was wear- ing after the murders. The evidence presented by the State from other witnesses’ personal observations, without direct testimony from Davis, was that Britt was Davis’ accomplice. This assignment of error is without merit. CONCLUSION We determine that the admission of photographs of the crime scene and autopsy were not unfairly prejudicial and that the district court did not have an independent duty to call coconspirator Davis to testify. Accordingly, we affirm Britt’s convictions and sentences for three counts of first degree murder, three counts of use of a deadly weapon to commit a felony, and one count of possession of a deadly weapon by a prohibited person. Affirmed. Heavican, C.J., and Freudenberg, J., not participating.

2020-06-05 13:09:06.191235+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007073PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/05/2020 08:09 AM CDT - 321 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 Frank Hochstein and Bow Creek Valley, LLC, appellants, v. Cedar County Board of Adjustment and Mark and Carla Goeden, appellees. ___ N.W.2d ___ Filed March 20, 2020. No. S-19-459. 1. Zoning: Courts: Appeal and Error. In appeals involving a decision of a board of adjustment, an appellate court reviews the decision of the dis- trict court, and irrespective of whether the district court took additional evidence, the appellate court is to decide if, in reviewing a decision of a board of adjustment, the district court abused its discretion or made an error of law. 2. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court. 3. Zoning: Ordinances. The interpretation of a zoning ordinance presents a question of law. 4. Zoning: Statutes: Ordinances: Appeal and Error. When interpreting zoning regulations, an appellate court applies the same rules utilized in statutory interpretation. 5. Zoning: Statutes: Ordinances. Just as statutes relating to the same subject are in pari materia and should be construed together, a county’s zoning regulations should be read and construed together. 6. Zoning: Ordinances. Zoning laws should be given a fair and reasonable construction in light of the manifest intention of the legislative body, the objects sought to be attained, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the law as a whole. 7. ____: ____. Where the provisions of a zoning ordinance are expressed in common words of everyday use, without enlargement, restriction, or definition, they are to be interpreted and enforced according to their generally accepted meaning.  - 322 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 8. Zoning: Ordinances: Intent. Restrictions in zoning ordinances and regulations should not be extended by implication to cases not clearly within the scope of the purpose and intent manifest in their language. 9. Zoning: Statutes: Ordinances. In interpreting definitions in zoning statutes or ordinances, the court cannot supply what the municipal legis- lative body might have provided but which the court cannot by reason- able construction say that it did provide. 10. Zoning: Ordinances: Intent. In interpreting the language of an ordi- nance to determine the extent of the restriction upon use of the property, the language must be interpreted, where doubt exists as to the intention of the legislative body, in favor of the property owner and against any implied extension of the restriction. Appeal from the District Court for Cedar County: Paul J. Vaughan, Judge. Affirmed. Stephen D. Mossman, of Mattson Ricketts Law Firm, for appellants. Mark D. Fitzgerald, of Fitzgerald, Vetter, Temple, Bartell & Henderson, for appellee Cedar County Board of Adjustment. Jeffrey L. Hrouda for appellees Mark and Carla Goeden. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Cassel, J. INTRODUCTION A county board of adjustment affirmed the grant of a zoning permit for construction of a new residence within an agricul- tural intensive district. The district court affirmed. The ultimate issue is whether the proposed residence was a “non-Farm residence” under the zoning regulations. Construing the regula- tions as a whole and giving them a reasonable construction, we find no abuse of discretion or legal error. Therefore, we affirm the judgment.  - 323 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 BACKGROUND Parties and Proceedings Frank Hochstein and Bow Creek Valley, LLC (collectively Hochstein), operated a 4,500 animal unit feedlot within the “‘A-1’ Agricultural - Intensive District” (A-1 District) of Cedar County, Nebraska. Under the Cedar County zoning regula- tions, Hochstein’s cattle feedlot fell within the definition of a livestock feeding operation (LFO). For an LFO the size of Hochstein’s, the regulations specify a setback distance of 1 mile for a residence. Mark and Carla Goeden are neighboring landowners of Hochstein. They are involved in an agricultural operation in Cedar County consisting of the ownership and use of approxi- mately 900 acres of farmland. Of the 900 acres, 240 acres are located in one platted section, including both a quarter section of 160 acres at the north end and an adjoining 80-acre tract on the south end. The Goedens submitted an application for a zoning permit, seeking a permit to construct a new house on the 80-acre tract at the south end of their 240-acre farm. The Cedar County zon- ing administrator approved the permit. Two days later, Hochstein filed a notice of appeal of the zoning administrator’s decision with the Cedar County Board of Adjustment (the board). Hochstein alleged that the Goedens’ zoning permit was for a “non-farm residence” and that the zoning regulations provided that “[n]ew non-Farm residences” shall not be located “closer to existing LFO’s than the setback distances for LFO’s from existing residences on the matrix set out above.” Hochstein asserted that the Goedens’ proposed residence was located 3,300 feet from Hochstein’s LFO, but that the required setback was 1 mile, or 5,280 feet. By a 4-to-1 vote, the board affirmed the zoning administrator’s decision.  - 324 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 Ten days later, Hochstein filed a complaint in district court. Hochstein alleged that the board’s decision was illegal and not supported by the evidence and therefore was arbi- trary, unreasonable, or clearly wrong. The district court held a hearing and received the verbatim transcript of the board hearing, exhibits offered to the board, and the board’s written resolution. One of the exhibits was the Cedar County zon- ing regulations. Zoning Regulations The structure of the zoning regulations impedes a clear reci- tation. The regulations are divided into topics, each identified by a topic phrase. Within a topic, sections are numbered. But the same section numbers are used under other topics within the regulations. We organize this summary to omit confus- ing references. We will first recall the regulations’ definitions, identifying undefined terms and quoting definitions of other terms. Then we will quote regulations governing an A-1 District. These will include sections covering intent and purpose, principal permit- ted uses, conditional uses, and setback requirements. Finally, we will quote the regulation for an A-1 District imposing a setback requirement for “[n]ew non-Farm residences”—the regulation at the heart of the dispute. As we begin with definitions, we first note key terms which are not defined. The zoning regulations provide no definitions of “non-farm residence,” “farm residence,” and “residence.” With respect to such undefined terms, the regulations dictate that “[w]ords or terms not herein defined shall have their ordi- nary meaning in relation to the context.” Turning now to defined terms, we progress from general to specific. First, “agriculture” is defined as the use of a tract of land for the growing of crops, pas- turage, nursery, or the raising of poultry, including the structures necessary for carrying out farming operations, the residence or residences of those owning or operating  - 325 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 the premises, a member of the family thereof, or persons employed thereon, and the family thereof, but such use shall not include feedlots. Second, a “farm” means an are[a] containing at least forty (40) acres or more which is used for growing of the usual farm products such as vegetables, fruit, and grain, and storage on the area, as well as for the raising thereon of the usual farm poultry and farm animals up to 300 animal units as defined in these regulations[.] Third, “agricultural operations” are defined as “[f]armsteads of forty acres or more that produce one thousand dollars ($1,000.00) or more of farm products each year.” Finally, “agricultural and farm buildings and structures” are defined to mean any building or structure that is necessary or incidental to the normal conduct o[f] a farm including but not lim- ited to residence of the operator, residence of hired men, barns, buildings and sheds for housing livestock, poultry and farm machinery, buildings for the storage or shelter of grain, hay and other crops, silos, windmills and water storage tanks. (Emphasis supplied.) Turning to zoning regulations addressing an A-1 District, we first quote the language explaining its intent and purpose: The [A-1 District] regulations are intended to provide for the use and conservation of agricultural land, to protect the value of such land, and to protect it from indiscrimi- nate residential and urban development and other incom- patible and conflicting land uses: to conserve and protect the value of open space, wooded areas, streams, mineral deposits and other natural resources and to protect them from incompatible land uses and to provide for their timely utilization; to provide for the location and gov- ern the establishment and operation of land uses which are compatible with agriculture and are of such nature  - 326 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 that their location away from residential, commercial and industrial areas is most desirable; to provide for the location and govern the establishment of residential uses which are accessory to and necessary for the conduct of agriculture and to provide for the location and govern the establishment and use of limited non-agricultural residential uses. Such non-agricultural residential uses shall not be so located as to be detrimental to our [sic] conflict with other uses which are named as permitted or conditional uses in this district and are appropriate to other property in the area. The nature of the A-1 District and the uses allowed out right [sic] or by conditional use precludes the provision of services, amenities and protec- tion from other land uses which are afforded to residen- tial uses by the regulations of other districts, and it is not intended that the A-1 District regulations afford such serv­ices, amenities and protection to residential; [sic] uses located therein. (Emphasis supplied.) The regulations for an A-1 District list “permitted principal uses.” One such use is “[a]gricultural operations, and the usual agricultural and farm buildings and structures, including the residence of the owners and their families and any tenants and employees who are engaged in agricultural operations on the premises.” Another is “[n]ew single family dwellings on lots of eighty (80) acres or more.” The A-1 District regulations also itemize conditional uses. Conditional uses are those which the governing body “may, by conditional use permit, authorize . . . subject to such condi- tions as the [g]overning [b]ody deems necessary.” One such conditional use is “[n]ew single-family dwellings on lots no less than forty (40) acres, provided the Intensity of Use and all other requirements of this district are met.” The regulations contain a matrix with setback distances from existing residences and LFOs. Following the matrix, a regulation states in part, “The distance requirements may be  - 327 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 decreased or waived by a waiver signed by all of the property owners of non-farm residence or other residence not on the owner’s property or LFOs within the distances specified.” The last regulation contained in the A-1 District section is a focal point of these proceedings. It states: “New non-Farm residences, as defined in these Regulations, shall be located no closer to existing LFO’s than the setback distances for LFO’s from existing residences on the matrix set out above.” But, as noted above, “non-Farm residences” is not defined in the regulations. District Court’s Decision The district court affirmed the board’s decision. The court recognized that permitted uses in an A-1 District included “‘farm buildings and structures, including the residence of the owners’” and “‘new single family dwellings on lots of eighty (80) acres or more.’” It noted that the Goedens were the own- ers of farmland, including a 240-acre tract, and that their land qualified as an “Agricultural Operation” under the zoning regulations. The court reasoned that “using the plain meaning of the terms, a ‘non-Farm’ residence would be a residence which was not located on a farm.” But, the court observed, the pro- posed residence would be constructed on a farm. The court emphasized that the zoning regulations specifically permitted as principal uses the residence of the owners and new single family dwellings on lots of 80 acres or more. It reasoned that “the only new residences subject to the setback requirements are non-Farm residences.” The court concluded: The Goeden building permit is consistent with the overall manifest intention of the Cedar County Supervisors to protect agriculture. The residences of farmers, operators or mere landlords, are permitted principal uses in the district while the interests of a conditional use LFO are subordinated to farmer residences but protected to some degree by non-farm residences.  - 328 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 Hochstein filed a timely appeal, which we moved to our docket. 1 ASSIGNMENTS OF ERROR Hochstein alleges that the court erred in (1) interpreting the zoning regulations in determining whether the proposed residence qualified as a “non-farm residence,” (2) finding the proposed residence was consistent with the intent of the zon- ing regulations, (3) affirming the decision of the board, and (4) finding the decision of the board was not arbitrary, unreason- able, or clearly wrong. STANDARD OF REVIEW [1] In appeals involving a decision of a board of adjustment, an appellate court reviews the decision of the district court, and irrespective of whether the district court took additional evidence, the appellate court is to decide if, in reviewing a decision of a board of adjustment, the district court abused its discretion or made an error of law. 2 [2] An appellate court independently reviews questions of law decided by a lower court. 3 ANALYSIS [3] Although Hochstein makes four assignments of error, all ultimately rest upon a single contention—that the Goedens’ new residence was not a “farm residence,” or stated conversely, that it was a “non-farm residence.” At oral argument, all of the parties characterized the question before us as one of law. We agree. The interpretation of a zoning ordinance presents a ques- tion of law. 4 1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018). 2 Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, 287 Neb. 779 , 844 N.W.2d 755 (2014). 3 Drought v. Marsh, 304 Neb. 860 , 937 N.W.2d 229 (2020). 4 Kaiser v. Western R/C Flyers, 239 Neb. 624 , 477 N.W.2d 557 (1991).  - 329 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 Before turning to Hochstein’s points of emphasis and the Goedens’ and the board’s respective responses, we recall gov- erning principles of law. Governing Principles of Law [4-6] One principle establishes a framework for interpreta- tion: When interpreting zoning regulations, an appellate court applies the same rules utilized in statutory interpretation. 5 Just as statutes relating to the same subject are in pari materia and should be construed together, 6 a county’s zoning regulations should be read and construed together. Zoning laws should be given a fair and reasonable construction in light of the mani- fest intention of the legislative body, the objects sought to be attained, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the law as a whole. 7 Nebraska’s appellate courts have long followed this principle. 8 [7] Another principle guides our understanding of spe- cific words: Where the provisions of a zoning ordinance are expressed in common words of everyday use, without enlarge- ment, restriction, or definition, they are to be interpreted and enforced according to their generally accepted meaning. 9 The rule also enjoys a long pedigree. 10 5 See Premium Farms v. County of Holt, 263 Neb. 415 , 640 N.W.2d 633 (2002). 6 See Alisha C. v. Jeremy C., 283 Neb. 340 , 808 N.W.2d 875 (2012). 7 Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, supra note 2. 8 See, Mossman v. City of Columbus, 234 Neb. 78 , 449 N.W.2d 214 (1989); City of Lincoln v. Bruce, 221 Neb. 61 , 375 N.W.2d 118 (1985); City of Beatrice v. Goodenkauf, 219 Neb. 756 , 366 N.W.2d 411 (1985); Beckman v. City of Grand Island, 182 Neb. 840 , 157 N.W.2d 769 (1968); Thieman v. Cedar Valley Feeding Co., 18 Neb. Ct. App. 302 , 789 N.W.2d 714 (2010). 9 Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, supra note 2. 10 See, Mossman v. City of Columbus, supra note 8; City of Lincoln v. Bruce, supra note 8; City of Beatrice v. Goodenkauf, supra note 8; State v. Smiley, 182 Neb. 211 , 153 N.W.2d 906 (1967); Henke v. Zimmer, 158 Neb. 697 , 64 N.W.2d 458 (1954); Thieman v. Cedar Valley Feeding Co., supra note 8.  - 330 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 [8-10] Several principles naturally follow. Restrictions in zoning ordinances and regulations should not be extended by implication to cases not clearly within the scope of the pur- pose and intent manifest in their language. 11 In interpreting definitions in zoning statutes or ordinances, the court cannot supply what the municipal legislative body might have pro- vided but which the court cannot by reasonable construction say that it did provide. 12 Thus, in interpreting the language of an ordinance to determine the extent of the restriction upon use of the property, the language must be interpreted, where doubt exists as to the intention of the legislative body, in favor of the property owner and against any implied extension of the restriction. 13 Application Three things are indisputable: The Goedens’ proposed build- ing site is located on a “farm,” they are the owners of that farm, and that farm constitutes an “agricultural operation[].” As we quoted more fully above, the regulations define “farm” as an “are[a] containing at least forty (40) acres or more which is used for growing of the usual farm products such as . . . grain.” Hochstein does not dispute that the Goedens own the tract of land, that it is at least 40 acres in size, and that it is used for the growing of corn and soybeans, which are “grain[s].” Thus, it is a farm. Similarly, the farm fits the definition of an “agricultural operation[],” as it is a farmstead of 40 acres or more that produces $1,000 or more of farm products annually. From an affidavit the Goedens submitted to the board, Hochstein draws a conclusion and emphasizes a fact. First, 11 Beckman v. City of Grand Island, supra note 8. 12 Id. 13 Mossman v. City of Columbus, supra note 8; Beckman v. City of Grand Island, supra note 8; Dowd Grain Co. v. County of Sarpy Bd. of Adj., No. A-06-681, 2008 WL 2511150 (Neb. App. June 24, 2008) (selected for posting to court website).  - 331 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 Hochstein asserts, since 2007, “the Goedens have not farmed this tract,” but instead have “cash leased” it to another cor- porate entity. 14 In the affidavit, the Goedens assert continuing involvement in the production of grain on the 240-acre farm. Specifically, they state: “In 2007, [they] engaged the services of [a corporate entity] to produce agricultural products on the Farm on a year to year basis. [The Goedens] maintain a super- visory role in the active production of the crops associated with the Farm.” Second, Hochstein emphasizes that the Goedens’ personal care and raising of pheasants and 11 head of livestock takes place on another site located approximately 3 miles east of the 240-acre farm. As the board points out, Hochstein at least implicitly argues that because the definition of “agricultural and farm build- ings and structures” includes the phrase “residence of the operator,” an owner’s residence is excluded. But this argument ignores the words “but not limited to” following the word “including.” Hochstein explicitly argues, quoting from the definition of “agricultural and farm buildings and structures,” that the pro- posed residence is not “necessary or incidental to the normal conduct o[f] a farm.” According to Hochstein, building a new residence is not “necessary” for the Goedens to “sign a lease or cash a rent check.” 15 Likewise, Hochstein asserts, it is not “necessary” for the Goedens to construct a residence “over three miles east” of the location where they raise pheasants and 11 head of livestock. 16 But Hochstein’s initial brief ignored the words “incidental to”—the regulation’s disjunctive alternative to “necessary.” The definition required the board to consider whether the Goedens’ proposed residence was “necessary or incidental to the normal conduct o[f] a farm.” (Emphasis supplied.) In ordinary usage, 14 Brief for appellant at 10 (emphasis supplied). 15 Id. 16 Id.  - 332 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 “incidental to” means “liable to happen to” or “to which a thing is liable or exposed.” 17 A definition of “incidental” is “being likely to ensue as a chance or minor consequence.” 18 Both the Goedens and the board point to the A-1 District permitted principal uses, emphasizing that the regulations endorse the “residence of the owners” as a permitted use. The Goedens’ proposed residence falls within both of the permitted principal uses quoted above. It is difficult to understand how a permitted principal use in the A-1 District is not at least a use “incidental to” the normal conduct of a farm. And Hochstein’s reply brief merely proclaims that “the use of the [Goedens’] residence is not in any way incidental to agricultural operations.” 19 Hochstein does not explain why this is so. Presumably, this argument rests upon the characterization of the Goedens’ relationship with the other corporate entity as a cash lease and the Goedens’ use of their other farm approxi- mately 3 miles east of the 240-acre farm. Neither is disposi- tive. We reject Hochstein’s notion that the Goedens’ residence would not be “incidental to” their 240-acre farm. To bolster the argument, Hochstein relies upon snippets from the section explaining the intent and purpose of the A-1 District regulations. Those snippets are emphasized in the full quotation of the section above. But we agree with the Goedens and the board that the zoning regulations must be read and construed together. In doing so, we give them a fair and rea- sonable construction in light of the manifest intention of the legislative body, the objects sought to be attained, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the law as a whole. The regulations define “agriculture” as “the use of a tract of land for the growing of crops, . . . 17 “Incidental to,” Oxford English Dictionary Online, http://www.oed.com/ view/Entry/93467 (last visited Mar. 16, 2020). 18 Merriam-Webster’s Collegiate Dictionary 629 (11th ed. 2014). 19 Reply brief for appellant at 2.  - 333 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT Cite as 305 Neb. 321 including the structures necessary for carrying out farming operations, the residence or residences of those owning or operating the premises, a member of the family thereof, or per- sons employed thereon, and the family thereof.” The Goedens own the 240-acre tract, and their proposed residence falls within that definition. CONCLUSION Ultimately, the question is whether the Goedens’ new resi- dence is a “non-Farm residence” under the last section of the A-1 District regulations. Construing the zoning regulations as a whole, we hold that it is not. Although the last section of the A-1 District topic could have prohibited the construction of all new residences within the distance prescribed by the setback matrix, it did not do so. Because we find no abuse of discretion or legal error by the district court, we affirm its judgment. Affirmed.

2020-06-05 13:08:56.536387+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007094PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/05/2020 08:08 AM CDT - 428 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 In re Guardianship of Suzette G., an incapacitated person. Alvin G., Guardian, et al., appellees, v. Suzette G., appellant. ___ N.W.2d ___ Filed April 3, 2020. No. S-18-785. 1. Guardians and Conservators: Appeal and Error. An appellate court reviews guardianship and conservatorship proceedings for error appear- ing on the record in the county court. 2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, an appellate court’s inquiry is whether the deci- sion conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 3. Rules of the Supreme Court: Testimony: Guardians Ad Litem. Neb. Ct. R. § 6-1469 (2017) does not prohibit testimony by a guardian ad litem and instead contemplates that a guardian ad litem can testify when such testimony is allowed by the Nebraska Rules of Professional Conduct. Petition for further review from the Court of Appeals, Riedmann, Arterburn, and Welch, Judges, on appeal thereto from the County Court for Douglas County, Marcena M. Hendrix, Judge. Judgment of Court of Appeals affirmed. James Walter Crampton for appellant. Jayne Wagner and Emily J. Briski, of Legal Aid of Nebraska, for appellee Alvin G. Denise E. Frost, of Johnson & Mock, for guardian ad litem.  - 429 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Miller-Lerman, J. NATURE OF CASE Suzette G. appealed the order of the county court for Douglas County which appointed her brother, Alvin G., as her limited guardian. The Nebraska Court of Appeals affirmed the county court’s order. We granted Suzette’s petition for further review in which she claims that the Court of Appeals erred when it determined that the county court did not err when it allowed the appointed guardian ad litem (GAL) to testify at the trial. We affirm the decision of the Court of Appeals which affirmed the order of the county court. STATEMENT OF FACTS Suzette’s brother, Alvin, filed petitions seeking temporary and permanent appointments as her limited guardian. Alvin alleged that because of mental health issues, Suzette was inca- pable of making responsible decisions regarding her person and her health, and he sought a limited guardianship related to those matters. A guardianship had been recommended by Suzette’s doctor and was part of a plan formulated by the mental health board. The court appointed Alvin as temporary guardian and began proceedings to consider his petition for a permanent guardianship. At a hearing in February 2018, the county court appointed a GAL and also appointed a separate attorney to act as Suzette’s legal counsel. The trial on the permanent guardianship included appear- ances by counsel for Alvin and counsel for Suzette, and the GAL also appeared. Alvin called both Suzette and himself as witnesses when presenting his case as the petitioner, and the GAL was allowed to cross-examine both of them. Alvin also called the GAL as a witness. Suzette objected to the GAL’s testifying, and she argued that the GAL could not act as an attorney by cross-examining witnesses and then act as  - 430 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 a witness by testifying in the same proceeding. In response, the GAL argued that under the guardian ad litem statutes and rules, the GAL could do both. The court allowed the GAL’s testimony. During Alvin’s direct examination of the GAL, Alvin offered and the court received the GAL’s report into evidence without objection. Alvin questioned the GAL regard- ing information she reviewed in preparing her report and how she came to her recommendations. Suzette cross-examined the GAL. In addition to cross-examining witnesses, the GAL was allowed to, and did, make objections throughout the trial. At the end of the trial, the GAL was allowed to make a closing statement. Following the trial, the court appointed Alvin as a permanent limited guardian for Suzette. Suzette appealed to the Court of Appeals and claimed that the county court erred when it (1) found there was clear and convincing evidence that Alvin should be appointed as her guardian and (2) allowed the GAL to testify. The Court of Appeals rejected Suzette’s assignments of error and affirmed the county court’s order. See In re Guardianship of Suzette G., 27 Neb. Ct. App. 477 , 934 N.W.2d 195 (2019). Suzette does not seek further review regarding whether there was clear and convincing evidence to support the appointment, and so the Court of Appeals’ resolution of that issue will not be dis- cussed herein. Regarding Suzette’s claim that the GAL should not have been allowed to testify, the Court of Appeals concluded that the court did not err when it allowed the testimony. The Court of Appeals noted first that Neb. Rev. Stat. § 30-4203(2)(a) (Reissue 2016) provides that an appointed guardian ad litem may, inter alia, “[c]onduct discovery, present witnesses, cross- examine witnesses, present other evidence, file motions, and appeal any decisions regarding the person for whom he or she has been appointed.” The Court of Appeals further noted Neb. Ct. R. § 6-1469(E)(4)(b) (2017), which provides that in court proceedings, “[t]he guardian ad litem may testify only  - 431 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 to the extent allowed by the Nebraska Rules of Professional Conduct.” The Court of Appeals cited Neb. Ct. R. of Prof. Cond. § 3-503.7(a) and stated that the rule “prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness.” In re Guardianship of Suzette G., 27 Neb. Ct. App. at 487 , 934 N.W.2d at 202. But the Court of Appeals also noted Neb. Ct. R. § 6-1469(C)(2), which provides that “[w]here a lawyer has already been or is appointed to represent the legal interests of the person, . . . the guardian ad litem shall function only to advocate for the best interests of the person.” The Court of Appeals reasoned that because the court had appointed both the GAL and a separate attorney to represent Suzette, “the GAL’s duty was to advocate for Suzette’s best interests” and “the GAL was not required to make a determina- tion consistent with Suzette’s preferences.” In re Guardianship of Suzette G., 27 Neb. Ct. App. at 488 , 934 N.W.2d at 202. The Court of Appeals noted Neb. Ct. R. § 6-1469(C)(3)(a), which provides that when the guardian ad litem is “serv- ing as advocate for the person’s best interests, the guardian ad litem shall make an independent determination,” and that “[s]uch determination is not required to be consistent with any preferences expressed by the person.” The Court of Appeals reasoned that it was the responsibility of Suzette’s separately appointed attorney, and not the GAL, to advocate for Suzette’s preferences. The Court of Appeals cited comment 1 to Neb. Ct. R. of Prof. Cond. § 3-503.7, which states in part that “[c]ombining the roles of advocate and witness can . . . involve a conflict of interest between the lawyer and client.” The Court of Appeals reasoned that because the GAL was advocating for Suzanne’s best interests rather than for Suzanne’s preferences, “no con- flict of interest arose between the GAL and Suzette” as a result of the GAL’s acting as a witness. In re Guardianship of Suzette G., 27 Neb. Ct. App. at 488 , 934 N.W.2d at 202. The Court of Appeals concluded that the GAL’s testimony “did not run  - 432 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 afoul of the Nebraska Rules of Professional Conduct” and that therefore the county court “did not err in permitting the GAL to testify.” In re Guardianship of Suzette G., 27 Neb. Ct. App. at 488 , 934 N.W.2d at 202. We granted Suzette’s petition for further review. ASSIGNMENT OF ERROR Suzette claims that the Court of Appeals erred when it deter- mined that Neb. Ct. R. § 6-1469 allowed the GAL to testify over her objection. STANDARDS OF REVIEW [1,2] An appellate court reviews guardianship and conser- vatorship proceedings for error appearing on the record in the county court. In re Guardianship & Conservatorship of Alice H., 303 Neb. 235 , 927 N.W.2d 787 (2019). When reviewing a judgment for errors appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. ANALYSIS Suzette argues on further review that the relevant statutes and rules precluded the GAL’s testimony in this case and that the analysis of the Court of Appeals to the contrary was error. Suzette’s arguments necessarily implicate due process con- cerns and considerations of fairness to the parties to a guard- ianship proceeding. As explained below, we agree with the conclusion of the Court of Appeals that on the specific facts of this case, the statutes and rules did not prohibit the GAL’s testimony, and we further note that due process and fairness concerns that might be present under another set of facts were not implicated here. Accordingly, we do not comment on other circumstances, such as where separate counsel has not been appointed and the guardian ad litem represents the subject or where the subject’s rights, such as the right to cross-examine, have been denied.  - 433 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 [3] Section 30-4203 sets forth the duties and powers of a guardian ad litem; it does not specifically address whether a guardian ad litem may or should be a witness in a proceed- ing. As noted by the Court of Appeals, Neb. Ct. R. § 6-1469 sets practice standards for guardians ad litem in proceedings under the Nebraska Probate Code and provides in subsection (E)(4)(b) that in court proceedings, “[t]he guardian ad litem may testify only to the extent allowed by the Nebraska Rules of Professional Conduct.” The rule therefore does not prohibit testimony by a guardian ad litem and instead contemplates that a guardian ad litem can testify when such testimony is allowed by the rules of professional conduct. We note that under Neb. Rev. Stat. § 30-4202(1)(a) (Reissue 2016), a guardian ad litem appointed pursuant to the Nebraska Probate Code must “[b]e an attorney in good standing admitted to the practice of law in the State of Nebraska,” and it follows that an appointed guardian ad litem is subject to the rules of pro- fessional conduct. Suzette relies on Neb. Ct. R. of Prof. Cond. § 3-503.7(a) to argue that a guardian ad litem may not simultaneously act as an advocate in a proceeding and testify as a witness in that same proceeding. Neb. Ct. R. of Prof. Cond. § 3-503.7(a) provides that, subject to certain exceptions not relevant here, “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a . . . witness[.]” The comments to the rule elucidate the concerns behind the rule; Neb. Ct. R. of Prof. Cond. § 3-503.7, comment 1, states that “[c]ombining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client.” In Neb. Ct. R. of Prof. Cond. § 3-503.7, comment 2, the concerns related to the tribunal and the opposing party are further explained: “The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation.” Neb.  - 434 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 Ct. R. of Prof. Cond. § 3-503.7, comment 4, further notes that “[w]hether the tribunal is likely to be misled or the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses.” Considering the nature and the specific circumstances of the present case, as we explain more fully below, we agree with the conclusion of the Court of Appeals that the GAL’s testimony in this case “did not run afoul of the Nebraska Rules of Professional Conduct.” In re Guardianship of Suzette G., 27 Neb. Ct. App. 477 , 488, 934 N.W.2d 195 , 202 (2019). In this case, the county court appointed separate counsel to represent Suzette as authorized by § 30-4202(3), which pro- vides that the guardian ad litem may act as “counsel for the person who is the subject of the guardianship . . . unless . . . there are special reasons why . . . the person who is the subject of the proceeding should have separate counsel.” The appoint- ment of separate counsel for Suzette by the county court indi- cates the court’s determination that the views of the GAL and those of Suzette had diverged. Given the existence of a conflict of interest between the GAL and Suzette, the court’s logical remedy for the perceived conflict was to appoint separate coun- sel for Suzette, and it did so. The presence of two lawyers and their split roles were fully contemplated by Neb. Ct. R. § 6-1469(C)(2), which provides that “[w]here a lawyer has already been or is appointed to represent the legal interests of the person, . . . the guardian ad litem shall function only to advocate for the best interests of the person.” In such a situation, the separately appointed coun- sel represents the person who is the subject of the guardian- ship and his or her preferences whereas the guardian ad litem’s role is to advocate for what he or she determines to be the person’s best interests. Neb. Ct. R. § 6-1469(C)(3)(a) provides that when the guardian ad litem is “serving as advocate for the person’s best interests, the guardian ad litem shall make an  - 435 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 independent determination,” and that “[s]uch determination is not required to be consistent with any preferences expressed by the person.” The concern of Neb. Ct. R. of Prof. Cond. § 3-503.7(a) that a guardian ad litem’s testifying might create a conflict of interest between the person who is the subject of the pro- ceeding and his or her counsel is not implicated under the present circumstances. A conflict of interest between the GAL and Suzette already existed because their views of Suzette’s best interests had diverged, and the court remedied that con- flict by appointing separate counsel to represent Suzette. The GAL was therefore relieved of a duty to represent Suzette’s wishes, and instead, the GAL’s role was to advocate for what the GAL determined to be Suzette’s best interests. At that point, the GAL was not acting as Suzette’s counsel, and the concern of Neb. Ct. R. of Prof. Cond. § 3-503.7(a) that an attorney’s testimony would create a conflict between the attor- ney and the person he or she represents was not present here. See In re K Children, 120 Haw. 116 , 121, 202 P.3d 577 , 582 (2007) (concluding that guardian ad litem’s testimony was not improper and reasoning that relevant statute distinguishes between “‘guardian ad litem’” and “‘counsel’”). We conclude that the GAL’s testifying in this case did not create a conflict of interest between counsel and client which did not already exist and that it therefore did not implicate Neb. Ct. R. of Prof. Cond. § 3-503.7(a) to the extent that such rule is concerned with creating conflicts between client and counsel. The Court of Appeals ended its analysis of whether the GAL’s testimony was allowed under Neb. Ct. R. of Prof. Cond. § 3-503.7(a) when it concluded that the testimony did not create a conflict of interest between Suzette and her counsel. But we find it necessary to consider the other con- cerns addressed in Neb. Ct. R. of Prof. Cond. § 3-503.7(a), that is, both the potential to prejudice the tribunal and the potential to prejudice the opposing party. In the present case, those concerns require us to consider the effect of the GAL’s  - 436 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 testimony on the county court as fact finder and on Suzette, who could now be considered in the nature of an opposing party to the GAL. As a preface to such analysis, we note that there have long been discussion and concern regarding the role of an attorney who serves as a guardian ad litem and in particular the appli- cation of professional rules of ethics in such a situation. See, Roger A. Eddleman & John A. DiNucci, Due Process and the Guardian Ad Litem in Elder Law Disputes: Which Hat Will She Don With Her Cloak of Neutrality? 13 Marq. Elder’s Advisor 129 (2012); Marcia M. Boumil et al., Legal and Ethical Issues Confronting Guardian Ad Litem Practice, 13 J.L. & Fam. Stud. 43 (2011); Robert L. Aldridge, Ethics and the Attorney as Guardian Ad Litem, 49 Advocate (Idaho State Bar) 21 (June 2006). See, also, In re K Children, 120 Haw. at 121 , 202 P.3d at 582 (noting “nationwide” struggle to clarify roles of guard- ian ad litem and counsel). Such discussion informs our analysis in this case. As to the first concern, regarding the potential to prejudice the tribunal, we note the portion of comment 2 to Neb. Ct. R. of Prof. Cond. § 3-503.7(a) which states that “[t]he tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness.” In a different case, the focus of this concern would be on the effect the lawyer’s testifying would have on a jury that was acting as the fact finder; in such a case, the potential for con- fusion is more apparent. In the present case, the county court was the fact finder, and therefore, we consider whether the court might have been confused by the GAL’s serving both as an advocate for best interests and as a witness. We con- clude that under the circumstances of this case, there was no such prejudice. We do not think the concerns that are present where a jury serves as fact finder are present in cases such as the instant matter where the court acts as fact finder. We believe a court can be expected to understand the different roles of  - 437 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 an advocate and of a witness, and a court can be expected to distinguish when a guardian ad litem is acting in one role rather than the other. Generally, a court may view the guardian ad litem as an independent party to investigate and report on the subject’s best interests. See Eddleman & DiNucci, supra . However, it has been observed that, at least in certain respects, a guardian ad litem “is viewed as an arm of the court.” Id. at 162. Whereas here, separate counsel has been appointed to represent the preferences of the subject of the proceeding, the court can be expected to understand the more limited role of the guardian ad litem as an advocate for the best inter- ests of the subject. We conclude that the circumstances of the present case do not implicate the concern of Neb. Ct. R. of Prof. Cond. § 3-503.7(a) to the effect that the fact finder would be confused about the guardian ad litem’s role in the proceedings and that the tribunal might be prejudiced by the GAL’s testifying. As to the second concern regarding the potential to preju- dice the opposing party, we note the portion of comment 2 to Neb. Ct. R. of Prof. Cond. § 3-503.7(a) which states that “[t]he opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation.” In the present case, because the GAL was representing what she determined to be Suzette’s best interests and the GAL’s views diverged from Suzanne’s wishes, Suzanne could be considered in the nature of an opposing party to the GAL. We therefore consider whether the GAL’s being allowed to testify prejudiced Suzanne’s rights in this proceeding. We conclude that under the circumstances of this case, it did not. As noted above, there has long been discussion of ethical concerns related to the role of a guardian ad litem, and those concerns relate in large part to the due process and other rights of the subject of a proceeding as well as other parties to the proceeding. Other courts have had concerns regarding how the guardian ad litem’s role in a proceeding affects other par- ties’ rights. For example, in S.S. v. D.M., 597 A.2d 870 , 878  - 438 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 (D.C. App. 1991), the District of Columbia Court of Appeals determined that error arose when a guardian ad litem was allowed to act as both the child’s attorney and as a witness in an adoption proceeding; although the appellate court ulti- mately concluded that there was no miscarriage of justice, it stated that “because the guardian ad litem, who had been appointed as an advocate for the child, was called as a wit- ness for one of the opposing parties, new counsel should have been appointed to represent the child.” (Emphasis omitted.) In Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014), the Supreme Court of Kentucky concluded that a mother’s right to due proc­ess included the right to cross-examine the guardian ad litem when the trial court relied on the guardian ad litem’s report to make custody decisions. Contrary to the situations in the cases just cited, we think that similar concerns regarding the effect that the GAL’s role in this proceeding had on Suzette’s rights were adequately addressed. The appointment of separate counsel to represent Suzette was designed to protect her rights in this proceed- ing. The appointment of separate counsel allowed the GAL to focus on advocating for what she found to be Suzette’s best interests without subordination to Suzette’s divergent wishes. Meanwhile, the separate counsel was able to focus on protect- ing Suzette’s rights by advancing her wishes without defer- ence to the GAL’s determination of Suzette’s best interests. As part of protecting Suzette’s rights, separately appointed counsel was able to cross-examine the GAL, as well as other witnesses, and to take the necessary steps in order to advance Suzette’s arguments. CONCLUSION Under the circumstances of the present case—a guardian- ship proceeding in which separate counsel was appointed to represent the subject of the proceeding and the guardian ad litem’s role was limited to advocating for the subject’s best interests rather than representing the subject—the concerns of  - 439 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports IN RE GUARDIANSHIP OF SUZETTE G. Cite as 305 Neb. 428 Neb. Ct. R. of Prof. Cond. § 3-503.7(a) were not implicated. The GAL was therefore allowed to testify under the rules of professional conduct and, consequently, under Neb. Ct. R. § 6-1469(E)(4)(b), which provides that “[t]he guardian ad litem may testify only to the extent allowed by the Nebraska Rules of Professional Conduct.” We therefore conclude that the Court of Appeals did not err when it concluded that the county court did not err when it allowed the GAL to testify, and we affirm the decision of the Court of Appeals which affirmed the order of the county court which appointed Alvin as Suzette’s lim- ited guardian. Affirmed.

2020-06-05 13:09:03.393816+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007074PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/05/2020 08:09 AM CDT - 334 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 State of Nebraska, appellee, v. John E. Thelen, appellant. ___ N.W.2d ___ Filed March 20, 2020. No. S-19-604. 1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. 2. Courts: Appeal and Error. Both the district court and a higher appel- late court generally review appeals from the county court for error appearing on the record. 3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, an appellate court’s inquiry is whether the deci- sion conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 4. Appeal and Error. An appellate court independently reviews questions of law in appeals from the county court. 5. Criminal Law: Courts: Appeal and Error. When deciding appeals from criminal convictions in county court, an appellate court applies the same standards of review that it applies to decide appeals from criminal convictions in district court. 6. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential ele- ments of the crime beyond a reasonable doubt.  - 335 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 7. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 8. Statutes: Legislature: Intent. In discerning the meaning of a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute con- sidered in its plain, ordinary, and popular sense, as it is the court’s duty to discover, if possible, the Legislature’s intent from the language of the statute itself. 9. Statutes: Appeal and Error. An appellate court does not consider a statute’s clauses and phrases as detached and isolated expressions. Instead, the whole and every part of the statute must be considered in fixing the meaning of any of its parts. 10. Criminal Law: Statutes. While a penal statute is to be construed strictly, it is to be given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served. 11. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, har- monious, and sensible. 12. Highways: Words and Phrases. A “public road” in Neb. Rev. Stat. § 39-301 (Reissue 2016) includes the entire area within the county’s right-of-way. Appeal from the District Court for Cedar County, Paul J. Vaughan, Judge, on appeal thereto from the County Court for Cedar County, Douglas L. Luebe, Judge. Judgment of District Court affirmed. Bradley C. Easland, of Egley, Fullner, Montag, Morland & Easland, P.C., for appellant. Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 336 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 Freudenberg, J. NATURE OF CASE The defendant landowner appeals from criminal misde- meanor convictions for violating Neb. Rev. Stat. § 39-301 (Reissue 2016), by repeatedly erecting an electric fence approx- imately 3 feet from the edge of a county gravel roadway and within the county’s right-of-way that extends into the ditch. The central question is whether a county’s right-of-way extend- ing into a ditch along a county roadway is a “public road” for purposes of § 39-301. BACKGROUND In September 2016, John E. Thelen was charged with three counts of obstructing a public road in violation of § 39-301, based on repeated instances of erecting an electric fence within the ditch right-of-way of Cedar County, Nebraska (County), alongside a county road. Count I alleged that Thelen obstructed a public road on August 31, count II alleged that he obstructed a public road on September 6, and count III alleged that Thelen obstructed a public road on September 13. The pertinent lan- guage of § 39-301 provides, “Any person who . . . obstructs a public road . . . by encroaching upon the same with any fence . . . shall, upon conviction thereof, be guilty of a Class V mis- demeanor . . . .” The complaint alleged that the County had incurred a total cost of approximately $400 in removing the obstructions. A bench trial was held on stipulated evidence. The evidence was undisputed that the Cedar County Board of Commissioners (Board) had established pursuant to Neb. Rev. Stat. § 39-1702 (Reissue 2016) that the County’s public roads’ rights-of-way are 66 feet, measured from the centerline of the roadway on each side to a 33-foot distance to the ditch on each side. It was also undisputed that the County controls a public road running along the south side of Thelen’s property and controls, main- tains, and is responsible for its 66-foot right-of-way. Both the County’s highway superintendent, Carla Schmidt, and the chairman of the Board, David McGregor, averred that  - 337 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 since 2013, Thelen has continuously and repeatedly placed a fence within the County’s right-of-way and has refused to vol- untarily remove his fence after being given reasonable notice to do so. According to Schmidt, for purposes of moving his cattle from one pasture to another, Thelen regularly placed his fence in the County’s ditch right-of-way beginning in June and removed it in October or November. Schmidt noted that the fence had been repeatedly placed a mere 161⁄2 feet from the roadway centerline. McGregor averred that it was the County’s duty to keep its public roads’ rights-of-way free of debris, crops, fences, or any other obstructions. McGregor described that such obstructions presented a safety issue and that the County would subject itself to the loss of its tort liability insurance coverage if it failed to keep its ditches free of obstructions. Schmidt similarly averred that the fences repeatedly placed by Thelen in the County’s right-of-way endangered the travel- ing public and created liability for the County for the failure to comply with its statutory duty under § 39-301 to remove road obstacles. According to Schmidt’s and McGregor’s affidavits, the County gave Thelen notices in August and October 2013 to remove his fence from the ditch right-of-way and he refused to comply. Instead, Thelen complained that other people in the County similarly obstructed the County’s rights-of-way. Thelen sent a letter through his attorney requesting permission to place his fence in the County’s right-of-way from June through October. In the letter, attached to Schmidt’s affidavit, Thelen asserted that if his fence is removed by the County, his cattle would stray onto the roadway. The Board denied Thelen’s request in October 2013. Schmidt and McGregor both stated that, again, in March 2014, Thelen placed a newly erected fence in the right-of-way and refused to remove it after notice was given. Schmidt’s affidavit, as well as other exhibits entered into evidence in  - 338 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 the 2016 actions, demonstrate that in September 2014, Thelen appeared before the Board at a regularly conducted meeting and the Board again denied Thelen’s request for permission to erect a fence within the County’s right-of-way. In 2015, Thelen was found guilty of violating § 39-301 for erecting in July 2015 the same type of fence at the same location as alleged in the 2016 criminal complaint leading to the misdemeanor convictions presently on appeal. In its 2015 order, the county court found that the County’s ditch right-of- way was encompassed by the term “public road.” Further, the court explained that the law does not recognize as a defense the fact that others are violating the same law. Thereafter, in September 2015, according to Schmidt and McGregor, Thelen placed his fence anew in the County’s right- of-way. However, no additional criminal charges were filed against Thelen by the State in 2015 regarding the fence. Chief Deputy Sheriff Chad Claussen averred that in 2016, he investigated the scene on July 18 and 21 and ascertained that Thelen had again erected an electric fence along the county road and in the County’s right-of-way, which Thelen had previously been advised not to do. The fence was located approximately 16 to 31 feet from the centerline. The County gave notice to Thelen on July 26, directing him to remove the fence. Claussen averred that on August 31, 2016, he again investi- gated the scene and found the fence still present. According to a report, the fence was no longer standing but was lying in the ditch right-of-way. Claussen seized as evidence approximately 1,500 feet of electric fence wire, 50 posts, and 68 electric fence insulators belonging to Thelen. During the seizure, Thelen approached Claussen and “com- plained about the situation.” When Claussen suggested that Thelen place the fence on his own property and outside of the right-of-way, Thelen advised Claussen that a prior county com- missioner had given him permission to erect the fence there and that the new county commissioner, who he believed would  - 339 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 be elected in an upcoming election, would give him permission to do so in the future. When Claussen attempted to give Thelen a receipt for the seized fence, however, he refused to take it, saying that “it was not his fence.” Claussen left the receipt on a fencepost. The Cedar County Attorney averred that on September 1, 2016, Thelen came to his office requesting that the sheriff’s office “return to him the fence seized” by Claussen on August 31. Claussen averred that on September 4, 2016, he found that Thelen had erected another fence at the same location. He removed the fence and seized as evidence approximately 1,500 feet of single strand electric fence wire, 40 steel posts, and 40 electric fence insulators, which Claussen averred belonged to Thelen. On September 13, 2016, Claussen observed that yet another fence had been erected in the same location. Claussen seized approximately 1,500 feet of single strand electric fence wire and an insulated gate belonging to Thelen. According to McGregor, in July, August, and September 2016, the County received citizen complaints that Thelen was placing his fence in the County’s ditch right-of-way, which led to Claussen’s investigations. Schmidt summarized in her affidavit that in the spring of 2016, Thelen placed his fence in the County’s right-of-way. Further, from July 2016 to the date of the affidavit, December 2016, Thelen had placed his fence in the County’s right-of-way on three separate occasions and, each time, the County had removed the fence. According to Schmidt, Thelen “has indicated that he will continue to disre- gard my notices in the future because the fine is only $25.00, indicating cheap pasture rent.” The stipulated exhibits also included reports by Claussen and a deputy sheriff, describing their observations of the elec- tric fence in the aforementioned right-of-way on August 31 and on September 4, 6, and 13, 2016. The deputy sheriff described that on September 4, he observed the “single strand hotwire” fence along the road approximately 3 feet from where the  - 340 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 gravel started, with multiple cows inside the fence. The affida- vits and reports described the removal of the fence by county employees on September 6, as well as the removal on August 31 and September 13 of fencing that had been left lying in the ditch right-of-way. Thelen submitted an affidavit in which he described the inci- dent on September 1, 2016, when he went to the Cedar County Attorney’s office to ask that the fencing materials taken be returned to him, because “my name was on the receipt.” Thelen recounted that he had told both Claussen and the Cedar County Attorney that the materials were not his. Thelen did not, how- ever, aver that the fencing materials were not his. Finally, an exhibit entered into evidence by stipulation reflects $401 in labor costs by the County’s road department for removal of fencing on August 31 and September 6, 2016, and for picking up wire in the ditch on September 13. In August 2017, the county court convicted Thelen of three counts of violating § 39-301. Thelen was fined $100 for each violation. Thelen appealed to the district court, which, on May 22, 2019, affirmed the county court’s judgment. Thelen appeals. ASSIGNMENTS OF ERROR Thelen assigns that the county court erred in finding him guilty of the crimes charged because (1) there was insufficient evidence presented to prove that he was the individual who placed the electric fence in the ditch and (2) the placement of an electric fence in a ditch does not violate § 39-301. Thelen assigns that for these same reasons, the district court erred in affirming the county court’s judgment. STANDARD OF REVIEW [1] In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. 1 1 State v. McCave, 282 Neb. 500 , 805 N.W.2d 290 (2011).  - 341 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 [2] Both the district court and a higher appellate court gener- ally review appeals from the county court for error appearing on the record. 2 [3] When reviewing a judgment for errors appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 3 [4] We independently review questions of law in appeals from the county court. 4 [5] When deciding appeals from criminal convictions in county court, we apply the same standards of review that we apply to decide appeals from criminal convictions in dis- trict court. 5 [6] In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circum- stantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. 6 The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 7 [7] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an inde- pendent conclusion irrespective of the decision made by the court below. 8 2 Id. 3 Id. 4 Id. 5 Id. 6 State v. McCurdy, 301 Neb. 343 , 918 N.W.2d 292 (2018). 7 Id. 8 Saylor v. State, 304 Neb. 779 , 936 N.W.2d 924 (2020).  - 342 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 ANALYSIS Thelen asserts that the County’s ditch right-of-way alongside the county roadway does not constitute a “public road” for pur- poses of § 39-301. He does not contest that an electric fence is a “fence” constituting an obstruction under the statute. He does, however, argue that the evidence was insufficient to find that he erected the fences in question. Is Ditch Part of Public Road for Purposes of § 39-301? The question of whether a ditch right-of-way is part of a “public road” for purposes of § 39-301 is a question of statu- tory interpretation. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 9 [8-10] In discerning the meaning of a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the stat- ute considered in its plain, ordinary, and popular sense, as it is the court’s duty to discover, if possible, the Legislature’s intent from the language of the statute itself. 10 An appellate court does not consider a statute’s clauses and phrases as detached and isolated expressions. Instead, the whole and every part of the statute must be considered in fixing the meaning of any of its parts. 11 While a penal statute is to be construed strictly, it is to be given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served. 12 Chapter 39, article 3, of the Nebraska Revised Statutes sets forth duties, rules, and penalties related to the safety and main- tenance of “roads” and, to a lesser extent, “highways.” Section 9 Id. 10 Fisher v. PayFlex Systems USA, 285 Neb. 808 , 829 N.W.2d 703 (2013). 11 Dean v. State, 288 Neb. 530 , 849 N.W.2d 138 (2014). 12 State v. Stanko, 304 Neb. 675 , 936 N.W.2d 353 (2019).  - 343 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 39-301, the statute directly at issue in these appeals, provides in relevant part: Any person who injures or obstructs a public road by felling a tree or trees in, upon, or across the same, by placing or leaving any other obstruction thereon, by encroaching upon the same with any fence, by plowing or digging any ditch or other opening thereon, by diverting water onto or across such road so as to saturate, wash, or impair the maintenance, construction, or passability of such public road, or by allowing water to accumulate on the roadway or traveled surface of the road or who leaves the cutting of any hedge thereupon for more than five days shall, upon conviction thereof, be guilty of a Class V misdemeanor and, in case of placing any obstruc- tion on the road, be charged an additional sum of not exceeding three dollars per day for every day he or she allows such obstruction to remain after being ordered to remove the same by the road overseer or other officer in charge of road work in the area where such obstruction is located, complaint to be made by any person feeling aggrieved. This section shall not apply to any person who law- fully fells any tree for use and will immediately remove the same out of the road nor to any person through whose land a public road may pass who desires to drain such land and gives due notice of such intention to the road overseer or other officer in charge of road work nor when damage has been caused by a mechanical malfunction of any irrigation equipment, when a sprinkler irrigation sys- tem had been set so that under normal weather conditions no water would have been placed upon the right-of-way of any road, when the county board grants permission for the landowner to divert water from one area to another along a county highway right-of-way, or when a munici- pality has granted permission along or across the right- of-way under its jurisdiction, except that if damage has been caused by a mechanical malfunction of irrigation  - 344 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 equipment more than two times in one calendar year, the penalty provided in this section shall apply. (Emphasis supplied.) Neb. Rev. Stat. § 39-304 (Reissue 2016) provides that “[a]ny person who willfully and maliciously injures any lawful public road in this state . . . shall, for every such offense, be guilty of a Class V misdemeanor . . . .” Neb. Rev. Stat. § 39-310 (Reissue 2016), which refers to depositing materials on “public road[s]” or inside the “ditches of such road,” provides: Any person who deposits any wood, stone, or other kind of material on any part of any lawful public road in this state, inside of the ditches of such road, or out- side of the ditches but so near thereto as to cause the banks thereof to break into the same, causes the accu- mulation of rubbish, or causes any kind of obstruction, shall be guilty of (1) a Class III misdemeanor for the first offense, (2) a Class II misdemeanor for the second offense, and (3) a Class I misdemeanor for the third or subsequent offense. Neb. Rev. Stat. § 39-311 (Reissue 2016) is a similar, but more extensive, provision related to depositing materials on “highway[s].” On its face, § 39-301 clearly distinguishes between a “road- way,” which is the “traveled surface of the road,” and the “road,” which is something greater than the “roadway.” Section 39-310 clearly includes ditches as part of the “road.” Section 39-301 also makes several references to the “right-of-way,” describing the right-of-way “of any road,” and states that a person does not violate the statute when a sprinkler irrigation system was set so that under normal weather conditions no water would have been placed upon the right-of-way of any road or by diverting water along or across a right-of-way with permission of “the county board [or] municipality.” Neb. Rev. Stat. § 39-101(11) (Reissue 2016) defines “[r]oad- way” as that “portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm  - 345 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 or shoulder.” “Shoulder,” in turn, is defined in § 39-101(12) as that “part of the highway contiguous to the roadway and designed for the accommodation of stopped vehicles, for emer- gency use, and for lateral support of the base and surface courses of the roadway.” There is no statutory definition of a “berm.” [11] The terms “road” and “public road” are not defined in chapter 39, article 1, of the Nebraska Revised Statutes. But components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be con- junctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, har- monious, and sensible. 13 We have accordingly found it appro- priate to consider in pari materia different articles in the same chapter, when they concern related matters. 14 “Road” is defined in Neb. Rev. Stat. § 39-1302(32) (Reissue 2016), in chapter 39, article 13, relating to the state highway system, and expressly includes “the entire area within the right-of-way”: “Road shall mean a public way for the purposes of vehicular travel, including the entire area within the right- of-way. A road designated as part of the state highway system may be called a highway, while a road in an urban area may be called a street.” This definition of “road” as including the entire area within the right-of-way is consistent with numerous other statutes in chapter 39. Section 39-1702(2) provides that the right-of- way for “[c]ounty road purposes” “shall be of such width as is deemed necessary by the county board,” and it specifically 13 Pittman v. Western Engineering Co., 283 Neb. 913 , 813 N.W.2d 487 (2012). See, also, Farmers Co-op v. State, 296 Neb. 347 , 893 N.W.2d 728 (2017), modified on denial of rehearing 297 Neb. 132 , 898 N.W.2d 674 ; Fontenelle Equip. v. Pattlen Enters., 262 Neb. 129 , 629 N.W.2d 534 (2001). 14 See, Cookson v. Ramge, 299 Neb. 128 , 907 N.W.2d 296 (2018); In re Application of Tail, Tail v. Olson, 144 Neb. 820 , 14 N.W.2d 840 (1944); Greb v. Hansen, 123 Neb. 426 , 243 N.W. 278 (1932); Brown Real Estate Co. v. Lancaster County, 108 Neb. 514 , 188 N.W. 247 (1922).  - 346 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 described the “right-of-way for such roads,” providing in rel- evant part: County road purposes, as referred to in subsection (1) of this section, shall include provisions for, but shall not be limited to, the following: (a) The establishment, construc- tion, reconstruction, relocation, improvement, or main- tenance of any county road. The right-of-way for such roads shall be of such width as is deemed necessary by the county board . . . . (Emphasis supplied.) A “highway” under chapter 39 is just one form of a “road,” and it is also consistently described as including the right- of-way. “Highway” is defined by § 39-101(3) as “the entire width between the boundary limits of any street, road, avenue, boulevard, or way which is publicly maintained when any part thereof is open to the use of the public for purposes of vehicu- lar travel.” (Emphasis supplied.) Section 39-1302(22), which contains extensive provisions relating to the creation and main- tenance of the state highway system, similarly defines “[h]igh- way” as “a road or street, including the entire area within the right-of-way, which has been designated a part of the state highway system.” (Emphasis supplied.) “State highway system” is defined in § 39-1302(37) as the roads, streets, and highways shown on the map pro- vided for in section 39-1311 as forming a group of highway transportation lines for which the [Nebraska Department of Transportation] shall be the primary authority. The state highway system shall include, but not be limited to, rights-of-way, connecting links, drainage facilities, and the bridges, appurtenances, easements, and structures used in conjunction with such roads, streets, and highways. (Emphasis supplied.) In § 39-1302(31), “[r]ight-of-way shall mean land, property, or interest therein, usually in a strip, acquired for or devoted to a road, street, or highway.” (Emphasis supplied.)  - 347 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 The “entire area” within the right-of-way is similarly included in the definitions in § 39-1302 of “[h]ighway” and “[s]treet” for purposes of cities of the metropolitan class. Under Neb. Rev. Stat. § 14-384(7) (Reissue 2012), pertaining to “highways” and “streets” in cities of the metropolitan class, “[h]ighway shall mean a road or street including the entire area within the right-of-way which has been designated a part of the State Highway System by appropriate authority,” and under § 14-384(9), “[s]treet shall mean a public way for the purpose of vehicular and pedestrian travel in the city and shall include the entire area within the right-of-way.” (Emphasis supplied.) Under Neb. Rev. Stat. § 39-1309(3) (Reissue 2016), “high- ways” that are not part of the state highway system are part of the “county road system,” with title “to the right-of-way of such roads” vesting with the county: Any highways not designated as a part of the state high- way system as provided by sections 39-1301 to 39-1362 and 39-1393 shall be a part of the county road system, and the title to the right-of-way of such roads shall vest in the counties in which the roads are located. (Emphasis supplied.) The statutes pertaining to the county road system do not oth- erwise elaborate on county rights-of-way. Pertaining to the state highway system, however, Neb. Rev. Stat. § 39-1359 (Reissue 2016) describes rights-of-way acquired by the Department of Transportation as “inviolate for state highway and departmen- tal purposes” and, with limited statutory exceptions or unless with written consent of the Department of Transportation, prohibits any “physical or functional encroachments, struc- tures, or uses” within the right-of-way limits. Neb. Rev. Stat. § 39-1360 (Reissue 2016) provides that “[n]o person may use the drainage facilities of a highway for private purposes without first obtaining the written consent of the [Department of Transportation].” [12] All these provisions in chapter 39 illustrate that a “road” includes the right-of-way, which cannot be obstructed  - 348 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 without express permission. Consistent with § 39-1302(32) and numerous other statutes in chapter 39, we hold that a “public road” in § 39-301 includes the entire area within the county’s right-of-way. The object sought to be accomplished by § 39-301 is the maintenance for the public safety of the “road,” the boundaries of which are designated by the county through its acquisition of the right-of-way. Thus, the area of the ditch here at issue, which was within the county’s right-of-way, was part of the “public road” for purposes of § 39-301. Did Thelen Erect the Fences? Having determined that the area in question was a “public road,” we address Thelen’s contention that there was insuf- ficient evidence for the trier of fact to conclude that he was responsible for erecting the fences obstructing the public road. In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. 15 Both the district court and a higher appel- late court generally review appeals from the county court for error appearing on the record. 16 When reviewing a judgment for errors appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 17 When deciding appeals from criminal convic- tions in county court, we apply the same standards of review that we apply to decide appeals from criminal convictions in district court. 18 In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, 15 State v. McCave, supra note 1. 16 Id. 17 Id. 18 Id. - 349 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 or a combination thereof, the standard is the same: An appel- late court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. 19 The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 20 The evidence was sufficient to support the county court’s finding that Thelen erected the fences or left them lying in the ditch right-of-way. The right-of-way in question adjoined Thelen’s land, and Thelen repeatedly described that he used a fence there for his cattle. At least twice, Thelen expressly sought permission to erect a fence on the land in question. He was convicted of violating § 39-301 for erecting a fence on the same land the year prior to the violations at issue in this appeal. He indicated to Schmidt that he intended to keep erecting a fence there. Thelen asked for the return of fencing materials confiscated from the ditch right-of-way by law enforcement. This evidence might be considered circumstantial evidence, which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact exists. 21 As Thelen points out, there is no evidence that anyone observed Thelen erect the fence, nor is there a clear direct admission by Thelen. But a fact proved by circumstantial evidence is nonetheless a proven fact. 22 Circumstantial evidence is not inherently less probative than direct evidence. 23 We find the evidence sufficient to support the convictions in the criminal case of three counts of violating § 39-301. 19 State v. McCurdy, supra note 6. 20 Id. 21 See State v. Mowry, 245 Neb. 213 , 512 N.W.2d 140 (1994). 22 State v. Pierce, 248 Neb. 536 , 537 N.W.2d 323 (1995). 23 Id. - 350 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. THELEN Cite as 305 Neb. 334 CONCLUSION For the foregoing reasons, we affirm the decision of the district court affirming the judgment and convictions of the county court. Affirmed.

2020-06-05 13:09:05.061373+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007072PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/05/2020 08:09 AM CDT - 289 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 State of Nebraska, appellee, v. Darryl Lierman, appellant. ___ N.W.2d ___ Filed March 20, 2020. No. S-18-402. 1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. 2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. 3. Criminal Law: Judgments: Proof. An acquittal in a criminal case does not preclude the government from relitigating an issue when it is pre- sented in a subsequent action governed by a lower standard of proof. 4. Criminal Law: Proof. The standard of proof in a criminal case is that the State must prove the charges against the defendant beyond a reason- able doubt. 5. Sexual Assault: Evidence. Evidence that a defendant committed an act of sexual assault is, by its very nature, prejudicial. 6. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of the witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential ele- ments of the crime beyond a reasonable doubt. 7. Judges: Recusal. A recusal motion is initially addressed to the discre- tion of the judge to whom the motion is directed.  - 290 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 8. Trial: Judges: Words and Phrases. An ex parte communication occurs when a judge communicates with any person concerning a pending or impending proceeding without notice to an adverse party. 9. Trial: Judges: Recusal. A judge who initiates or invites and receives an ex parte communication concerning a pending or impending proceed- ing must recuse himself or herself from the proceedings when a litigant requests such recusal. 10. Judges: Recusal. A judge should recuse himself or herself when a liti- gant demonstrates that a reasonable person who knew the circumstances of the case would question the judge’s impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown. 11. Judges: Recusal: Presumptions. A party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming the presump- tion of judicial impartiality. 12. Sentences: Appeal and Error. An appellate court will not disturb a sen- tence imposed within the statutory limits absent an abuse of discretion by the trial court. 13. Judgments: Words and Phrases. Abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence. 14. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. 15. Effectiveness of Counsel: Appeal and Error. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. 16. ____: ____. When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the record. 17. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. In order to know whether the record is insufficient to address assertions on direct appeal that trial counsel was ineffective, appellate counsel must assign and argue deficiency with enough particularity (1) for an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) for a district court later review- ing a petition for postconviction relief to be able to recognize whether the claim was brought before the appellate court.  - 291 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 18. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of ineffective assistance of trial counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel. Appeal from the District Court for Antelope County: Mark A. Johnson, Judge. Affirmed. Bradley A. Ewalt, of Ewalt Law Office, P.C., L.L.O., for appellant. Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ. Heavican, C.J. I. INTRODUCTION Darryl Lierman was convicted of multiple counts of sexual assault of a child and child abuse and was sentenced to a total term of 70 to 140 years’ imprisonment, with credit for 272 days’ time served. The child in question was B.L., Lierman’s adopted daughter, who was born in January 2000. Lierman’s primary argument on appeal is that the district court erred in admitting evidence of prior sexual assault alleged to have been committed by Lierman against another adopted daughter, A.L., because Lierman was acquitted in that case. We affirm. II. BACKGROUND Lierman was charged by information with three counts of first degree sexual assault of a child, three counts of third degree sexual assault of a child, and four counts of child abuse. Though further details of these charges will be discussed in more detail below, it is sufficient to note here that B.L. alleged this sexual abuse began in approximately 2010. At that time, Lierman was on bond awaiting trial on charges that he sexu- ally abused B.L.’s biological sister, A.L., who was another of  - 292 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 Lierman’s adopted daughters. Lierman was eventually acquit- ted by a jury of the charges involving A.L. B.L.’s allegations first came to light on or about February 12, 2015. On February 7, B.L. ingested an unknown number of pills in an attempted suicide and was taken to a hospital in Kearney, Nebraska. During a counseling session on February 12, B.L. made statements suggesting that Lierman had been sexually abusing her. An interview at a child advocacy center was scheduled, at which time B.L. made further allegations against Lierman, including that he would make her model bras for him and that he would watch her while she was showering. B.L. was placed in foster care while the matter was investigated. In July 2015, B.L. disclosed that from the ages of 12 to 14, she was subject to digital and penile penetration by Lierman on more than one occasion, primarily while at the family’s home in Neligh, Nebraska. Lierman was ultimately charged with the allegations set forth above. Various pretrial hearings were held, details of which will be noted below as relevant. After a jury trial, Lierman was found guilty of all charges. He appeals. III. ASSIGNMENTS OF ERROR On appeal, Lierman assigns that the district court erred in (1) allowing the State to present evidence of prior sexual assaults, where that evidence was in support of charges of sexual assault for which Lierman was ultimately acquitted, or where at least some of those assaults were alleged to have been committed by Lierman in other jurisdictions; (2) not admitting evidence that prior to her suicide attempt, B.L. was unhappy at home and at school and was using the home com- puter to access adult dating sites; (3) finding the evidence suf- ficient to convict Lierman; (4) not recusing itself; (5) imposing excessive sentences; and (6) not permitting Lierman to issue subpoenas duces tecum in order to obtain records through depositions. Lierman additionally assigns that his counsel was ineffective by not (1) calling certain witnesses, (2) utilizing  - 293 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 evidence of Lierman’s driving logs to form an alibi defense, (3) filing a motion in limine regarding the evidence to be sought about B.L.’s difficulties at school and general unhappi- ness, (4) objecting to the order in which the State presented its evidence, and (5) objecting to the State’s use of B.L.’s suicide attempts and ideations. IV. ANALYSIS 1. Admissibility of Evidence (a) Standard of Review [1,2] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admis- sibility. 1 Where the Nebraska Evidence Rules commit the evi- dentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. 2 (b) Background Prior to trial, the State filed a motion for a hearing to deter- mine the admissibility of prior sexual assault evidence and an intent to offer additional evidence pursuant to Neb. Rev. Stat. §§ 27-404 and 27-414 (Reissue 2016). The State averred that it wished to use evidence that had previously been presented against Lierman in the case involving A.L.’s allegations. At this hearing, the State introduced evidence gener- ally comprising three categories: (1) evidence that had been offered against Lierman during A.L.’s trial in Antelope County, Nebraska, for which Lierman was acquitted; (2) evidence that was not offered in Antelope County either for reasons not clear from the record or because the events in question did not occur in Antelope County, but instead in Madison County, Nebraska, 1 State v. Valverde, 286 Neb. 280 , 835 N.W.2d 732 (2013). 2 Id. - 294 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 or while Lierman was on the road with A.L; and (3) evidence of allegations by B.L. that did not occur in Antelope County, but instead in Madison County, or while Lierman was on the road with B.L. A.L. testified that Lierman began sexually abusing her when she was approximately 10 years old, when the family lived in both Neligh and Tilden, Nebraska. A.L. testified that Lierman had, for the 2 or 3 years prior, sought “hip rubs” from A.L. and asked her to walk on his back. (There was testimony at trial that “hip rubs” and the children’s walking on Lierman’s back were a common occurrence for all of the children in the household and were apparently performed to relieve pain that Lierman suffered as a result of his over-the-road trucking job. The record shows that Lierman was obese, weighing approxi- mately 500 pounds.) The first sexual abuse occurred when A.L. was sleeping with Lierman and Lierman’s wife, Julie Lierman (the mother of the adopted children), in the couple’s bed. Early in the morning of this first occasion, A.L. was giving Lierman a hip rub and accidently rubbed his penis over his clothing. A.L. was told to stop and was sent to her own bed. But the next night, A.L. was again sleeping with Lierman and Julie in their bed, when Lierman told her to “do what [you] did last night.” At first A.L. thought Lierman meant a hip rub, but subsequently began rubbing his penis over his clothes, and Lierman did not tell her to stop. Lierman eventually introduced A.L. to the “cowlick,” which involved Lierman’s licking A.L.’s vagina. A.L. testified that at the time, she and Lierman were watching television in the couple’s bedroom and Julie was not at home. The “cowlick” began after the family moved to Tilden. A.L. also testified that Lierman began taking her on his multiday trucking routes and would engage in sexual activ- ity with her in the sleeper portion of the semi-truck. On one such occasion in the truck, A.L. and Lierman were watching a movie and Lierman told A.L. to rub his penis, which A.L. did  - 295 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 over his clothing. Lierman then directed her to rub his penis under his clothing. In a second incident, A.L. was walking on Lierman’s back, when he rolled over and she accidentally hit his groin area, causing him pain. He then grabbed her, took off her pajamas, got on top of her, and penetrated her vagina with his penis. A.L. cried out that it hurt and screamed at him to stop, but Lierman placed a pillow over her head to muffle the screams. A.L. further testified that almost every time she went with Lierman in the truck, some type of sexual activity occurred, and that she was often asked to model underwear that he had brought along. A.L. testified that after the family moved from Tilden to Neligh, she shared a room with another sister. The house was being remodeled, so Lierman and Julie’s bed was in the living room, and as a result, no sexual abuse took place during that time. But as soon as the remodel was finished, the sexual abuse resumed. The abuse usually began with a request that A.L. give Lierman a hip rub or back rub, and it occurred most evenings when Lierman was not on the road. A.L. also testified that she performed oral sex on Lierman and that Lierman used a purple sex toy on her on at least two occasions. A.L. disclosed some of these events to Neligh school author- ities on September 17, 2010, after speaking with the counselor about her concern that Lierman may have impregnated her. A search of the family’s home revealed bedding and a purple sex toy. DNA that included Lierman and A.L., but excluded Julie, was found on both items. (The DNA evidence was apparently either not available or not offered at the time of Lierman’s trial on A.L.’s allegations.) Evidence of non-Antelope County incidents involving B.L. and Lierman was also offered. B.L.’s therapist testified that B.L. revealed to her that Lierman began sexually abusing her when she was approximately 10 years old, when the family lived in Meadow Grove, Nebraska, and while Lierman was out on bond for the charges he faced involving A.L. Similar to A.L., the abuse began with Lierman’s asking B.L. to massage  - 296 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 his penis. B.L. reported that Lierman assaulted her while she was with him on the road and that Lierman was “‘not right down there,’” meaning something was wrong with his penis. B.L. also reported that Lierman penetrated her with his penis and that it hurt. Following this hearing, the court found that (1) the State was not barred by principles of collateral estoppel from introducing evidence regarding A.L., despite the fact that Lierman had been acquitted of those charges; (2) A.L.’s allegations were inextri- cably intertwined with B.L.’s allegations; and (3) the evidence the State sought to admit as to both A.L. and B.L. was con- ditionally admissible under §§ 27-404 and 27-414, subject to confirmation of factual similarities deemed relevant at trial. (c) Analysis In his first assignment of error, Lierman assigns that the district court erred in admitting A.L.’s allegations, because he was acquitted of those charges at trial. He contends that the principles of collateral estoppel prevent the State from offering evidence about charges for which he was acquitted. Lierman also asserts that by offering evidence regarding A.L.’s allega- tions, the State was attempting to convince the jury that he should have been found guilty in A.L.’s case and that it had an opportunity to correct that wrong. We turn first to Lierman’s assertion that the U.S. Supreme Court’s decision in Ashe v. Swenson 3 precludes the admission of that evidence. In Ashe, the Court explained that in the con- text of collateral estoppel, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 4 [3] We find Lierman’s assertion to be without merit. While Ashe does speak to the issue of collateral estoppel in the criminal case, the Court expanded on that holding in Dowling 3 Ashe v. Swenson, 397 U.S. 436 , 90 S. Ct. 1189 , 25 L. Ed. 2d 469 (1970). 4 Id., 397 U.S. at 443.  - 297 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 v. United States. 5 In Dowling, the Court noted that “an acquit- tal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.” 6 Section 27-414 provides: (1) In a criminal case in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense or offenses of sexual assault is admissible if there is clear and convinc- ing evidence otherwise admissible under the Nebraska Evidence Rules that the accused committed the other offense or offenses. If admissible, such evidence may be considered for its bearing on any matter to which it is relevant. (2) In a case in which the prosecution intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the accused, including statements of witnesses or a summary of the substance of any testi- mony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (3) Before admitting evidence of the accused’s com- mission of another offense or offenses of sexual assault under this section, the court shall conduct a hearing out- side the presence of any jury. At the hearing, the rules of evidence shall apply and the court shall apply a section 27-403 balancing and admit the evidence unless the risk of prejudice substantially outweighs the probative value of the evidence. In assessing the balancing, the court may consider any relevant factor such as (a) the probability that the other offense occurred, (b) the proximity in time and intervening circumstances of the other offenses, and (c) the similarity of the other acts to the crime charged. 5 Dowling v. United States, 493 U.S. 342 , 110 S. Ct. 668 , 107 L. Ed. 2d 708 (1990). 6 Id., 493 U.S. at 349.  - 298 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 (4) This section shall not be construed to limit the admission or consideration of evidence under any other section of the Nebraska Evidence Rules. Thus, under § 27-414, assuming that notice and hear- ing requirements are met and the evidence survives a more- probative-than-prejudicial balancing test, evidence of prior sexual assaults are admissible if proved by clear and convinc- ing evidence. [4] The standard of proof in a criminal case is that the State must prove the charges against the defendant beyond a reason- able doubt, 7 a higher standard of proof. 8 Because the standard set forth as to the question of whether A.L.’s allegations were proved for purposes of § 27-414 is lower than the standard of proof the State was held to in prosecuting those allegations, the principles of collateral estoppel do not bar the admission of that evidence. And we disagree with Lierman’s contention that the State did not prove A.L.’s allegations by clear and convincing evi- dence. A.L. testified to the truth of her allegations, and her testimony was at least partially corroborated by DNA test- ing and other physical evidence. Lierman attempted to attack A.L.’s credibility by pointing out inconsistencies and failed memory, but as the State noted, those inconsistencies are typi- cal of a young adult remembering traumatic events that took place years ago. While the fact that Lierman was acquitted does not affect the threshold admissibility of the evidence under § 27-414, it is relevant to the undue prejudice analysis conducted under § 27-414 and Neb. Rev. Stat. § 27-403 (Reissue 2016). We held in State v. Kirksey, 9 a case involving § 27-404, that a prior acquittal 7 See, U.S. Const. amend. XIV; In re Winship, 397 U.S. 358 , 90 S. Ct. 1068 , 25 L. Ed. 2d 368 (1970). 8 See, e.g., State v. Bigelow, 303 Neb. 729 , 931 N.W.2d 842 (2019). 9 State v. Kirksey, 254 Neb. 162 , 180, 575 N.W.2d 377 , 390-91 (1998).  - 299 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 does not, in and of itself, preclude admission of the facts underlying the charge as evidence of other bad acts when offered for one of the purposes specified in [§ 27-404(2)]. . . . However, the acquittal is a factor which the court must consider when weighing the probative value of the evidence against the potential for unfair prejudice under [§ 27-403]. [5] We turn to the balancing test set forth in §§ 27-414 and 27-403. We first note that evidence that a defendant commit- ted an act of sexual assault is, by its very nature, prejudicial 10: The [§ 27-403] unfairly prejudicial analysis cannot be based on the fact that evidence of sexual misconduct pro- pensity evidence would be prejudicial. . . . Of course, the more probative the evidence is in establishing a similar deviant sexual propensity the more prejudicial the evi- dence becomes, but such prejudice is not unfair under [§ 27-403] because of its enhanced probative value. 11 Despite the prejudice inherent in this type of evidence, the Legislature enacted § 27-414. Assuming that the evidence met the balancing test of § 27-414, the Legislature set no limitation on a fact finder’s use of this evidence. This stands in contrast to § 27-404, where other types of character or bad acts evi- dence are presumed to be inadmissible, and where admissible for one or more of the particular purposes as set forth by the statute, the evidence may be considered only for those pur- poses. Thus, while § 27-404 is a rule of exclusion, § 27-414 is a rule of admissibility. It is with an understanding of the prejudicial nature of such evidence, and the wide range of purpose for which the fact finder may consider it, that we weigh the various factors of the balancing test set forth in § 27-414. The district court found, and we agree, that there was clear and convincing evidence that the events composing A.L.’s 10 See State v. Kibbee, 284 Neb. 72 , 815 N.W.2d 872 (2012). 11 3 R. Collin Mangrum, Mangrum on Nebraska Evidence § 27-414[D](5) at 334 (2019).  - 300 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 allegations occurred. In addition, we have previously noted that evidence of the repeated nature of sexual assault incidents may be relevant in proving these crimes occurred, especially when committed against “‘“persons otherwise defenseless due to age.”’” 12 This is applicable in this situation, given the young age of B.L. (as well as A.L.) at the time of the alleged assaults. In addition, the events described in A.L.’s allegations were close in time to the charges involving B.L. for which Lierman was on trial. According to A.L., Lierman sexually assaulted her until the time of his arrest, while B.L. testified that Lierman began assaulting her when he was on bond awaiting trial on A.L.’s allegations. A.L.’s allegations were similar to the allegations made by B.L. The girls were similar in age when the assaults began, were sisters, and were both adopted daughters to Lierman. Both girls reported that the sexual acts grew out of “hip rubs” that they each gave Lierman, which led to fondling outside of clothing, and then eventually, penile penetration. Both girls reported incidents occurring in Lierman’s bedroom and in his semi-truck while on the road. Of course, as Lierman points out, he was acquitted by a jury of A.L.’s allegations, which we consider in this balancing test. Lierman argues that the State offered A.L.’s allegations in part to argue to the jury in B.L.’s case that the jury in the first case made a mistake, while this second jury could rectify it. But we are not persuaded by this: the jury was clearly instructed that “[t]he defendant [was] on trial only for the crimes alleged herein,” and that fact was pointed out to the jury by both the State and Lierman’s counsel. Nor is there any distinction between the allegations for which Lierman was convicted and those for which he was never charged. Other than arguing the State could have charged him earlier, Lierman does not explain how this fact would 12 See State v. Kibbee, supra note 10, 284 Neb. at 95 , 815 N.W.2d at 891, quoting State v. Stephens, 237 Neb. 551 , 466 N.W.2d 781 (1991).  - 301 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 prevent the use of the allegations per § 27-414. That statute allows conduct to be admitted, not convictions. There is no merit to Lierman’s first assignment of error. 2. Evidence of Alternative Reasons for B.L.’s Unhappiness (a) Standard of Review In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. 13 Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appel- late court reviews the admissibility of evidence for an abuse of discretion. 14 (b) Background In his second assignment of error, Lierman argues that during the State’s examination of B.L., it opened the door to the introduction of specific evidence that when considered together, showed that B.L. was not happy and that it was this unhappiness, and not any alleged sexual abuse, that resulted in B.L.’s attempted suicide. At issue was evidence that B.L. was (1) caught using the computer to access an adult dating web- site, (2) using social media to arrange a meeting with a boy her age, (3) using a tablet computer to access adult-oriented websites on dates when Lierman claims he was out of town, and (4) being bullied at school. The district court sustained the State’s objection to Lierman’s attempts to present evidence of these instances. (i) Use of Adult Dating Website An offer of proof was made wherein Julie would have testi- fied that sometime in 2013, she was on the family computer 13 State v. Kibbee, supra note 10. 14 Id. - 302 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 and noticed that B.L. had left her email account open. Julie discovered that B.L. had been creating a profile on a dating website. In response, Lierman and Julie summoned the county sheriff to explain to B.L. the dangers of this type of activity. Lierman also wanted to offer a portion of B.L.’s deposition in which she testified that she had not had contact with anyone on the website, but that she had only created a profile using false information. In her deposition testimony, B.L. testified that Lierman sexually assaulted her after Julie went to work the night that B.L.’s actions were discovered. In support of admit- ting this evidence, Lierman argued it was part of the res gestae of the crimes charged, because B.L. claimed that it led directly to another sexual assault. The district court declined to admit this evidence, finding the implication was that B.L. had engaged in some type of sexual misconduct, violating Neb. Rev. Stat. § 27-412 (Reissue 2016). In addition, the court sustained the State’s objection that Lierman’s cross-examination of B.L. on this point was improper under § 27-403 and Neb. Rev. Stat. § 27-608(2) (Reissue 2016). (ii) Social Media Message About Meeting With Classmates A second offer of proof would have had Julie testify that one night when she was on the computer, an instant mes- sage for B.L. appeared. The message indicated that B.L. was attempting to arrange to meet classmates, including a particu- lar boy, after school to go to another location and that this was a violation of the rules of the Lierman household. The district court refused to admit this evidence as well, again on the basis of §§ 27-412 and 27-608(2). (iii) Websites Accessed on Tablet Computer A third offer of proof involved a tablet computer used by B.L. Law enforcement examined the tablet and determined that it was used on several occasions to access pornographic websites. The offer of proof also established that there was  - 303 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 no way to know who had accessed the websites, but Lierman argued that his trucking logs would have established that it was not him. The district court found that this evidence was not relevant, because it could not be established that B.L. was the person who accessed the websites, and that in any case, the evidence was inadmissible under § 27-412. (iv) Unhappiness at Home and School In a final offer of proof, Lierman asserted that if admitted, testimony from family members would show that B.L. was being bullied at school. In addition, this testimony would show that B.L. was unhappy at home because, as the prior incidents indicated, she had trouble following the rules of the household. The district court found that the matter of B.L.’s not liking or following the rules of the household to be irrelevant and in vio- lation of § 27-608(2). As for the bullying at school, the district court concluded it was not relevant, because B.L. had changed schools by the time of the suicide attempt. (c) Analysis Lierman’s argument on appeal with respect to these various pieces of evidence is that the State opened the door to B.L.’s credibility and that he was then permitted to cross-examine her with respect to these incidents. “Opening the door” is a rule of expanded relevancy which authorizes admitting evidence that would otherwise be irrelevant in order to respond to (1) admis- sible evidence which generates an issue or (2) inadmissible evidence admitted by the court over objection. 15 Lierman contends that the State opened the door to B.L.’s truthfulness in the following exchange between the State’s attorney and B.L.: Q. Another thing, during the — those times you described and generally, those things you described with . . . Lierman and you, did . . . Lierman always call you by his own name — by your own name, rather? A. No. 15 State v. Harrold, 256 Neb. 829 , 593 N.W.2d 299 (1999).  - 304 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 Q. Explain, please. A. Yeah. Well, I have nicknames, I mean, like Nanna and stuff. Q. Speak up. A. Like Nanna. But when he got mad at me or I did something like lie about doing the dishes and I didn’t do them, he would call me . . . Q. What I’m talking about is . . . during the times sex things were going on, was there another name used? Lierman additionally argues that the State opened the door by offering into evidence exhibit 201, which he identified as a letter written to Lierman from B.L., detailing B.L.’s unhappi- ness and the bullying she was facing at school. In fact, exhibit 201 is a photograph of a piece of lined note- book paper that repeats the sentence, “I will respeck [sic] my mom and dad.” This exhibit was initially offered, but the State acknowledged that it was done so in error and it was with- drawn, though it had been published to the jury. (The letter was not sent back with the jury during its deliberations.) The letter from B.L. to Lierman was actually exhibit 246, and it was offered into evidence. With the exception of the salutation and the signature, which B.L. said did not look like her handwrit- ing, B.L. agreed that she wrote the letter. Lierman argues only about the letter from B.L. to Lierman, not about the “respeck” lines. But the record shows that this letter was offered and admitted and that B.L. was questioned about it. As for the other incident—the questioning about B.L.’s lying about doing the dishes—such did not “open the door” to questions about B.L.’s credibility. B.L.’s answer appears to be born of not understanding the question asked of her, and the State immediately redirected her testimony. Moreover, the specific instances of B.L.’s misbehavior were not relevant to B.L.’s truthfulness, because as the district court noted, those instances are excludable as specific instances of misconduct, or at worst, attempting to impugn B.L. by implying that she was involved in risky sexualized behavior.  - 305 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 Because the State did not open the door to the evidence which Lierman argues is admissible, there is no merit to Lierman’s second assignment of error. 3. Sufficiency of Evidence (a) Standard of Review [6] In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circum- stantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of the witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 16 (b) Analysis In his third assignment of error, Lierman assigns that the dis- trict court erred in finding that the evidence was sufficient to convict him. Lierman argues that without the evidence pertain- ing to the allegations made by B.L., “it is highly unlikely that [Lierman] would have been convicted. The evidence pertaining to the allegations made by B.L. was very weak with no real physical evidence present and frequently changing allegations by B.L. during the course of the case.” 17 In addition, Lierman asserts that “[t]here [was] no specificity in [B.L.’s] responses” as to the dates of the alleged offenses and that such was neces- sary because the only distinction between many of the offenses was B.L.’s age at the relevant time. 18 We find that the evidence was sufficient to support Lierman’s convictions. B.L. testified that she was sexually assaulted by Lierman during the relevant time periods. This court does not 16 State v. Thomas, 303 Neb. 964 , 932 N.W.2d 713 (2019). 17 Brief for appellant at 44. 18 Id. - 306 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 reweigh that evidence. Lierman’s assignment of error to the contrary is without merit. 4. Recusal (a) Standard of Review [7] A recusal motion is initially addressed to the discretion of the judge to whom the motion is directed. 19 (b) Analysis In his fourth assignment of error, Lierman contends that the district court erred in not recusing itself because of an ex parte communication with the State and because it presided at a hearing regarding a grant of immunity given to Julie without giving Lierman notice. [8-11] An ex parte communication occurs when a judge communicates with any person concerning a pending or impending proceeding without notice to an adverse party. 20 A judge who initiates or invites and receives an ex parte com- munication concerning a pending or impending proceeding must recuse himself or herself from the proceedings when a litigant requests such recusal. 21 A judge should recuse him- self or herself when a litigant demonstrates that a reasonable person who knew the circumstances of the case would ques- tion the judge’s impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown. 22 A party alleging that a judge acted with bias or preju- dice bears a heavy burden of overcoming the presumption of judicial impartiality. 23 The first motion to recuse, filed on January 29, 2016, details events from earlier that same day. It appears there was an issue 19 Thompson v . Millard Pub. Sch. Dist. No. 17, 302 Neb. 70 , 921 N.W.2d 589 (2019). 20 State v. Thompson, 301 Neb. 472 , 919 N.W.2d 122 (2018). 21 Id. 22 Thompson v. Millard Pub. Sch. Dist. No. 17, supra note 19. 23 Id. - 307 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 surrounding the taking of B.L.’s deposition. One of the State’s attorneys went to the district court’s courtroom while the judge was on the bench regarding matters in unrelated cases. At the conclusion of those matters, but before the court had adjourned, the State’s attorney indicated that the parties were having an issue with the deposition and sought a hearing. The district court then asked his staff to contact defense counsel to see whether a hearing could be set for later that day. Defense counsel refused to do so based on just the State’s oral motion, then filed the recusal motion. A hearing was held on this motion on February 1, 2016. At the hearing, the court declined to hear evidence, but instead explained the facts, as set forth above, and denied the motion. During the hearing, Lierman made an oral motion to recuse, which the court requested be filed as a written motion. A second hearing on the motions to recuse was held on February 5, 2016. The operative motion at that hearing was the amended second motion to recuse, which sought the district court’s recusal because the court had failed to give notice to Lierman that his wife, Julie, was being offered immunity for her testimony. Following that hearing, the district court denied the motion to recuse, reasoning that Lierman was not entitled to notice of any grant of immunity to Julie. We turn first to the issue of B.L.’s deposition. The record indicates that the State, not the court, initiated the conversation and that the conversation pertained to scheduling a hearing. The court’s response was to have defense counsel contacted about the issue. This is not an improper ex parte communica- tion that would give rise to a need for a judge’s recusal. 24 Nor was there error with respect to the grant of immunity to Julie. The language of the relevant statute, Neb. Rev. Stat. § 29-2011.02 (Reissue 2016), and our case law interpreting that statute, 25 provides that because the Legislature “has given courts the power to immunize a witness solely upon the request 24 Neb. Rev. Code of Judicial Conduct § 5-302.9. 25 State v. Phillips, 286 Neb. 974 , 840 N.W.2d 500 (2013).  - 308 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 of the prosecutor, it is not a power the court can exercise upon the request of the defendant or upon its own initiative.” 26 The court is not obligated under § 29-2011.02 to notify a defendant when the State offers a witness immunity. As such, the district court did not show bias or prejudice against Lierman by failing to provide notice to him. To the extent that Lierman is suggesting that the hearing in which Julie was given immunity might have been consid- ered an ex parte communication, this argument is also without merit. The hearing took place in a separately docketed case, in open court, and on the record. There is no merit to Lierman’s fourth assignment of error. 5. Excessive Sentences (a) Standard of Review [12,13] An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discre- tion by the trial court. 27 Abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or con- science, reason, and evidence. 28 (b) Analysis In his fifth assignment of error, Lierman contends that the district court’s sentences were excessive. Lierman argues that he is obese and in poor health, with no record of prior sexual assault convictions, and that at his age, his sentence total of 70 to 140 years’ imprisonment amounts to a life sentence. When imposing a sentence, a sentencing judge should con- sider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past crimi- nal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and 26 Id. at 989, 840 N.W.2d at 514. 27 State v. Lee, 304 Neb. 252 , 934 N.W.2d 145 (2019). 28 Id. - 309 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 (8) the violence involved in the commission of the crime. 29 The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. 30 We have reviewed Lierman’s sentences and conclude that they were not excessive. Lierman was convicted of multiple counts of sexual assault of his adolescent daughter over a period of several years. The sentences were within statutory limits and were not an abuse of discretion. This assignment of error is without merit. 6. Subpoenas Duces Tecum (a) Standard of Review [14] Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. 31 (b) Analysis In his sixth assignment of error, Lierman assigns that the district court erred in quashing the subpoenas duces tecum served upon several witness set for deposition. Lierman argues that in addition to their testimony, he ought to be permitted to ask deponents to provide materials relevant to B.L.’s allega- tions. In quashing the subpoenas duces tecum, the district court found that there was no statutory authority for such a request in criminal cases and that the lack of this procedure did not violate the constitution. Lierman argues on appeal that he is “concerned with the possibility that one of the witnesses may have some information that the State does not request or does not hand over pursuant to discovery. In that respect, [Lierman] can not obtain such information.” 32 29 Id. 30 Id. 31 Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287 , 934 N.W.2d 169 (2019). 32 Brief for appellant at 51.  - 310 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 No reciprocal discovery order had been sought in this case as of the time of the issuance of these subpoenas, but a Brady 33 notice was filed. Lierman concedes that he does not accuse the State of failing to hand over Brady material. Neb. Rev. Stat. § 29-1917(1) (Reissue 2016) provides for the issuance of a deposition subpoena in a criminal case: (1) Except as provided in section 29-1926, at any time after the filing of an indictment or information in a felony prosecution, the prosecuting attorney or the defendant may request the court to allow the taking of a deposition of any person other than the defendant who may be a wit- ness in the trial of the offense. The court may order the taking of the deposition when it finds the testimony of the witness: (a) May be material or relevant to the issue to be deter- mined at the trial of the offense; or (b) May be of assistance to the parties in the prepara- tion of their respective cases. Both § 29-1917(3) and Neb. Rev. Stat. § 29-1905 (Reissue 2016) similarly provide that the taking of the deposition of a witness “shall be governed in all respects as the taking of depo- sitions in civil cases.” The general procedures to be used in issuing subpoenas in a civil case are set forth in Neb. Rev. Stat. § 25-1223 (Cum. Supp. 2018). Neb. Rev. Stat. § 25-1224(1) (Cum. Supp. 2018) provides: A subpoena commanding an individual to appear and testify at a trial or deposition may command that at the same time and place specified in the subpoena for the individual to appear and testify, the individual must pro- duce designated documents, electronically stored infor- mation, or tangible things in the individual’s possession, custody, or control. The scope of a command to produce documents, electronically stored information, or tangible 33 Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 , 10 L. Ed. 2d 215 (1963).  - 311 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 things pursuant to this section is governed by the rules of discovery in civil cases. This section, when considered with §§ 29-1905 and 29-1917, forms the basis of Lierman’s argument on appeal that “[t]he proceedings in taking the deposition of a witness pursuant to this section and returning it to the court shall be governed in all respects as the taking of depositions in civil cases.” 34 Lierman suggests that the ability to seek “designated docu- ments, electronically stored information, or tangible things in the individual’s possession, custody, or control” is part of the procedure referenced in §§ 29-1905 and 29-1917. Section 25-1223 generally sets forth the procedure for the issuance of trial and deposition subpoenas. The power to specifically issue a subpoena duces tecum is the topic of § 25-1224. It is § 25-1224(1) which explicitly notes that “[t]he scope of a command to produce documents, electronically stored information, or tangible things pursuant to this section is governed by the rules of discovery in civil cases.” The crux of Lierman’s argument is that a subpoena duces tecum allows him to obtain records that he might not otherwise have known existed. But even assuming that the subpoena duces tecum is available in criminal cases in Nebraska, it is not intended to be used as a “‘fishing expedition.’” 35 Generally, documents sought in such a way are subject to a showing of relevance and admissibility, with requested documents identi- fied with adequate specificity. 36 Nebraska’s rules of civil dis- covery provide that “the designation of the materials to be pro- duced pursuant to the subpoena shall be attached to or included in the notice.” 37 34 § 29-1917(3). 35 United States v. Nixon, 418 U.S. 683 , 700, 94 S. Ct. 3090 , 41 L. Ed. 2d 1039 (1974). 36 2 Barbara E. Bergman & Nancy Hollander, Wharton’s Criminal Evidence § 10:9 (15th ed. 1998 & Cum. Supp. 2019-20) (collecting cases). 37 Neb. Ct. R. Disc. § 6-330(C)(1) (rev. 2016).  - 312 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 As an initial matter, we lack a complete record on this issue. The record before this court generally shows that Lierman sought deposition testimony and documents, but, with a few exceptions, the record does not include the perti- nent notices of deposition or otherwise identify the witnesses upon whom notices were served. Moreover, Lierman failed to explain below or on appeal what documents he would have requested that witnesses bring to their depositions or what documents he believes they might have had in their posses- sion, custody, or control. But without this showing, Lierman’s subpoenas amount to no more than an impermissible fish- ing expedition. For these reasons, we find no error in the district court’s quashing of the subpoenas duces tecum, and Lierman’s assign- ment of error is without merit. 7. Ineffective Assistance of Counsel (a) Standard of Review and Propositions of Law [15] In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. 38 [16] When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective perform­ ance which is known to the defendant or is apparent from the record. 39 Once raised, the appellate court will determine whether the record on appeal is sufficient to review the merits of the ineffective performance claims. 40 38 State v. Lee, supra note 27. 39 Id. 40 Id.  - 313 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 [17,18] In order to know whether the record is insufficient to address assertions on direct appeal that trial counsel was ineffective, appellate counsel must assign and argue deficiency with enough particularity (1) for an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) for a district court later reviewing a peti- tion for postconviction relief to be able to recognize whether the claim was brought before the appellate court. 41 When a claim of ineffective assistance of trial counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel. 42 (b) Analysis In his final assignment of error, Lierman assigns that his trial counsel was ineffective by (1) failing to call certain wit- nesses, (2) not utilizing evidence of Lierman’s driving logs to form an alibi defense, (3) failing to file a motion in limine to exclude evidence regarding B.L.’s difficulties at school and general unhappiness, (4) not objecting to the order in which the State presented its evidence, and (5) not objecting to the State’s use of B.L.’s suicide attempts and ideation. (i) Failure to Call Certain Witnesses Lierman first assigns that his counsel was ineffective in fail- ing to call two particular witnesses: Dr. Ashutosh Atri, a doctor at the hospital where B.L. was admitted following her suicide attempt, and Dr. Hugo Gonzalez, another doctor who would have testified that B.L. never reported a sexual assault to him. Lierman alleges Atri would have testified that B.L. indicated early in her stay she was not a victim of sexual assault, that she participated in family counseling sessions, and, further, that 41 Id. 42 Id.  - 314 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 she made no allegations of sexual assault until she learned she might be discharged to go home soon. There is nothing in the record to explain why counsel did not call Atri and Gonzalez. As such, we lack the record to determine this issue on direct appeal. We additionally note that Lierman argues that his trial coun- sel was ineffective in failing to ask certain questions of B.L.’s aunt. But we need not consider that argument, because Lierman did not separately assign that failure as error. 43 (ii) Driving Logs as Alibi Defense Lierman argues that his trial counsel erred in not pursuing an alibi defense through the use of Lierman’s driving logs, which were apparently created by Lierman himself. Lierman claims those logs would have shown that he was on the road during some of the “relevant dates.” There is nothing in the record to explain why counsel chose not to introduce these driving records. As such, we lack the record to determine this issue on direct appeal. (iii) Failure to File Motion in Limine Regarding B.L.’s School and Home Difficulties Lierman argues that trial counsel was ineffective in fail- ing to file pretrial motions in limine regarding “evidence that would call into question the credibility of the State’s witnesses.” 44 Lierman contends that had trial counsel done so, counsel would have known what evidence would have been admissible versus inadmissible and would have been better prepared for trial. Lierman has not sufficiently pled this allegation. He does not identify what evidence should have been subject to a motion in limine or which witness’ credibility would have been 43 See In re Estate of Graham, 301 Neb. 594 , 919 N.W.2d 714 (2018). 44 Brief for appellant at 54.  - 315 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 challenged by that evidence. As such, we find that this allega- tion of deficient conduct has not been pled with the specificity necessary to avoid a future procedural bar. (iv) Failure to Object to Order of State-Presented Evidence Lierman next contends that his counsel was ineffective in failing to object to the order in which the State pre- sented its evidence. Specifically, Lierman argues that at the § 27-414 hearing held prior to trial, the evidence of A.L.’s allegations was found by the trial court to be conditionally admissible dependent upon a showing of sufficient factual similarities and trial counsel should have objected when the State offered that evidence prior to showing those similari- ties. Lierman argues that “counsel should have objected to the sequence of the evidence being presented because the Court gave counsel the opportunity to force the State to produce evidence in another order than the one it was comfortable with.” 45 We have a sufficient record to determine this issue on direct appeal, and we find that trial counsel was not ineffective. First, we observe that Neb. Rev. Stat. § 29-2016 (Reissue 2016) sets forth the procedure that a trial court should follow in conducting a criminal trial. There is nothing in that section, nor does Lierman direct us to other law, that might suggest that a criminal defendant has any control, directly or otherwise, over the order in which the State presents its evidence. Lierman suggests that he had the ability to dictate the sequence of the State’s evidence had counsel objected and held the State to the district court’s earlier order finding the State’s § 27-414 evidence to be only conditionally admissible. But having reviewed the record as a whole, we conclude that the State made a sufficient showing as to the similarities between A.L.’s and B.L.’s allegations such that A.L.’s allegations 45 Id. - 316 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 were admissible. As such, Lierman cannot show that counsel was ineffective. (v) Failure to Object to State’s Use of Lierman’s Suicide Attempts Finally, Lierman asserts that his trial counsel was ineffec- tive for failing to object to the admission into evidence of Lierman’s two suicide attempts. One attempt occurred during a standoff between him and law enforcement when he returned home from a trucking job to find that A.L. had accused him of sexual abuse. The second attempt occurred while he was in jail on those charges. The record indicates that these issues were addressed at a pretrial hearing on Lierman’s motions to suppress, in limine, and for a determination of relevancy. The trial court, in its order largely denying Lierman’s motions, found that the events were relevant and were admissible as evidence of Lierman’s consciousness of guilt. In particular, Lierman now argues that while suicide attempts might be probative of “‘conscious guilt,’” they also speak toward “potential mental illness,” and that thus, the admission of this evidence was more prejudicial than probative. 46 An analysis under § 27-403 consists of a balancing test, which is left to the sound discretion of the trial court. 47 That balancing test provides that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” 48 We find that the district court did not abuse its discretion in admitting evidence of Lierman’s suicide attempts and ideation. Both suicide attempts were made contemporaneous to A.L.’s 46 Id. at 55. 47 See State v. Stubbendieck, 302 Neb. 70 2, 924 N.W.2d 711 (2019). 48 § 27-403. See State v. Stubbendieck, supra note 47.  - 317 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 allegations, one immediately prior to Lierman’s arrest at a time when he was aware that he was about to arrested. The second attempt was made at the jail when Lierman was incarcerated after his arrest and immediately following a visit with members of his family. It was not an abuse of discretion for the district court to conclude that Lierman’s actions were probative of his guilt and that this outweighed any possible prejudice. We decline Lierman’s invitation to conclude that a suicide attempt can never be probative of consciousness of guilt; indeed, the facts in this case show that these suicide attempts were probative of Lierman’s consciousness of guilt. Because the district court did not err in admitting the evi- dence, counsel was not ineffective for failing to object. There is no merit to Lierman’s argument to the contrary. V. CONCLUSION The judgment and sentences of the district court are affirmed. Affirmed. Freudenberg, J., not participating. Cassel, J., concurring. I write separately only to address Lierman’s argument, which he makes at least implicitly, that the scope of discovery and, in particular, the scope of a subpoena duces tecum in a criminal case is as broad as in a civil case. He is wrong. Civil and criminal cases have different limitations upon when depositions may be taken. In civil cases, depositions may be taken without leave of court, except within 30 days of service of summons. 1 And there are exceptions to the 30‑day limitation. 2 In criminal cases, however, leave of court is always required. 3 Although this statute was amended in 2019, the same 1 See Neb. Ct. R. Disc. § 6‑330 (rev. 2016). 2 See id. 3 See Neb. Rev. Stat. § 29‑1917(1) (Supp. 2019).  - 318 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 requirement for leave existed at all relevant times in the pros- ecution against Lierman. 4 Section 29‑1917 limits the scope of a discovery deposition in a criminal case in two significant ways. First, only a “person other than the defendant who may be a witness in the trial of the offense” may be deposed. 5 In other words, if the person could not possibly be called as a witness at the trial in the criminal case, no deposition is permitted. The second limitation is more significant. A court is permit- ted to order the taking of a deposition in a criminal case only if the witness’ testimony “[m]ay be material or relevant to the issue to be determined at the trial of the offense” or “[m]ay be of assistance to the parties in the preparation of their respective cases.” 6 In a criminal case, the elements of the charged crime or crimes define the issues. 7 Thus, a court may grant leave to take a criminal case deposition only where the testimony would be material or relevant to the existence or nonexistence of an element of a charged offense or where the testimony would assist a party in preparing its case. In contrast, the scope of discovery in civil cases extends much further. Generally, in a civil case, parties may obtain dis- covery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” 8 Further, the rule adds, “It is not ground for objection that the informa- tion sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” 9 Obviously, the civil discovery rule articulates a much wider scope for inquiry than is permitted in a criminal case. 4 See § 29‑1917 (Reissue 2016). 5 § 29‑1917(1). 6 § 29‑1917(1)(a) and (b) (emphasis supplied). 7 See State v. George, 228 Neb. 774 , 424 N.W.2d 350 (1988). 8 Neb. Ct. R. Disc. § 6‑326(b)(1) (emphasis supplied). 9 Id. (emphasis supplied).  - 319 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 Neither statute upon which Lierman relies expands the scope of depositions in criminal cases. He cites two criminal pro- cedure statutes: § 29‑1917 and Neb. Rev. Stat. § 29‑1905 (Reissue 2016). In both instances, his reliance is misplaced. First, he reads too much into § 29‑1905, which states: “The proceedings in taking the examination of such [deposition] wit- ness and returning it to court shall be governed in all respects as the taking of depositions in all civil cases.” In reading a penal statute, a court must determine and give effect to the pur- pose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. 10 The plain language of § 29‑1905 applies the civil procedures to criminal cases only in “taking the examina- tion” and “returning it to court.” In the context of civil discov- ery depositions under § 6‑330, the procedures of “taking” and “returning” would include subsections (c) 11 and (f). 12 Second, the text of § 29‑1905 predates discovery deposi- tions in criminal cases. It was first enacted in 1873 13 and has not been amended since the 1943 codification. 14 The criminal case discovery statute, § 29‑1917, in contrast, was initially adopted only in 1969. 15 Section 29‑1905 simply does not speak to the scope of discovery permitted in a deposition in a crimi- nal case. Lierman’s reliance on § 29‑1917(3) fares no better. At the relevant times in the court below, this subsection stated only, “The proceedings in taking the deposition of a witness pursuant to this section and returning it to the court shall be 10 State v. Jedlicka, ante p. 52, ___ N.W.2d ___ (2020). 11 § 6‑330(c) (“Examination and Cross‑Examination; Record of Examination; Oath; Objections”). 12 § 6‑330(f) (“Certification and Delivery by Officer; Copies; Notice of Delivery”). 13 Gen. Stat. ch. 58, § 463, p. 825 (1873). 14 See § 29‑1905 (1943). 15 See 1969 Neb. Laws, ch. 235, § 6, p. 870.  - 320 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. LIERMAN Cite as 305 Neb. 289 governed in all respects as the taking of depositions in civil cases.” 16 This language, like § 29‑1905, is limited to the “taking” and “returning” of the deposition. It addresses pro- cedural steps rather than the scope of discovery. In 2019, the Legislature appended the words, “including section 25‑1223.” 17 This was apparently done in light of a substantial rewrite of Neb. Rev. Stat. § 25‑1223 (Cum. Supp. 2018) in 2017. 18 The changes in § 25‑1223 speak mainly to the “nuts and bolts” of the procedures for issuance, service, and return of a subpoena. And nothing in the 2019 amendment of § 29‑1917 to include provisions from § 25‑1223 regarding “taking” and “return- ing” a deposition suggests, let alone dictates, any intention to modify the scope of inquiry permitted in a deposition in a criminal case. These statutes, taken as a whole, demonstrate the Legislature’s understanding that the issues in a criminal case are always circumscribed by the elements of the crime or crimes with which a defendant is charged. And the differences in scope and procedure prevent discovery from being used in a “fishing expedition” or an attempt to confuse the issues. Thus, while I agree with the outcome of the court’s decision, I would squarely reject Lierman’s attempt to judicially expand the scope of discovery in criminal cases beyond that clearly articulated by the Legislature. 16 § 29‑1917(3) (Reissue 2016). 17 § 29‑1917(3) (Supp. 2019). 18 See 2017 Neb. Laws, L.B. 509, § 1.

2020-01-17 22:01:53.651071+00

Phillips

*558OPINION. Phillips: In the year 1922 petitioner received $3,000 as compensation for legal services rendered by him to the Ft. Smith-Van Burén District in the State of Arkansas. The question presented by this proceeding is whether such compensation is subject to the Federal income tax. The Ft. Smith-Van Burén District was created by an Act of the General Assembly of Arkansas in 1909 (Laws of 1909, p. 325), as a public or governmental agency for the construction and operation of a bridge over a navigable river between two counties in Arkansas. See Shibley v. Ft. Smith-Van Buren District, 96 Ark. 410; 132 S. W. 442. There is no doubt that it was a municipal corporation and a political subdivision of the State of Arkansas. It was empowered to appoint all officers and agents which it deemed necessary and suitable for the conduct of its business. It was authorized to sue and be sued and plead and be impleaded. By clear implication it was authorized to appoint an attorney. During the years 1914 and 1915 petitioner was appointed attorney for the District to attend to all its legal matters. For the routine legal services petitioner was to be paid $500 per year. If it became necessary to go into court on behalf of the District, he was to be paid such additional compensation as the Board of the District might determine. Petitioner was not employed for a special transaction or for a single suit. He was not employed to accomplish any particular result in a way chosen by himself, but was obliged to render any legal service assigned to *559him. He was employed to take care of all legal work of the District and to advise the Board in any matters it desired. The Board had the right to call upon him at any and all times for legal services, and he was bound to perform such services regardless of the time required. While he maintained an office for the practice of law and took other clients, he was precluded from serving such clients where their interests were adverse to the interests of the Bridge District. Although the length of his service was not defined by the terms of his employment, he was, at least, employed from year to year. In this situation we think that one whose services are so at the command of another is an employee of the latter, though the services are legal services of a lawyer who maintains his own office and is not forbidden to render professional services to others. Seaboard Airline Railway Co. v. Continental Trust Co., 166 Fed. 577; John E. Mathews, 8 B. T. A. 209; affirmed on this point in Blair v. Mathews, 29 Fed. (2d) 892. That petitioner received compensation for cases tried in court does not in any way affect his status as an employee as to those services. Under his contract of employment he was obligated to prosecute or defend all cases in court where the Bridge District required his services. These duties were in addition to the regular routine services for which he received $500 per year. That he received additional compensation for such services wag not inconsistent with his employment and did not make him an independent contractor as to those services. The necessity of defending the suit in question merely increased his duties and served to increase his compensation. We are of the opinion that petitioner was an employee of the Ft. Smith-Van Burén District, whether acting as attorney in litigation or as counsel on routine matters, and that the compensation received for his services is exempt from Federal income tax. John E. Mathews, supra; Howard Webster Byers, 8 B. T. A. 1191; B. F. Martin, 12 B. T. A. 267. See also Revenue Act of 1926, sec. 1211. Decision will be entered for the fetitioner.

2020-12-02 21:00:27.514467+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/19-73139.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LUTHER NCHE, No. 19-73139 Petitioner, Agency No. A201-436-818 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 16, 2020** Pasadena, California Before: RAWLINSON and HUNSAKER, Circuit Judges, and ENGLAND,*** District Judge. Luther Nche, a citizen and native of Cameroon, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Morrison C. England, Jr., United States Senior District Judge for the Eastern District of California, sitting by designation. immigration judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 , and we deny the petition. We review adverse credibility findings under the substantial evidence standard. Soto-Olarte v. Holder, 555 F.3d 1089 , 1091 (9th Cir. 2009). Under this standard, we may reverse the BIA’s decision only if the petitioner presents evidence that is “so compelling that no reasonable factfinder could find that he was not credible.” Farah v. Ashcroft, 348 F.3d 1153 , 1156 (9th Cir. 2003) (internal quotation marks omitted). Under the REAL ID Act, “[i]nconsistencies no longer need to ‘go to the heart’ of the petitioner’s claim to form the basis of an adverse credibility determination.” Shrestha v. Holder, 590 F.3d 1034 , 1043 (9th Cir. 2010) (citing 8 U.S.C. § 1158 (b)(1)(B)(iii)). Thus, “even minor inconsistencies . . . may, when considered collectively, deprive [the] claim of the requisite ring of truth, thereby supplying substantial evidence that will sustain the IJ’s adverse credibility determination.” Rizk v. Holder, 629 F.3d 1083 , 1088 (9th Cir. 2011) (internal quotation marks omitted). Substantial evidence supports the denial of relief on adverse credibility grounds due to inconsistencies in the record. The IJ found, and the BIA affirmed, that there were multiple non-trivial inconsistencies between Nche’s testimony and 2 documentary evidence. Specifically, the IJ identified conflicts between Nche’s testimony and the medical record concerning the injuries he sustained from a beating following the September 24, 2018, meeting, and whether the police, military, or a mixed force had attacked him. Taken together, these inconsistencies support the IJ’s adverse credibility finding under the REAL ID Act, and thus, we are not “compelled to conclude” that the IJ’s credibility determination was erroneous. 8 U.S.C. § 1252 (b)(4)(B). Because the IJ’s credibility finding was supported by substantial evidence and because the record does not contain sufficient independent, objective evidence to establish Nche is entitled to protection under CAT, the denial of Nche’s applications for relief was proper. See Farah, 348 F.3d at 1156–57; Shrestha, 590 F.3d at 1048–49. Nche’s motion for a stay of removal (Docket Entry No. 1) is DENIED as moot. The temporary stay of removal will expire upon issuance of the mandate. PETITION DENIED. 3

2020-12-02 21:00:27.616056+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/19-15880.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KIRK EDWARD CAMPBELL, No. 19-15880 Petitioner-Appellee, D.C. No. 2:15-cv-01986-KJM-GGH v. DANIEL PARAMO, Warden, MEMORANDUM* Respondent-Appellant. KIRK EDWARD CAMPBELL, No. 19-15882 Petitioner-Appellant, D.C. No. 2:15-cv-01986-KJM-GGH v. DANIEL PARAMO, Warden, Respondent-Appellee. Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding Argued and Submitted November 16, 2020 San Francisco, California Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Kirk Campbell was convicted in California state court of nine drug-related offenses and being a felon in possession of a firearm. His convictions were affirmed on direct appeal. Campbell subsequently sought state habeas relief and the California Supreme Court summarily denied review. Campbell then filed a federal habeas petition under 28 U.S.C. § 2254 . The district court denied Campbell’s habeas petition as to the firearm count. But it granted the petition as to the drug counts. The district court held that the state trial court erred under Miranda v. Arizona, 384 U.S. 436 (1966), by allowing an officer to testify about Campbell’s reaction to a photograph shown to him after he invoked his Miranda rights, and later violated the Sixth Amendment by failing to alert defense counsel to the jury’s request for certain information. The district court held that neither error was prejudicial on its own, but that the errors were cumulatively prejudicial. California appeals the grant of habeas relief as to the drug counts. Campbell cross-appeals the denial of habeas relief as to the firearm count. We review de novo a district court’s decision to grant or deny a habeas petition. Dows v. Wood, 211 F.3d 480 , 484 (9th Cir. 2000). We reverse in part and affirm in part. 1. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Campbell must show that the state court’s denial of relief was “contrary to, or involved an unreasonable application of, clearly established Federal law as 2 determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d). When, as here, “a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86 , 98 (2011). Under AEDPA’s deferential standard of review, the district court erred in granting Campbell habeas relief as to the drug counts. We will assume that the state trial court violated Campbell’s Miranda and Sixth Amendment rights, and that those constitutional violations were clearly established for purposes of AEDPA. Even with those assumptions, the California Supreme Court could have reasonably concluded that the asserted errors were harmless, both on their own and cumulatively. Both alleged errors are subject to harmless error review. See Brecht v. Abrahamson, 507 U.S. 619 , 638 (1993) (Miranda violations); United States v. Mohsen, 587 F.3d 1028 , 1032 (9th Cir. 2009) (per curiam) (harmless error review applies to ex parte response to jury communication that “made no substantive inquiry about the facts or the law”). A constitutional error in this context is harmless unless it had a “substantial and injurious effect or influence in determining the jury’s verdict.” Larson v. Palmateer, 515 F.3d 1057 , 1064 (9th Cir. 2008) (citing Brecht, 507 U.S. at 623 ). But under AEDPA, our review is “‘more forgiving’ to state court 3 errors than the harmless error standard the Supreme Court applies on its direct review of state court convictions.” Id. (citing Fry v. Pliler, 551 U.S. 112 , 116 (2007)). We cannot grant relief unless “the harmlessness determination itself was unreasonable.” Fry, 551 U.S. at 119 ; see also Davis v. Ayala, 576 U.S. 257 , 269 (2015). The district court found that each alleged error was harmless on its own. We agree. But it would not have been objectively unreasonable for the California Supreme Court to conclude that the two errors, which were not prejudicial individually, were also not prejudicial cumulatively. There was overwhelming evidence that the drugs in the car belonged to Campbell. See Parle v. Runnels, 387 F.3d 1030 , 1044 (9th Cir. 2004) (reversing grant of habeas relief based on “overwhelming evidence” of guilt). The Ford Escort Campbell was driving contained substantial amounts of drugs and drug paraphernalia. Campbell acknowledged the car was his and that he had been driving it for years. Paperwork in the car supported this. A later search of the garage where Campbell lived uncovered drug paraphernalia on a shelf that was labeled “Kirk’s don’t touch,” as well as drug packaging materials that matched those found in the trunk of the car. Campbell also made incriminating statements on a phone call to his girlfriend from jail. In addition, while Campbell’s passenger, Rodney Tindell, purported to take responsibility for the drugs, Tindell’s testimony was not plausible. Among other 4 things, Tindell did not claim responsibility until years after the fact; implausibly claimed the drugs (worth several thousand dollars) had been given to him as repayment for a debt of “[a] couple hundred” dollars; and his testimony was inconsistent with the photo of where the drugs were found. The circumstances specific to each alleged constitutional error further demonstrate that the California Supreme Court could have reasonably concluded the errors were harmless. The Miranda error was premised on the trial court’s admission of Detective Buckenmeyer’s testimony that Campbell turned “red” and appeared “upset” when shown a photograph of a black bag located in the car trunk. But Campbell testified that his reaction to the photo was one of “shock,” not guilt. The prosecution also did not comment further about Buckenmeyer’s testimony about Campbell’s reaction to the photo, which was but a small part of the officer’s overall testimony. The second alleged error is premised on the readback of Buckenmeyer’s testimony recalling Campbell’s phone call to his girlfriend from jail. Campbell claims the state trial court violated the Sixth Amendment because when the jury asked for Buckenmeyer’s “transcript” of the phone call (no such transcript was admitted), the trial court had Buckenmeyer’s trial testimony about his recollection of the call read back to the jury, allegedly without informing defense counsel about the jury’s request. But the jury had already heard Buckenmeyer’s testimony, and 5 Campbell does not contest the accuracy of Buckenmeyer’s description of the call. This testimony was also but one part of the State’s evidence against Campbell. In sum, because the state court could have reasonably found any errors harmless, the district court erred in granting habeas relief on the drug counts. 2. We reject Campbell’s alternative assertion of error based on the exclusion of evidence about Tindell’s criminal record. As noted, Tindell’s testimony was not plausible. And given the uncertain factual basis for the excluded evidence and its questionable relevance, Campbell has not shown the state court’s decision was erroneous “beyond any possibility for fairminded disagreement.” White v. Woodall, 572 U.S. 415 , 421 (2014) (quotations omitted). Nor has Campbell shown the exclusion of this evidence was prejudicial. 3. We affirm the district court’s denial of habeas relief on the firearm count. The alleged errors, which related to Campbell’s knowledge of the drugs in his car, bear no apparent relationship to the firearm count, which was supported by overwhelming evidence. AFFIRMED IN PART; REVERSED IN PART. 6

2020-12-02 21:00:27.743714+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/20-16125.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EXAMWORKS, LLC, No. 20-16125 Plaintiff-Appellee, D.C. No. 2:20-cv-00920-KJM-DB v. TODD BALDINI; ABYGAIL BIRD; MEMORANDUM* LAWRENCE STUART GIRARD; PAMELLA TEJADA, Defendants-Appellants. Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding Argued and Submitted November 16, 2020** San Francisco, California Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges. In this trade-secret misappropriation case, the defendants—former employees of plaintiff ExamWorks, LLC—challenge a portion of the district court’s preliminary injunction limiting defendants’ ability to conduct business with ExamWorks customers. Like the parties, we refer to this portion of the preliminary * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. injunction as the “conducting business” provision. We have jurisdiction under 28 U.S.C. § 1292 (a)(1). We vacate the “conducting business” provision and remand for further proceedings consistent with this decision. The “conducting business” provision states that: Defendants are hereby enjoined from conducting business with any individual or entity that did business with ExamWorks before defendants stopped working there to the extent those individuals or entities are identified in the bundle of trade secret materials misappropriated by defendants, including, without limitation, curated lists identifying ExamWorks’ clients, medical providers, and doctors; provided however that defendants are not precluded from lawfully announcing their new employment as long as any announcement does not make use of plaintiff’s trade secrets. Defendants contend this provision is too broad because it prevents them from soliciting tens of thousands of publicly identifiable customers, even when defendants have not solicited these customers using ExamWorks trade secrets. The district court entered its preliminary injunction under California’s Uniform Trade Secrets Act (UTSA), Cal. Civ. Code §§ 3426 –3426.11, and the analogous federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 . The parties have identified no relevant difference in California or federal law, and we thus evaluate the “conducting business” provision under California law. Under California law, “[a]ctual or threatened” trade secret misappropriation may be enjoined. Cal. Civ. Code § 3426.2 (a); see also 18 U.S.C. § 1836 (b)(3)(A)(i). In addition, “the injunction may be continued even after the trade secret has been 2 lawfully disclosed ‘in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.’” Morlife, Inc. v. Perry, 66 Cal. Rptr. 2d 731 , 740 (Ct. App. 1997) (quoting Cal. Civ. Code § 3426.2 (a)). At oral argument in this appeal, defendants did not contest that the district court could preliminarily enjoin them from conducting business with those ExamWorks customers they solicited using ExamWorks’s misappropriated trade secrets. See Morlife, 66 Cal. Rptr. 2d at 739–40. The district court found that the defendants had used ExamWorks’s trade-secret information to solicit at least some ExamWorks customers. That finding is not clearly erroneous. However, the district court did not determine how many—or which— customers the defendants improperly solicited using ExamWorks’s trade secrets. And the “conducting business” provision prevents defendants from conducting business with any ExamWorks customer identified in the misappropriated trade- secret information, even if defendants did not directly or indirectly use the trade- secret information to solicit that customer. The district court’s findings do not justify an injunction of that breadth, which prevents defendants from engaging in lawful business. In determining the proper scope of an injunction, California law requires consideration of the employer’s interest in protecting its trade secrets and the former employees’ interest in working and competing in their chosen field. Ret. Grp. v. 3 Galante, 98 Cal. Rptr. 3d 585 , 592–93 (Ct. App. 2009). In determining this balance, “it is not the solicitation of the former employer’s customers, but is instead the misuse of trade secret information, that may be enjoined.” Id. at 593 . In addition, “although an individual may violate the UTSA by using a former employer’s confidential client list to solicit clients, the UTSA does not forbid an individual from announcing a change of employment, even to clients on a protected trade secret client list.” Reeves v. Hanlon, 95 P.3d 513 , 522 (Cal. 2004). Defendants maintain, and ExamWorks does not dispute, that defendants can identify numerous potential customers through publicly available sources, such as online directories. While these customers may also be among ExamWorks’s thousands of customers, there is not a sufficient basis for enjoining defendants from conducting business with ExamWorks customers they have not solicited using the misappropriated trade secrets. See Galante, 98 Cal. Rptr. 3d at 593–96. To that extent, the district court’s preliminary injunction “preclude[s] the precise type of competition . . . [that] is otherwise permissible.” Id. at 594; see also Stormans, Inc. v. Selecky, 586 F.3d 1109 , 1119 (9th Cir. 2009) (injunctive relief must “be tailored to remedy the specific harm alleged” (quotations omitted)). MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), upon which ExamWorks relies, does not support the “conducting business” provision as it did not address the propriety of enjoining a trade-secret defendant from doing business with any 4 customer on a misappropriated trade-secret list. We appreciate that the district court was handling a fast-moving preliminary injunction proceeding and note that the defendants on appeal challenge only one portion of the preliminary injunction. The other portions of the preliminary injunction remain in effect. This includes the requirement that defendants are enjoined “from acquiring, accessing, disclosing, or using” ExamWorks’s trade secrets, which on its own prohibits defendants from using ExamWorks’s trade-secret compilations to solicit ExamWorks’s customers. See Galante, 98 Cal. Rptr. 3d at 594. For the foregoing reasons, we vacate the preliminary injunction’s “conducting business” provision. On remand, the district court retains discretion, consistent with this decision, to modify the preliminary injunction to ensure the protection of ExamWorks’s trade secrets. The parties shall bear their own costs on appeal.1 VACATED AND REMANDED. 1 We note that defendant-appellant Tejada has settled and informed the Court that she has withdrawn her appeal. ECF No. 53. We construe that as a motion to dismiss the appeal as to Tejada, and grant that request. We are also informed, per ExamWorks’s November 13, 2020, letter to the Court, ECF No. 52, that defendant- appellant Bird has reached an agreement in principle with ExamWorks, under which Bird will withdraw her appeal. However, Bird has yet to file such a request. In all events, defendants’ arguments that Bird should not have been included in the preliminary injunction lack merit and we reject them. 5

2011-08-23 09:34:07+00

http://bulk.resource.org/courts.gov/c/F2/732/732.F2d.939.83-1776.html

732 F.2d 939 *U.S. v. Sullivan 83-1776 United States Court of Appeals, Fifth Circuit. 4/18/84 1 W.D.Tex. AFFIRMED 2 --------------- * Fed.R.App.P. 34(a); 5th Cir.R. 34.2.

2020-12-02 21:00:27.861498+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/18-71561.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ELMER SIMON VELASQUEZ, No. 18-71561 Petitioner, Agency No. A200-953-315 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 18, 2020** Pasadena, California Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges. Elmer Simon Velasquez petitions for review of the Board of Immigration Appeals’ (BIA) decision affirming an Immigration Judge’s (IJ) denial of his application for withholding of removal and application for protection under the Convention Against Torture (CAT). We review denials of withholding of removal * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). and CAT protection for “substantial evidence.” Quijada-Aguilar v. Lynch, 799 F.3d 1303 , 1305 (9th Cir. 2015); Zetino v. Holder, 622 F.3d 1007 , 1015 (9th Cir. 2010). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for review. 1. Substantial evidence in the record supports the BIA’s determination that Velasquez failed to show that his past harm rose to the level of persecution or an objectively clear probability of future persecution. To succeed on a petition for withholding of removal, a petitioner must show a clear probability of the threat to his life or freedom if deported through either a presumption of fear of future persecution based on past persecution, or an independent clear probability of future persecution. Tamang v. Holder, 598 F.3d 1083 , 1091 (9th Cir. 2010). Although Velasquez testified regarding several fights between himself and gang members in Guatemala when he was in school between 1994 and 1999, he presented no evidence regarding the frequency, duration, or severity of the fights. Velasquez may have believed gang members were threatening him when they said that he “had to be with them one way or another, on good terms or bad terms,” but the record does not reflect any specific consequences to Velasquez or his family from his refusal to join a gang. See Mashiri v. Ashcroft, 383 F.3d 1112 , 1119 (9th Cir. 2004) (“[T]hreats may be compelling evidence of past persecution, particularly when they are specific and menacing and are accompanied by evidence of violent 2 confrontations…”). Gang members stated they were not interested in his father, and other than the shooting incident in 2009 by an unidentified individual with unknown motivations, there is no evidence that Velasquez’s family has suffered any harm by gang members. The BIA reasonably found that Velasquez had not presented evidence of past persecution or an objectively clear probability of future persecution. 2. Substantial evidence supports the BIA’s determination that Velasquez’s harm was not on account of his membership in a particular social group. An applicant seeking withholding of removal based on claims of membership in a particular social group must establish that the group is composed of members who share a common immutable characteristic, defined with particularity, and socially distinct within the society in question. Reyes v. Lynch, 842 F.3d 1125 , 1134-37 (9th Cir. 2016). Although the social distinction prong of this determination is made on a case-by-case basis, we have repeatedly found groups like the one proposed by Velasquez not to be protected social groups. Id. at 1137 (former members of the Mara 18 gang in El Salvador who have renounced their membership); Diaz Torres v. Barr, 963 F.3d 976 , 980-81 (9th Cir. 2020) (professionals who refuse to cooperate with drug cartels in Mexico); Conde Quevado v. Barr, 947 F.3d 1238 , 1242-43 (9th Cir. 2020) (people who report criminal activity of gangs in Guatemala). In support of his claim, Velasquez 3 presented no evidence indicating that his proposed social group, people who have expressed opposition to gang recruitment, is viewed as socially particularized or distinct within Guatemala. 3. The BIA found that the IJ’s application of the “central reason” standard, rather than evaluating whether a protected ground was “a reason” for Velasquez’s harm, was harmless error. Because Velasquez was reasonably found not to be a member of any cognizable social group, his membership in such a group could not be “a reason” or a “central reason” for his alleged persecution. 4. Substantial evidence supports the BIA’s determination that it is not more likely than not that Velasquez would be tortured with the acquiescence of the government if returned to Guatemala. A petitioner for CAT protection must establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. Kamalthas v. INS, 251 F.3d 1279 , 1284 (9th Cir. 2001). The record does not show that Velasquez was tortured in the past. Moreover, he appears able to relocate within Guatemala, as he did previously while working for the government. The Guatemalan government does not acquiesce to his torture simply because police officers are unable to be with Velasquez at all times. Velasquez has not shown a likelihood of torture if he is returned to Guatemala. PETITION DENIED. 4

2020-12-02 21:00:27.962025+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/19-55891.pdf

FILED NOT FOR PUBLICATION DEC 2 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID LILLIE, No. 19-55891 Plaintiff-Appellant, D.C. No. 2:17-cv-02538-CAS-SS v. MANTECH INT’L CORP., a Delaware MEMORANDUM* Corporation, Defendant-Appellee, v. CALIFORNIA INSTITUTE OF TECHNOLOGY; et al., Movants. Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding Argued and Submitted October 9, 2020 Pasadena, California Before: KLEINFELD, HURWITZ, and BUMATAY, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  David Lillie appeals the district court’s grant of judgment as a matter of law in favor of ManTech International Corporation on his retaliation claims under the False Claims Act, Defense Contractor Whistleblower Protection Act, and California Labor Code. We review the district court’s grant of judgment as a matter of law de novo. Dees v. Cty. of San Diego, 960 F.3d 1145 , 1151 (9th Cir. 2020). Under Rule 50, a district court may grant judgment as a matter of law against a party if the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for that party. Fed. R. Civ. P. 50(a)(1). Judgment as a matter of law may be granted if the evidence “permits only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict.” Wallace v. City of San Diego, 479 F.3d 616 , 624 (9th Cir. 2007). 1. Lillie argues that ManTech’s motions for judgment as a matter of law, both before and after the jury returned its verdict, were improperly filed because they did not sufficiently specify the deficiencies in Lillie’s trial evidence. Because Lillie did not object on this basis before the trial court, we decline to consider this 2 argument. See C.B. v. City of Sonora, 769 F.3d 1005 , 1022 n.12 (9th Cir. 2014) (citing Graves v. City of Coeur D’Alene, 339 F.3d 828 , 838–39 (9th Cir. 2003), abrogation on other grounds recognized in OTR Wheel Eng’g, Inc. v. W. Worldwide Servs., Inc., 897 F.3d 1008 , 1016 (9th Cir. 2018)). 2. Section 3730(h) of the False Claims Act protects an employee from being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment” in retaliation for attempting to stop one or more violations of the False Claims Act. 31 U.S.C. § 3730 (h)(1). To succeed on a False Claims Act retaliation claim, the plaintiff must show that (1) he engaged in conduct protected under the False Claims Act; (2) his employer knew that he engaged in protected conduct; and (3) his employer discriminated against him because of his protected conduct. United States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890 , 907 (9th Cir. 2017). To prove that he engaged in conduct protected under the False Claims Act, the plaintiff must show that he investigated his employer on the basis of a reasonable and good faith belief that his employer might have been committing fraud against the government. Id. at 908 (citing Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838 , 845–46 3 (9th Cir. 2002)). A fraud against the government is (1) a false statement or fraudulent course of conduct, (2) made with scienter, (3) that is material, and (4) that causes the government to pay out money or to forfeit money that it is due. United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166 , 1174 (9th Cir. 2006). Lillie provided no evidence that he believed, or that it would have been reasonable for him to believe, that his use of the MathCad files, or his supervisor’s request to delete references to the files from the interoffice memorandum, might cause the government to pay out money or to forfeit money that it was due. The evidence at trial showed that ManTech was paid on its contract with the Jet Propulsion Laboratory based on the number of hours that its employees worked. Nothing in the trial record indicates that Lillie reasonably believed that the conduct he complained of might increase the number of employee hours that ManTech submitted for payment, or might otherwise cause the government to pay out more money. The jury therefore lacked a legally sufficient basis to find for Lillie on this claim, and judgment as a matter of law was appropriate. 4  3. The Defense Contractor Whistleblower Protection Act protects employees of government contractors or subcontractors from discrimination “as a reprisal for disclosing . . . information that the employee reasonably believes is evidence of . . . [g]ross mismanagement of a [NASA] contract, a gross waste of [NASA] funds, an abuse of authority relating to [a NASA] contract or grant, or a violation of law, rule, or regulation related to [a NASA] contract.” 10 U.S.C. § 2409 (a)(1)(B). The statute defines “abuse of authority” as “[a]n arbitrary and capricious exercise of authority that is inconsistent with the mission of [NASA] or the successful performance of [a NASA] contract or grant.” Id. § 2409(g)(6)(B). Lillie did not identify in his opening brief which of his activities were protected under the Defense Contractor Whistleblower Protection Act. Nowhere did he explain how ManTech’s actions could be reasonably viewed as constituting gross mismanagement, a gross waste of NASA funds, an abuse of authority, or a violation of a law, rule, or regulation. When ManTech discussed the specific requirements of the statute in its answering brief, it did so “without the benefit of anything to argue against” and was therefore forced to speculate, addressing arguments that Lillie might have made had he briefed the issue. See Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 1146 , 1149 (9th Cir. 2016). We do not 5 consider arguments not specifically and distinctly argued by a party in its opening brief. See Smith v. Marsh, 194 F.3d 1045 , 1052 (9th Cir. 1999); Greenwood v. Fed. Aviation Admin., 28 F.3d 971 , 977 (9th Cir. 1994) (citing Miller v. Fairchild Indus., Inc., 797 F.2d 727 , 738 (9th Cir. 1986)). Nor will we manufacture arguments on the petitioner’s behalf. See Greenwood, 28 F.3d at 977 . We therefore affirm the district court’s judgment on the Defense Contractor Whistleblower Protection Act claim. 4. Similarly, Lillie forfeited any argument that ManTech retaliated against him in violation of California Labor Code § 1102.5(b). California law provides that an employer may not retaliate against an employee for disclosing information that the employee has reasonable cause to believe discloses “a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” Cal. Labor Code § 1102.5 (b). Lillie’s opening brief failed to specify any statute, rule, or regulation to which his disclosure related.1 1 Because we affirm the district court on all claims, we dismiss as moot Lillie’s appeal of his motions for back pay and attorney’s fees. 6 AFFIRMED. 7

2020-12-02 21:00:28.095786+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/19-16775.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BRIAN H.; ALEX H., No. 19-16775 Plaintiffs-Appellants, D.C. No. 3:17-cv-03095-MMC v. MEMORANDUM* BLUE SHIELD OF CALIFORNIA; et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding Argued and Submitted November 18, 2020 San Francisco, California Before: TASHIMA, NGUYEN, and HURWITZ, Circuit Judges. Brian H. and Alex H. appeal a district court judgment in favor of Blue Shield of California and others in this ERISA action seeking coverage for Alex’s two- month stay at a residential mental health treatment facility. We have jurisdiction under 28 U.S.C. § 1291 . Because the ERISA plan at issue “explicitly grants the administrator discretion to interpret the plan’s terms,” we “review Blue Shield’s * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. decision for abuse of discretion.” Harlick v. Blue Shield of Cal., 686 F.3d 699 , 707 (9th Cir. 2012). As Blue Shield “has a conflict of interest in deciding whether to grant or deny benefits,” our review is “tempered by skepticism,” id., and we must consider any “procedural irregularities” in the processing of the claim, Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 , 972 (9th Cir. 2006) (en banc). Applying that standard of review, we affirm the district court’s conclusion that Blue Cross did not abuse its discretion in denying the benefits sought. 1. Although not disputing that Alex required care for mental health, Blue Shield denied benefits for a residential program as not medically necessary because Alex would not present a significant risk of harm to himself or others if treated in a less intensive setting. In doing so, it relied on the Magellan Health, Inc. Residential Treatment, Psychiatric, Child and Adolescent Guidelines (“Magellan guidelines”) and the opinions of at least five psychiatrists, three of whom were not affiliated with Blue Shield. Appellants claim that the Magellan guidelines do not reflect generally accepted professional standards, as required by the ERISA plan at issue. But, the district court found that Appellants did not establish this claim, reasonably relying on a psychiatrist’s declaration that “the [Magellan] guidelines are consistent with generally accepted professional standards.” 2. Appellants argue that Blue Shield procedurally erred by failing to consider a report from a treating physician about risk of self-harm. The record does 2 not make clear if this report was ever submitted to Blue Shield by Appellants. But, even assuming it was, an independent medical reviewer acting on behalf of the California Department of Managed Health Care did consider it, and nonetheless concluded that residential treatment was not medically necessary. Any procedural error therefore would not have affected the outcome of the appeals process. 3. Even assuming that a procedural irregularity occurred when a Blue Shield medical director decided the third appeal without consultation with a health care specialist, see 29 C.F.R. § 2560.503-1 (h)(3)(iii), that error was harmless. The repeated basis for denial of benefits was that Alex did not present the requisite risk of harm to himself or others to justify residential treatment, and no new information was presented on that issue by any physician in connection with the third appeal. 4. Blue Shield was neither required under 29 C.F.R. § 2560.503-1 (g) to list all of the Magellan guidelines in its initial denial letter, nor, having offered to provide Appellants a copy of the guidelines upon request, to supply one absent a request. Denial of the first appeal was not deficient for failing to cite from the Magellan guidelines verbatim, see id. § 2560.503-1(j), nor, after review of the record by two additional specialists, for including additional reasons for denial than originally offered. Nor did Blue Shield err by citing the Milliman Care Guidelines in denying the second and third appeals, as those guidelines, like the Magellan guidelines upon which the reviewers also relied, characterized residential treatment 3 as not medically necessary in the absence of risk of harm to self or others. AFFIRMED. 4

2020-12-02 21:00:28.207318+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2020/12/02/20-35158.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BRETT ADAMS, No. 20-35158 Plaintiff-Appellant, D.C. No. 2:19-cv-01005-TSZ v. MEMORANDUM* SKAGIT BONDED COLLECTORS, LLC, DBA SB&C Ltd., Defendant-Appellee. Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding Argued and Submitted November 17, 2020 Seattle, Washington Before: GOULD and FRIEDLAND, Circuit Judges, and BOUGH,** District Judge. Plaintiff Brett Adams appeals the district court’s order granting judgment on the pleadings on his Fair Debt Collection Practices Act (“FDCPA”) claims to Defendant Skagit Bonded Collectors, LLC. Adams allegedly received debt * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. collection letters from Skagit Bonded Collectors that failed to clearly identify his current creditor. Adams argues that these letters violated the FDCPA’s affirmative disclosure requirement, 15 U.S.C. § 1692g(a)(2), and its prohibition on false or misleading representations, id. § 1692e. Adams alleges that he was harmed as a result because, “upon reading the letter, [he] was unsure of who the current creditor was.” We may not decide the merits of this case unless we have subject-matter jurisdiction, which requires the plaintiff have Article III standing. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 , 93-95, 102-04 (1998). Although neither party initially raised the question of standing in their briefs on appeal, we must address jurisdictional issues sua sponte. Wilson v. Lynch, 835 F.3d 1083 , 1090 n.2 (9th Cir. 2016). We therefore ordered supplemental briefing on whether Adams has Article III standing. Article III standing consists of (1) an injury in fact (2) traceable to the challenged conduct of the defendant (3) that is likely to be redressed through a favorable judicial decision. Spokeo, Inc. v. Robins, 136 S. Ct. 1540 , 1547 (2016) (Spokeo I). An injury in fact must be both concrete and particularized. Id. at 1548 . Because “Article III standing requires a concrete injury even in the context of a statutory violation . . . a bare procedural violation, divorced from any concrete 2 harm,” does not confer standing upon a plaintiff. Id. at 1549 .1 We use a two-step approach to assess whether a statutory violation causes a concrete injury sufficient to satisfy Article III. Patel v. Facebook, Inc., 932 F.3d 1264 , 1270 (9th Cir. 2019). “We ask ‘(1) whether the statutory provisions at issue were established to protect the plaintiff’s concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests.’” Id. at 1270-71 (alteration omitted) (quoting Robins v. Spokeo, Inc., 867 F.3d 1108 , 1113 (9th Cir. 2017)). 1. To identify the interests protected by the FDCPA, we examine “[h]istorical practice” and the “legislative judgment” underlying the provisions at issue. Campbell v. Facebook, Inc., 951 F.3d 1106 , 1117 (9th Cir. 2020). The closest common-law analogue to Adams’s claims is fraud. At common law, actions for fraud—including fraudulent concealment and nondisclosure—required proof of reliance and resulting pecuniary loss. See, e.g., Restatement (Second) of Torts §§ 525, 537, 550-552 (Am. L. Inst. 1977). Similarly, congressional 1 Some of our prior cases have held that a plaintiff alleges a cognizable injury in fact merely by alleging a violation of the FDCPA. See Tourgeman v. Collins Fin. Servs., 755 F.3d 1109 , 1114-16 (9th Cir. 2014); see also Baker v. G.C. Servs. Corp., 677 F.2d 775 , 777 (9th Cir. 1982). The analysis in those cases is “clearly irreconcilable” with Spokeo I and has been abrogated. Miller v. Gammie, 335 F.3d 889 , 900 (9th Cir. 2003) (en banc). 3 judgment suggests a concern with “genuinely misleading statements that may frustrate a consumer’s ability to intelligently choose his or her response” to a debt collector’s communication. Donohue v. Quick Collect, Inc., 592 F.3d 1027 , 1034 (9th Cir. 2010). Statements that induce no reliance do not impede a consumer’s ability to intelligently respond to a debt collector. Because not every misleading statement in a debt collection letter necessarily threatens the recipient’s concrete interests, we consider the alleged violation here more procedural than substantive. Campbell, 951 F.3d at 1119 n.8 (explaining that “procedural obligations . . . sometimes protect individual interests,” while the violation of “a substantive right” always causes concrete harm (citation omitted)).2 2. Adams has not alleged actual harm or a material risk of harm to the interests protected by the FDCPA. Nothing in the Complaint suggests he took or forewent any action because of the allegedly misleading statements in the letters. 2 We reject Adams’s theory that he has alleged an informational injury that should be treated as substantive. When a plaintiff has a statutory right to information, being deprived of that information can constitute a concrete injury in fact. Spokeo I, 136 S. Ct. at 1549-50 (citing Fed. Election Comm’n v. Akins, 524 U.S. 11 , 20-25 (1998); Pub. Citizen v. Dep’t of Just., 491 U.S. 440 , 449 (1989)). But the doctrine of informational injury does not apply here. The FDCPA protects a consumer’s right to “understand, make informed decisions about, and participate fully and meaningfully in the debt collection process.” Clark v. Cap. Credit & Collection Servs., Inc., 460 F.3d 1162 , 1171 (9th Cir. 2006). “Even though these rights necessarily involve the dissemination of information, they are not thereby tantamount to a right to information per se.” Wilderness Soc’y, Inc. v. Rey, 622 F.3d 1251 , 1259 (9th Cir. 2010). We therefore decline to extend the doctrine of informational injury to the violations alleged. 4 Rather, the Complaint includes a bare allegation of confusion. Without more, confusion does not constitute an actual harm to Adams’s concrete interests. Cf. Syed v. M-I, LLC, 853 F.3d 492 , 499-500 (9th Cir. 2017) (holding that a plaintiff had standing under the Fair Credit Reporting Act when the court could “fairly infer” that his alleged confusion caused him to sign a liability waiver he otherwise would not have). Nor do Adams’s allegations suggest a material risk of harm to his interests. Although his supplemental brief offers a series of examples in which a hypothetical consumer might detrimentally rely on an allegedly misleading creditor identification, the Complaint does not support an inference that Adams himself was ever at risk of detrimental reliance. Because the argument that he might have relied on the allegedly misleading statements to his detriment is entirely “‘conjectural’ or ‘hypothetical’” without additional factual allegations, Adams has not adequately pleaded a material risk of injury. Lujan v. Defs. of Wildlife, 504 U.S. 555 , 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149 , 155 (1990)). He therefore lacks Article III standing. We vacate the judgment on the pleadings and remand with instructions to dismiss without prejudice for lack of jurisdiction. See Hampton v. Pac. Inv. Mgmt. Co., 869 F.3d 844 , 846 (9th Cir. 2017) (“Dismissals for lack of subject-matter jurisdiction . . . must be without prejudice.”). VACATED AND REMANDED WITH INSTRUCTIONS. 5

2020-12-02 21:00:37.38927+00

http://www.cadc.uscourts.gov/internet/judgments.nsf/226C564A63B481B58525863200727D52/$file/20-5117-1874123.pdf

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 20-5117 September Term, 2020 1:19-cv-00890-UNA Filed On: December 2, 2020 Manetirony Clervrain, Appellant v. Eric H. Holder, Jr., et al., Appellees ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BEFORE: Millett and Pillard, Circuit Judges, and Sentelle, Senior Circuit Judge JUDGMENT This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by appellant. See Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j). Upon consideration of the foregoing, and the motion to proceed in forma pauperis and the August 4, 2020 order to show cause; and the motions “for consideration,” “for opposition,” and “for enabling right status,” it is ORDERED that the order to show cause be discharged. It is FURTHER ORDERED that the motion for leave to proceed in forma pauperis be granted. Because appellant appears to have been civilly detained in the custody of the United States Customs and Immigration Enforcement when he filed the notice of appeal, the filing fee requirements of the Prison Litigation Reform Act do not apply to this appeal. See 28 U.S.C. § 1915 (h); LaFontant v. INS, 135 F.3d 158 , 165 (D.C. Cir. 1998). It is FURTHER ORDERED that the motions for consideration, for opposition, and for enabling right status be denied. It is  United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 20-5117 September Term, 2020 FURTHER ORDERED AND ADJUDGED that the January 28, 2020 order denying appellant’s motions for leave to proceed in forma pauperis and for reconsideration of the dismissal of his complaint be affirmed. Appellant has raised no argument on appeal to rebut the district court’s conclusion that the Prison Litigation Reform Act’s three-strikes bar, 28 U.S.C. § 1915 (g), applied to the district court action and that he had not satisfied the imminent danger exception. See, e.g. U.S. ex rel. Totten v. Bombardier Corp., 380 F.3d 488 , 497 (D.C. Cir 2004) (arguments not raised on appeal are forfeited). Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41. Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Michael C. McGrail Deputy Clerk Page 2

2021-01-26 21:11:04.345675+00

TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT COOKEVILLE AMANDA MOSLEY, ) Docket No 2019-04-0064 Employee, ) Vv. ) HG STAFFING, LLC, ) State File No. 7907-2019 Employer, ) And ) CAROLINA CAS. INS. CO., ) Judge Robert Durham Carrier. ) EXPEDITED HEARING ORDER GRANTING BENEFITS IN PART AND DENYING IN PART This case came before the Court on January 15, 2021, for an Expedited Hearing. Ms. Mosley seeks additional medical and temporary disability benefits for nght wrist and hand complaints she alleges were due to her employment with HG Staffing. The Court holds that Ms. Mosley is not likely to prevail at a hearing regarding medical treatment with Dr. Terry. However, she is likely to prove entitlement to past temporary partial disability benefits from April 8 through June 20, 2019. History of Claim HG Staffing, an employment agency, hired Ms. Mosley in September 2018 to work at Dana Corporation. The parties stipulated that she sustained a work-related injury to her right hand and wrist on January 10, 2019, and she told her supervisor at Dana of her injury. Ms. Mosley testified that the supervisor modified her duties but advised her against giving formal notice of an injury because she could lose her job. Ms. Mosley believed she had been “doing great” at Dana and was on the verge of being offered a full- time position. Thus, she attempted to treat on her own at first. However, Ms. Mosley’s symptoms persisted, and a safety coordinator at Dana insisted she file an accident report, which she did on January 25. Dana then terminated her employment on January 28 due to “performance.” Dana Givens, Chief Operating 1 Officer of HG Staffing, did not provide any evidence regarding Ms. Mosley’s alleged performance deficiency, and she agreed that Dana had not complained of Ms. Mosley’s attendance or production before the termination. However, she testified that Dana would not do so, since it did its own evaluations after ninety days. She asserted that Ms. Mosley’s evaluation was delayed somewhat due to the holidays. Ms. Givens also testified that, once an employee’s contract is terminated, she is taken off HG Staffing’s records unless she reapplies for a new appointment, so Ms. Mosley’s last day of employment was January 25. Ms. Mosley testified that, after her termination, she called HG Staffing about a new assignment but was told nothing was available. Ms. Givens testified she had no knowledge of Ms. Mosley requesting another assignment and stated that HG Staffing had jobs to accommodate any restrictions if Ms. Mosley had remained employed. As for her treatment, HG Staffing initially authorized a visit with Dr. Grayson Smith. He diagnosed wrist pain but did not treat her. After Ms. Mosley filed a Petition for Benefit Determination, HG Staffing agreed to authorize care with orthopedist Dr. James Rubright. Ms. Mosley first saw Dr. Rubright in April and complained of right wrist and thumb pain that she attributed to her work at Dana. Dr. Rubright noted “classic findings” of de Quervain’s tenosynovitis with some thumb joint arthritis and stated that Ms. Mosley’s condition was “classic tendinitis related to overuse.” He gave her a steroid injection and a splint and restricted her from working with her right hand for six weeks. When Ms. Mosley returned in June, Dr. Rubright noted that her pain had migrated to the MCP thumb joint, and her de Quervain’s symptoms were essentially gone. He released her to full duty with no impairment or restrictions. After her release, Ms. Mosley attempted to work at a nursing home for a few weeks but was unable to do so due to worsening pain and weakness around the right thumb joint. She returned to Dr. Rubright in September, and he diagnosed recurrent de Quervain’s syndrome and possible early CMC joint arthritis. However, he was concerned as to whether she had filed a new workers’ compensation claim, since “technically” her old claim had been closed. He went on to say that he did not know if he could “clearly assign causation to her previous work,” given that her symptoms had “essentially resolved” until she worked for another employer. He said he needed “clarification” from HG Staffing’s carrier about approval for additional treatment, since Ms. Mosley did not “technically” have an “open claim” any longer. HG Staffing denied additional care, so Ms. Mosley sought unauthorized treatment in November with orthopedist Roy Terry. He ordered an MRI that revealed CMC osteoarthritis and referred her to Dr. Son Le to evaluate for nerve damage. 2 Dr. Le saw Ms. Mosley in March 2020. His notes are the first to record Ms. Mosley’s account that she injured her hand when she attempted to catch a falling drive shaft. Dr. Le noted she complained of right upper-extremity numbness and pain around the base of her right thumb that extended to her wrist and worsened with activity. On exam, Dr. Le observed bilateral Reynaud’s phenomenon. He performed a stellate ganglion nerve block that improved her symptoms. Ms. Mosley returned to Dr. Terry, and he noted that she had always given a consistent history, and he had no reason to doubt her. He then completed a “check-the- box” note, which asked whether he agreed “that Amanda Mosley’s injury is more likely than not to a reasonable Degree of medical certainty an injury that occurred on the job while working for the company HG Staffing and the reason she had to seek medical attention.” He checked “yes.” Dr. Terry saw Ms. Mosley again in October. After noting Dr. Rubright’s reservations about causation, he said that he believed that the problems she initially treated under workers’ compensation are “probably the same problems she is having now,” which are “more likely than not related to her work-related condition.” HG Staffing then wrote to Dr. Rubright with a “check-the-box” causation letter. He checked “no” when asked whether he was “able to state to a reasonable degree of medical certainty (more than 50%) that Ms. Mosley’s current symptomology is related to her employment at HG Staffing when considering all causes.” HG Staffing also obtained an independent medical evaluation (IME) with orthopedist David West. He recorded that Ms. Mosley worked for HG Staffing in a job that required “repetitive abduction and extension of the thumb.” He noted a history of rheumatoid arthritis and chronic pain. He said that he believed Ms. Mosley likely suffered a “de Quervain’s-type syndrome” that was “most likely a direct injury from her repetitive use” at HG Staffing. He could not explain her current pain; however, he felt that her symptoms were multifactorial, and her condition was “certainly” not greater than 50% caused by her work injury at HG Staffing. He concluded by stating that, while treatment might be necessary, the need was not “directly related” to her 2019 injury, particularly since she was released and “doing fine.” Findings of Fact and Conclusions of Law Ms. Mosley must present evidence from which this Court can determine that she is likely to prove at trial that her current right-hand and wrist symptoms arose primarily out of and in the course and scope of her employment as well as her entitlement to medical and temporary disability benefits. See McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015). 3 To prove causation, she must show to a reasonable degree of medical certainty that her January 10 work accident contributed more than fifty percent in causing her current symptoms, considering all causes. Reasonable degree of medical certainty means “it is more likely than not considering all causes, as opposed to speculation or uncertainty.” See Tenn. Code Ann. § 50-6-102 (14) (2020). Given that the standard requires “medical certainty,” causation must be shown through expert medical opinion. /d. The parties stipulated, and the doctors agreed, that Ms. Mosley suffered a work injury to her right hand and wrist while working for HG Staffing. They disputed whether this injury is the source of Ms. Mosley’s current symptoms. The Court first notes that it found Ms. Mosley to be a candid, credible witness who provided balanced testimony without exaggeration or hyperbole. Like Dr. Terry, the Court has no reason to doubt her truthfulness. Nevertheless, facts that the Court would find useful in assessing causation are missing from the evidence. Ms. Mosley did not testify as to whether she suffered similar symptoms before her employment. While the parties stipulated to a January 10 work injury, Ms. Mosley did not describe the injury itself, and the medical records are divided as to whether she reported repetitive trauma or a specific incident involving her attempt to catch a driveshaft. Also, Ms. Mosley did not testify as to the nature of her employment with the nursing home, or to the accuracy of Dr. Rubright’s statement that her symptoms had resolved before working there. Regarding the medical proof, Dr. Rubright’s opinion on causation is entitled to a presumption of correctness, since he was the authorized physician. Tenn. Code Ann. § 50-6-102 (14)(E). However, the Court finds his opinion unsatisfactory. His September record was very qualified as to causation and was mostly concerned with whether HG Staffing would pay for benefits under the closed “old claim.” The “check-the-box” causation letter he signed merely confirms that he cannot give an opinion that the symptoms are causally related to the work injury—it is not an affirmative causation denial. In addition, both Dr. Rubright and Dr. West believe that Ms. Mosley’s de Quervain’s symptoms had resolved and then returned after she attempted to return to work for a few weeks immediately after her release from care to be significant in determining causation. However, neither doctor explained to the Court’s satisfaction these conclusory opinions. Dr. Terry’s causation opinion is also problematic. The records are unclear as to how much Dr. Terry knew of Ms. Mosley’s employment with the nursing home, which Dr. Rubright and Dr. West considered so significant. More important, he never explicitly stated that Ms. Mosley’s current symptoms and need for treatment primarily arise out of 4 her work injury with HG Staffing. That opinion could perhaps be gleaned from combining his records with the “check-the-box” letter, but it is far from clear. Dr. Terry’s opinion does not have to use specific language from Tennessee Code Annotated section 50-6-102(14) for the Court to find causation, but the proof must be sufficient to meet the standard. See Thysavathdy v. Bridgestone Ams. Tire Operations, No. M2017- 01575-SC-R3-WC, 2018 TN LEXIS 313, at *26 (Tenn. Workers’ Comp. Panel June 8, 2018). After careful consideration, the Court holds the evidence does not do so. Although the Court finds problems with the evidence that both parties relied on regarding causation, the burden lies with Ms. Mosley to show she is likely to prevail at trial in proving that her current symptoms are causally related to her injury at HG Staffing. | Given the current record, the Court finds that Ms. Mosley’s proof is insufficient and denies her request regarding medical expenses and further care with Dr. Terry. The Court next considers temporary partial disability benefits. Ms. Mosley must prove: (1) a partial disability from working as the result of a compensable injury; (2) a causal connection between the injury and the inability to work; and (3) the duration of the period of disability. See Shepherd v. Haren Const. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 15, at *13 (Mar. 30, 2016). She must also show the difference between what she could have earned in her partially-disabled state and her average weekly wage. Tenn. Code Ann. § 50-6-207 (2)(A). Applying these standards, Dr. Rubright restricted Ms. Mosley from using her right hand on April 8, 2019. This restriction continued until June 20, 2019. During that time, HG Staffing did not offer her employment within her restrictions. Further, the Court holds that HG Staffing provided insufficient evidence to show that Ms. Mosley was terminated for cause. Although Dana claimed it terminated her contract for “production,” HG Staffing did not present any evidence of a lack of production. Ms. Givens admitted that Dana did not object to Ms. Mosley’s attendance or production before her termination. Ms. Mosley testified that she was “doing great” and anticipated an imminent offer to jon Dana full-time. Further, her supervisor warned her that if she reported an injury, she would be terminated, which in fact happened the day after she made a formal report. Therefore, the Court holds that HG Staffing produced insufficient evidence that it terminated Ms. Mosley for cause, and it did not offer her employment within her restrictions. Therefore, she was unable to earn any income in her disabled state. The Court holds that Ms. Mosley is likely to prove entitlement to temporary partial disability benefits, at her full compensation rate of $293.62, from April 8 through June 20, 2019, in the amount of $3,062.03. However, Ms. Mosley did not provide evidence of any further medical restrictions against employment, so she is not entitled to additional temporary partial disability benefits at this time. IT IS, THEREFORE, ORDERED THAT: 1. Ms. Mosley’s requests for payment of past medical expenses and that HG Staffing authorize care with Dr. Terry are denied. 2. HG Staffing shall pay Ms. Mosley temporary partial disability benefits at a compensation rate of $293.62 from April 8 through June 20, 2019, in the amount of $3,062.03. 3. This case is set for a Scheduling Hearing on Thursday, March 4, 2021, at 10:30 a.m. Central Time. The parties must call 615-253-0010 to participate. Failure to appear might result in a determination of the issues without the party’s participation. 4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with this Order must occur no later than seven business days from the date of entry of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The Insurer or Self-Insured Employer must submit confirmation of compliance with this Order to the Bureau by email to WCCompliance.Program@tn.gov no later than the seventh business day after entry of this Order. Failure to submit the necessary confirmation within the period of compliance might result in a penalty assessment for non-compliance. For questions regarding compliance, please contact the Workers’ Compensation Compliance Unit via email at WCCompliance.Program@tn. gov. ENTERED on January 26, 2021. Kb A Wl ROBERT DURHAM, JUDGE Court of Workers’ Compensation Claims APPENDIX Technical Record: 1. Petition for Benefit Determination 2. Dispute Certification Notice 3. Order of Continuance Order Compelling Discovery HG Staffing’s Exhibit List HG Staffing’s Witness List HG Staffing’s Expedited Hearing Brief NAW S Exhibits: Wage Statement Dispute Resolution Statement Choice of Physician Form First Report of Injury Affidavit of Denise Givens HG Staffing’s Submitted Medical Records Ms. Mosley’s Submitted Medical Records Dr. Terry’s record dated June 18, 2020 Dr. Terry’s record dated October 8, 2020 SO APNNMEWNE CERTIFICATE OF SERVICE I certify that a copy of the Order was sent as indicated on January 26, 2021. Name Certified | Via Email Address Mail Email Amanda Mosley | X XxX 217 Hillcrest Drive Carthage, TN 37030 Ajmosl78@gmail.com Rosalia Fiorello xX rfiorello@wimberlylawson.com { / ) | (f | A AL Br SUK WM aiiaal PENNY SHUM, Court Clerk WC.CourtClerk@tn.gov  Expedited Hearing Order Right to Appeal: If you disagree with this Expedited Hearing Order, you may appeal to the Workers’ Compensation Appeals Board. To appeal an expedited hearing order, you must: 1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the Clerk of the Court of Workers’ Compensation Claims within seven business days of the date the expedited hearing order was filed. When filing the Notice of Appeal, you must serve a copy upon all parties. 2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar days after filing of the Notice of Appeal. Payments can be made in-person at any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the alternative, you may file an Affidavit of Indigency (form available on the Bureau’s website or any Bureau office) seeking a waiver of the fee. You must file the fully- completed Affidavit of Indigency within ten calendar days of filing the Notice of Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will result in dismissal of the appeal. 3. You bear the responsibility of ensuring a complete record on appeal. You may request from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of the proceedings is to be filed, a licensed court reporter must prepare the transcript and file it with the court clerk within ten business days of the filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within ten business days of the filing of the Notice of Appeal. The statement of the evidence must convey a complete and accurate account of the hearing. The Workers’ Compensation Judge must approve the statement before the record is submitted to the Appeals Board. If the Appeals Board is called upon to review testimony or other proof conceming factual matters, the absence of a transcript or statement of the evidence can be a significant obstacle to meaningful appellate review. 4. If you wish to file a position statement, you must file it with the court clerk within ten business days after the deadline to file a transcript or statement of the evidence. The party opposing the appeal may file a response with the court clerk within ten business days after you file your position statement. All position statements should include: (1) a statement summarizing the facts of the case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition of the case as a result of the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, or other authority. For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.  NOTICE OF APPEAL Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-work/ wce.courtclerk@tn.gov | 1-800-332-2667 Docket No.: State File No.: Date of injury: Employee Employer Notice is given that [List name(s) of all appealing party(ies). Use separate sheet if necessary.] appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file- stamped on the first page of the order(s) being appealed): 0 Expedited Hearing Order filed on O Motion Order filed on 0 Compensation Order filed on C1 Other Order filed on issued by Judge Statement of the Issues on Appeal Provide a short and plain statement of the issues on appeal or basis for relief on appeal: Parties Appellant(s) (Requesting Party): fo Employer] ‘Employee Address: Phone: Email: Attorney’s Name: BPR#: Attorney's Email: Phone: Attorney's Address: * Attach an additional sheet for each additional Appellant * LB-1099 rev. 01/20 Page lof 2 RDA 11082 Employee Name: Docket No.: Date of Inj.: Appellee(s) (Opposing Party): [| Employer [- ‘Employee Appellee’s Address: Phone: Email: Attorney’s Name: BPR#: Attorney’s Email: Phone: Attorney’s Address: * Attach an additional sheet for each additional Appellee * CERTIFICATE OF SERVICE I, , certify that | have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this case on this the day of , 20 [Signature of appellant or attorney for appellant] LB-1099 rev. 01/20 Page 2 of 2 RDA 11082

2020-12-02 21:09:48.680827+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07216.htm

People v Borgella (2020 NY Slip Op 07216) People v Borgella 2020 NY Slip Op 07216 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department LEONARD B. AUSTIN, J.P. ROBERT J. MILLER VALERIE BRATHWAITE NELSON PAUL WOOTEN, JJ. 2017-11728 (Ind. No. 3492/14) [*1]The People of the State of New York, respondent, v Andy Borgella, appellant. Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Brufee, and Denise Pavlides of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alexander Jeong, J.), rendered July 20, 2017, convicting him of murder in the second degree and attempted robbery in the second degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant's contention that the search of his historical cell site location information (hereinafter CSLI) records, obtained by means of a court order issued upon a showing of less than probable cause, violated the Fourth Amendment (see Carpenter v United States, _____ US _____, 138 S.Ct. 2206) is unpreserved for appellate review (see CPL 470.05[2]; People v Lanham, 177 AD3d 637, 638; People v Taylor, 172 AD3d 1110). In any event, any error in the Supreme Court's admission of the defendant's CSLI records was harmless, because the evidence of guilt was overwhelming and there was no reasonable possibility that the error might have contributed to the defendant's convictions (see People v Brown, 181 AD3d 701, 702; People v Taylor, 172 AD3d at 1111). The defendant's contention that certain remarks made by the prosecutor during summation require reversal is unpreserved for appellate review, since the defendant failed to object to the remarks at issue (see CPL 470.05[2]; People v Alisuarez, 186 AD3d 1391). In any event, although some of the prosecutor's remarks in summation were improper, they were not, either individually or collectively, so egregious as to deprive the defendant of a fair trial (see People v Anglin, 178 AD3d 839, 841; People v Lopez, 150 AD3d 1266, 1267). The defendant's claim that the Supreme Court failed to conduct a sufficient inquiry of a juror who reported to the court that he heard someone take a picture in the courtroom was waived, as defense counsel agreed with the court that the juror could be fair and impartial and did not request that the court conduct further questioning (see People v Armstrong, 138 AD3d 877, 879). Contrary to the defendant's contention, the Supreme Court was within its discretion in suspending jury deliberations for a period of over 24 hours and denying the defendant's motion for a mistrial, despite that the defendant did not waive the provisions of CPL 310.10(2) or consent [*2]to substitute an alternate juror, where a juror was briefly hospitalized but reported that he would return to deliberate the following day (see People v Ferguson, 67 NY2d 383, 388; People v Taylor, 32 Misc 3d 546). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80). AUSTIN, J.P., MILLER, BRATHWAITE NELSON and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2013-10-30 07:41:42.835078+00

King

176 B.R. 784 (1994) In re Catherine B. STEBBINS-HOPF, Debtor. Catherine B. STEBBINS-HOPF, Plaintiff, v. TEXAS GUARANTEED STUDENT LOAN CORPORATION, Defendant. Bankruptcy No. 92-53234-RBK. Adv. No. 93-5180-RBK. United States Bankruptcy Court, W.D. Texas, San Antonio Division. September 29, 1994. *785 David T. Cain, San Antonio, TX, for plaintiff Catherine B. Stebbins-Hopf. Doug W. Ray, Ray, Wood & Fein, Austin, TX, for defendant Texas Guaranteed Student Loan Corp. OPINION RONALD B. KING, Bankruptcy Judge. In this adversary proceeding, Catherine B. Stebbins-Hopf (the "Debtor") seeks to discharge approximately $9500 of government guaranteed Student loans held by the Texas Guaranteed Student Loan Corporation ("TGSLC") under section 523(a)(8)(B) of the Bankruptcy Code[1] on the grounds that repayment of the loans will constitute an undue hardship. The question presented is whether a single debtor with no dependents and some health problems which do not preclude her from maintaining employment is entitled to discharge her student loans because her expenses are greater than her income. For the reasons stated below, the Court concludes that the loans are not dischargeable. I. FACTS The Debtor executed three separate promissory notes each in the original principal amount of $2500, which were assigned to TGSLC. The purpose of the loans was to provide the Debtor with funds to assist her in obtaining a degree in geology at The University of Texas at San Antonio. Because the Debtor could not make ends meet, she took full-time employment, and did not complete her degree. The Debtor has repaid approximately $1300, primarily in interest. The Debtor has no degree, no vocational training, no certification, and no special licenses. The Debtor has, however, maintained employment in the past, and was promoted to her present job. Her net income is approximately $1300 per month, which the Debtor claims is approximately $500 per month less than her expenses. The Debtor and her family have some health problems. The Debtor has foot nerve damage, bronchitis, and arthritis. While these ailments have caused the Debtor to miss work on occasion, she has been able to maintain employment and receive a promotion. The Debtor's daughter, a married adult, is an epileptic. The Debtor's mother has cancer, and the Debtor's grandchildren are asthmatic. The military provides health care for the Debtor's adult daughter. The *786 Debtor's mother provides the Debtor with financial assistance. Considering these circumstances, the Court must decide whether a discharge of the Debtor's student loans is warranted under the undue hardship exception of section 523(a)(8)(B) of the Bankruptcy Code. II. DISCUSSION "UNDUE HARDSHIP" Section 523(a)(8)(B) of the Bankruptcy Code provides an exception to a debtor's discharge: (8) for an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship, or stipend, unless — . . . . . (B) excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor's dependents . . . 11 U.S.C. § 523(a)(8)(B) (Supp. IV 1992). Because the Bankruptcy Code does not define "undue hardship," bankruptcy courts have taken different approaches in actions to determine the dischargeability of student loans. In In re Roberson, 999 F.2d 1132, 1135 (7th Cir.1993), the Seventh Circuit adopted the undue hardship test set forth by the Second Circuit in Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir.1987): "[U]ndue hardship" requir[es] a three-part showing: (1) that the debtor cannot maintain, based on current income and expenses, a "minimal" standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans. Brunner, 831 F.2d at 396. The first prong of the Brunner test requires an examination of the debtor's current expenses and income to determine if repayment of the loan would cause the debtor to fall below a minimal standard of living for the debtor and her dependents. This is a threshold matter which must be met before the Court examines the next two prongs. Because information involving the debtor's current financial status is readily available, the debtor must, at the very least, "[demonstrate] that . . . [s]he is unable to earn sufficient income to maintain [her]self and [her] dependents and to repay the educational debt." Roberson, 999 F.2d at 1135 (quoting COMMISSION ON THE BANKRUPTCY LAWS OF THE UNITED STATES, REPORT, H.R.Doc. No. 137, 93d Cong., 1st Sess., Pt. II, at 140 n. 15 (1973)). The second prong of this test requires that the debtor show that her strained financial condition, demonstrated by the application of the first prong of the test, will continue for a significant portion of the repayment period. This part of the test is consistent with Congress's intention that there be "undue hardship" and not simply "ordinary hardship." Mathews v. Higher Educ. Assistance Found. (In re Mathews), 166 B.R. 940, 943 (Bankr. D.Kan.1994). "[T]he dischargeability of student loans should be based upon the certainty of hopelessness, not simply a present inability to fulfill financial commitment." Roberson, 999 F.2d at 1136 (quoting Briscoe v. Bank of New York (In re Briscoe), 16 B.R. 128, 131 (Bankr.S.D.N.Y.1981)). Therefore, the Court must determine whether there is a current inability to pay and, additionally, whether circumstances strongly suggest the debtor will be unable to repay over an extended period of time. Id. (citing Brunner, 831 F.2d at 396). After the debtor satisfies the first two prongs of the test, she must meet the final prong — the debtor must show that she made a good faith effort to repay the loan. Because educational loans are different from other loans in that they are made without security and without co-signers, the student assumes an obligation to make a good faith effort to repay those loans. The Court should consider whether the debtor has made an effort to maximize her income and minimize *787 her expenses. Therefore, a debtor may not willfully or negligently cause her own default. Roberson, 999 F.2d at 1136. Some bankruptcy and district courts have used the three-part test articulated in Higher Educ. Assistance Agency v. Johnson (In re Johnson), 5 Bankr.Ct.Dec. 532 (Bankr. E.D.Pa.1979).[2] The Johnson test is essentially the same as the Brunner test except that it adds a policy component. The policy test asks two questions: (1) Whether the dominant purpose of the bankruptcy petition was to discharge the student debt, or (2) whether the debtor has definitely benefitted financially from the education which the loan helped to finance.[3] The first question under this prong of the test is aimed at bankruptcy petitions which are filed primarily to avoid repayment of loans. The Brunner requirements address this concern. Roberson, 999 F.2d at 1136. The second question of the policy test is improper because it examines whether the debtor definitely benefitted financially from the education financed by the loan. Johnson, 5 Bankr.Ct.Dec. at 544. This question conflicts with the concept of government backed loans because the government is not an insurer of educational benefit. As stated in Roberson: The government is not twisting the arms of potential students. The decision of whether or not to borrow for a college education lies with the individual; absent an expression to the contrary, the government does not guarantee the student's future financial success. If the leveraged investment of an education does not generate the return the borrower anticipated, the student, not the taxpayers, must accept the consequences of the decision to borrow. 999 F.2d at 1137. Applying the test adopted by the Second and Seventh Circuits, this Court must decide whether the Debtor's circumstances justify discharging her educational loan debt. The Debtor has the burden of proving that this is warranted. Id. at 1137 (citing Cadle Co. v. Webb (In re Webb), 132 B.R. 199, 201 (Bankr.M.D.Fla.1991); Ealy v. First Nat'l Bank of Matton (In re Ealy), 78 B.R. 897, 898 (Bankr.C.D.Ill.1987)). Can the Debtor maintain, based on current income and expenses, a minimal standard of living for herself and her dependents if forced to repay the loans? Despite the Debtor's claims that her mother, daughter and grandchildren are dependents, the Court concludes that these family members are not dependents. There is no evidence that the Debtor claims these individuals as dependents for tax purposes. Her daughter is married, and the military provides health care for her daughter's family. Moreover, the Debtor claims that she provides financial assistance to her family, but she also admits that she accepts financial assistance from her family. From these facts, the Court concludes that the Debtor has no dependents. The Debtor listed her monthly income and expenses as follows: Net Monthly Income $1250 Monthly Expenditures: Mortgage 250 Utilities 320 Automobile 375 Insurance 120 Food 400 Meals, Lunch 40 Recreation 10-20 Medical (Uninsured) 40 Daycare 0 Clothing 30-40 _____ Total 1650 ====== With these figures, the Debtor meets the first prong of the Brunner test because her expenses exceed her income without considering the repayment of the educational loans. The second question is whether the Debtor's financial condition is only temporary or will continue over the substantial part of the repayment period. Despite the fact that the *788 Debtor has health problems, the ailments she is experiencing do not preclude employment. The Debtor has not established that she cannot get a raise or promotion in the future, and there are no real barriers preventing the Debtor's employment. Her situation is not so severe that there is a "certainty of hopelessness."[4]Mathews, 166 B.R. at 945-46; see Roberson, 999 F.2d at 1138 (no discharge for debtor who had been laid off and had lost his job but who had no irreparable harm). This Court concludes, therefore, that the second prong of the test is not met, and thus this Court holds that the Debtor has failed to establish that her circumstances warrant a hardship discharge pursuant to section 523(a)(8)(B) of the Bankruptcy Code. Even if the Court had to apply the good faith prong of the test, the Debtor would fail to meet her burden. In order to satisfy this final part of the test, the Debtor must show that she did not willfully or negligently cause her own default and that she made a good faith effort to repay. Roberson, 999 F.2d at 1136. Although the Debtor repaid $1300 in interest on the loans, she then ceased making payments. She intentionally chose to help her family financially even though these individuals were not legally her dependents. Rather than circumstances beyond her control being the cause of the Debtor's default, the Debtor herself is responsible for her financial hardship. The Court recognizes the generosity of the Debtor, but finds that her moral obligation to family members who are not dependents does not take priority over her legal obligation to repay her educational loans. III. CONCLUSION In conclusion, the Debtor has failed to meet the requirements of the Brunner test. She has no health problems that preclude her from working, she has no dependents, there is no "certainty of hopelessness," and the failure to repay the loans is due in large part to choices which she voluntarily made. Accordingly, the Court finds that the Debtor is not entitled to a hardship discharge pursuant to section 523(a)(8)(B) of the Bankruptcy Code. TGSLC and the Debtor should agree on a repayment schedule that enables the Debtor to meet her reasonable living expenses. TGSLC shall file a report with the Court and serve a copy on the Debtor within twenty (20) days from the entry of the judgment. This Opinion shall constitute the findings of fact and conclusions of law pursuant to FED.R.BANKR.P. 7052. A separate judgment shall be rendered. NOTES [1] 11 U.S.C. § 523 (Supp. IV 1992). Title 11 is referred to herein as the "Bankruptcy Code." [2] The Roberson Court declined to adopt the three-part test articulated in Johnson, 5 Bankr. Ct.Dec. 532, 544 (Bankr.E.D.Pa.1979). See Roberson, 999 F.2d at 1135. [3] Other courts use a case-by-case factor analysis approach. See Coleman v. Higher Educ. Assistance Found. (In re Coleman), 98 B.R. 443 (Bankr.S.D.Ind.1989) for a typical list of factors considered by the courts which use the case-by-case approach. This approach would give courts too much discretion which could undermine Congress's intention to have a heightened standard for student loan discharge. Mathews, 166 B.R. at 945. [4] Cases where the debtor met the second prong of the Brunner test exhibited a combination of low income and exceptional circumstances so severe that the debtor would not have been able to repay the loans. Mathews, 166 B.R. at 945 (citing Berthiaume v. Pennsylvania Higher Educ. Assistance Auth. (In re Berthiaume), 138 B.R. 516 (Bankr.W.D.Ky.1992) (debtor who was not able to secure permanent employment because she was suffering from a congenital heart defect, dyslexia, and clinical depression was entitled to a hardship discharge); Shoberg v. Minnesota Higher Educ. Coordinating Council (In re Shoberg), 41 B.R. 684 (Bankr.D.Minn.1984) (debtor with child support obligation and medical condition coupled with few job skills who had little prospect of full-time employment at a decent wage was entitled to hardship discharge)); Roberson, 999 F.2d at 1137 (citing Financial Collection Agencies v. Norman (In re Norman), 25 B.R. 545, 550 (Bankr.S.D.Cal.1982) (psychiatric problems prevented work); Siebert v. United States Government Department of Health Educ. and Welfare (In re Siebert), 10 B.R. 704, 705 (Bankr.S.D.Ohio 1981) (lack of usable job skills and severely limited education); Clay v. Westmar College (In re Clay), 12 B.R. 251, 254 (Bankr.N.D.Iowa 1981) (required to fully support dependents)).

2020-12-02 21:00:57.594909+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2019cv2336-46

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CAMPAIGN LEGAL CENTER, et al., Plaintiffs, v. Civil Action No. 19-2336 (JEB) FEDERAL ELECTION COMMISSION, Defendant, and HILLARY FOR AMERICA, et al., Defendant-Intervenors. MEMORANDUM OPINION This case concerns a presidential election — just not the most recent one. Instead, this campaign-finance dispute arises out of the 2016 contest. Back in October of that year, Plaintiffs Campaign Legal Center, a watchdog group, and Catherine Hinckley Kelley, a registered voter, filed an administrative complaint with the Federal Election Commission alleging that Hillary Clinton’s presidential campaign, Hillary for America (HFA), and a super PAC known as Correct the Record (CTR) violated the Federal Election Campaign Act by unlawfully coordinating on over $6 million of CTR’s expenditures. The Commission dismissed the complaint, and Plaintiffs filed this suit challenging that decision and asserting causes of action under both the FECA and the Administrative Procedure Act. After the FEC fell one vote short of the four required to authorize its defense of this lawsuit, the Court permitted HFA and CTR to intervene as Defendants. They then moved to dismiss, arguing, among other things, that Plaintiffs lacked 1 standing to sue. The Court denied that Motion, and the parties have now filed Cross-Motions for Summary Judgment. Undaunted by this Court’s initial ruling, HFA and CTR spend much of their Cross- Motion renewing their contention that Plaintiffs have no standing to challenge the FEC’s dismissal of their administrative complaint. Mindful of its ongoing obligation to police its jurisdiction and heeding Alexander Pope’s dictum that admitting error simply means that one is wiser today than one was yesterday, the Court has reconsidered the standing issue. It now concludes that HFA and CTR urge the better reading of the law and that Plaintiffs do not have standing to press their FECA count here. The Court is thus without jurisdiction as to that claim and must dismiss it. The answer may be different as to Plaintiffs’ APA claim, and the Court will order further briefing on that issue. I. Background The Court assumes familiarity with its prior two Opinions in this case, Campaign Legal Ctr. v. FEC, 334 F.R.D. 1 , 3 (D.D.C. 2019) (CLC I); Campaign Legal Ctr. v. FEC, 466 F. Supp. 3d 141 , 146 (D.D.C. 2020) (CLC II), but it will nonetheless relay the facts necessary to understand the parties’ standing arguments. A. Legal Background In an attempt to close a loophole that would enable easy evasion of its mandates, campaign-finance law treats as “contributions” not only direct donations to a political candidate, but also most expenditures “made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of” that candidate. See 52 U.S.C. § 30116 (a)(7)(B)(i); see also FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 , 438 (2001) (“Expenditures coordinated with a candidate . . . are contributions under the Act.”); Buckley v. Valeo, 424 U.S. 2 1, 47 (1976) (this approach “prevent[s] attempts to circumvent the Act through . . . disguised contributions”). By definition, these so-called “coordinated expenditures” are in-kind — viz., not actual cash — contributions to the candidate. See CLC II, 466 F. Supp. 3d at 146. The Act’s treatment of coordinated expenditures as contributions carries two important regulatory consequences relevant here. First, there are disclosure obligations. A political-action committee like CTR must disclose the same information about an expenditure it coordinated with a campaign as it would disclose for a typical in-kind contribution to that campaign (e.g., the provision of services), and a campaign must reveal the same information about an expenditure on which it coordinated as it would for a typical in-kind contribution it receives. On both sides, that information comprises the name of the donor/recipient, the date, and the amount of the coordinated expenditure. See 52 U.S.C. § 30104 (b)(6)(B)(i) (PAC); id. § 30104(b)(3)(B) (campaign). Further, both the expenditure maker and the campaign must also separately disclose the coordinated expenditure just as they would any other expenditure they made. Id. §§ 30104(b)(5)(C), (b)(6)(B)(iii)–(v) (PAC); 11 C.F.R. §§ 104.13 (a)(2), 109.20(b) (campaign). Note that the law treats the campaign itself as constructively making the expenditure, even though it did not actually do so, because it coordinated the expenditure with the actual spender. Each side’s expenditure disclosure must include, in addition to the date and amount, the purpose of the expenditure. See 11 C.F.R. §§ 104.3 (a)(4)(ii), (b)(3)(i), (vii)–(ix) (PAC); id. §§ 104.3(b)(4)(i), (vi) (campaign). Second, by virtue of qualifying as “contributions,” coordinated expenditures are also subject to FECA’s $2,700 contribution limit for PACs or individuals, as well as the Act’s prohibition on using union or corporate funds for contributions to candidates. See 52 U.S.C. § 30116 (a)(1); id. §§ 30118(a), (b)(2). In other words, a PAC such as CTR can make no more than 3 an aggregate of $2,700 in direct contributions and coordinated expenditures to a candidate, and it cannot use moneys raised from unions or corporations to fund any coordinated expenditure. B. This Case In late October 2016, Plaintiffs brought an administrative complaint before the FEC alleging that CTR had made, and HFA had accepted, millions of dollars in coordinated expenditures, in gross violation of the applicable contribution limits and without properly disclosing those expenditures as in-kind contributions. See ECF No. 15-1 (Administrative Complaint), ¶¶ 1–2. The Commission eventually dismissed that complaint after splitting 2–2 on whether to find “reason to believe,” 52 U.S.C. § 30109 (a)(2), that any FECA violation had occurred. See CLC II, 466 F. Supp. 3d at 149. In August 2019, Plaintiffs brought this action challenging the dismissal as “contrary to law” under both FECA, 52 U.S.C. § 30109 (a)(8), and the APA, 5 U.S.C. § 706 (2). See ECF No. 15 (Amended Complaint), ¶¶ 107, 113. CTR and HFA do not dispute here, and did not dispute before the FEC, that CTR made millions in campaign-related expenditures. Indeed, CTR has already disclosed the date, amount, purpose, and recipient of every single one of its expenditures, as it was required to do under FECA as a PAC. See FEC, Correct the Record Spending, https://www.fec.gov/data/committee/ C00578997/?tab=spending (last visited December 1, 2020); 11 C.F.R. §§ 104.3 (b)(3)(i), (vii)– (ix). Defendants instead contend that the FEC was correct to dismiss the complaint against them because none of CTR’s expenditures qualifies as “coordinated” with HFA under applicable FEC rules. See ECF No. 38-1 (Def. MSJ) at 27, 36. The parties’ disagreements on the issue of coordination fall into two buckets. The first relates to quantum of proof: for certain of CTR’s expenditures, Plaintiffs and Defendants dispute whether there was enough evidence before the Commission to compel it to find “reason to 4 believe” that those expenditures were coordinated — Plaintiffs say yes, Defendants say no. See ECF No. 35 (Pl. MSJ) at 29–40; Def. MSJ at 36–42. The second bucket involves a purely legal dispute: as to many of CTR’s other expenditures, Defendants do not contest that they were made in concert with HFA, but nonetheless insist that they fall within an applicable regulatory exemption known as the internet exemption, and are therefore not legally “coordinated.” See 11 C.F.R. § 109.21 ; CLC II, 466 F. Supp. 3d at 146. Both parties advance these arguments in their latest Cross-Motions for Summary Judgment, and the legal questions are undeniably intriguing. Before tucking into them, however, the Court must heed the “requirement that [its] jurisdiction be established as a threshold matter” and consider, to that end, whether the “inflexible” requirements of Article III standing are met here. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 , 94 (1998) (“[T]he first and fundamental question is that of jurisdiction . . . . This question the court is bound to ask and answer . . . .”) (quoting Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449 , 453 (1900)). Defendants strenuously contend that the answer is no — that Plaintiffs lack a sufficient “informational injury” under D.C. Circuit law because the details of CTR’s expenditures are already public record, and Plaintiffs have no cognizable interest in a further “legal determination” from the FEC that such expenditures were coordinated with HFA. See Def. MSJ at 7–8; ECF No. 44 (Def. MSJ Reply) at 2. After previously coming out the other way, the Court now reverses field, at least as to Plaintiffs’ FECA claim. As to their APA claim, it requires further briefing before resolving the matter. 5 II. Analysis A. Injury-in-Fact Standing is “a doctrine rooted in the traditional understanding of a case or controversy” in Article III of the Constitution. Spokeo, Inc. v. Robins, 136 S. Ct. 1540 , 1547 (2016). It requires, at a minimum, that a plaintiff show that she “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. The “injury in fact” must be both “(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 , 180 (2000). An injury is “concrete” when it is “real, and not abstract,” and “particularized” when it “affect[s] the plaintiff in a personal and individual way.” Spokeo, 136 S. Ct. at 1548 (quotation marks omitted). The only injury-in-fact Plaintiffs have asserted here is an “informational injury” inflicted by the FEC’s dismissal of their administrative complaint. “[D]enial of access to information qualifies as an injury in fact where a statute (on the claimant[’s] reading) requires that the information be publicly disclosed and there is no reason to doubt their claim that the information would help [it].” Campaign Legal Ctr. v. FEC, 952 F.3d 352 , 356 (D.C. Cir. 2020). As to the statute at issue here, “[t]he Supreme Court has long recognized that FECA creates an informational right — the right to know who is spending money to influence elections, how much they are spending, and when they are spending it.” Citizens for Responsibility & Ethics in Wash v. Am. Action Network, 410 F. Supp. 3d 1 , 12 (D.D.C. 2019) (citing FEC v. Akins, 524 U.S. 11 , 24–25 (1998)). But that is hardly the end of the matter because “the nature of the information allegedly withheld is critical to the standing analysis.” Common Cause v. FEC, 108 F.3d 413 , 417 (D.C. Cir. 1997). “Only if the statute grants plaintiff a concrete interest in the 6 information sought will he be able to assert an injury in fact.” Nader v. FEC, 725 F.3d 226 , 229 (D.C. Cir. 2013). It is well settled that a plaintiff who “seek[s] information to facilitate his informed participation in the political process” is concretely and particularly injured by the denial of that information. Id. at 230; see, e.g., Akins, 524 U.S. at 21 , 24–25. It is equally well established, however, that a plaintiff’s mere “desire for information concerning a violation of FECA” does not give rise to an Article III injury-in-fact. Vroom v. FEC, 951 F. Supp. 2d 175 , 179 (D.D.C. 2013); see also Common Cause, 108 F.3d at 418 (plaintiff cannot “establish injury in fact merely by alleging that he has been deprived of the knowledge as to whether a violation of the law has occurred”). That is because a plaintiff has no cognizable interest in “forc[ing] the FEC to ‘get the bad guys.’” Nader, 725 F.3d at 230 (quoting Common Cause, 108 F.3d at 418 ). “Ask[ing] the FEC to compel information . . . in the hope of showing that [defendants] violated” the law “amounts to seeking disclosure to promote law enforcement,” and an injury to such law- enforcement interest is merely a generalized grievance insufficient to confer standing. Id.; see also Common Cause, 108 F.3d at 418 (no “justiciable interest in the enforcement of the law”). It follows, courts have explained, that a plaintiff’s inability to procure from the agency a “legal determination” or “legal conclusion that carries certain law enforcement consequences” does not amount to informational injury. Citizens for Responsibility and Ethics in Wash. v. FEC, 799 F. Supp. 2d 78 , 88 (D.D.C. 2011) (quoting Wertheimer v. FEC, 268 F.3d 1070 , 1075 (D.C. Cir. 2001)); see also Free Speech for People v. FEC, 442 F. Supp. 3d 335 , 344–45 (D.D.C. 2020) (no informational injury where plaintiff seeks “an FEC investigation and a finding of an election law violation,” or a “legal determination whether the [campaign] violated FECA by failing to [make certain] disclos[ures]”); Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41 , 47 7 (D.D.C. 2003) (same where what plaintiff was “really seeking [was] a legal determination by the Commission that [certain activities] represented contributions to [a] campaign, and that [the candidate’s] failure to report those contributions is a violation of FECA”). These decisions dovetail nicely with the principle that a plaintiff lacks a cognizable informational injury where the information she seeks “is already required to be disclosed” elsewhere and, pursuant to that obligation, “reported in some form.” Wertheimer, 268 F.3d at 1074–75. That is a giveaway that the plaintiff “do[es] not really seek additional facts[,] but only the legal determination that” the facts of which she is already aware amount to a legal violation. Id. at 1075 . In other words, where “plaintiffs have all of the information they are entitled to pursuant to FECA,” their coming to court anyway makes it “apparent that what they really want is a legal determination” they have no standing to seek. Alliance for Democracy v. FEC, 362 F. Supp. 2d 138 , 148 (D.D.C. 2005); see id. at 149 ; Campaign Legal Ctr. v. FEC, 245 F. Supp. 3d. 119, 125 (D.D.C. 2017) (no standing where “plaintiffs already possess all the relevant information about [certain] contributions”); Citizens for Responsibility, 799 F. Supp. 2d at 89 (plaintiffs’ failure to “allege any specific factual information they lack that is not already publicly available” “reveal[ed] [that] what [they] [we]re actually seeking” was a legal conclusion); Judicial Watch, 293 F. Supp. 2d at 47 (concluding that plaintiff sought only a “legal determination” because it “appear[ed] unlikely that [his] administrative complaint [would] yield additional facts . . . that [he] was not already aware of”). B. Application These precedents spell doom for Plaintiffs’ standing here, which is premised on their desire to learn “which disbursements” made by CTR — all of which, recall, have already been publicly disclosed — “were made in coordination with HFA” and are thus by definition in-kind 8 contributions, and “which were made for non-coordinated or exempt activities.” ECF No. 42 (Pl. MSJ Reply) at 7; see also id. at 8 (Plaintiffs “remain entirely in the dark about how much and what portions of [CTR’s] 3,516 disbursements in 2015–16 were in-kind contributions to a major presidential campaign.”); ECF No. 27 (Pl. MTD Opp.) at 15 (“[P]laintiffs . . . do not know which activities were in fact coordinated between HFA and CTR, nor the extent to which any disbursement by CTR constituted in whole or part an in-kind contribution to HFA.”). As noted above, Plaintiffs, like any other “citizen who wants to learn the details of” CTR’s disbursements, can already find the amount, date, recipient, and purpose of every single one simply “by visiting the Commission’s website.” Citizens for Responsibility and Ethics in Wash. v. FEC, 475 F.3d 337 , 339 (D.C. Cir. 2007) (finding no informational injury). Plaintiffs nonetheless assert an interest in finding out an additional piece of information not currently disclosed: which, if any, of those expenditures, or which portions thereof, CTR made in coordination with HFA. Binding authority, however, establishes that they have no cognizable interest in learning “which activities were in fact coordinated between HFA and CTR” or which of CTR’s “disbursements” “were made in coordination with HFA.” Pl. MSJ Reply at 7; Pl. MTD Opp. at 15. In Wertheimer, the main case in this obscure corner of standing law, the D.C. Circuit squarely held that a finding of “coordination” does not amount to a “fact” that must be disclosed under FECA, but rather is a “legal conclusion that carries certain law enforcement consequences.” 268 F.3d at 1075 ; see 52 U.S.C. § 30109 . As a result, the Court of Appeals concluded, the plaintiffs had no standing to seek such a finding. Id. That rule, which this Court’s previous Opinion did not sufficiently take account of, is dispositive here. Plaintiffs seek a Commission determination that at least some of CTR’s expenditures were coordinated with HFA. Much as that may sound like a factual determination 9 — i.e., the campaign and PAC in fact coordinated — Wertheimer makes clear that it is a legal conclusion, carrying the law-enforcement consequences that CTR vastly exceeded the $2,700 contribution limit and improperly used union and corporate funds in doing so. See 52 U.S.C. §§ 30109 (a)(4)(C), (5)–(6), (d). Because there is no “constitutionally cognizable” interest in procuring such a legal determination, the FEC’s denial of Plaintiffs’ request that the Commission investigate and make such a finding is insufficient to confer standing. Wertheimer, 268 F.3d at 1074 (citing Common Cause, 108 F.3d at 417 ). In addition to supplying the relevant rule of law, Wertheimer’s facts are also instructive. The plaintiffs there alleged that President Bill Clinton had unlawfully coordinated with the Democratic National Committee on several of the DNC’s expenditures, in violation of a complete statutory ban (triggered by participation in the now-outmoded public-financing scheme) on candidates’ acceptance of outside contributions. Id. at 1071–72. The plaintiffs sought a declaration that coordinated expenditures by political parties amounted to in-kind contributions (which was not established law at the time). Id. at 1071. In response, the Court held that because “each transaction appellants allege[d] [was] illegal [was already] reported in some form” by the DNC, it was clear that plaintiffs “d[id] not really seek additional facts but only the legal determination that certain transactions constitute[d] coordinated expenditures.” Id. at 1075. As a result, they “failed to establish that the ruling sought would yield anything more than a legal characterization or duplicative reporting of information that under existing rules is already required to be disclosed.” Id. So too here. Again, Plaintiffs already know the date, amount, recipient, and purpose of each of CTR’s disbursements. Their attempt to ascertain which of those disbursements were made in concert with HFA thus “does not really seek additional facts but only the legal determination” of coordination. Id. at 1075; see also Citizens 10 for Responsibility, 799 F. Supp. 2d at 88–89 (“Much like ‘coordination,’ classifying a particular disbursement as an ‘in-kind contribution’ . . . carries certain law enforcement consequences” and adds no “specific factual information . . . not already publicly available . . . .”). They have no standing to sue to compel the Commission to make such a determination. This may seem an unsatisfactory or counterintuitive result. One could be forgiven for thinking, as Plaintiffs appear to, that whether an expenditure was coordinated between a PAC and a campaign is a piece of information — regardless of its separate law-enforcement consequences — that citizens can also use to inform their participation in the political process. See Pl. MSJ Reply at 8–9. For instance, upon learning that a candidate and a PAC coordinated, an interested voter could choose to avoid supporting, financially or electorally, that candidate or other candidates who coordinate with that same PAC or its leaders in the future. Why should the deprivation of such a finding not constitute actionable informational injury? Whatever the appeal of that line of thinking, it is precluded by a faithful reading of Wertheimer. In that case, counsel for the plaintiffs “was asked what facts, specifically, were not being disclosed” and “responded that the ‘fact’ of ‘coordination’ was being withheld.” 268 F.3d at 1074–75. “But,” the majority opinion immediately responded, “‘coordination’ appears to us to be a legal conclusion,” not a piece of factual information giving rise to a cognizable interest in disclosure. Id. at 1075 . For that reason, the Wertheimer court explained, the plaintiffs had “failed to show either that they [were] directly being deprived of any information or that the legal ruling they s[ought] might lead to additional factual information” “under the Akins test,” id. at 1074 — the test asking whether the information “would help them . . . to evaluate candidates for public office.” 524 U.S. at 21 . The Court of Appeals thus squarely rejected the notion that 11 coordination constitutes a fact the denial of which harms a citizen’s ability to evaluate a political candidate. To be sure, Wertheimer did allow that it was “perhaps conceivable that certain facts are necessarily implied by the label ‘coordinated.’” 268 F.3d at 1075 . But it did not further elaborate on that bare aside, and at no point in this case have Plaintiffs ever explained what those “certain facts” would be, or why they would be “necessarily implied” here when they were not in Wertheimer. See Pl. MTD Opp. at 21 n.11 (asserting that “[t]his is . . . a case” where additional facts are implied, but not explaining why). Nor have Plaintiffs pointed to any case holding that a coordination finding is anything other than a legal determination insufficient to form the basis of an injury-in-fact. On the contrary, in a quite recent case, Judge Amit Mehta of this district rejected a plaintiff’s attempt to evade Wertheimer even as it provided a set of facts that could be plausibly implied from a finding of coordination. See Free Speech for People, 442 F. Supp. 3d at 344. Specifically, the Free Speech plaintiff argued that a determination of coordination would necessarily imply that the candidate at issue “was aware of and/or had approved of the” expenditure, which was not public record. Id. In response, Judge Mehta explained that under Wertheimer, he could not accept the “[p]laintiff’s effort to frame a legal determination (whether an in-kind contribution took place) as a factual one (whether the . . . [c]ampaign was aware of or approved the payment).” Id. Upon further examination, it seems to this Court that its previous Opinion did accept such an effort by Plaintiffs, crediting their desire to learn whether CTR and HFA coordinated as an attempt to obtain “full and accurate campaign-finance reporting.” CLC II, 466 F. Supp. 3d at 152. The Court now agrees with Judge Mehta that such approach does not give Wertheimer or its progeny their due. 12  It is worth noting on this point that even if Plaintiffs had a cognizable interest in learning of coordination between HFA and CTR, there is ample evidence of such behavior already publicly available to them. Using news reports and financial disclosures, Plaintiffs themselves “documented” before the Commission “how CTR spent millions . . . for the benefit of the Clinton campaign” and “noted that, by [CTR’s] own admission, [it] did at least some portion of this in coordination with the campaign.” Am. Compl., ¶ 63. As evidence for that assertion, Plaintiffs cited numerous public statements from CTR or its leaders to the effect that “there [were] no restrictions on its ability to coordinate with Mrs. Clinton’s campaign,” id., ¶ 65, and that it “work[ed] on what [it] call[ed] the ‘coordinated’ side of the Clinton campaign.” Admin. Compl., ¶ 24; see also id., ¶ 92 (“Correct the Record is reported as publicly acknowledging that it has coordinated [certain] activity with the Clinton campaign.”). Indeed, Plaintiffs have asserted in this lawsuit that “the public record makes clear that CTR and HFA coordinated” on at least “some activities that qualified as reportable in-kind contributions.” Pl. MTD Opp. at 16. They cannot, then, seriously claim to be in the dark as to the relationship between CTR and HFA or unaware that CTR has made numerous coordinated expenditures on HFA’s behalf. Cf. Alliance for Democracy, 362 F. Supp. 2d at 145 (no standing to seek disclosure of dollar value of mailing list where “voluminous documents available on the [FEC’s] website provide abundant raw data and numerous views of how that data could be analyzed to determine [the sought-after] value”). C. Plaintiffs’ Counterarguments Plaintiffs nonetheless contend that while they know that some coordination did occur, they are in the dark as to its extent. That, they maintain, is the “additional factual information” that they would learn if victorious here and that suffices for standing under Wertheimer. See 268 F.3d at 1074 . Specifically, Plaintiffs assert that on their view of the law, they are entitled to 13 further disaggregation of many expenditures that CTR has so far disclosed only as “lump sum” expenses for items such as salary and payroll. See Pl. MTD Opp. at 3; Pl. MSJ Reply at 7. If, they argue, some portion of a disbursement helped support, or itself amounted to, a coordinated expenditure, then CTR should have broken out that portion as a separate line item (and HFA should have disclosed that portion as an in-kind contribution). This additional disaggregation, Plaintiffs posit, would inform them and the public as to exactly what percentage of Defendants’ activities was coordinated, which they suggest would be new factual information. An example helps to illustrate. CTR has already disclosed each biweekly salary payment it made to its founder and chairman David Brock. See 466 F. Supp. 3d at 151 (citing ECF No. 27-4 (CTR Disbursements to David Brock)). But in the “purpose” section of its disclosure of such payments, it simply stated that the expenditure was for “[s]alary.” CTR Disbursements to David Brock at 1. Plaintiffs maintain that this disclosure is incomplete if, as they allege, at least some of CTR’s activities were coordinated with HFA because then CTR (and HFA) should have disclosed at least some portion of Brock’s salary — the portion supporting coordinated activities — as an in-kind contribution to HFA. See Pl. MTD Opp. at 18. Fully compliant disclosure would thus solve an ongoing “mystery” for Plaintiffs — viz., “the actual mix of coordinated and non-coordinated (or exempt) work that Brock performed in any given pay period.” Id. While the Court previously indicated its agreement with this argument, see CLC II, 466 F. Supp. 3d at 151–52, it now regards it as an unpersuasive end-run around Wertheimer. For one thing, a plaintiff armed with this theory could seemingly manufacture standing in nearly every conceivable case — trimming its sails and claiming only that some portion of a previously disclosed expenditure (or some subset of previously disclosed expenditures) should be treated as coordinated, and then asserting an interest not in knowing whether the expenditure(s) themselves 14 were coordinated (not okay), but in knowing what proportion of an entity’s expenditures or activities were coordinated (okay). Wertheimer cannot admit of such an easy workaround. More fundamentally still, Plaintiffs’ theory does not avoid the Wertheimer rule even on its own terms. That is because the disaggregation Plaintiffs seek would not actually entail the disclosure of any information other than legal determinations of coordination as to some subset of already-disclosed expenditures — exactly the sort of information that Plaintiffs have no standing to learn. In other words, the revelation that some portion of a CTR disbursement qualifies as a coordinated expenditure would add nothing to the mix except the additional “fact” that the sub-expenditure was coordinated with HFA. Continuing with the example of Brock’s salary, suppose that the Commission concluded, upon investigation, that 50% of his time in a particular two-week period was spent on coordinated activities, such that his salary payment of $4,521.56 should have been disclosed as one non-coordinated salary expenditure of $2,260.78 and one in-kind contribution of $2,260.78. Between that hypothetical world and the world as it stands now, the only new information would be that CTR paid for half of Brock’s time, valued at $2,260.78, in coordination with the campaign. The new information, though, is nothing more than “the ‘fact’ of ‘coordination,’” which under Wertheimer is not a fact at all but rather a legal conclusion that Plaintiffs have no cognizable interest in unearthing. And no other facts in which Plaintiffs have an Article III interest would be revealed; compared to the existing disclosure of $4,521.56, CTR and HFA’s disclosures of a new $2,260.78 in-kind contribution and a $2,260.78 non-coordinated expenditure would reveal the same date, recipient, and, crucially, purpose of the disbursement: Brock’s salary. In earlier briefing, Plaintiffs attempted to wriggle out of this predicament by suggesting that the newly broken-out in-kind contribution would have to include a more granular purpose 15 description — something along the lines of “In-Kind Contribution: Media Training for Surrogates,” rather than merely “salary.” Pl. MTD Opp. at 19. As Defendants point out, however, Plaintiffs cited no authority for that proposition. Nor have they ever “responded to [Defendants’] [counter]argument” that no statute or regulation obligates disclosers to be more specific when describing the purpose of an in-kind contribution than when disclosing a typical expenditure. See Def. MSJ Reply at 3–4. As best the Court can tell, Defendants are correct that there is no difference in the degree of specificity required. Compare FEC, Instructions for FEC Form 3X and Related Schedules 10, https://perma.cc/75WA-4YK9 (for in-kind contributions, “item must be labeled ‘contribution in-kind’ and include the nature of the contribution (e.g., consulting, polling, etc.)”), with id. at 13 (“Examples of adequate descriptions [for disclosure of expenditures] include the following: dinner expenses, media, salary, polling, travel, party fees, phone banks, travel expenses and catering costs.”). Even if Plaintiffs are right, then, that Defendants should have broken out and separately disclosed the coordinated portion of certain previously disclosed expenditures, Defendants’ purpose descriptions for those new expenditures need not include any additional details. For example, the hypothetical $2,260.78 in-kind contribution of Brock’s salary could have a disclosed purpose of “[s]alary,” exactly the same as the purpose description for the existing $4,521.56 expenditure. See CTR Disbursements to David Brock at 1. The only additional information to be gleaned from comparing the new to the old would be, as before, that 50% of Brock’s salary for that pay period was coordinated. Plaintiffs have no cognizable interest in obtaining that information. This Court’s decision in Citizens for Responsibility supports this analysis. See 799 F. Supp. 2d at 87–89. There, the plaintiffs alleged that a PAC’s travel expenditures totaling $10,243 amounted to in-kind contributions to a presidential campaign, in excess of the applicable 16 contribution limit of $5,000 and made without proper disclosure. Id. at 82–83. The plaintiffs sued after the FEC declined to act on their administrative complaint, and this Court dismissed for lack of standing under Wertheimer. Id. at 88–89. It explained that disclosures for the $10,243 in disbursements were already “publicly available online.” Id. at 88 . The plaintiffs insisted that they would nonetheless “learn [some]thing useful from knowing precisely which expenditures an entity made and which contributions a candidate received” — in other words, how much of the $10,243 amounted to an in-kind contribution and how much a distinct PAC expenditure. Id. at 89 ; see also id. at 88 (plaintiffs, defendants, and FEC all had different views as to whether the $10,243 “should be allocable between [the] PAC and the [campaign],” and, if so, what “[s]uch an allocation” should be); Pl. MTD Opp. at 21 (“The only remaining question was a legal dispute about how much of the $10,243 expenditure[s] should be considered a contribution to the presidential campaign, and how much should be considered a non-contribution expenditure.”). Unmoved, this Court answered with essentially the same analysis it adopts here: failure to get a portion of previously disclosed expenditures “reclassif[ied]” “simply does not constitute informational injury.” 799 F. Supp. 2d at 89 . Plaintiffs last contend that Wertheimer, Free Speech, Citizens for Responsibility, and the several other decisions discussed above should not dictate the outcome here. Those cases, they argue, cannot seriously be read to “suggest that concealing up to $9 million of in-kind contributions does not inflict informational injury.” Pl. MSJ Reply at 7. And they point out various factual differences they maintain are crucial — e.g., in Free Speech, “[t]he details of the transaction in question . . . had also been confirmed by the Department of Justice’s court filings and admission of the respondents,” and in Citizens for Responsibility, the “[p]laintiffs had all of 17 the information they sought because the FEC had conducted a full investigation of the factual circumstances of the [relevant] expense[s].” Id. at 7–8. This position offers no succor. First, while the dollar amount of disputed election-related spending is admittedly quite high here, Plaintiffs supply no reason why Article III standing should turn on that fact. On the contrary, the general rule is that “[t]he size of the injury is irrelevant for the purposes of standing.” Younger v. Turnage, 677 F. Supp. 16 , 20 (D.D.C. 1988); see also Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 , 984 (2017) (“For standing purposes, a loss of even a small amount of money is ordinarily an ‘injury.’”). Plaintiffs’ claim to standing would founder whether they alleged that CTR and HFA coordinated $1.00 or $1 billion. Next, as to the notion that “the details of” CTR’s transactions at issue here have not been “confirmed” by a government agency or “admi[tted]” by Defendants, see Pl. MSJ Reply at 7–8, that is neither accurate nor “a material distinction.” Free Speech, 442 F. Supp. 3d at 344 (rejecting “attempt[] to distinguish [that] case from Wertheimer by emphasizing that [certain entities] ha[d] disputed their involvement in [the] payment” at issue). The details of the relevant transactions here have already been disclosed, by Defendants, to the same extent they would be if Plaintiffs’ suit were successful. And even if that were not so, Plaintiffs would still have no standing to seek those details as long as they were already public in some form, as they have no cognizable interest in “obtain[ing] publicly available information ‘from a different source.’” Id. at 343 (quoting Wertheimer, 268 F.3d at 1075 ). Finally, it is immaterial that the FEC has not conducted a further investigation here, as the informational-injury inquiry turns on the nature of the information that any such investigation would ultimately reveal. Where that information is simply a determination of coordination, as here, there is no standing to press for a further inquest. Id. (rejecting request for “FEC 18 investigation” and “determination . . . through an investigative process” the aim of which was to secure a “legal determination that the respondents engaged in a coordinated scheme to violate FECA”); Judicial Watch, 293 F. Supp. 2d at 47 (rejecting plaintiff’s request for “information resulting from a thorough and complete [FEC] investigation of [the] allegations” where “what plaintiff desire[d]” was merely finding of legal violation and for the Commission to “get the bad guys rather than disclose information”) (cleaned up). Consider in this regard the 2017 Campaign Legal Center decision, 245 F. Supp. 3d at 119, which illustrates this principle. See Pl. MTD Opp. at 16. In that case, the FEC had dismissed five related administrative complaints all without any investigation. Id. at 123. In two of the five, the plaintiffs sought only to “reclassify [certain] contributions [already] publicly reported” as having been made not by the corporation listed on the initial disclosure, but rather by the person controlling each corporation, each of whom had already admitted that he was the true donor. Id. at 125–26. The Court held that the plaintiffs lacked standing to obtain that mere “legal determination” under Wertheimer. Id. at 126. By contrast, as to the plaintiffs’ three other complaints, it was apparent from the record that neither the FEC nor the plaintiffs knew who was truly behind the contributions at issue. Id. at 126–27. Because the plaintiffs had “a right to truthful information regarding campaign contributions and expenditures” under Akins, the court explained, they had suffered an informational injury that could be remedied by an FEC investigation that would reveal those identities. Id. at 127 (quotation omitted). The rule sensibly applied by the court, therefore, was that the Commission’s failure to investigate confers standing only if the sought-after inquiry would uncover nonpublic information that the plaintiffs have a cognizable interest in obtaining: the identity of a contributor qualifies; the FEC’s confirmation of a fact already known to the public does not. See Free Speech, 442 F. Supp. 3d at 345 19 (interpreting Campaign Legal Center the same way). Here, whether an expenditure was “coordinated,” as the reader surely knows by this point, falls on the wrong side of the line for Plaintiffs. They have no cognizable interest in obtaining that legal determination, and they accordingly lack Article III standing to challenge the FEC’s decision not to investigate or proceed with their administrative complaint here. The Court is certainly cognizant that under the reasoning of its decision here, it is possible that no plaintiff would have standing to sue the FEC alleging campaign-finance violations by an entity that has already disclosed its expenditures, no matter how obvious or gross the violations. While perhaps unwelcome as a matter of policy, such an outcome cannot affect the Court’s weighing of its jurisdiction under Article III. The consequences for good government, in any event, may not be as dire as they seem. For one thing, the FEC can always act against campaign-finance scofflaws, either on its own initiative or upon a complaint from any person (regardless of whether that person would have standing to sue in federal court). See 11 C.F.R. §§ 111.4 (a), 111.8(a). And even where the Commission is unwilling or unable to act, the foregoing standing analysis likely would not bar a suit alleging coordinated spending by an entity that does not already disclose its expenditures under separate FECA provisions — for example, an individual spender. * * * One last nuance bears mention. The above discussion is plainly applicable to Plaintiffs’ claim under FECA, which seeks nothing more than an order directing the Commission to reverse its “dismissal of [P]laintiffs’ administrative complaint.” Am. Compl., ¶ 107. It is at least possible, however, that it does not apply foursquare to their APA claim. Plaintiffs’ position on this question is not entirely clear. In earlier briefing, they suggested that this count rests on a 20 “broader informational injury” than their FECA count, presumably because, in their opinion, the Commissioners’ announced view of the law could affect their right to disclosure outside the context of this particular administrative proceeding. See Pl. MTD Opp. at 15 n.6. In their summary-judgment papers, however, Plaintiffs seem to concede that their “standing to bring their APA claim . . . rests on the same theories of standing as the FECA claim.” Pl. MSJ Reply at 5. Given the course of the litigation to this point, Plaintiffs have arguably not had a sufficient opportunity to brief the question of whether they have independent standing as to their APA claim even if this Court concludes (as it now does) that they lack standing on their FECA claim. The Court will therefore order the parties to submit short supplemental briefing on that question. They need not further address, though they may if they wish, the additional threshold question of whether Plaintiffs’ APA claim is precluded by FECA. See Def. MSJ at 43–45; Pl. MSJ at 42– 43; Pl. MSJ Reply at 43–44. III. Conclusion As Judge Harry Edwards once explained in an opinion reconsidering and overruling an earlier decision: Once discovered, confessing error is relatively easy. What is difficult is accepting the realization that, despite your best efforts, you may still fall prey to an error of judgment. . . . I will take refuge in an aphorism of Justice Frankfurter: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Moldea v. New York Times Co., 22 F.3d 310 , 311 (D.C. Cir. 1994) (quoting Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595 , 600 (1949) (Frankfurter, J., dissenting)). Like Judge Edwards, then, this Court must confess error: despite its earlier holding, Plaintiffs do not have standing to bring their FECA claim here. This claim, accordingly, must be dismissed. That may not be the end of this case, however, as the Court will order further briefing on the question 21 of Plaintiffs’ standing to bring their separate APA claim. A contemporaneous Order so stating will issue this day. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: December 2, 2020 22

2020-12-02 21:02:27.836054+00

https://www.courts.ca.gov/opinions/nonpub/E073972.PDF

Filed 12/2/20 P. v. Sly CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E073972 v. (Super.Ct.No. FSB1203896) CHRISTOPHER JOSEPH SLY, OPINION Defendant and Appellant. APPEAL from the Superior Court of San Bernardino County. Katrina West, Judge. Affirmed. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Lynne G. McGinnis, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent. 1  In 2016, defendant and appellant Christopher Joseph Sly pleaded guilty to one count of attempted murder. On February 29, 2019, defendant filed a petition for resentencing pursuant to Penal Code section 1170.951 based on the changes that Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019 (Sen. No. 1437), made to the murder statutes (Petition). The Petition was summarily denied by the trial court without a hearing, finding that Sen. No. 1437 and section 1170.95 were not applicable to attempted murder. Defendant appeals, contending that this court should reverse the trial court’s order denying the Petition based on the ground that Sen. No. 1437 and section 1170.95 should be interpreted to apply to attempted murder under the natural and probable consequences theory. FACTUAL AND PROCEDURAL HISTORY A. SUMMARY OF FACTS AND PLEA The facts are taken from the preliminary hearing held on December 13, 2012. Defendant was an active member of the Rolling 40s gang. On August 6, 2012, defendant was with his girlfriend, Amalia White, in her car. Defendant drove White’s car to an apartment complex in San Bernardino and picked up Darrell Pratt, also known as Bosco, and Tydrick Carr, also known as Baby Beast. Carr was an active Rolling 30s gang member. Pratt and Carr advised defendant that someone had robbed Pratt’s cousin (Cousin) down the street at the Woodridge Apartments and they wanted to look for the 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 people who did it. Defendant drove them all to find the car they believed belonged to the perpetrators. Once they located the car, a white Chevy Caprice, they followed it to a nearby McDonald’s restaurant and parked nearby waiting for the occupants of the Caprice to leave the McDonalds. Defendant and the others decided to return to the Woodridge Apartments to get Cousin. Cousin and another occupant followed defendant and the others back to the McDonalds in a separate car. The two cars waited for the Caprice to drive out of the McDonalds. Once the Caprice drove out of the McDonalds, the two cars followed it. The Caprice stopped at a gas station and two people got out of the vehicle to pump gas. Pratt and Carr got out of White’s vehicle, and Cousin also got out of his car. They all had guns. Defendant told White, “These [N*****] are going to get what they deserve.” Pratt ducked down behind a car, Cousin ducked behind a van and Carr stood across the street. The Caprice exited the gas station and drove down the street. Pratt and Carr fired numerous shots at the Caprice. The Caprice crashed into a wall. Pratt, Carr, and Cousin all jumped into the backseat of White’s car. As they drove past the Caprice, Pratt and Carr continued to fire their guns at the Caprice. Defendant yelled from White’s car, “Neighborhood.” The driver of the Caprice had been shot in the head and was unresponsive when officers arrived at the scene, but he survived. There were two other occupants in the Caprice who ran away after the crash. Defendant did not have a gun that day and he did not shoot anyone. 3  A gang expert testified that the Rolling 30s and Rolling 40s were active street gangs and were both part of a larger gang called the Neighborhood Crips. In the gang expert’s opinion, Carr and defendant were active gang members, and the crimes were committed on behalf of the gang. Defendant was charged in an information filed on December 20, 2012, with three counts of attempted willful, deliberate and premeditated murder (§§ 664, 187, subd. (a)). Several enhancements under section 12022.53 were charged against defendant for a principal personally and intentionally using a firearm during the commission of all three counts. It was additionally alleged for all three counts that the crimes were committed for the benefit of and at the direction of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Defendant was additionally charged with shooting at an occupied motor vehicle (§ 246), with additional principal armed allegations pursuant to section 12022.53 and gang allegations (§ 186.22, subd. (b)(1)(B)), and with street terrorism (§ 422). It was alleged as to all counts that defendant had suffered a prior serious and violent felony conviction (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d)). On March 18, 2016, defendant entered a guilty plea to one count of attempted murder within the meaning of sections 664 and 187; to a principal armed allegation (§ 12022, subd. (b)(1)); and admitted to having suffered a prior strike conviction (§§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d)). Defendant was sentenced to 15 years to be served in state prison. The remaining charges were dismissed in the interests of justice. 4  B. DEFENDANT’S PETITION On February 21, 2019, defendant filed the Petition. Defendant used a form and marked the box that he pled guilty to first or second degree murder because if he had gone to trial he believed he could have been found guilty of first or second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine. He also alleged he could not now be convicted of first or second degree murder because of the changes to the definitions of murder under sections 188 and 189. On April 18, 2019, the People filed a response to the Petition. The People moved to strike the Petition. The People alleged that Sen. No. 1437 was unconstitutional. They also requested that the trial court take judicial notice of the records in People v. Christopher Sly, San Bernardino Superior Court case No. FSB1203896-1. On May 3, 2019, defendant was appointed counsel, who was given 60 days to file any documents or response. C. RULING ON THE PETITION The Petition was heard on October 4, 2019. Defendant was not present but was represented by counsel. The trial court noted that there were two published cases— People v. Lopez (2019) 38 Cal.App.5th 1087 (Lopez), review granted November 13, 2019, S258175, and People v. Munoz (2019) 39 Cal.App.5th 738 (Munoz), review granted November 26, 2019, S258234—from the court of appeal finding that section 1170.95 does not apply to attempted murder. The Petition was denied without prejudice. 5  DISCUSSION Defendant contends the trial court erred by dismissing the Petition based on his claim that although attempted murder is not enumerated in section 1170.95 or Sen. No. 1437, the Legislature intended that it apply to attempted murder. Whether section 1170.95 applies to attempted murder will ultimately be decided by the California Supreme Court. We follow the reasoning in Lopez and Munoz and find section 1170.95 and Sen. No. 1437 do not apply to attempted murder. “[Sen. No. 1437] modified California’s felony murder rule and natural and probable consequences doctrine to ensure murder liability is not imposed on someone unless they were the actual killer, acted with the intent to kill, or acted as a major participant in the underlying felony and with reckless indifference to human life.” (People v. Cervantes (2020) 46 Cal.App.5th 213 , 220.) Sen. No. 1437 added section 189, subdivision (e), which modified first degree felony murder, and provides that when “[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” 6  Sen. No. 1437 also added section 188, subdivision (a)(3), which redefined malice. It provides, “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” Hence, “[Sen. No. 1437] eliminates aider and abettor liability for murder under the natural and probable consequences doctrine.” (Lopez, supra, 38 Cal.App.5th at p. 1092.)2 Section 1170.95 provides the “exclusive means of obtaining relief” for eligible defendants to have their murder convictions vacated after Sen. No. 1437. (People v. Cervantes, supra, 46 Cal.App.5th at p. 220.) Section 1170.95 states, “(a) A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial . . . . [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (Italics added.) 2 We cite cases that have been granted review, including Lopez and Munoz, only for persuasive value and not as binding precedent. (Cal. Rule of Court, Rule 8.1115(e)(1).) 7  Section 1170.95, subdivision (c) provides “The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” “If it is clear from the record of conviction that the petitioner cannot establish eligibility as a matter of law, the trial court may deny the petition. [Citation.] If, however, a determination of eligibility requires an assessment of the evidence concerning the commission of the petitioner’s offense, the trial court must appoint counsel and permit the filing of the submissions contemplated by section 1170.95.” (People v. Smith (May 15, 2020) 49 Cal.App.5th 85 , 92, fn. omitted, review granted July 22, 2020, S262835.) Here, the trial court determined that the Petition did not entitle defendant to relief on its face because he had entered a guilty plea to attempted murder, which is not enumerated in section 1170.95, relying on Lopez and Munoz. As such, we must determine whether the statute can be construed to include attempted murder. Such review is de novo. (People v. Gonzalez (2017) 2 Cal.5th 1138 , 1141.) “Our role in construing a statute is to ascertain the intent of the Legislature in order to effectuate the purpose of the law. [Citation.] Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning and construing them in context. [Citation.] If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction.” (People v. Johnson (2002) 28 Cal.4th 240 , 244.) 8  Based on the plain language of Sen. No. 1437 and section 1170.95, they only apply to murder convictions. Section 1170.95 specifically only uses the terms “convicted of felony murder or murder.” (§ 1170.95, subd. (a).) As for Sen. No. 1437, in Lopez, the court found “[T]here is nothing ambiguous in the language of SB 1437, which, in addition to the omission of any reference to attempted murder, expressly identifies its purpose as the need ‘to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ [Citation.] Had the Legislature meant to bar convictions for attempted murder under the natural and probable consequences doctrine, it could easily have done so.” (Lopez, supra, 38 Cal.App.5th at pp. 1104.) It further held, “The Legislature’s obvious intent to exclude attempted murder from the ambit of the SB 1437 reform is underscored by the language of new section 1170.95, . . . Section 1170.95, subdivision (a), authorizes only those individuals ‘convicted of felony murder or murder under a natural and probable consequences theory’ to petition for relief; and the petition must be directed to ‘the petitioner’s murder conviction.’ ” (Id. at pp. 1104-1105.) Based on the plain language of the statute, the trial court properly determined that the Petition did not present a prima facie case entitling defendant to relief as he had been convicted of attempted murder. 9  In Lopez and Munoz, the courts also concluded that the legislative history did not support that the legislation was intended to apply to attempted murder. (Lopez, supra, 38 Cal.App.5th at pp. 1104-1106; Munoz, supra, 39 Cal.App.5th at pp. 753-760.) In Lopez, the court concluded that the “Legislature’s obvious intent to exclude attempted murder from the ambit of the SB 1437 reform” based both on the plain language of the statute and the fact that the Legislature repeatedly referred to only first and second degree murder. (Lopez, supra, 38 Cal.App.5th at p. 1105.) The court in Lopez noted that in discussing the fiscal impact of Sen. No. 1437, the Legislature referred to only those serving prison sentences for first and second degree murder. (Ibid.) The Munoz court concluded, in reviewing the legislative history, that “all indications are that the exclusion of attempted murder was intentional.” (Munoz, supra, 39 Cal.App.5th at p. 757.) It also concluded that excluding attempted murder did not result in an “absurdity” because the Legislature reasonably could limit Sen. No. 1437 to murder based on the different sentences for murder and attempted murder. (Id. at pp. 757-758.) Other appellate courts have concluded that despite attempted murder not being enumerated in Sen. No. 1437, the legislation must be interpreted to include attempted murder in addressing attempted murder convictions that were pending on appeal. (See People v. Sanchez (2020) 46 Cal.App.5th 637 , 644, review granted March 16, 2020, S261768 [“Limiting SB 1437’s malice imputing prohibition to murder” incentivizes murder]; People v. Medrano (2019) 42 Cal.App.5th 1001 , 1015, review granted March 11, 2020, S259948 [“Because the crime of attempted murder is tethered to the murder statutes, i.e., it does not exist without them, there is no logical basis for applying section 10 188 to murder and treating the crime of attempted murder as being subject to an impliedly different and unspecified rule of law”]; People v. Larios (2019) 42 Cal.App.5th 956 , 966, review granted February 26, 2020, S259983 [“[T]he natural and probable consequences doctrine is no longer a viable theory of accomplice liability for attempted murder . . . since ‘implied malice cannot support a conviction of an attempt to commit murder’ [citation], the current version of section 188 requires proof the aider and abettor acted with the intent to kill while aiding and abetting the target offense”].) However, in Larios and Medrano, the courts found that even if Sen. No. 1437 applies to attempted murder convictions on direct appeal, based on the unambiguous language in section 1170.95, a defendant convicted of attempted murder could not file a petition pursuant to section 1170.95. (People v. Larios, supra, 42 Cal.App.5th at pp. 969- 970; People v. Medrano, supra, 42 Cal.App.5th at pp. 1017-1018.)3 These courts concluded, “[T]here is a rational basis for the Legislature’s decision to grant relief pursuant to section 1170.95 only to murder convictions and exclude attempted murder convictions based on judicial economy and the financial costs associated with reopening both final murder and final attempted murder convictions.” (People v. Larios, supra, 42 Cal.App.5th at p. 970; People v. Medrano, supra, 42 Cal.App.5th at p. 1018.) Defendant insists that these courts erred by concluding as such. We agree with the reasoning of these cases and find that section 1170.95 does not allow a defendant who has been convicted of attempted murder to apply for relief. 3 The court in Sanchez did not address the issue of section 1170.95. (People v. Sanchez, supra, 46 Cal.App.5th at pp. 642-645.) 11  DISPOSITION We affirm the trial court’s order denying defendant’s petition for resentencing pursuant to Penal Code section 1170.95. NOT TO BE PUBLISHED IN OFFICIAL REPORTS MILLER J. We concur: RAMIREZ P. J. FIELDS J. 12

2020-12-02 21:02:28.067142+00

https://www.courts.ca.gov/opinions/nonpub/B294737.PDF

Filed 12/2/20 P. v. Sandoval CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, B294737 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA090295) v. EMILIO SANDOVAL, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed. Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.  In January 2018, fourteen-year-old M.M. was walking to meet his mother when defendant and appellant Emilio Sandoval (defendant) approached him holding a 12-inch knife. Defendant told M.M. to hand over his watch or he would kill M.M., and defendant jabbed the knife toward M.M. twice from a distance of about three feet. Defendant then cut his own arm with the knife and walked away. A jury convicted defendant of one count of assault with a deadly weapon other than a firearm and one count of criminal threats, with the latter committed while personally using a deadly and dangerous weapon. We consider whether the trial court prejudicially erred in instructing the jury that the knife could be a deadly weapon either inherently or as-used, whether there is substantial evidence the knife was deadly as- used, and whether the trial court erred by excluding testimony about defendant’s mental health history and his mental illness diagnoses rendered months after the date of the offense. I. BACKGROUND A. The Charges Against Defendant The Los Angeles County District Attorney charged defendant with three crimes: (1) attempted second degree robbery in violation of Penal Code section 664/211 (count 1);1 (2) criminal threats in violation of section 422, subdivision (a) (count 2); and (3) assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 3). The information further alleged defendant personally used a deadly and dangerous weapon, a 1 Undesignated statutory references that follow are to the Penal Code. 2 knife, in the commission and attempted commission of counts one and two. B. Relevant Pretrial Proceedings Prior to trial, the superior court referred defendant for a psychological evaluation. The assessment was performed by Dr. Catherine Scarf in May 2018. In the course of the assessment, Dr. Scarf reviewed various documents related to the case, including the arraignment hearing transcript and arrest report. Dr. Scarf also interviewed defendant and reported, among other things, that during the interview defendant’s thought process was linear and goal-directed, and there was no evidence of psychotic process. During the interview, defendant denied current suicidal ideation but reported he had attempted suicide in the past. Defendant declined to discuss his previous suicide attempt. Defendant reported he had been admitted to a psychiatric hospital in 2018, which he attributed to being high on methamphetamine, and he reported he had previously been diagnosed as suffering from bipolar disorder. Defendant stated he had problematic alcohol abuse and had undergone rehabilitation, and he also reported heroin and methamphetamine use. Dr. Scarf administered various tests and concluded defendant’s intellectual abilities were likely in the high-average range and his reading skills were in the average range. Dr. Scarf also concluded defendant met the criteria for diagnosis with unspecified anxiety disorder and stimulant use disorder. 3  The prosecution moved in limine to exclude Dr. Scarf from testifying at trial.2 The prosecution argued Dr. Scarf’s opinion would not be relevant to a jury’s determination of whether defendant was able to form the requisite intent at the time of the offense. The trial court granted the prosecution’s motion in limine and excluded the testimony under Evidence Code section 352. The court stated the testimony was not relevant, would unduly consume time, and had no probative value because it did not deal with the events that allegedly transpired on January 23, 2018. Instead, Dr. Scarf could testify only to what she observed when she interviewed defendant in May 2018. As a result, the testimony did not go to any defense that could be proffered to the jury and could only serve to confuse the issues to be decided at trial. C. Trial The prosecution presented testimony from M.M. and two Los Angeles Police Department officers during its case in chief. Defendant testified during the defense case. 1. The facts as established by prosecution witnesses Around 2:30 p.m. on January 23, 2018, fourteen-year-old M.M. was walking toward a 99-cent store to help his mother with some bags when defendant appeared about six feet in front of him. Defendant was holding a knife that was about 12 inches 2 Though the reporter’s transcript of the hearing suggests the prosecution filed a written motion, the motion itself is not included in the appellate record. 4 long, and the knife had some blood on it. Defendant approached M.M. and, when he (defendant) was about three feet away, told M.M. to hand over his watch or defendant would kill M.M. Defendant was pointing the knife toward M.M. at the time and jabbed the knife toward M.M. twice. During the jabbing motions, the knife was about two feet away from M.M. M.M. thought defendant would kill him if he did not hand over his watch, but M.M. was in shock and froze because he did not know how to react. After threatening M.M. and jabbing the knife at him, defendant cut his own right arm with the knife twice while looking at M.M. Defendant then started walking away, heading toward a liquor store. Defendant walked by M.M., passing within about two feet of him, as he did so. M.M. then called the police. Los Angeles Police Department Officers apprehended defendant later that day, and M.M. identified defendant. M.M. had nightmares for about a week after the incident. 2. Evidentiary ruling on defendant’s testimony Before defendant testified, the People moved under Evidence Code section 402 to exclude any testimony regarding defendant’s prior mental health history or drug use, unless it related to the day of the offense. Defendant argued his prior hospitalizations were relevant to his state of mind, noting mental health issues do not develop overnight. The court granted the People’s motion, ruling defendant could not testify to any prior drug usage, mental health issues he may have suffered, or any hospitalizations or psychiatric care received before or after the offense, clarifying that the only relevant issue was defendant’s state of mind and mental capacity on the day of the incident. 5  3. Defendant’s testimony and his post- apprehension statements Defendant testified he cut his arm on the day in question to make himself bleed.3 Defendant felt like he wanted to kill himself and was cutting himself both to alleviate pain and to work up to suicide. Defendant did not recall encountering M.M. or pointing a knife at him. Defendant recalled that at the time of the incident, he was walking down the street with a 10 to 12-inch knife, on his way to get a beer, and muttering “Watch, I’m going to kill myself” to himself as he went. When the police stopped him later that day, defendant did not know why they did so. Defendant spoke to Officer Banuelos of the Los Angeles Police Department after his arrest (the interaction was captured by the officer’s body-worn video camera). Defendant denied committing a robbery, denied demanding a watch, and denied threatening to kill anyone. Defendant admitted he had a knife and had cut himself with a knife, but he said he was not someone who steals. Defendant said he was mumbling to himself and might have been misunderstood. 4. Jury instructions The court gave the jury two instructions on what qualifies as a deadly weapon. One was based on former CALCRIM No. 875. In pertinent part, the instruction as given stated “[a] deadly weapon other than a firearm is any object, instrument, or weapon 3 During his testimony, defendant admitted to having a prior misdemeanor conviction in 2015. 6 that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” The other instruction was based on former CALCRIM No. 3145. In pertinent part, that instruction stated “[a] deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. 5. Closing argument During closing argument, the prosecution commented on what qualifies as a deadly weapon: “A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that can be used in a manner that would cause great bodily injury. [¶] I don’t think there’s anyone that doesn’t know that a knife is capable of bodily injury, that a knife can be used as a dangerous or deadly weapon. You heard it from the defendant himself, he had a knife, 12-inch knife, that means it’s a deadly weapon.” Later, when addressing the assault with a deadly weapon charge, the prosecutor returned to the same general subject and argued, “the defendant did an act with a deadly weapon. He did, he was wielding this steak knife, and he made a jabbing motion toward the victim twice.” D. Verdict and Sentencing The jury deadlocked on the attempted robbery charge (count 1), and the court declared a mistrial on that count (later dismissing it). The jury found defendant guilty of the criminal threats charge (count 2), and further found defendant personally used a knife, a deadly and dangerous weapon, in the commission 7 of the offense. The jury also found defendant guilty of the crime of assault with a deadly weapon (count 3). The trial court sentenced defendant to the mid-term of three years in state prison on count 3. The court sentenced defendant to the mid-term of two years on count 2, plus one year for the knife allegation, for a total of three years as to count 2—to run concurrently with the sentence on count 3. II. DISCUSSION Reversal is not required for any of the three reasons defendant argues. First, the People rightly concede the trial court’s instruction on what constitutes a deadly weapon was defective because the knife defendant had cannot be considered an inherently deadly weapon. The instruction was not prejudicial under People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), however, which is the controlling case on this issue. The features of the instruction given, the prosecution’s emphasis on the knife’s capability of causing death or great bodily injury, the absence of a dispute from the defense about whether the knife was a deadly weapon, and other findings the jury made in rendering its verdict all establish the error was harmless. Second, there is substantial evidence that the knife was used as a deadly weapon and, thus, that adequate evidence supports defendant’s conviction for assault with a deadly weapon and the personal use of a knife enhancement the jury found true. Third, the trial court did not abuse its discretion when excluding evidence of defendant’s mental health history and mental illness diagnoses (and any error was harmless regardless). The excluded testimony was not significantly probative of defendant’s mental state when he committed the offense and the trial court 8 reasonably concluded any probative value was outweighed by the likelihood that presentation of the evidence would unduly consume time and confuse the jury. A. The Instructional Error in Defining a Deadly Weapon Was Not Prejudicial To find a defendant guilty of assault with a deadly weapon, a jury must find, among other things, the defendant “did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person.” (§§ 240, 245, subd. (a)(1); People v. Williams (2001) 26 Cal.4th 779 ; CALCRIM No. 875.) The court here instructed the jury with the former version of CALCRIM No. 875 that defined “deadly weapon” as a weapon other than a firearm “that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.”4 “An ‘inherently deadly or dangerous’ weapon is a term of art describing objects that are deadly or dangerous in ‘the ordinary use for which they are designed,’ that is, weapons that have no practical nondeadly purpose.” (People v. Stutelberg (2018) 29 Cal.App.5th 314 , 318-319.) Because the sort of knife in defendant’s possession has an ordinary, “innocent purpose” of 4 CALCRIM No. 875 has since been revised. It now states: “[A deadly weapon other than a firearm is any object, instrument, or weapon [that is inherently deadly or one] that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.]” The bench notes to the instruction state: “Give the bracketed phrase ‘that is inherently deadly or one’ and give the bracketed definition of inherently deadly only if the object is a deadly weapon as a matter of law.” 9 cutting food, it is not an inherently deadly weapon. (Aledamat, supra, 8 Cal.5th at 6.) It may, however, “be a deadly weapon within the meaning of section 245, subdivision (a)(1) when used in a manner capable of causing and likely to cause death or great bodily injury.” (People v. Brown (2012) 210 Cal.App.4th 1 , 7.) Defendant argues, and the People concede, it was error for the trial court to instruct the jury there were two alternate theories it could use to find defendant guilty of assault with a deadly weapon. While one theory—that the knife was used in a manner capable of causing and likely to cause death or great bodily injury—was legally correct, the other—that the knife was inherently deadly—was legally incorrect. We agree the instruction was erroneous for that reason. (Aledamat, supra, 8 Cal.5th at 6-7.) The parties disagree, however, about whether the erroneous instruction was prejudicial such that reversal is required. Defendant contends the instruction was prejudicial because he believes the prosecution relied exclusively on the theory that the knife was a deadly weapon. The Attorney General disputes that and argues reversal is not required. Our Supreme Court’s decision in Aledamat sets the rules for the prejudice analysis we must undertake. In that case, the defendant was charged with assault with a deadly weapon in the form of a box cutter. The trial court instructed the jury with the former version of CALCRIM No. 875. (Aledamat, supra, 8 Cal.5th at 4.) By presenting the jury with both the inherently deadly and as-used definitions of a deadly weapon, the trial court instructed the jury with one legally incorrect theory (inherently) and one correct theory (as-used). (Id. at 7.) The Supreme Court 10 held this was error but found it harmless based on a “number of circumstances.” (Id. at 13.) One of those circumstances was the wording of former CALCRIM No. 875 itself. That wording (the same wording in the instruction here) juxtaposes “inherently deadly” with “used in such a way that it is capable of causing injury and likely to cause death or . . . great bodily injury” such that the instruction “at least indicates what the ‘inherently deadly’ language was driving at.” (Aledamat, supra, 8 Cal.5th at 13-14.) Our Supreme Court also looked to the prosecution’s closing argument in that case and found it was unlikely the jury would view the box cutter as inherently deadly without considering how it was used. The prosecutor there argued the box cutter was deadly because “‘you wouldn’t want your children playing with’ it,” and the Court emphasized “no one ever suggested to the jury that there were two separate ways it could decide whether the box cutter was a deadly weapon.” (Id. at 14.) The Supreme Court also found it significant that the box cutter’s status as a deadly weapon was not really a point of contention: while the defense attorney did not concede the box cutter was a deadly weapon, the attorney also did not argue it was not. (Ibid.) These same considerations convince us the instructional error here was not prejudicial. The trial court gave the jury the same version of CALCRIM No. 875 as was at issue in Aledamat, and Aledamat’s point about the juxtaposition of the wording in the instruction accordingly obtains here too. (Aledamat, supra, 8 Cal.5th at 13-14.) In addition, the prosecution’s closing argument here focused on the manner in which defendant used the knife. Specifically, the prosecution twice referred to what a knife can be used to do, not what it inherently does: “I don’t think there’s 11 anyone that doesn’t know that a knife is capable of bodily injury, that a knife can be used as a dangerous or deadly weapon. To be sure, the prosecution also remarked right after this that “you heard it from the defendant himself, he had a knife, 12-inch steak knife, that means it’s a deadly weapon.”5 But in context, coming right after what the prosecution said about how a knife can be used (implicitly conceding a knife can also be used in ways that are not deadly), we do not understand this subsequent remark as an assertion that the knife was an inherently deadly weapon. Rather, the “that” to which the prosecution referred when saying “that means it’s a deadly weapon” is best understood to refer to defendant’s use of the knife, which showed it was capable of being used in a deadly, dangerous way. Turning to defense counsel’s closing argument, the circumstances are the same as in Aledamat: defense counsel did not concede the knife was a deadly weapon but also did not contest the characterization of the knife as capable of being used in deadly fashion. The defense’s approach on this point was sensible because, again as in Aledamat, contesting the point would have been futile based on the record. (Aledamat, supra, 8 Cal.5th at 14 [“Counsel could readily believe it would be pointless . . . to argue that even if . . . the jury found defendant 5 Defendant appears to analogize this remark by the prosecution here to a Court of Appeal case that characterized an attorney’s closing argument as “highly inflammatory and improper in many respects,” that is, one that appealed to the passion or prejudice of the jury, asked for a guilty verdict based on sympathy for the deceased, and vilified counsel and witnesses. (People v. Talle (1952) 111 Cal.App.2d 650 , 676.) The comparison is obviously inapt. 12 assaulted the victim with the box cutter, it was not a deadly weapon”].) Though a 12-inch knife is not inherently deadly, it obviously has deadly potential when used to stab someone. That potential would have been all the more apparent to the jury in light of defendant’s contemporaneous threat to kill M.M. The Aledamat court also reasoned it would have been impossible for the jury not to find the box cutter was capable of causing and likely to cause death or bodily injury based on the other facts the jury necessarily found in that case. The court relied on the following findings that the jury made in convicting Aledamat of assault with a deadly weapon: “(1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person.” (Aledamat, supra, 8 Cal.5th at 15.) The Aledamat court also explained “the jury must have considered the term ‘inherently deadly’ to mean something” and concluded that the jury would have necessarily found the box cutter deadly in the colloquial sense of the word: “readily capable of inflicting deadly harm.” (Ibid.) As a result, the court concluded “‘[n]o reasonable jury that made all of these findings could have failed to find that defendant used the box cutter in a way that is capable of causing or likely to cause death or great bodily injury.’ [Citation.]” (Ibid.) The jury here, which made the same findings as the jury in Aledamat, similarly could not have done so without also finding defendant used the knife “in a way that is capable of causing or likely to cause death or great bodily 13 injury.” (Ibid.) Following Aledamat, the instructional error here was harmless. B. Substantial Evidence Supports Defendant’s Assault with a Deadly Weapon Conviction Defendant challenges the sufficiency of the evidence supporting his conviction for assault with a deadly weapon in one respect: whether substantial evidence supports a finding that the knife was a deadly weapon under the sole legally correct theory, i.e., that it was used in a way that it was capable of causing and likely to cause death or great bodily injury. When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the record “‘in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Westerfield (2019) 6 Cal.5th 632 , 713; see also Evid. Code, § 411 [“Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact”]; People v. Barnwell (2007) 41 Cal.4th 1038 , 1052.) In undertaking the required substantial evidence inquiry, we are guided by the following principles. “First, the object alleged to be a deadly weapon must be used in a manner that is not only ‘capable of producing’ but also ‘likely to produce death or great bodily injury.’” (In re B.M. (2018) 6 Cal.5th 528 , 533 (B.M.).) “Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate.” (People v. McDaniel (2008) 159 Cal.App.4th 736 , 748 (McDaniel).) Second, 14 the determination of whether the object is a deadly weapon rests on evidence of how a defendant actually used the object. (B.M., supra, at 534 .) “Third, although it is appropriate to consider the injury that could have resulted from the way the object was used, the extent of actual injury or lack of injury is also relevant. ‘[A] conviction for assault with a deadly weapon does not require proof of an injury or even physical contact’ [citation], but limited injury or lack of injury may suggest that the nature of the object or the way it was used was not capable of producing or likely to produce death or serious harm.” (Id. at 535.) Here, defendant wielded a 12-inch knife and jabbed it toward M.M. when he was standing three feet away from M.M. Once extended, the knife was approximately two feet from M.M. The jury could reasonably infer the knife was sharp and capable of inflicting serious injury because defendant used it to cut his own arm while M.M. was watching. Though defendant did not actually cut M.M., the lack of injury does not indicate defendant’s act of jabbing the knife toward M.M. was unlikely to produce serious bodily injury. An object can be a deadly weapon even if it does not actually produce a deadly result or grievous injury; there are many cases affirming assault with a deadly weapon convictions when the object used was “‘some hard, sharp, pointy thing that was used only to threaten, and not actually used to stab.’” (People v. Page (2004) 123 Cal.App.4th 1466 , 1471-1472 [pencil held against throat was a deadly weapon]; see also In re D.T. (2015) 237 Cal.App.4th 693 , 699 [knife with a sharp blade more than two and a half inches long]; People v. Simons (1996) 42 Cal.App.4th 1100 , 1106-1107 [screwdriver a deadly weapon when brandished at police officers].) From the way defendant wielded the knife, we conclude there is more than a mere possibility M.M. 15 would have suffered serious bodily injury if defendant had struck him while jabbing the knife at him. The record thus contains substantial evidence defendant used the knife in a manner that was both capable of producing and likely to produce serious bodily injury.6 C. The Trial Court’s Exclusion of the Mental Health Testimony Does Not Warrant Reversal “Evidence Code section 352 provides that ‘[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ . . . ’ [T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion 6 Defendant’s reliance on the facts of B.M. to urge a different result is unavailing. While B.M., like this case, involved the use of a knife, that is where the salient similarities end. The knife used in B.M. was a butter knife, which was “not sharp and had slight ridges on one edge of the blade.” (B.M., supra, 6 Cal.5th at 536 .) The defendant in B.M. used the knife on her sister’s legs (which were covered by a blanket), there was no evidence the defendant attempted to use the knife on any exposed part of the sister’s body, and the “moderate pressure that [defendant used] was insufficient to pierce the blanket much less cause serious bodily injury to [the victim].” (Ibid.) Here, as already noted, defendant’s 12-inch knife was sharp enough to cut skin and defendant jabbed the knife toward M.M., who was not protected by anything that would have stopped the progress of the knife had defendant made contact. 16 or consumption of time. [Citation.]’” (People v. Williams (2013) 58 Cal.4th 197 , 270-271 (Williams).) Evidence of a mental disease, defect, or disorder is admissible to demonstrate a defendant did not actually form the intent necessary for a particular crime. (People v. Coddington (2000) 23 Cal.4th 529 , 583, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046 , 1069, fn. 13.) (It is not, however, admissible to negate the capacity to form specific intent. (§ 28, subd. (a); People v. Nunn (1996) 50 Cal.App.4th 1357 , 1362).) The criminal threats charge against defendant is a specific intent crime: it “requires a threat of ‘death or great bodily injury’ with the specific intent that the statement be taken as a threat.”7 (People v. Jantz (2006) 137 Cal.App.4th 1283 , 1292.) Defendant contends the trial court abused its discretion and violated his constitutional rights to due process of law and a fair trial when it excluded testimony regarding his mental health. The trial court made two rulings pertinent to this argument, one granting the prosecution’s motion in limine to exclude testimony by Dr. Scarf under section 352, and one granting the prosecution’s later section 402 motion to preclude defendant from testifying about prior drug usage, mental health issues, or any 7 Assault with a deadly weapon, in contrast, is a general intent offense that does not require specific intent, and evidence of a defendant’s mental illness cannot negate the requisite intent. (People v. Rocha (1971) 3 Cal.3d 893 , 899; People v. Atkins (2001) 25 Cal.4th 76 , 91.) 17 hospitalizations or psychiatric care received before or after the offense. 8 The defense made no offer of proof in the trial court as to what Dr. Scarf would say if called to testify. The doctor’s report is therefore the only indication of her proposed testimony in the appellate record. It discusses three general categories of information: aspects of defendant’s mental health history, defendant’s performance on various cognitive tests administered by Dr. Scarf, and the diagnoses Dr. Scarf reached after conducting her assessment. None of this information, however, was linked to defendant’s mental state on the day of the offense, which means it had little if any probative value. Dr. Scarf’s recitation of defendant’s prior diagnosis of bipolar disorder—a disorder she did not include in her diagnosis of him—and his other mental health history was obtained solely from her interview with defendant. The report does not state Dr. Scarf reviewed any records that might have provided independent support for defendant’s assertions. Additionally, other than the 2018 hospitalization that defendant attributed to methamphetamine use, defendant’s own statements to Dr. Scarf did not suggest any of these historical factors were temporally proximate to the date 8 To the extent defendant contends the trial court should have permitted the introduction of a separate report detailing an evaluation pursuant to section 1368, that contention is forfeited because defendant did not seek to have the evidence admitted below. (People v. Seijas (2005) 36 Cal.4th 291 , 301 [“questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal”].) 18 of the offense (and there is no evidence proving defendant was under the influence of methamphetamine when he threatened and assaulted M.M.). The results of Dr. Scarf’s cognitive tests of defendant similarly were not linked to his behavior on the date of the offense. Further, even if the tests could be seen as relevant to defendant’s state of mind on the day of the assault, the results indicated defendant’s thought process was linear and his intellectual capacity and reading ability ranged between average and high-average. Thus, if anything, the test results would suggest defendant did form the requisite intent to commit the criminal threats offense. Finally, Dr. Scarf’s report does not link the diagnoses she rendered in May 2018 to defendant’s state of mind on the day of the incident, which occurred months earlier. Nor does the report indicate those diagnoses would support an inference defendant had not formed the requisite intent to threaten M.M. With low or no probative value, the trial court stayed within the bounds of its discretion when it determined calling Dr. Scarf as a witness presented an unwarranted risk of confusing the issues and would unduly consume time. Defendant acknowledges Dr. Scarf’s report does not “specifically” address how his diagnoses might have affected his mental state at the time of the offense, but he argues the omission does not mean the information could not have been elicited and he contends it was error for the trial court not to hold a further hearing under Evidence Code section 402. The first of these contentions is unavailing because he made no offer of proof as to how the diagnoses could be connected to his mental state. (People v. Anderson (2001) 25 Cal.4th 543 , 580-581 [“a judgment 19 may not be reversed for the erroneous exclusion of evidence unless ‘the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means’”].) The latter of these contentions is forfeited because defendant did not ask the court to conduct an Evidence Code section 402 hearing so Dr. Scarf could describe her anticipated testimony in more detail. (In re Seaton (2004) 34 Cal.4th 193 , 198.) Defendant additionally urges it was error for the trial court to rule he could not testify regarding his own mental health history and his state of mind immediately preceding and following the incident, arguing the evidence would have bolstered his credibility. This argument is flawed for three reasons. First, the trial court’s ruling did not prevent defendant from testifying regarding his state of mind “immediately preceding and immediately following” the incident; the trial court did not limit defendant’s testimony to the exact moment of the offense. Rather, the trial court ruled the relevant issue was defendant’s state of mind and mental capacity on the day of the incident. Second, defendant did not advance this credibility argument below, where he argued only that his mental health history was relevant to his state of mind, not his credibility. Third, to the extent defendant argues his testimony would have been relevant to his intent, defendant did not detail for the trial court the testimony he would have provided regarding his mental health history and thus did not demonstrate how it would have indicated he did not form the requisite intent that M.M. understand his statement as a threat. Without an offer of proof showing a connection between his proposed testimony and his 20 behavior during the incident, we cannot fault the trial court’s decision.9 Even assuming for argument’s sake that the trial court’s evidentiary rulings were erroneous under the abuse of discretion standard, it is still true that “‘[a]pplication of the ordinary rules of evidence . . . [generally] does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.] If the trial court misstepped, ‘[t]he trial court’s ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’ [Citation.]” (People v. Fudge (1994) 7 Cal.4th 1075 , 1103 (Fudge).) Thus, for our purposes, “the proper standard . . . [for assessing prejudice] is that announced in People v. Watson (1956) 46 Cal.2d 818 , 836 [Watson] . . . , and not the stricter beyond-a- reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18 , 24 . . . ).” (Fudge, supra, 7 Cal.4th at 1103 .) The trial court did not refuse to allow defendant to present a complete defense; it excluded only some evidence the defense wanted to present. (See Fudge, supra, 7 Cal.4th at 1102-1103 .) Defendant was allowed to testify—and did testify—about his mental state on the day of the incident. He claimed he was 9 Defendant’s reliance on People v. Moss (2003) 109 Cal.App.4th 56 (Moss) is improper. The case was superseded by grant of review and is not citable. 21 suicidal and was talking to himself at the time of the offense. He also testified he had cut himself to alleviate pain he was feeling and did not recall encountering M.M. or pointing a knife at him. Assuming the excluded testimony regarding his diagnosis, months later, of stimulant use and unspecified anxiety disorders was relevant to bolster this testimony, its exclusion did not preclude “all testimony about the accused’s own diagnosis, or mental condition, at the time of the offense.” (People v. Cortes (2011) 192 Cal.App.4th 873 , 909.) Accordingly, reversal is not warranted unless it is “reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at 836.) That is not the case here. Nothing in the evidence the trial court excluded connected defendant’s mental health diagnoses or methamphetamine hospitalization to the absence of a specific intent to threaten M.M. It is thus not reasonably probable that the admission of the evidence would have led the jury to find defendant did not intend for M.M. to understand his statement, made while he was jabbing a knife at M.M., as a threat. 22  DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS BAKER, J. We concur: RUBIN, P. J. KIM, J. 23

2020-12-02 21:02:28.293296+00

https://www.courts.ca.gov/opinions/nonpub/B298559.PDF

Filed 12/2/20 P. v. Moore CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE THE PEOPLE, B298559 Plaintiff and Respondent, Los Angeles County Super. Ct. No. NA110625 v. KENNITH MOORE, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Laura L. Laesecke, Judge. Affirmed. Christine Dubois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent. _________________________  A jury convicted defendant and appellant Kennith Moore of two counts of robbery. The jury found true an allegation that Moore used a knife in the commission of the crimes. On appeal, Moore contends the trial court was required to instruct the jury on theft as a lesser offense of robbery, because he “abandoned” the items he had stolen from the grocery store before he produced a knife and waved it at store employees who had asked him to give back the merchandise. We disagree and therefore affirm Moore’s conviction. FACTS AND PROCEDURAL BACKGROUND 1. Moore takes items from a grocery store then waves a knife at store employees On November 4, 2018, around 4:30 p.m., Timothy Thomas was working as a security guard at the Superior Warehouse in Long Beach. Thomas was standing outside the front of the store. A store employee told Thomas a customer was shoplifting. Thomas notified the manager, Saul Rodriguez, then “engaged the customer”—later identified as Moore—and asked him if he had “a receipt or ‘How can I help you?’ ” Moore told Thomas “the merchandise he had was his.” Then Moore said, “[L]eave me the fuck alone.” In the meantime, Rodriguez came outside. He asked Thomas if he’d seen anyone “walking out with stuff.” Thomas pointed out Moore, who was standing at the bicycle rack. Moore was wearing a “really big” jacket and Rodriguez “noticed that he had something.” Thomas could see a six-pack of beer in Moore’s jacket. Rodriguez told Moore, “ ‘Hey, just give me what you have.’ ” Moore was “kind of like aggressive”; it seemed he just “want[ed] to go.” When Moore “tried to grab his bicycle,” “all the things that he had in his body started falling down.” Moore started walking toward the sidewalk on Long Beach Boulevard, then “just pulled out a knife” from his right jacket pocket. Moore 2 extended his arm and moved the knife back and forth from side to side. Items—including raw meat and rotisserie chicken— were dropping from Moore’s jacket. Thomas told Rodriguez to call the police and Rodriguez did. Rodriguez’s 911 call was played for the jury at trial. Rodriguez told the dispatcher, “[W]e have stopped a guy and he has a knife and he was attacking us.” Thomas thought Moore was going to “get his bike and leave” but Moore started walking toward Thomas. Moore “pulled out his knife a second time.” In the 911 call, Rodriguez told the dispatcher, “[H]e’s coming back with the knife. Look! He’s coming back.” Rodriguez then said, “Hey! Hey! Watch out man!” and “Hey! Stop!” Moore got on his bike and began to ride it. Thomas “grabbed [Moore] from behind.” Thomas was able to get the knife and “toss[ ] [it] to the side.” Rodriguez put his foot on the knife. Surveillance footage from a store camera—shown to the jury at trial—recorded the next four minutes or so. We have watched the footage. Moore enters the screen from the bottom left-hand corner, riding his bike. Thomas grabs him from behind. Items fly from Moore and land on the pavement. One item appears to be full of liquid: it breaks and clear liquid runs down the pavement toward the parking lot. (This is likely one of the three bottles of Ketel One vodka that officers later found in Moore’s possession. Moore is seen minutes later picking up a broken glass bottle off the ground.) Moore and Thomas struggle on the pavement. Another man arrives and tries to help Thomas. After about two minutes of struggle, Moore stands up. Thomas is off to the right side of the screen. Moore picks a few items up from the pavement, takes his bicycle, then leaves the bicycle and walks away. 3  Thomas never was able to handcuff Moore. After the scuffle, Moore made off with the handcuffs. Thomas sustained a cut to his right hand from the broken bottle during the altercation with Moore. Long Beach Police Officer Juan Ortiz was called to the area. Ortiz saw Moore sitting on a bus bench. A passerby flagged Ortiz down and told him “the guy [who] ran from security at the Superior” was “sitting right over there.” Moore matched the description Ortiz had been given of the robbery suspect. Moore made eye contact with Ortiz, immediately got up, started walking away at a fast pace, and ran up an alley and then around a corner. Eventually Ortiz was able to “detain” Moore. Both Rodriguez and Thomas identified Moore in a field show-up. Officers found cooked chicken “along” the main entrance to the store and raw chicken lying on the nearby sidewalk. In a bag Moore was carrying, Ortiz found two bottles of Ketel One vodka, a third vodka bottle that was broken and empty, frozen French fries, candy, and cookies. Officers took the items back to the store. Rodriguez identified some of them as merchandise from his store. At trial, the prosecutor introduced photographs of pieces of raw meat and of a knife lying on the pavement. Jurors were shown video surveillance from cameras inside the store. We have watched the footage. The video—totaling just over four minutes—is not one continuous recording but eight clips from different areas and aisles of the store. In the first clip, a man enters the store wearing a zippered jacket, zipped about halfway up, and carrying two bags, a dark blue bag and what appears to be a white plastic grocery bag. At trial, Moore admitted that man was him. The second clip is of the meat aisle. Moore puts both bags down, picks up a package from the open refrigerated case, and uses his left hand to open 4 his jacket. He places the package inside his jacket with his right hand, then adjusts his jacket as he walks toward the camera. In the third clip, Moore opens the door of a refrigerated case and takes out what appears to be a half gallon of milk in a plastic container. In the fourth clip, Moore walks toward the camera, still holding the milk, then leans forward and puts the milk container into his jacket on the left side by reaching in from the top with his right hand. In the fifth clip, Moore picks up a red rectangular item. He walks toward the camera, then steps to his right. A large poster or display obscures the camera’s view of him. When he emerges from behind the poster, there is no sign of the red item. Moore adjusts his now-bulging jacket. In the sixth clip, Moore stops and puts both bags down. He adjusts his jacket, pulling the bottom of it over a large bulge in his stomach area, especially to the left side. In the seventh clip, Moore walks between cashiers’ stations, bypassing them, walking toward the camera. In the eighth clip, Moore leaves the store. 2. The charges, trial, verdicts, and sentence The People charged Moore with two counts of second degree robbery, alleging Moore took property from Thomas and Rodriguez. As to both counts, the People alleged Moore personally used a deadly and dangerous weapon: a knife. Before the preliminary hearing, Moore made a motion under Faretta v. California (1975) 422 U.S. 806 to represent himself. The court granted the motion. After Moore was held to answer, he successfully renewed his Faretta motion at arraignment in the superior court. The case went to trial in May 2019. Moore testified on his own behalf. The court permitted Moore to testify in a narrative. 5  Moore told the jury he had bought candy, cookies, potatoes, and socks from the 99 cent store that day. Moore then stopped at the Superior Warehouse to buy steaks. Moore testified, “When I went through some aisles, I guess I picked something up. When I picked something up, my intention was not to walk out of that store with those items. Something got me sidetracked. But I did because my hands were so full, I put the stuff on me.” Moore had not picked up a shopping cart when he entered the store. Moore left the store. When he got to his bike—which was either 60 yards or 120 feet from the exit1—Thomas approached him and asked him if he had a receipt. Moore said Thomas “immediately tried to snatch my property and me.” Moore told the jury he called Thomas “a fag.” Moore testified he planned to ride away on his bike but a car almost hit him. Moore said Thomas knocked him off his bike. Moore claimed he suffered a broken hand. Moore testified his bike was damaged and so he “limped away.” He said 10 or 15 police cars arrived and he “thought I was going to lose my life right there.” On cross-examination, Moore admitted he is the man seen in the in-store surveillance video and that he had put something from the meat section as well as a container of milk in his jacket. Moore said he didn’t recall what the meat item was. When the prosecutor pointed out in the video “a very large bulge on the left side of [Moore’s] jacket” and asked “what items are creating that bulge?,” Moore responded, “I don’t know.” Moore admitted the video shows him walking past the cash registers and leaving the store. Then he stated he paid for “some cookies” and “one pack of meat.” When asked if he had paid for 1 Moore gave both distances in his testimony. 6 the milk he had put in his jacket, he answered, “I didn’t have no milk.” Moore claimed his receipt was in the white bag. Moore testified that no items ever fell from his jacket. Moore denied ever having pulled out a knife. Before opening statements, the court gave both the prosecutor and Moore copies of proposed jury instructions. The court encouraged Moore to read the proposed instructions, and offered to loan him copies of the CALJIC instruction books. The court told Moore he “might want to look up the term, ‘lesser- included offense.’ ” The court explained that, “contained within robbery, there is theft.” The court told Moore, “There are only certain times that I can give that theft instruction when you have been charged with robbery. And right now, I don’t know if that applies. I won’t know until I listen.” The court continued, “Nothing that I know about right now, though, would cause me to give it. But if you’re going to develop that, you’re going to somehow want that instruction, then you need to be familiar with it and make sure you ask the right questions so that I can give you that instruction that you’re entitled to.” Moore said he understood and had no questions about what the court had just said. Four days later, the court asked Moore if he had “any issues” with the jury instructions. He said he did not. The court instructed the jury with CALJIC Nos. 9.40 (Robbery), 9.40.2 (Robbery—After Acquired Intent), 9.40.3 (Store Employee as Victim of Robbery), 9.41 (Robbery—Fear—Defined), and 9.43 (Second Degree Robbery as a Matter of Law). The court did not instruct on theft as a lesser included offense. In his closing argument, Moore told the jury he had a knife in his pocket and it fell out of his pocket when he “got struck from behind.” Moore stated, “You cannot prove a knife was struck or used against Timothy Thomas or Saul Rodriguez.” Moore said 7 Thomas and Rodriguez “falsified the police report, they falsified a printed receipt, and they falsified evidence.” The jury convicted Moore on both counts and found the weapon allegation true as to both. The court sentenced Moore to seven years and four months in the state prison. The court chose the upper term of five years on one of the robbery counts plus one year as one-third the midterm on the second count, plus one year plus four months (one-third the midterm) for the weapon enhancements. DISCUSSION Penal Code section 211 defines robbery as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. (People v. Gomez (2008) 43 Cal.4th 249 , 254 (Gomez).) Robbery is, therefore, a species of aggravated larceny. (Ibid.) Robbery “includes two phases: acquiring the property, and carrying it away (in the parlance of legalese: caption and asportation).” (People v. Robins (2020) 44 Cal.App.5th 413 , 418 (Robins).) In California, robbery is a continuing offense that begins from the time of the original taking and lasts until the robber reaches a place of relative safety. (People v. Anderson (2011) 51 Cal.4th 989 , 994.) The type of robbery at issue here is an Estes robbery, named for People v. Estes (1983) 147 Cal.App.3d 23 (Estes). “What sets an Estes robbery apart from a standard robbery is that the force or fear is used not in the acquisition of the property, but in the escape.” (Robins, supra, 44 Cal.App.5th at p. 419.) “The typical case starts with a shoplifting and turns into a robbery when the thief is confronted by a [loss prevention officer], and the thief assaults the [officer] in an attempt to get away.” (Ibid.) 8  The facts in Estes were nearly identical to ours. There, a store security guard saw Estes take clothing from a rack, put it on, and leave the store without paying. The guard followed Estes outside and confronted him. Estes refused to return to the store and began walking away. When the guard tried to detain him, Estes pulled out a knife and swung it at the guard. (Estes, supra, 147 Cal.App.3d at p. 26; see also Gomez, supra, 43 Cal.4th at p. 258.) The court of appeal held Estes’s use of force to prevent the guard from retaking the property and to facilitate his escape was sufficient to support his conviction for robbery. (Gomez, at p. 258.) Moore does not dispute this governing law. Instead— having testified under oath at trial that no items ever fell from his jacket during his interaction with Rodriguez and Thomas— he now contends that any and all items he stole from the store had fallen out of his jacket before he pulled out his knife and pointed it at the store employees. Moore asserts he had “dropped and abandoned the items he had unlawfully taken” from the store before he “menac[ed] [Rodriguez and Thomas] with his knife.” Accordingly, Moore argues, the trial court was required sua sponte to instruct the jury on theft as a lesser included offense of robbery. A trial court must—even in the absence of a request— instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142 , 154.) The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and that are necessary for the jury’s understanding of the case. (People v. St. Martin (1970) 1 Cal.3d 524 , 531.) However, the court is required to give a particular instruction sua sponte only if there is substantial evidence from which a jury composed of reasonable people could find 9 true the facts underlying the instruction. (Breverman, at p. 162.) A sua sponte duty to instruct does not arise from the existence of any evidence, no matter how weak. (Ibid.) The determination whether sufficient evidence supports an instruction must be made without reference to the credibility of that evidence. (People v. Salas (2006) 37 Cal.4th 967 , 982.) Doubt as to the sufficiency of the evidence to warrant a particular instruction should be resolved in the defendant’s favor. (People v. Tufunga (1999) 21 Cal.4th 935 , 944.) However, the court need not give instructions based solely on conjecture and speculation. (People v. Day (1981) 117 Cal.App.3d 932 , 936.) Moore contends the evidence showed he took only meat from the store, and he dropped it “before confronting the employees with a knife.” The record does not support that contention. The in-store surveillance video shows Moore taking a package from the meat case and a container of milk from the refrigerator.2 The video is a collection of clips; there was no testimony that the footage contains everywhere Moore went and everything he did within the store. For example, rotisserie chicken was found on the sidewalk but the video doesn’t show Moore taking chicken inside the store. 2 Moore says in his brief he “put the milk . . . back before leaving the store” but the page he cites from the reporter’s transcript doesn’t say that. The prosecutor asked Moore, “Did you pay for the milk?” Moore responded, “I didn’t have no milk.” The prosecutor began, “The carton of milk that we saw you grab and put into your jacket—.” Moore interrupted, “I did not have—.” The prosecutor continued, “Did you purchase the milk?” Moore answered, “No, I didn’t.” 10  Moreover, by the time Moore left the store, his jacket had a very large bulge—much larger than one package of meat and a half gallon of milk would cause. While showing Moore the video on cross-examination, the prosecutor asked Moore—just after the “red package” clip—“how many items do you have in your jacket at that point?” Moore responded, “I don’t know.” He did not say “two,” or “one.” The surveillance video of the area just outside the exit does not contain Moore’s interaction with Rodriguez and Thomas before Moore got on his bicycle to leave. There is no video of Moore’s display of the knife, which happened before Moore got on the bike. There is no video that shows what items fell from Moore’s jacket or when they fell in the sequence of events. Rodriguez testified items had fallen from Moore’s jacket before he pulled out the knife the first time, but the second time Moore displayed the knife was after items had fallen. Thomas testified he saw “some beer bottles” in Moore’s jacket when he first encountered him outside the store. When Thomas grabbed Moore, after Moore had twice displayed the knife, things fell and at least one glass container broke on the ground. When apprehended a short time later, Moore had two unopened bottles of vodka in his bag as well as a broken vodka bottle. On appeal, Moore asserts he had purchased that alcohol elsewhere. But Moore never testified to that at trial, even though given ample opportunity to tell his story in narrative form. Moore testified he had bought candy, cookies, potatoes, and socks at the 99 cent store. He made no mention of buying vodka, there or anywhere else. The jury reasonably could assume that 11 the dollar store does not sell Ketel One vodka for 99 cents.3 Nor was Moore’s testimony on this point consistent. He first said three bottles of alcohol were in his blue bag. Then he testified “all of the glass” was in the white bag and he was “laying in the liquor” from the white bag after Thomas grabbed him. Moreover, as the Attorney General notes, Moore did not voluntarily relinquish or “abandon[ ]” whatever items fell from his jacket in any event. The meat, chicken, and bottle of vodka fell despite Moore’s efforts to keep possession of them. (See People v. Torres (1996) 43 Cal.App.4th 1073 , 1077, 1079, disapproved on other grounds in People v. Mosby (2004) 33 Cal.4th 353 , 365, fn. 3 [no duty to instruct on theft as lesser to robbery where defendant, while holding radio he’d removed from victim’s car, swung screwdriver at victim’s companion; even though defendant then placed radio on victim’s car seat, he had used screwdriver to keep possession of victim’s property]; cf. People v. Pham (1993) 15 Cal.App.4th 61 , 64, 67-68 [no duty to instruct on attempted robbery where victim chased defendant to stop his escape and defendant dropped victim’s property and slugged victim in the head; defendant had not “truly abandoned” victim’s property before using force].) Moore relies on People v. Hodges (2013) 213 Cal.App.4th 531 . That case does not assist him. Hodges involved a trial court’s response to a jury question. Hodges had shoplifted some items from a grocery store. Security guards followed him to his car and demanded he come back inside. Hodges offered to give the merchandise back. The guards refused the offer, insisting Hodges return to the store. Hodges threw the items at a guard, 3 Indeed, an exhibit Moore himself introduced shows the two bottles of Ketel One vodka found in his possession when Ortiz detained him rang up at $34.98 and $19.99 respectively. 12 hitting him in the face or chest. As Hodges then tried to drive away, a guard reached into his car in an attempt to grab his keys and was dragged some distance. (Hodges, at pp. 535-536.) The appellate court held the trial court had erred in its response to a jury question about the sequence of these events because the evidence was susceptible to a conclusion that Hodges’s theft of the merchandise ceased after he no longer had the intent to keep the store’s property. (Id. at pp. 538, 543.) Here, by contrast, there is no evidence Moore sought to return or relinquish the items he’d stolen, before he waved his knife at the employees or—for that matter—at any time. In sum, there was no substantial evidence that Moore’s intent to keep and carry away the Superior Warehouse’s property ever ceased or that he intentionally dropped or abandoned the stolen items. The trial court had no obligation to instruct on theft as a lesser offense to robbery. DISPOSITION We affirm Kennith Moore’s judgment of conviction. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS EGERTON, J. We concur: EDMON, P.J. LAVIN, J. 13

2020-12-02 21:02:29.209871+00

https://www.courts.ca.gov/opinions/nonpub/E072862.PDF

Filed 12/2/20 P. v. Avalos CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E072862 v. (Super.Ct.No. RIF1704003) JORGE ARMANDO AVALOS, OPINION Defendant and Appellant. APPEAL from the Superior Court of Riverside County. Timothy J. Hollenhorst, Judge. Affirmed. William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison Acosta and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant Jorge Armando Avalos first met 23-year-old Jane Doe, who was his stepmother’s niece, at a family party. The following day, the family went 1 together to brunch, where Doe drank Mimosas and, when leaving the restaurant, appeared to be intoxicated. Defendant invited Doe and the rest of the family back to his apartment complex to swim at his pool. Doe felt sick and she was helped to his apartment where she fell asleep on his bed. She woke up to defendant having sexual intercourse with her, he inserted his finger into her vagina, and he orally copulated her. Defendant was interviewed by police and admitted to having sex with Doe, and that she may have been too intoxicated to consent. Defendant was found guilty of having sexual intercourse with an intoxicated victim (Pen. Code, § 261, subd. (a)(3))1; sexual penetration with a foreign object of an intoxicated victim (§ 289, subd. (e)); and committing an act of oral copulation on a person unable to resist due to an intoxicating substance (§ 287, subd. (i)).2 Defendant was sentenced to 14 years to be served in state prison.3 Defendant makes one claim on appeal that his statement to police was obtained through coercion and implied promises of leniency in violation of his Fifth and Fourteenth Amendment rights under the United States Constitution, which rendered his confession involuntary. The People claim that the trial court did not have the authority to stay the restitution fine and assessments imposed. 1 All further statutory references are to the Penal Code unless otherwise indicated. 2 Defendant was also charged with sexual penetration by means of force or violence (§ 289, subd. (a)(1)(A)), but he was found not guilty of the charge. 3 The trial court also imposed fines and fees that it stayed based on his inability to pay, which we will discuss further, post. 2  FACTUAL HISTORY A. PEOPLE’S CASE IN CHIEF 1. DOE’S FAMILY MEMBERS Luz Loza was married to defendant’s father, Jorge Avalos, Sr. (Jorge Sr.). Loza had two daughters, Tanya and Naomy Godoy. In August 2017, Tanya4 was dating Isaias Avalos, defendant’s brother and Jorge Sr.’s son, and they had a child together. Jane Doe was Loza’s niece. On August 26, 2017, Loza, Jorge Sr., Isaias, Tanya, Naomy and Doe spent the day at Lake Perris. Defendant met them at the lake. Loza did not see any interaction between Doe and defendant at the lake. On August 27, 2017, Loza, Jorge Sr., defendant, defendant’s girlfriend Evelyn, Isaias, Tanya (and her daughter), Naomy, Doe (and her son), and Doe’s sister Darlene all went to an El Torito restaurant for brunch. Most of the adults were drinking all-you-can- drink Mimosas. They were at the restaurant for several hours. Doe and defendant were sitting across from each other at the table. Defendant appeared to be interested in Doe even though he was sitting next to Evelyn. Loza observed that as the day progressed, Doe appeared drunk. Defendant got into an argument with Evelyn and she left as they were all leaving the restaurant. When they decided to leave the restaurant, defendant invited them back to his apartment because his apartment complex had a pool. As they were leaving, Tanya 4 We refer to some of the witnesses by their first names or initials for clarity due to shared last names. No disrespect is intended. 3 observed that Doe had trouble walking and appeared to be drunk. Loza had to help Doe to the car. Doe had not expressed to Tanya that she had an interest in defendant. Jorge Sr. drove Doe to defendant’s apartment along with Naomy, Darlene, and Doe’s son. The rest of the family drove in two other vehicles. On the way to defendant’s apartment, Jorge Sr. had to stop three times because Doe had to vomit. She vomited again in the parking lot at defendant’s apartment complex. Naomy indicated that Doe appeared a “little bit” drunk. Loza observed that Doe was drunk. Loza and Tanya walked Doe to the couch in defendant’s apartment. Doe vomited into the kitchen sink and defendant was present standing behind her. Naomy observed while Doe and defendant were at the sink, defendant moved his hand down Doe’s buttocks and pinched her buttocks. Loza saw defendant holding Doe at her waist. Loza took Doe to the couch. Doe had a hard time walking and was slurring her words. Doe was unable to sit upright on the couch. Defendant allowed Doe to lay down in his bedroom. Loza and Tanya laid Doe down on the bed. Doe went to sleep. Naomy noted that Doe appeared to be drunk. Defendant encouraged everyone to go to the pool. Everyone went to the pool except for Isaias and Tanya, who stayed in defendant’s apartment to watch over Doe. Defendant also stayed in the apartment. Defendant told Tanya and Isaias that he wanted to “get at” Doe. Tanya told him Doe had a boyfriend. Defendant left the apartment telling Isaias, Naomy and Tanya he was going to get pizza for the children. They observed him walk down the stairs to the parking lot. Tanya 4 wanted to check on her daughter at the pool so she and Isaias left the apartment and went to the pool. It was a two-minute walk to the pool. Naomy decided to return to defendant’s apartment to stay with Doe. Darlene came with Naomy and sat on the couch. Naomy thought Doe was alone in the apartment and defendant was out getting food. The door to the bedroom was open when Naomy returned from the pool. Naomy looked into the bedroom to check on Doe, and defendant was in the room with his shorts down. He pulled up his shorts when he saw Naomy. Doe was on the bed and her legs were hanging over the edge. Doe appeared to be unconscious. Defendant said, “Oops.” Doe did not see defendant having sexual intercourse with Doe. Naomy went back to the pool. She whispered in Tanya’s ear that she had found defendant in the apartment with his pants down. Tanya told Loza. Tanya, Loza, Naomy and Jorge Sr. ran back to the apartment. Doe was on the bed with her feet hanging off the bed. She did not want them to touch her. Doe appeared to be still drunk and was upset. Doe got into a fetal position on the bed and was agitated. Doe said that she was sorry that Naomy “had to see that.” She also said that she told him “no,” and that she could not get him off of her. She told them she did not want it to happen. Naomy and Tanya had seen defendant on the stairs leading to the apartment and he said, “I didn’t do anything.” Doe did not want anyone to touch her and kept pushing them away. Tanya, Loza and Naomy were finally able to get her up but she stumbled and still appeared to be intoxicated. Doe was crying and shaking. Doe stumbled when they finally got her off the bed and still appeared to be intoxicated. Loza had to help Doe walk. Doe got into 5 Jorge Sr.’s car with Loza and Doe’s son. Loza saw defendant at the apartment and he appeared nervous. Doe did not initially want them to call the police. Loza and Jorge Sr. took Doe to her apartment in Anaheim. Doe’s mother called the police and they went to the hospital for a sexual assault exam. Tanya and Loza went with Doe to the hospital. She was scared and shaking. Naomy also went to the hospital. Doe seemed very sad. Tanya was upset when she first saw Doe because she was aware that defendant had previously been accused of raping a cousin. Doe also told Tanya and Naomy at the apartment that she was embarrassed and that she should not have drank. She also said she should not “have dressed this way.” She also said she told defendant “no” because he had a girlfriend and that she did not want to “catch” anything. Tanya acknowledged that after her testimony on direct, Isaias called and threatened her telling her to watch her back because she was a liar. She obtained a protective order against him. Isaias told her he had talked to defendant about her testimony. 2. DOE Doe was born in May 1993 and was 25 years old at the time of trial. Doe met defendant for the first time on August 26, 2017, while she and her family were at the lake. Doe lived in Anaheim but was staying with Loza for the weekend to celebrate her son’s birthday. Doe had very little interaction with defendant on that day at the lake. Doe was seeing someone and was not attracted to defendant. She did not flirt with him. 6  The following day, on August 27, she went with the family to El Torito for brunch. Defendant met them at the restaurant. Doe drank Mimosas and ate shrimp during brunch. The waiter refilled her original glass so she was unsure how many drinks she had consumed. Defendant was drinking. Doe sat across from him and Evelyn. Evelyn and Doe talked. Doe did not flirt with defendant. She started to feel lightheaded and spilled her drink at one point. She did not recall leaving El Torito. After brunch, Loza had planned to take Doe and her son back to their home in Anaheim, but instead took her to defendant’s apartment. Doe did not recall the drive home from El Torito to defendant’s apartment except for at one point sticking her head out of the car and throwing up. She recalled sitting down in defendant’s living room and feeling dizzy and sick. She vomited in the kitchen sink. She then remembered laying down on defendant’s bed. Doe felt drunk. She fell asleep. Doe woke up and defendant was facing her. She was still dizzy and sick and kept closing and opening her eyes. Defendant then pushed aside the romper she was wearing and put his penis inside her vagina. Doe had not told him she wanted to have sex. She did not consent to sexual intercourse. Doe asked defendant, “Why are you doing this to me, you have a girlfriend?” Defendant whispered in her ear, “Don’t worry about her. She’s not my girlfriend. She’s my business partner. She’s my associate.” Defendant put his penis inside of her vagina two times. Defendant asked Doe to perform oral sex on him to help him get erect but she refused. Doe felt disgusted and confused; she did not want him to touch her. Defendant then performed oral sex on Doe. 7 He forced his fingers inside her vagina and then tried to insert his penis in her vagina again but he was not fully erect. It hurt when he put his fingers inside her. She did not consent to defendant performing oral sex or inserting his fingers in her. Defendant then stopped and left the room. Doe heard Naomy’s voice. Doe recalled that Loza helped her out of the bedroom to the car. Doe felt dizzy, lightheaded and still drunk. Doe kept saying that she was sorry because she felt that nothing would have happened if she had not been drinking and had worn a different outfit. She blamed herself for attracting defendant by drinking and wearing her outfit. Doe froze while the assault was happening because she felt confused and disoriented.5 Once they got back to Doe’s house in Anaheim, the police were called. Doe admitted she did not try to stop defendant. Doe was concerned about the fact she had been drinking in the presence of her son and worried that child protective services would take her son. Doe denied that she ever grabbed defendant’s penis or kissed him. Doe denied that she told defendant that she needed satisfaction. She did not recall that she pushed his head down to her vagina while he was performing oral sex on her. Doe had trouble reasonably responding to what defendant was doing because she was intoxicated. If she had been sober, she would have tried to push him off and tell him no. 5 She admitted she was still able to talk to defendant and ask him why he was doing this to her. 8  3. INVESTIGATION Doe submitted to a sexual assault examination on August 27, 2017, at around midnight. Doe was very anxious and was crying. She was disheveled. Doe had abrasions around her vaginal opening. DNA swabs were taken from the vaginal area. There was a laceration on her perineum. The laceration and abrasions were consistent with a sexual assault occurring. These injuries were consistent with digital penetration. Riverside Police Detective Paul Miranda investigated Doe’s case. He called defendant and asked him to come to the police station to be interviewed. Detective Miranda and Detective Everett Bercian interviewed defendant on August 28, 2017. The interview was videotaped and played for the jury. At the beginning of the interview, defendant denied touching Doe. Detective Miranda used a ruse showing defendant a document that he claimed showed defendant’s DNA was found in Doe’s vagina. Defendant admitted only to having sexual intercourse with Doe. He then admitted that he put his finger in her vagina, and finally admitted to performing oral sex on her. Defendant stated when asked if she was in the state of mind to consent, that neither of them were because of the alcohol and that he had “fucked up.” 6 After the interview with defendant, Detective Miranda obtained the results of the sexual assault exam. Defendant’s DNA was found on Doe’s vagina. 6 We will provide further detail of the interview, post. 9  4. PRIOR INCIDENT R.B. was 33 years old at the time of trial and was defendant’s third cousin. In 1999, when she was 14 years old, she was at defendant’s house getting ready to go out trick-or-treating for Halloween. She thought defendant was 17 or 18 years old at the time. Defendant was upstairs and R.B. was downstairs listening to music with a friend. Defendant called her up to his bedroom. Defendant asked R.B. to kiss him. R.B. felt uncomfortable. She thought that she kissed him but she could not remember. Defendant then raped her by having sexual intercourse with her without her consent. He put his fingers inside her vagina. R.B. said it hurt her vagina. R.B. did not want to testify because she had decided not dwell on the incident and live her life. This was her first sexual experience. B. DEFENSE Isaias estimated they all arrived at the El Torito at 10:30 a.m. and left around 3:30 p.m. While they were there, Doe kept talking to defendant and Evelyn appeared to be upset about it. Doe seemed “tipsy” during brunch. Loza had to help Doe to the car and at that point appeared to be drunk. He, defendant, and Jorge Sr. drank more beer when they got to the apartment. Doe fell asleep in defendant’s bedroom. Defendant never told Isaias and Tanya that he was interested in Doe. Defendant went to get pizza over one hour after they got back to the apartment. Isaias observed defendant go into the apartment while they were all at the pool before he went to get the pizza. Isaias recalled that at some point, defendant returned with the pizza. 10  Isaias went back to the apartment to go to the bathroom while defendant was gone. He checked on Doe and she was awake. She asked for a glass of water and seemed fine. No one else was in the apartment. Naomy came in the bedroom and he heard Doe tell her “Sorry.” Tanya and Loza joined Naomy. Doe was crying and she told them not to touch her. Loza helped Doe to the car. Isaias believed that Doe was still drunk. Isaias never heard Doe say that she told defendant “no” or that she could not get him off of her. Isaias admitted that defendant called him after Tanya’s testimony and complained that she had lied. Isaias was upset because he believed Tanya to be a habitual liar. He admitted to calling her, accusing her of being a liar, and calling her a bitch. He denied that he threatened her. Defendant testified on his own behalf. Doe sat across from him and Evelyn at El Torito. She asked Evelyn questions about his and Evelyn’s relationship. He drank champagne during brunch and was intoxicated when they left. Doe drank Mimosas the entire time she was at El Torito but did not seem drunk at the restaurant. They left El Torito around 2:30 p.m. When defendant got back to his apartment, he drank more beers. Defendant was aware that Doe vomited in the sink. Loza asked defendant if Doe could lay down on his bed. He was hesitant because he had a girlfriend and it did not “look right,” but he agreed. He never told Tanya he wanted to be with Doe. Around 5:00 p.m., he went to the pool and told everyone he was going to get pizza. Defendant stopped by his apartment to get money. Doe was waking up when defendant got into his apartment. He asked if she was okay and she responded, “I’m all right.” Defendant told Doe, “I kind of like you,” and 11 she responded “I do too.” Defendant was very intoxicated. Defendant kissed Doe on the mouth and she kissed him back. They began kissing and he began rubbing her vagina. Doe grabbed defendant’s penis over his clothes and began rubbing. He then performed oral sex on her. He lifted his head to kiss her but she pushed his head back down telling him she needed satisfaction. Defendant asked her to perform oral sex on him but she said no. Doe was moaning and appeared to consent. Doe moved her underwear and he inserted his penis in her vagina. Doe seemed to be consenting and knew she was engaging in sexual intercourse. Defendant only inserted his penis twice and then stopped because he felt guilty about his girlfriend. Defendant was putting his pants back on when Naomy entered the room. Doe said, “Fuck.” Defendant would not have engaged in sexual intercourse with Doe if he had not been drinking. Defendant said “Oops” when Naomy entered the room because he was putting his belt on. Defendant left the bedroom door open because the sexual acts were spontaneous and had not been planned. Defendant initially lied to the police about having sex with Doe because he was embarrassed and Evelyn was waiting outside the police station for him. He lied to the police because he felt he had done something morally wrong, not legally wrong, and because he was afraid that Evelyn would find out. He admitted he told the detectives that Doe was not in right state of mind because of their drinking, but he insisted that she consented to the sexual acts. Although Doe had been drinking, she appeared to defendant to be willingly engaged in the sexual acts. Doe only said no to giving him oral sex. 12  Defendant was 17 years old when he had sex with R.B. He was convicted of unlawful sex with a minor. He lied to Detective Miranda that he had not been convicted. DISCUSSION A. VOLUNTARY STATEMENT Defendant claims the trial court erred by admitting his statement to Detectives Miranda and Bercian because the statement was a result of their offers of leniency and coercion rendering his confession involuntary. The admission of his involuntary confession violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution. 1. ADDITIONAL FACTUAL HISTORY We have only reviewed the transcript of the interview on appeal as the parties have not asked this court to review the videotape of the interview. At the beginning of the interview, defendant spoke with the detectives about small businesses that he was involved in, one of which was with his girlfriend, Evelyn. The detectives expressed interest in his businesses. Detective Miranda asked defendant if he knew why he was being interviewed. Defendant responded that it was because Doe had said he touched her “which is absolutely . . . not true.” Defendant noted that Doe was “hammered” at El Torito. Doe was put in defendant’s bed back at his apartment and they all went to the pool. Defendant told them he was going to get pizza for the family so he went to his room to change his shoes and belt. While he was changing his belt, one of the girls in the family entered the room and 13 thought he was doing something to Doe. When he came back from getting pizza, the family accused him of doing something to Doe. Defendant insisted that he never touched Doe. Detective Miranda told defendant that other family members had advised him that defendant had gone into the room where Doe was sleeping, rolled her over and then penetrated her. He asked for oral sex but she said no, so he put his fingers in her vagina and performed oral sex on her. Defendant responded, “Absolutely not.” Detective Miranda then told defendant, “So, um, if you’re telling me that you’ve never—you never touched her . . . [¶] . . . [¶] . . . but then I have evidence that your DNA is on her. I mean, how would you react to that?” Defendant responded, “How is my DNA on her if I didn’t touch her?” Miranda told defendant that Doe went to the hospital and had a rape kit exam, and if defendant had been inside of Doe, they were going to know. Miranda then told defendant that they “did know” and they did not want defendant to screw up his life by lying. He told defendant that it was possible he was drunk or Doe asked for it. The detectives knew they had sex and by saying he had not touched her, he was either a “monster” or he was scared. Miranda understood that defendant was going to get in trouble with his girlfriend but told defendant it was “far worse” to lie to the detectives. Miranda asked defendant what he thought they were going to do if he lied, and defendant responded, “Lock me up.” Miranda told defendant, “Exactly, man. Not going to lock you up but you’re going to get in trouble with the law.” Detective Miranda told defendant they could start the conversation over and that he would not be offended that defendant had lied. However, Miranda told defendant that 14 if defendant continued to lie, Miranda would think defendant was a “monster,” and “then I’ll take . . . another approach.” Miranda asked defendant if he wanted to tell him what had happened that day. Defendant responded, “We were both drunk.” Defendant insisted he was not a monster and Doe never said no. Defendant said he went into the bedroom, and Doe told him “Yeah, Uh, I kind of like you.” Defendant responded to Doe, “Me, too,” and they started kissing. Doe grabbed his penis and told him, “I need satisfaction.” Doe moved aside her clothes and he penetrated her vagina two times then stopped. He denied performing oral sex or putting his finger in her vagina. He denied he forced himself on her or raped her; Doe wanted to do it. Detective Miranda told defendant that Naomy had seen him kneeling on the ground with his head between Doe’s legs. Defendant insisted that Naomy only saw him adjusting his belt. Defendant had stopped penetrating Doe because he could not finish the “task.” He could not finish because, “she was drunk and I know better than that.” Defendant said that he made a “stupid choice.” Detective Bercian then spoke to defendant. He told defendant that defendant was smart but that he had “fucked up.” Bercian did not think defendant was the type of guy who would take advantage of a drunk girl and put his penis in her. Bercian and Miranda were trying to “humanize” him. They did not think he was a “monster” but rather, he was scared because he had “fucked up.” Defendant responded he initially lied to the detectives because he was scared; he was not a monster and had a lot to lose. Detective Bercian told defendant there was a 15 difference between sperm and saliva DNA and that defendant should tell them if he performed oral sex on Doe. Defendant admitted he put his fingers in her vagina but still denied performing oral sex on her. Detective Miranda told defendant the entire sexual assault kit was going to come back so he should be honest; “Fall on the sword and then move on with your life because lying’s not gonna do anything for you Jorge.” Miranda advised him, “Because we’re not the only—when we present this case to the DA. Now if the DA gets this and they like, “Aw, man, Jorge’s lying—lying—lying. He’s not gonna admit to this? Well what can happen? They don’t [know] who Jorge is because they didn’t sit down next to him. . . . I have an idea who you are. Someone who wants to tell the truth but they’re afraid to tell the truth until they’re up against the wall.” Miranda asked defendant why it was so hard for him to tell the truth about performing oral sex on Doe. Defendant responded, “So it is to me. I fucked up.” Detective Bercian reiterated that the district attorney was going to look at the interview and make a decision as to how to proceed with the case. The detectives were only seeking to have defendant tell the truth. Defendant then admitted to performing oral sex on Doe but insisted that no one saw him. Defendant swore on his daughters’ lives that Doe consented and that she forced his head down to give her oral sex. He only penetrated her twice. He insisted he was telling the truth. Detective Bercian told defendant, “Just—just listen to me. Tell the truth because this is going to help you out more than anything.” Bercian asked defendant, “Do you think—do you think she was, uh, in a state of mind to give consent?” Defendant 16 responded, “None of us were.” Bercian asked, “But do you think she was in a state of mind . . . .” Defendant interrupted and stated, “No. She wasn’t.” Bercian continued, “. . . to give consent?” Defendant stated, “That’s why I said I fucked up.” Defendant was asked about the prior incident with R.B. and defendant claimed that she had lied and he was never convicted. Defendant was told that he was going to be arrested and booked for rape. Defendant insisted that Doe never pushed him away and did not stop him. He was willing to take a lie detector test about insisting she wanted him to pleasure her. As they were waiting for defendant to be booked, defendant discussed different ways of investing on the Internet with the detectives. Before trial, defendant brought a motion to exclude his statement to police as involuntary, insisting that the police lied to him by showing him a false DNA report, threatened to lock him up, and called him a monster. The trial court, in ruling that the statement was admissible, noted that it had seen “hundreds, if not thousands” of interviews that were very similar. The trial court noted that the interview was “a-run-of- the-mill-type interview” in terms of questioning and answering. There was no yelling nor raised voices. The trial court felt that defendant was very intelligent and the conversation appeared friendly. The interview was short and defendant was not handcuffed. The detectives were polite. “So based on the totality of the circumstances, the Court does find that the confession or the interview was voluntary.” 2. ANALYSIS “Both the state and federal Constitutions bar the prosecution from introducing a defendant’s involuntary confession into evidence at trial. [Citations.] ‘ “A statement is 17 involuntary if it is not the product of ‘ “a rational intellect and free will.” ’ [Citation.] The test for determining whether a confession is voluntary is whether the defendant’s ‘will was overborne at the time he confessed.’ ” ’ ” (People v. Linton (2013) 56 Cal.4th 1146 , 1176.) “ ‘Whether the confession was voluntary depends upon the totality of the circumstances.’ ” (People v. Williams (2010) 49 Cal.4th 405 , 436 (Williams); People v. Smith (2007) 40 Cal.4th 483 , 501.) “In evaluating the voluntariness of a statement, no single factor is dispositive.” (Williams, supra, 49 Cal.4th at p. 436.) “The presence of police coercion is a necessary, but not always sufficient, element. [Citation.] We also consider other factors, such as the location of the interrogation, the interrogation’s continuity, as well as the defendant’s maturity, education, physical condition, and mental health.’ ” (People v. Caro (2019) 7 Cal.5th 463 , 492.) “In assessing allegedly coercive police tactics, ‘[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.’ ” (People v. Smith, supra, 40 Cal.4th at p. 501; see also People v. Jones (1998) 17 Cal.4th 279 , 297-298 (Jones).) “Police deception ‘does not necessarily invalidate an incriminating statement.’ ” (Smith, at p. 505.) Deception does not undermine the voluntariness of a defendant’s statement to the authorities unless the deception is ‘ “ ‘ of a type reasonably likely to procure an untrue statement.’ ” ’ ” (Williams, supra, 49 Cal.4th at p. 443.) In Williams, supra, 49 Cal.4th 405 , the defendant claimed his confession was involuntary because the officer threatened he would suffer the death penalty if he did not 18 cooperate with them and lied to him that the defendant’s fingerprints were found, which tied him to the crime. The California Supreme Court found that reference to the death penalty did not “necessarily” render the statement involuntary. A confession was only invalidated if “ ‘officers threaten a vulnerable or frightened suspect with the death penalty, promise leniency in exchange for the suspect’s cooperation, and extract incriminating information as a direct result of such express or implied threats and promises.’ ” (Id. at pp. 442-443.) As for the deception by the officers that the defendant’s fingerprints had been found, it noted that use “of deceptive comments does not necessarily render a statement involuntary.” (Id. at p. 443.) The court concluded that “it is evident that neither the mention of the death penalty nor the deception overcame defendant’s will” as he had prior experience with the criminal justice system, he showed no sign of distress, and ultimately denied responsibility. (Id. at pp. 443-445.) In Jones, supra, 17 Cal.4th 279 , superseded by statute on other grounds as stated in People v. Johnson (2013) 222 Cal.App.4th 486 , the defendant made several statements to officers, admitting his involvement in a murder, and ultimately admitting to being the shooter. The defendant claimed on appeal that his statements were involuntary because the officers had promised leniency by telling the defendant that they would intercede with the district attorney on his behalf if he was honest and that the “ ‘truth is going to set you free.’ ” (Jones, at p. 281.) The officers also claimed to have “superior knowledge of the crimes and that it would be best for him to confirm facts they already knew, when in fact they did not know them.” (Id. at pp. 295, 297-298.) The California Supreme Court found that the claims regarding leniency did not render the defendant’s statement 19 involuntary as they were “truthful implications that his cooperation might be useful in later plea bargain negotiations.” Further, as for deception, the court held, “Nor did the detective’s deceptive statements offend any constitutional guaranty. The detective implied at various times that he knew more than he did or could prove more than he could. Such deception regarding the evidence was permissible, for it was not ‘ “of a type reasonably likely to procure an untrue statement.” ’ ” (Id. at pp. 298-299.) Here, defendant was told the results of the DNA test from the sexual assault exam had already been obtained and that his DNA was found in Doe’s vagina. At that point, although defendant had maintained that he had not touched Doe, he then admitted to inserting his penis in her vagina. He still adamantly denied that he had performed oral sex on her or put his fingers in her vagina. In addition, at that point, he claimed the sexual intercourse was consensual. The showing of the DNA test did not result in a confession by defendant of all of the sex acts and he maintained that the sexual intercourse was consensual. The detectives had spoken with Doe and the family members. It was evident that some sort of sexual encounter had occurred. It was not a lie that Doe had submitted to a sexual assault exam and that DNA results would be forthcoming. The detectives lied to defendant that they already had the results, but it did not result in defendant confessing to having sex with Doe without her consent. The detectives also gave defendant a choice: he was either a monster or scared. At that point, defendant admitted that he penetrated Doe, but he insisted that the encounter had been consensual. He insisted they both expressed that they liked each 20 other and the sexual intercourse spontaneously occurred. Defendant did not confess at this point that he raped Doe but rather insisted that they had consensual sex. He also did not admit to performing oral sex on Doe or putting his fingers in her vagina. Defendant’s will was not overcome and he did not incriminate himself as a result of the detective’s ruse about the DNA and calling him a monster. (See Williams, supra, 49 Cal.4th at pp. 444-445.) Moreover, suggesting to defendant that he would be better off telling the truth rather than lying did not render the statement involuntary. The court in Williams stated, “ ‘No constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence.’ [Citation.] Absent improper threats or promises, law enforcement officers are permitted to urge that it would be better to tell the truth.” (Williams, supra, 49 Cal.4th at p. 444.) Here, we do not agree with defendant’s claim that the detectives’ insistence that he tell the truth was an implied promise of leniency. Rather, the detectives encouraged defendant to tell the truth, and made no promises as to what would happen to his sentence. They advised him of Doe’s statements and what family members had seen in order to encourage him to tell the truth. The detectives advised defendant the district attorney would see the interview and would know defendant lied, but did not discuss the charges or sentence. Further, they advised him that it was up to the district attorney to file charges, but that the detectives just wanted the truth. These were not promises of leniency as there was no discussion of the charges, which would imply that if defendant told the truth he would receive a lesser sentence. 21  Further, defendant insists that the detectives threatened defendant by telling him they were not going to lock him up if he lied but he was going to be in trouble with the law. Defendant insists that this was an implied promise of leniency in that he would go free if he told the truth. In context, this was not an implied promise of leniency. The detectives were discussing defendant’s concern that defendant’s girlfriend would find out about the sexual encounter if he told them what had happened, was not as problematic as if defendant lied to them. It was not a promise that he would go free if he told the truth. These statements properly advised defendant that he would be better off if he told the truth and did not constitute threats or implied promises of leniency. (Jones, supra, 17 Cal.4th at pp. 297-299.) Based on the totality of the circumstances, defendant’s statement was voluntary. Defendant maintained throughout the interview that Doe had consented to the sexual acts. He swore on his daughters’ lives that Doe consented. He acknowledged that they had both been drunk, but insisted she still consented. He offered to take a lie detector test as to the fact that Doe wanted to engage in the acts. Defendant’s will was not overborne by the detectives and his statement as to the sexual acts committed was voluntary. Defendant relies on People v. Elias (2015) 237 Cal.App.4th 568 , 570, 574-575 (Elias). In Elias, the officers interrogated a 13-year-old boy who was suspected of committing a lewd and lascivious act upon a child who was three years old. The boy adamantly denied that he had touched her. The officer suggested that the boy had touched her vagina because he found it exciting or he was curious. The officer aggressively questioned the boy and made false representations, claiming witnesses saw 22 the boy touch her vagina when no such evidence existed. The boy then admitted he touched the girl’s vagina because he was curious. (Id. at pp. 570-571, 574-575, 582-583.) On appeal, the Elias court noted that the use of false evidence during police interrogation could cause young defendants to give false confessions. It stated, “[C]hildren and adolescents are much more vulnerable to psychologically coercive interrogations and in other dealings with the police than resilient adults experienced with the criminal justice system.” (Elias, supra, 237 Cal.App.4th at p. 588.) The Elias court found the “accusatory interrogation was dominating, unyielding, and intimidating.” (Id. at p. 586.) It found the statement involuntary based on the boy’s youth, the absence of any corroborating evidence, and the likelihood the deception and tactics induced the boy to make an involuntary and untrustworthy admission. (Id. at pp. 586-587, 592-594, 597.) Here, defendant was not a juvenile and was clearly not intimidated by the detectives. He talked with the detectives about running businesses and ended the interview discussing Internet investing. Further, there was corroborating evidence here, unlike in Elias, in that Doe’s sexual assault examination revealed signs of forcible sexual acts, and defendant was seen by Naomy pulling up his shorts in the bedroom. Further, there is no evidence that Detectives Miranda and Bercian were “dominating” or “intimidating.” Moreover, the fact the detectives told defendant that he was either scared or a monster did not result in a false confession. Even though defendant had stated Doe was not in the right mind to consent, he then clarified that they were both drunk, and neither would have made the same choices if sober. The deception by Detectives Miranda and 23 Bercian did not overcome defendant’s will as he maintained that Doe consented to the sexual acts. Defendant’s statement was properly admitted and did not violate his Fifth and Fourteenth Amendment rights under the United States Constitution. B. STAY OF FINES AND FEES The People, in a footnote, contend the trial court erred by staying the restitution fine and fees imposed because it did not have the authority to stay those assessments or the restitution fine. During sentencing, defendant’s counsel requested that the trial court not impose the requested fines and fees in the case because defendant did not have the ability to pay. Defendant’s counsel also requested that the trial court set the restitution fine at $300 but stay the imposition of the fine also because defendant did not have the ability to pay. The trial court ruled, “The Court will find no ability to pay based on [defendant]’s prison sentence and the fact that he is an indigent defendant represented by a government attorney. [¶] The Court will impose the minimum fines and fees applicable, but will stay the imposition of those fines.” There was no objection by the prosecutor. The minute order reflects that a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)); a $300 parole revocation fine (Pen. Code, § 1202.45); a court operations assessment in the amount of $120 (Pen. Code, § 1465.8, subd. (a)(1)); and a criminal conviction assessment of $90 (Govt. Code, § 70373) were imposed and stayed. The People have waived any claim on appeal that the trial court improperly stayed the restitution fine and the assessments. The prosecutor did not object to the stay of the 24 fines and fees in the trial court. “[U]nless a party makes a contemporaneous objection, he or she generally cannot challenge a court’s ruling for the first time on appeal.” (People v. McCullough (2013) 56 Cal.4th 589 , 594.) This equally applies to the imposition of fines and fees. (See People v. Tillman (2000) 22 Cal.4th 300 , 303 [failure of prosecutor to object to trial court’s omission of mandatory restitution fine pursuant to section 1202.4 waived any claim on appeal that it should be imposed].) While we recognize that the assessments pursuant to Government Code section 70373 and Penal Code section 1465.8 are mandatory, the prosecutor remained silent when defendant’s counsel argued that the trial court should not impose the assessments and when the trial court decided to stay the assessments. Here, had the prosecutor objected, the trial court could have considered if it could properly stay the fines and fees, or could have chosen not to impose them. As such, the failure of the prosecutor to object waives the issue on appeal. DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS MILLER J. We concur: RAMIREZ P. J. FIELDS J. 25

2020-12-02 21:02:29.889522+00

https://www.courts.ca.gov/opinions/nonpub/B297303.PDF

Filed 12/2/20 Kent v. Wu CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT JOSHUA KENT, B297303 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC682905) v. DAVID D. WU et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Christopher Lui, Judge. Affirmed. Ferguson Case Orr Paterson and John A. Hribar for Plaintiff and Appellant. Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson; Carroll, Kelly, Trotter, Franzen & McBride, Michael J. Trotter and Jessica Muñoz for Defendants and Respondents. _________________________  Plaintiff Joshua Kent filed a civil action for medical malpractice against defendant David D. Wu. M.D. Kent appeals the summary judgment entered in favor of Wu. He also appeals the denial of his motion for a new trial. He contends summary judgment was improper because 1) Wu failed to offer evidence that the epidural he performed on Kent was medically necessary; 2) Wu did not obtain informed consent for the epidural; 3) Wu offered only a conclusory expert declaration which was not sufficient to shift the burden to Kent to create a triable issue of fact; 4) the declaration of his expert was sufficient to create a triable issue of fact on causation. He also contends the trial court erred in denying the new trial motion for the same reasons the court erred in granting Wu’s summary judgment motion. We affirm the judgment. BACKGROUND On July 25, 2016, Kent was in a motor vehicle accident. He was struck from behind and believes that, as a result, his right hand struck the steering wheel. Kent was thrown forward by the impact. On July 31, 2016, Kent visited a hospital emergency room and reported that since the accident he had been experiencing lower back and right wrist/thumb pain. On September 1, 2016, Kent visited Dr. Wu, a pain management specialist. Dr. Wu injected steroids into several locations in Kent’s right thumb area. On September 15, 2016, Kent returned to Dr. Wu who again injected steroids into several locations in Kent’s right thumb area. On September 24, 2106, Dr. Wu performed a cervical epidural procedure or injection on Kent. Kent’s symptoms did not improve, and on October 31, 2016, he visited Dr. Eleonora Spokoyny, a neurologist. He complained 2 of ringing in his ears, constant headaches, dizziness, bilateral neck pain, mid back pain, lower back pain, right hand and wrist pain, and numbness in his right thumb. Dr. Spokoyny determined to a reasonable degree of medical probability that Kent’s condition and symptoms were the direct result of his July 25, 2016 car accident. Kent continued to visit doctors seeking relief for various symptoms he was suffering. In this course of this action, Kent has most frequently referred to his visits to Dr. Helm and Dr. Kluber, but in his interrogatory responses he also identified Dr. Omar Mora, Dr. Nick Halikis, Dr. Sang Le, Dr. Ali Elahi, Dr. Hannah Chung, and Dr. Moheimani. Eventually, Kent filed this action against Wu, alleging Wu negligently performed the injections to Kent’s right thumb area, resulting in “discoloration and injury” to the thumb. Kent also alleged the cervical epidural performed by Wu was not medically necessary. Kent did not allege any specific injury from the epidural, and did not allege that the epidural itself was the injury. Kent later stated that his neck pain increased after the epidural. Kent continued to visit doctors while this action was pending. Wu moved for summary judgment on the ground that he did not cause Kent’s injuries. After the trial court granted summary judgment in favor of Wu, Kent moved for a new trial on essentially the same grounds as he had opposed summary judgment. The motion was denied. 3  DISCUSSION We review an order granting or denying summary judgment or summary adjudication independently. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138 , 1142; Buss v. Superior Court (1997) 16 Cal.4th 35 , 60.) In making this review: “ ‘ “First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claims and justify a judgment in movant’s favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” ’ ” (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224 , 229 (Claudio).) “’ ‘Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact.’ ” (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399 , 409 (Assilzadeh).) “ ‘[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.’ ” (Claudio, supra, 134 Cal.App.4th at p. 230.) 4  In motions for summary judgment or adjudication, “ ‘all material facts must be set forth in the separate statement. “This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.” ’ ” [Citation.] Thus, when the ‘fact’ is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the court, because the statutory purposes are not furthered by unhighlighted facts.” (North Coast Business Park v. Nielsen Construction Co (1993) 17 Cal.App.4th 22 , 30– 31.) “The corollary for an opposing party, unless it wishes to advance additional disputed or undisputed material facts, is that it clearly indicate which of the facts contained in the moving party’s separate statement it disputes. (§ 437c, subd. (b)(3).) Each party also must supply a ‘reference to the supporting evidence’ in its separate statement (§ 437c, subd. (b)(1), (3)).” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197 , 1214 (Parkview Villas).) “ ‘If, in deciding this appeal, we find there is no issue of material fact, we affirm the summary judgment if it is correct on any legal theory applicable to this case, whether or not that theory was adopted by the trial court, and whether it was raised by the [defendant] in the trial court or first addressed on appeal.’ ” (Assilzadeh, supra, 82 Cal.App.4th at p. 409.) There is no reporter’s transcript for the hearing on the summary judgment motion. Kent contends none is needed and Wu does not disagree. The trial court provided a detailed statement of its ruling. We agree with the parties that the claims on appeal may be resolved by reference to the clerk’s transcript alone. 5 I. In Opposing the Motion for Summary Judgment Kent Failed to Clearly Raise a Theory of Self-Evident Causation As to the Epidural and So That Theory Did Not Preclude Summary Judgment in Wu’s Favor. Kent contends the cervical epidural was medically unnecessary and the trial court erred in granting summary judgment because causation is “self-evident” when a doctor performs a medically unnecessary procedure. Causation may be self-evident from a medically unnecessary procedure, but a plaintiff’s reliance on that theory is not self-evident. Kent has elected to proceed without a reporter’s transcript, so we cannot ascertain whether he raised this theory at the hearing on the motion for summary judgment. The clerk’s transcript, however, shows that Kent did not clearly raise or develop the claim that his injury from the epidural was based solely on the procedure being unnecessary. Thus, this undeveloped theory may not be raised now to challenge the summary judgment. (Insurance Co. of State of Pennsylvania v. American Safety Indemnity Co. (2019) 32 Cal.App.5th 898 , 922.) “ ‘The elements of a cause of action for professional negligence are failure to use the skill and care that a reasonably careful professional operating in the field would have used in similar circumstances, which failure proximately causes damage to plaintiff.’ ” (Cyr v. McGovran (2012) 206 Cal.App.4th 645 , 651.) With respect to the element of proximate cause, “[i]n a medical malpractice action, the evidence must be sufficient to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result.” (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208 , 216.) Self-evident causation is 6 not in fact self-evident. It does not arise, as Kent seems to believe, out of thin air. It is “self evident that unnecessary surgery is injurious and causes harm to a patient. Even if a surgery is executed flawlessly, if the surgery were unnecessary, the surgery in and of itself constitutes harm.” (Tortorella v. Castro (2006) 140 Cal.App.4th 1 , 11.) If, in opposing summary judgement, the opposing papers raise a triable issue as to whether a physician deviated from the standard of care by unnecessarily performing surgery, that is sufficient also to raise triable issues with respect to the two remaining elements of a cause of action for medical malpractice, namely, “ ‘ “ ‘proximate causal connection between the negligent conduct and the resulting injury; and . . . actual loss or damage resulting from the professional’s negligence.’ ” ’ ” (Id. at p. 13; see Jameson v. Desta (2013) 215 Cal.App.4th 1144 , 1166–1167.) Kent did not offer any evidence that the epidural was medically unnecessary, which would clearly have raised a triable issue of material fact on causation. He now contends that because his complaint alleged the procedure was medically unnecessary, the burden was on Wu to offer evidence that it was medically appropriate. Absent evidence by Wu negating this allegation, Kent contends he had no burden to offer evidence. Kent bases this argument on the general rule that a plaintiff “is allowed to rely upon the allegations of the complaint which were unchallenged in the motion itself, but only to demonstrate that [a defendant] has not met its initial burden of showing an entitlement to summary judgment. For example, if a plaintiff had alleged three distinct breaches of duty which caused him a single injury, and the defendant filed a motion for summary judgment with evidence contradicting only two of those 7 breaches, the plaintiff could rely upon the third, unchallenged, allegation of breach to demonstrate the motion was insufficient on its face to shift the burden.” (Tilley v. CZ Master Assn. (2005) 131 Cal.App.4th 464 , 478.) Wu did offer evidence in the form of an expert declaration by Dr. Steven Richeimer, that the epidural did not cause Kent’s injuries. The only question remaining, then, with respect to the epidural is whether Kent sufficiently alleged in his complaint that undergoing the unnecessary epidural itself was the injury of which he complained, that is, the self-evident injury. In determining whether a particular theory is framed by the pleadings, “ ‘[t]he test is whether such a particular theory or defense is one that the opposing party could have reasonably anticipated would be pursued.’ ” (Jones v. Awad (2019) 39 Cal.App.5th 1200 , 1211.) Here, Kent alleged Wu “negligently performed right thumb insertion and sheath injections to Plaintiff JOSHUA KENT on 9/1/16 and right median nerve/carpal tunnel injections to Plaintiff JOSHUA KENT on 9/15/16, that injured Plaintiff by causing discoloration and injury to his right thumb; and that Defendants, and each of them, negligently provided cervical epidural steroid injection treatment to Plaintiff JOSHUA KENT on 9/24/16, in that this cervical epidural steroid injection treatment was not medically necessary.” While Kent did not allege any specific injury tied to the epidural, he also did not expressly allege that the unnecessary epidural was itself the injury. Discovery often clarifies a plaintiff’s theories of the case, but it did not do so here. In response to special interrogatories, Kent answered: “As to my cervical injury: the cervical epidural steroid injection treatment provided on 9/24/16 was not medically 8 necessary as there is no MRI finding showing any disc disease or neural element impingement, and there is no evidence of radicular symptoms. Furthermore, Dr. Wu never recommended such treatment in his evaluation either. Instead, he recommended bilateral C3-6 medial branch blocks, a completely different procedure.” This is not an allegation that undergoing the cervical epidural was the injury Kent suffered; it is a claim that Kent did not receive the recommended appropriate treatment of a branch block that would have stopped his pain. Thus, we question whether Wu could have reasonably anticipated from the complaint and discovery that Kent was pursuing a theory that undergoing the unnecessary epidural itself was the injury he suffered, as opposed to the theory that the injuries Kent continued to suffer were caused or exacerbated by Wu’s negligent treatment, necessary or not. When Wu moved for summary judgment, he did so on the ground that the epidural did not cause any injury to Kent. In his separate statement of undisputed facts, Wu proposed as an undisputed fact that “[a]ny alleged negligent treatment did not cause plaintiff any injury.” He also proposed: “To a reasonable degree of medical probability, no alleged violation of the standard of care by Dr. Wu caused or contributed to plaintiff’s injuries. Moreover, no alleged violation of the standard of care by defendants was a significant contributing factor in plaintiff’s injuries.” If Kent had intended to pursue the “self-evident” injury theory, his opposition was the time to make this clear. Kent could have opposed the motion by arguing that his complaint alleged the epidural was itself his injury because it was unnecessary. He did not do so. Kent’s arguments in his memorandum in opposition to the motion talk around such an 9 argument, instead of making it. He argued that Wu basically negligently chose an incorrect and ineffective treatment for his medical symptoms. Kent stated that the cervical epidural injection was “inappropriate” and “Dr. Helm states that any cervical epidural injections provided were not reasonable and necessary to cure or relieve the injuries suffered” in the motor vehicle accident. Kent also stated: “Based on Dr. Helm’s statements in the medical records there also exists a triable issue of fact to if the cervical injections were appropriate and if Dr. Wu’s care in administering the cervical injections was negligent.” Kent also contended “the cervical steroid injections was also [below] the standard of care and caused Plaintiff damages.”1 Kent, however, did not directly argue, factually or legally, that undergoing the cervical epidural itself was the injury he sustained. Instead, in his presentation of actual evidence, Kent presented evidence only that the epidural exacerbated his injuries. In his declaration in support of his opposition, Kent stated: “I had neck pain after the auto accident July 25th, 2016. This neck pain significantly increased after the cervical epidural 1 Kent attached a set of medical records from a Dr. Helms as Exhibit A to his declaration. Assuming for the sake of argument these records were admissible, Kent did not offer any evidence that showed Dr. Helms was qualified as an expert on the issue of epidural injections. Additionally, Kent did not cite or refer to the medical records of Dr. Helms in his separate statement. Thus the records were not properly before the court to support Kent’s opposition to the motion. In opposition to the motion, Kent offered the declaration of his expert witness, Dr. Walker. However, Dr. Walker did not discuss the cervical epidural at all. He only discussed the steroid injections to Kent’s thumb. 10 injection on September 24th, 2016.” He did not declare that he suffered injury from the mere performance of the epidural. In response to Wu’s separate statement of undisputed fact that Kent’s “neck pain with immediate onset after a motor vehicle accident was consistent with Dr. Wu’s [diagnosis] of . . . spondylopathy of the cervical and lumbar region,” Kent stated: “Disputed. Plaintiff complained of neck pain following [motor vehicle accident], plaintiff also complained of increased neck pain following unnecessary Cervical Epidural by Dr. Wu. Declaration of Joshua Kent.” In response to Dr. Wu’s separate statement that “[a]ny alleged negligent treatment did not cause plaintiff any injury,” Kent replied: “Disputed. Injections of excess steroids caused Joshua Kent’s injuries. Declaration of Dr. John Walker.” In response to Dr. Wu’s statement that “no alleged violation of the standard of care by Dr. Wu caused or contributed to plaintiff’s injuries,” Kent responded: “Disputed. The treatment rendered by Dr. Wu to plaintiff fell below the standard of care and resulted in the plaintiff’s ruptured thumb tendon.” Thus, while Kent argued that negligent care or care in violation of the standard of care caused him injury, the only injury he identified was to his thumb. Viewing the record as a whole, we conclude Kent did not fully develop or support his injury was having to undergo the cervical epidural itself, a self-evident injury. Summary judgment was properly granted. 11 II. Kent Did Not Plead a Lack of Consent in His Complaint and So Could Not Raise This Issue in Opposition to Summary Judgment. Kent also contends causation is “self-evident” when a doctor performs a medical procedure without consent. In his complaint Kent did not plead lack of consent, and never raised the issue before his opposition. Defendants moving for summary judgment need address only the issues raised by the complaint, and plaintiffs may not bring up new issues in their opposing papers. (Kanovsky v. At Your Door Self Storage (2019) 42 Cal.App.5th 594 , 601.) If Kent wished to raise this claim, he should have sought leave to amend his complaint before the hearing on the summary judgment motion. (Johnson v. The Raytheon Co., Inc. (2019) 33 Cal.App.5th 617 , 636.) III. Dr. Richeimer’s Declaration Is Sufficient to Establish Lack of Causation for Kent’s Thumb Injuries. Kent contends the trial court erred in granting summary judgment because Dr. Richeimer’s declaration was conclusory and so insufficient to establish a lack of causation. Wu contends Kent forfeited this claim by failing to object to the declaration in the trial court. Wu relies primarily on our decision in Fernandez v. Alexander (2019) 31 Cal.App.5th 770 in which we stated that plaintiff’s failure to object to the declaration of defendant’s expert witness had forfeited her two claims that (1) the witness’s opinion on causation was conclusory and speculative, and (2) defendant had failed to carry his burden of producing evidence demonstrating that there was no triable issue of material fact as to causation. (Id. at p. 780.) 12  Kent responds that Fernandez is against the weight of California law. He contends a trial court cannot grant summary judgment if the moving party’s evidence is insufficient to meet the party’s initial burden, even when no objections are made and no opposition is filed. (Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339 , 367). He also contends a moving party’s burden “cannot be satisfied by an expert declaration consisting of ultimate facts and conclusions that are unsupported by factual detail and reasoned explanation, even if it is admitted and unopposed.” (Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653 , 657.) Our statement in Fernandez is effectively dicta, as we considered plaintiff’s claim but found the expert opinion sufficient. We take essentially the same path here: assuming the broad claim is not forfeited, we find Dr. Richeimer’s declaration constitutes sufficient evidence to negate causation. 1. Dr. Richeimer’s Declaration Contains Sufficient Factual Detail And Reasoned Explanation An expert’s declaration in support of summary judgment must be supported by reasons or explanations and must be detailed and have a factual basis. (Kelley v. Trunk (1998) 66 Cal.App.4th 519 , 524; Powell v. Kleinman (2007) 151 Cal.App.4th 112 , 123.) “[A]n opinion unsupported by reason or explanation does not establish the absence of a material fact issue for trial, as required for summary judgment.” (Kelley v. Trunk, at p. 524.) The summary judgment standard “is not satisfied by laconic expert declarations which provide only an ultimate opinion, unsupported by rational explanation.” (Id. at p. 525.) 13  Kent and Wu both cite to various cases which they contend show the insufficiency or sufficiency of Dr. Richeimer’s declaration. We think the declaration can best be evaluated in light of the complexity of the case for which it is offered. This is, in fact, a fairly simple medical malpractice claim. It involves treatment for hand and neck injuries sustained in a car accident, and a claim that the treatment provided by defendant exacerbated those injuries or caused new and more serious injuries. Dr. Richeimer appropriately identified the materials he reviewed, and also described certain key pieces of information in those records which supported his expert opinion on lack of causation. Dr. Richeimer noted that when Kent went to the emergency room six days after his motor vehicle accident, Ken stated that “since the accident, he had experienced lower back, right wrist/thumb, and right foot pain.” (Italics added.) Dr. Richeimer noted Kent’s description of his pain when he was first seen by Dr. Wu: Kent “described the thumb pain as throbbing, shooting, sharp, and a 9 out of 10 in severity.” Dr. Richeimer pointed out that Dr. Wu concluded “the right thumb pain was indicative of tenosynovitis.” Dr. Richeimer also noted that Kent complained of “right hand and wrist pain and numbness in his right thumb” a month later to neurologist Spokoyny, and that Spokoyny determined to a reasonable degree of medical probability, that Kent’s right and hand and wrist pain and numbness in his right thumb were “the direct result of the injuries he sustained [in a] motor vehicle accident.” Dr. Richeimer opined Kent’s complaint of pain which began immediately after a vehicle accident was consistent with Wu’s diagnosis of right thumb pain and that Spokoyny’s assessment that Kent’s hand and wrist pain and thumb numbness were a 14 direct result of the vehicle accident was “accurate and appropriate.” Only then did Dr. Richeimer state that based on the materials he had reviewed and his personal knowledge, background, training, and experience, it was his expert opinion that Kent’s “complaints are consistent with the mechanism of car accident injuries . . . .” These statements are more than sufficient to show the facts which underlay Dr. Richeimer’s opinion: the timing and nature of the injuries combined with a finding by a neurologist that the injuries were not neurological. Moreover, by finding that Dr. Spokoyny’s determination was accurate and correct, Dr. Richeimer agreed that to a reasonable degree of medical probability, the injuries were caused by the vehicle accident. 2. Dr. Richeimer Reviewed Information About Kent’s Injury After Wu’s Treatment Ended. Kent more specifically contends that Dr. Richeimer’s declaration is deficient because the doctor “did not know anything about what happened to Kent’s thumb after Dr. Wu’s treatment.” Kent contends Dr. Richeimer did not know that Kent had suffered a ruptured thumb tendon after Wu’s treatment because Richeimer never examined Kent and the only medical records he reviewed from after Wu’s treatment were the records of a neurologist. Kent cites Dr. Richeimer’s declaration itself and pages 186–187 of the clerk’s transcript to support this claim. Kent is mistaken. Dr. Richeimer stated that he reviewed “the Declaration of Jessica Muñoz, and copies of the records as identified in Ms. Muñoz’s declaration.” Among the exhibits to Ms. Muñoz’s declaration were Kent’s responses to special interrogatories in which Kent identified specific physical injuries to his right 15 thumb, stating another doctor, Dr. Moheimani, had observed “ ‘discoloration and atrophy of the extensor pollicis longus.’ ” Dr. Richeimer also declared: “It is my understanding based upon plaintiff’s responses to written discovery that plaintiff’s only contention against defendants is that as a result of Dr. Wu’s treatment, plaintiff has sustained permanent injuries to his cervical spine and right thumb/wrist.” (Italics added.) Thus, Dr. Richeimer did have information about Kent’s condition as of January 2018 when Kent signed the interrogatory responses. This was about 15 months after Kent’s September 2016 visits to Dr. Wu. As for Kent’s claim that Dr. Richeimer was ignorant of Kent’s ruptured thumb tendon, we share that ignorance. There is no evidence in the record on appeal that Kent suffered such a rupture. The document at pages 186–187 of the clerk’s transcript is a report from Mink Radiologic Imaging. There are numerous evidentiary issues raised by this report.2 We focus on two key issues: 1) the report says only that Kent’s tendon has “marked attenuation or perhaps complete rupture”; and 2) the report is not referenced in the separate statement as required. (Parkview Villas, supra, (2005) 133 Cal.App.4th at p. 1214 [each party also 2 In the clerk’s transcript, the Mink report appears after Kent’s declaration, following a tab page labelled Exhibit B. The declaration itself does not refer to the Mink report or to an Exhibit B. There is no basis for us to consider this random document of unknown provenance. Dr. Walker, offered by Kent as an expert witness, did state that he reviewed the Mink report. Experts may rely on hearsay such as the unauthenticated Mink report, but the trial court ultimately found, correctly, that Dr. Walker did not qualify as an expert. 16 must supply a ‘reference to the supporting evidence’ in its separate statement])3 To the extent Kent complains that Dr. Richeimer did not describe Kent’s injuries in the declaration, Kent has forfeited any such objection by failing to make it in the trial court. This is not, as Kent suggests, a situation where Dr. Richeimer did not know anything about Kent’s later medical condition. If Kent had objected to the lack of a description of his injuries in the Richeimer declaration, the doctor could, at a minimum, have clarified what he learned about Kent’s injuries from his written discovery responses, and possibly also from Kent’s deposition, which the doctor also reviewed. This sort of gap filler evidence is precisely the sort of evidence a moving party may expect to offer after a gap in the original evidence is created by the opposition. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522 , 1538.) 3 In response to Wu’s statement that no alleged violation of the standard of care caused Kent’s injuries, Kent replied: “Disputed. The treatment rendered by Dr. Wu to the plaintiff fell below the standard of care and resulted in plaintiff’s ruptured thumb tendon.” There is no record cite. Kent mentioned a ruptured thumb tendon only one other time in the separate statement. In response to Dr. Wu’s statement that Kent’s “complaints are consistent with the mechanism of car accident injuries and not Dr. Wu’s treatment,” Kent replied: “Disputed. Plaintiff did not suffer a ruptured tendon in the accident, only a sprain or tenosynovitis, refer to Exhibit C.” Exhibit C is Dr. Wu’s medical records. 17  3 Information About the Type or Amount of Steroids Injected Was Unnecessary. Kent also contends the Richeimer declaration is deficient because he “did not know any of the details about Dr. Wu’s treatment of Kent’s thumb. All he stated was that Dr. Wu had ‘administered steroid injections’ to Kent’s thumb on two occasions. . . . He did not know the number of injections or the type or amount of steroid medication that was injected each time.” Once Dr. Richeimer identified the cause of Kent’s thumb injury as the car accident to a reasonable degree of medical certainty, he was not required to expressly opine that all other proffered causes did not, to a reasonable degree of medical certainty, cause the injury. Put differently, proving one cause to a medical probability eliminated all other proffered causes. Medical probability is 51 percent. An injury which has a 51 percent probability of being caused by a vehicle accident cannot also have a 51 percent probability of being caused by steroids.4 Nevertheless, Dr. Richeimer did elect to discuss Kent’s theory of causation due to steroids. Dr. Richeimer opined Kent’s complaints were not consistent with Wu’s treatment. He also opined “to a reasonable degree of medical probability no alleged violation of the standard of care by Dr. Wu caused or contributed to plaintiff’s injuries.” Dr. Richeimer had previously described Wu’s treatment as steroid injections into Kent’s right thumb “insertion and sheath” on Kent’s first visit, and additional steroid 4 It still might be possible for an action or inaction to be a contributing cause to the injury, but this was not Kent’s claim. 18 injections into Kent’s right thumb “tendon and insertion” two weeks later. Thus, Dr. Richeimer’s opinion as a whole was that steroid injections were not consistent with Kent’s thumb injuries and that even if administered incorrectly, they did not cause those injuries to a reasonable degree of medical certainty. Kent contends, in effect, that Dr. Richeimer could not form this opinion without knowing the type and amount of steroids injected. Dr. Richeimer’s opinion was that steroids did not cause the type of thumb injury suffered by Kent, even if improperly administered. The time to dispute that was in the trial court, with expert testimony that the amount or type of steroids mattered and that some type or amount could cause the thumb injury suffered by Kent. Kent failed to do this. Once Dr. Richeimer gave his opinion that steroids were not consistent with Kent’s injuries, there was little else to say. In this regard, the opinion in Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480 (Ochoa) discussing the sufficiency of expert declarations on causation is helpful. The plaintiff in Ochoa contended she suffered aggravated respiratory problems due to a methane leak in her new home. (Id. at pp. 1482–1483.) Defendant moved for summary judgment on lack of causation and presented the declarations of two expert witness, a toxicologist and a pulmonary specialist. (Id. at p. 1483.) As the court summarized, the toxicologist “declared that ‘[e]xposure to methane gas has no direct toxic respiratory effect, short of asphyxiation.’ Thus, in his opinion there cannot be a causal link between appellant’s alleged respiratory injuries and exposure to methane gas.” (Id. at p. 1486.) The pulmonary care medical specialist “declared that ‘exposure to methane gas and/or the odorants added to methane gas would not have caused, nor have 19 aggravated, plaintiff’s allergies nor her asthma condition.’ He also declared that her flu-like symptoms could not have been caused by methane gas exposure. It was his opinion that the aggravation of her respiratory condition was ‘most likely due to her move from an apartment, where there was little adjacent plant life, to her present home in Merced.’ ” (Id. at p. 1487.) The Court of Appeal held “the trial court correctly concluded that PG&E provided competent declaratory evidence showing that methane gas cannot cause or exacerbate the ailments from which appellant suffered” and so shifted the burden to appellant to produce evidence sufficient to create a triable issue of fact on causation.” (Ochoa, supra, 61 Cal.App.4th at p. 1488.) The same is true here. IV. Dr. Walker Was Not Qualified as an Expert and So His Declaration Did Not Create Triable Issues of Material Fact Concerning Causation. Kent contends that even if Dr. Richeimer’s declaration was evidence negating causation, the declaration of his expert Dr. Walker created a triable issue of material fact as to the causation of Kent’s thumb injuries. Kent acknowledges that his expert’s declaration was conclusory, but contends it was no more conclusory than Dr. Richeimer’s declaration, with an important difference being that Dr. Walker’s declaration must be construed liberally while Dr. Richeimer’s declaration must be construed strictly. We do not agree that Richeimer’s three and a-half page, 21-paragraph declaration is as conclusory as Dr. Walker’s one- page, seven-paragraph declaration, but the content or length of Walker’s declaration is not the point. The trial court found Kent failed to establish that Dr. Walker was, in fact, an expert. The court explained: “Dr. Walker’s declaration provides that he is a 20 medical doctor licensed in California, but does not provide information that qualifies Dr. Walker to opine on Dr. Wu’s conduct. . . . Dr. Walker does not state what kind of medicine he practices and plaintiff has not presented his resume.” The record on appeal suggests Kent never filed Dr. Walker’s resume with the court; the only copy in the clerk’s transcript is found as an exhibit to a declaration in support of Wu’s reply brief. The declaration states that Wu received the resume shortly before his reply brief was due. The court’s comments indicate the court did not consider this late-served (and apparently unfiled) resume. We see no abuse of discretion in this decision. Had the court considered the resume, there can be little doubt the court’s conclusion would have been the same. The copy of the resume sent to Wu is woefully out of date. It is a 2010 version of the resume and shows that Walker’s medical license would expire in October 2012.5 There is no indication of Dr. Walker’s training or work experience in the eight years between the date of his resume and the filing of his declaration. V. The Denial of the Motion for a New Trial Was Proper for the Same Reasons the Grant of Summary Judgment Was Proper. Kent contends the trial court erred in denying his motion for a new trial. The motion was made on the grounds that Wu did not meet his initial burden on summary judgment and that 5 Dr. Walker stated in his declaration that he is a “medical doctor licensed by the State of California” but did not provide supporting details such as his license number or its expiration date. 21 there was a triable issue of fact. He contends the denial was wrong for the same reasons the grant of summary judgment was wrong. Even though it is the duty of the appellate court in reviewing the denial of a new trial motion to review the entire record, “an appellant has a duty to make a ‘cognizable argument on appeal as to why the trial court abused its discretion in denying the motions.’ [Citation.] Mere repetition of the arguments made in support of the motion in the trial court is not sufficient.” (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270 , 277.) Given Kent’s cursory argument, we will simply state the trial court’s denial of the new trial motion was correct for the same reasons the grant of summary judgment was correct. Dr. Richeimer’s declaration was sufficient evidence to negate causation, Dr. Walker was not qualified to testify as an expert, and Kent did not clearly raise the theory of self-evident injury in his complaint or in opposition to summary judgment. The only new argument Kent raises concerns the trial court’s finding that the proof of service of the notice of intent to file a new trial motion was defective. We agree with Kent the trial court misread the amended proof of service. The document, dated March 29, 2109, states the notice was mailed by Daniel Cabilo on March 28, 2019. However, this is relevant only if we were to decline to decide the motion based on untimely service. We do not do so. 22  DISPOSITION The judgment is affirmed. Respondent is awarded costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS STRATTON, J. We concur: BIGELOW, P. J. GRIMES, J. 23

2020-12-02 21:09:40.15382+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07245.htm

Waters v Geico Ins. Agency, Inc. (2020 NY Slip Op 07245) Waters v Geico Ins. Agency, Inc. 2020 NY Slip Op 07245 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department JOSEPH J. MALTESE, J.P. MARK C. DILLON JOHN M. LEVENTHAL FRANCESCA E. CONNOLLY, JJ. 2018-04005 (Index No. 610976/17) [*1]William E. Waters, et al., appellants, v Geico Insurance Agency, Inc., et al., respondents. Ahern & Ahern, Kings Park, NY (Dennis P. Ahern of counsel), for appellants. Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman of counsel), for respondent Geico Insurance Agency, Inc. Kelly, Rode & Kelly, LLP, Mineola, NY (Eric P. Tosca of counsel), for respondents Russo Apoznanski & Tambasco, known now as Sette and Apoznanski Attorneys at Law. DECISION & ORDER In an action, inter alia, to recover damages for breach of the implied covenant of good faith and fair dealing, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated February 20, 2018. The order granted the separate motions of the defendant Geico Insurance Agency, Inc., and the defendant Russo Apoznanski & Tambasco, known now as Sette and Apoznanski Attorneys at Law, for summary judgment dismissing the complaint insofar as asserted against each of them. ORDERED that the order is affirmed, with one bill of costs. In April 2010, the plaintiff William Waters (hereinafter Waters) was involved in a three-car accident on the Sagtikos State Parkway, when Waters's vehicle came into contact with a vehicle driven by Derek Fruendt, who sustained personal injuries as a result thereof. Thereafter, Fruendt, and his wife suing derivatively (hereinafter together the Freundts), commenced a personal injury action against Louis J. Maccarone and Maccarone Leasing (hereinafter together Maccarone), the driver/owner of the other vehicle involved in the accident, and Waters, alleging negligence. Waters had an insurance policy with the defendant Geico Insurance Agency, Inc. (hereinafter Geico), with a liability limit of $100,000. Pursuant to that policy, Geico undertook Waters's defense in the Freundts' personal injury action, appointing the defendant Russo Apoznanski & Tambasco, known now as Sette and Apoznanski Attorneys at Law (hereinafter Russo), as counsel for Waters. At the conclusion of the liability portion of the trial, the jury found both Waters and Maccarone liable and apportioned 85% of the fault to Waters and 15% of the fault to Maccarone. Subsequently, a judgment was entered in favor of the Freundts and against Waters and Maccarone awarding damages, and Maccarone obtained a judgment for contribution against Waters in the amount of $323,000 for the excess amount Maccarone paid beyond Maccarone's proportionate share of the judgment obtained by the plaintiffs in the underlying action. In June 2017, Waters, and his wife suing derivatively, commenced this action against [*2]Geico and Russo (hereinafter together the defendants) alleging, inter alia, that they breached the implied covenant of good faith and fair dealing by not settling the underlying action for the policy limit. Issue was joined by the defendants. Subsequently, the defendants separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. In an order dated February 20, 2018, the Supreme Court granted the defendants' separate motions. The plaintiffs appeal. We agree with the Supreme Court's determination granting the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them. Implicit in every contract is a covenant of good faith and fair dealing which encompasses any promise that a reasonable promisee would understand to be included (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318; Gutierrez v Government Empls. Ins. Co., 136 AD3d 975, 976). It is well established that "[a]n insurer may be held liable for the breach of its duty of good faith in defending and settling claims over which it exercises exclusive control on behalf of its insured" (CBLPath, Inc. v Lexington Ins. Co., 73 AD3d 829, 830 [internal quotation marks omitted]; see Lavaud v Country-Wide Ins. Co., 29 AD3d 745, 746). To establish a prima facie case of bad faith refusal to settle, a plaintiff must demonstrate that the insurer's conduct constituted a gross disregard of the insured's interests, that is a deliberate or reckless failure to place the interests of the insured on an equal footing with the insurer's own interests when considering a settlement offer (see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453; Lavaud v Country-Wide Ins. Co., 29 AD3d at 746). Here, the defendants established, prima facie, that they did not engage in conduct that constitutes a "gross disregard" by Geico of the plaintiffs' interests (see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d at 453-454). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). The defendants' separate motions for summary judgment were not premature, as the plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff (see CPLR 3212[f]; Rodriguez-Garcia v Bobby's Bus Co., Inc., 175 AD3d 631, 632). In light of our determination, we need not consider the parties' remaining contentions. Accordingly, we affirm the order appealed from. MALTESE, J.P., DILLON, LEVENTHAL and CONNOLLY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:40.463381+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07244.htm

U.S. Bank N.A. v Sirota (2020 NY Slip Op 07244) U.S. Bank N.A. v Sirota 2020 NY Slip Op 07244 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN JEFFREY A. COHEN COLLEEN D. DUFFY, JJ. 2018-14358 (Index No. 711687/15) [*1]U.S. Bank National Association, etc., respondent, v Howard Sirota, et al., appellants, et al., defendants. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York, NY (Brian D. Graifman of counsel), for appellant Howard Sirota. Law Offices of Cahn & Cahn, P.C., Melville, NY (Daniel K. Cahn of counsel), for appellant Rochelle Sirota. Berkman Henoch Peterson Peddy & Fenchel, P.C., Garden City, NY (James Durso, Bruce Berkman, and Martin E. Valk of counsel), for respondent. DECISION & ORDER In an action, inter alia, to foreclose a mortgage, the defendant Rochelle Sirota appeals, and the defendant Howard Sirota separately appeals, from an order of the Supreme Court, Queens County (Salvatore J. Modica, J.), dated October 15, 2018. The order denied those defendants' separate motions, inter alia, pursuant to, among other things, CPLR 3126 for the imposition of sanctions against the plaintiff for discovery violations, and pursuant to 22 NYCRR 130-1.1 for an award of costs and reasonable attorney's fees. ORDERED that the order is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof denying those branches of the separate motions of the defendants Rochelle Sirota and Howard Sirota which were pursuant to CPLR 3126 for the imposition of sanctions against the plaintiff for discovery violations, and substituting therefor a provision granting those branches of the motions to the extent of directing the plaintiff to produce in the Supreme Court, within 45 days after service of a copy of this decision and order, all outstanding discovery, including a privilege log and the original note and allonges for inspection, and, if the plaintiff fails to comply, then a negative inference will be drawn against the plaintiff on the issue of standing at trial or upon a dispositive motion, and (2) by deleting the provision thereof denying those branches of the separate motions of the defendants Rochelle Sirota and Howard Sirota which were pursuant to 22 NYCRR 130-1.1 for an award of costs and reasonable attorney's fees, and substituting therefor a provision granting those branches of the motions; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendants Rochelle Sirota and Howard Sirota, and the matter is remitted to the Supreme Court, Queens County, for a determination of the amount of costs and reasonable attorney's fees to be awarded to each of those defendants pursuant to 22 NYCRR 130-1.1. In November 2015, the plaintiff commenced this action against, among others, the defendants Rochelle Sirota and Howard Sirota (hereinafter together the defendants) to foreclose a [*2]mortgage on certain property owned by the defendants in Belle Harbor. In their respective answers, each of the defendants asserted affirmative defenses including, inter alia, the plaintiff's lack of standing and the existence of a fatal defect in the allonges to the note underlying the mortgage, and a counterclaim for a declaration that the defendants were entitled to the release of certain homeowners' insurance proceeds that were issued by the defendants' homeowners' insurance carrier in connection with damage to the defendants' house caused by Hurricane Sandy. The insurance company had issued checks for the insurance proceeds which were made payable to the defendants and the plaintiff. Counsel for Rochelle Sirota was holding those checks in escrow pending a determination of the counterclaims. Thereafter, the defendants each served discovery demands upon the plaintiff, which included a demand for the production of the original note for inspection, as well as the production of other documents reflecting the chain of custody and current location of the note. After receiving the plaintiff's discovery responses, Rochelle Sirota served a letter identifying deficiencies in the plaintiff's production, and then moved to compel discovery. While that discovery motion was pending, the plaintiff moved for summary judgment on the complaint, attaching documents that were not previously produced in discovery. Rochelle Sirota cross-moved for summary judgment on her counterclaim, and for the immediate release of the insurance funds to the defendants. In an order entered August 7, 2017 (hereinafter the August 2017 order), the Supreme Court (1) "granted in its entirety" the motion to compel responses to discovery, to be furnished on or before September 14, 2017; (2) denied the plaintiff's motion for summary judgment; and (3) "granted in its entirety" the cross motion "for the release of the escrowed funds," to be released within 14 days of service of a copy of the order with notice of entry. The court noted, inter alia, that the need for discovery in the action was "acute," in light of the issues raised in a prior action to foreclose the same mortgage, with respect to the plaintiff's standing and the validity of the note's allonges. The plaintiff produced additional documents in response to the August 2017 order, but the defendants contended that the plaintiff's discovery responses were still deficient. Thereafter, the plaintiff, which had filed a notice of appeal from the August 2017 order, moved in this Court in October 2017 to stay enforcement of so much of the August 2017 order as directed release of the escrowed insurance funds. In its papers submitted to this Court in support of the motion, the plaintiff disclosed for the first time that the insurance company had released the insurance proceeds to the plaintiff's loan servicer and the funds had been deposited into the account of the plaintiff's loan servicer without the defendants' knowledge or consent. In November 2017, this Court denied the plaintiff's motion to stay enforcement of the relevant portion of the August 2017 order. Several weeks later, the plaintiff wired the insurance proceeds to the defendants' counsel. The defendants thereafter separately moved in the Supreme Court pursuant to, inter alia, CPLR 3126, for the imposition of sanctions against the plaintiff for discovery violations, and pursuant to 22 NYCRR 130-1.1 for an award of costs and reasonable attorney's fees. Howard Sirota also sought to hold the plaintiff in civil contempt and Rochelle Sirota joined in that branch of his motion. In an order dated October 15, 2018 (hereinafter the October 2018 order), the court denied the defendants' separate motions. The defendants separately appeal. Although we agree with so much of the Supreme Court's determination as denied the defendants' requests to strike the complaint, the court should have imposed a lesser sanction on the plaintiff to ensure that the plaintiff complies with its discovery obligations (see Turiano v Schwaber, 180 AD3d 950, 952; Gutman v Cabrera, 121 AD3d 1042, 1043-1044). CPLR 3126 gives a trial court broad discretion to fashion an appropriate discovery sanction, even when the particular sanction has not been expressly requested by the moving party (see Turiano v Schwaber, 180 AD3d at 952; see also Wolfson v Nassau County Med. Ctr., 141 AD2d 815, 816). This Court may substitute its own discretion for that of the trial court (see Turiano v Schwaber, 180 AD3d at 952; Lucas v Stam, 147 AD3d 921, 925). Here, the plaintiff's repeated failures, without an adequate excuse, to comply with [*3]discovery demands and with the Supreme Court's discovery order, gives rise to an inference that its behavior was willful and contumacious (see Pastore v Utilimaster Corp., 165 AD3d 685, 687; Gutman v Cabrera, 121 AD3d at 1043-1044). The plaintiff has failed to rebut this inference and offered no explanation for its failure to produce a privilege log as previously directed by the August 2017 order, or to produce documents which identify the location of the note or its chain of custody, despite the plaintiff's sworn allegation that at the time of commencement it possessed the note "directly or through an agent." The plaintiff also does not dispute that it initially ignored the defendants' discovery demands for documents relating to its standing, yet attached documents responsive to those discovery demands to its motion for summary judgment which it had failed to provide to the defendants in discovery, nor does it dispute that it failed to provide relevant discovery about the insurance proceeds, including canceled checks, prior to seeking a stay on appeal. Under these circumstances, the Supreme Court should have imposed a sanction for the plaintiff's repeated failures, without an adequate excuse, to comply with the discovery demands and with the court's discovery order (see Turiano v Schwaber, 180 AD3d at 952; Gutman v Cabrera, 121 AD3d at 1043-1044). Therefore, we modify the October 2018 order by deleting the provision thereof denying those branches of the defendants' separate motions which were pursuant to CPLR 3126 for the imposition of sanctions, and substituting therefor a provision granting those branches of the motions to the extent of directing the plaintiff to comply with all outstanding discovery requests within 45 days after service of a copy of this decision and order, including production of a privilege log and production of the original note and allonges for the defendants' inspection in court; upon any failure by the plaintiff failure to do so, the Supreme Court is directed to have a negative inference drawn against the plaintiff on the issue of standing at trial or upon a dispositive motion (see Pastore v Utilimaster Corp., 165 AD3d at 687; see also Chowdhury v Hudson Val. Limousine Serv., LLC, 162 AD3d 845, 846-847). We agree with the Supreme Court's determination that an adjudication of civil contempt was not warranted with respect to the plaintiff's delay in releasing the insurance proceeds to the defendants. Civil contempt requires a finding that a "'right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced'" (El-Dehdan v El-Dehdan, 114 AD3d 4, 11, affd 26 NY3d 19, quoting Judiciary Law § 753[A]). "The element of prejudice to a party's rights is essential to civil contempt, which aims to vindicate the rights of a private party to litigation" (El-Dehdan v El-Dehdan, 114 AD3d at 11; see Matter of Yang v Luo, 103 AD3d 661, 661). Here, the plaintiff had already complied with the court's order to release the insurance proceeds months before the defendants sought to hold the plaintiff in contempt (see Matter of Yang v Luo, 103 AD3d at 661). However, the Supreme Court should have awarded costs and reasonable attorney's fees to the defendants pursuant to 22 NYCRR 130-1.1. The record reveals that the plaintiff's failure to disclose that it was in possession of the insurance funds, and its lengthy delay in complying with the August 2017 order directing it to release the funds, resulted in the defendants incurring unnecessary costs and attorney's fees. The plaintiff's failure to disclose to the defendants the fact that it had received the insurance payments, and the plaintiff's other efforts to delay complying with the August 2017 order directing the release of the funds to the defendants, were "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (22 NYCRR 130-1.1[c][2]). Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination of costs and reasonable attorney's fees to be awarded to each defendant. The defendants' remaining contentions are either without merit or improperly raised for the first time on appeal. RIVERA, J.P., AUSTIN, COHEN and DUFFY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:40.6943+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07243.htm

U.S. Bank N.A. v Salvodon (2020 NY Slip Op 07243) U.S. Bank N.A. v Salvodon 2020 NY Slip Op 07243 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ. 2019-04169 (Index No. 514009/17) [*1]U.S. Bank National Association, etc., appellant, v Clifton Salvodon, et al., defendants, Naudia Vassell, respondent. McCalla Raymer Liebert Pierce, LLC, New York, NY (Anthony J. Risalvato of counsel), for appellant. DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated January 28, 2019. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant Naudia Vassell and granted that defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against her as time-barred. ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements. On October 31, 2006, the defendant Clifton Salvodon executed a note wherein he agreed to pay the principal amount of $460,000 to Countrywide Bank N.A. The note was secured by a mortgage given by Salvodon and the defendant Naudia Vassell (hereinafter the defendant), encumbering certain real property. On June 28, 2007, upon Salvodon's default under the terms of the loan, Countrywide Bank FSB, formerly known as Countrywide Bank N.A. (hereinafter Countrywide), commenced an action to foreclose the mortgage against Salvodon, the defendant, and others (hereinafter the 2007 foreclosure action). The complaint in that action alleged, in relevant part, that "[m]ore than thirty (30) days have elapsed" since the borrower's default and that the "plaintiff has elected . . . to declare immediately due and payable the entire unpaid balance of principal." By order dated October 8, 2013, the complaint was dismissed because Countrywide failed to appear at a settlement conference. On July 20, 2017, the plaintiff, as assignee of the note and mortgage, commenced the instant foreclosure action. The defendant interposed an answer wherein she asserted as an affirmative defense, inter alia, that the action was barred by the statute of limitations. Thereafter, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. The defendant opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against her as time-barred. In an order dated January 28, 2019, the Supreme Court denied the plaintiff's motion and granted the defendant's cross motion. The plaintiff appeals. An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4]). "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt" (EMC Mtge. Corp. v Patella, 279 AD2d 604, 605). Acceleration of a mortgage debt occurs, inter alia, by the commencement of a foreclosure action which invokes that relief (see Wells Fargo Bank, N.A. v Lefkowitz, 171 AD3d 843, 844; Milone v US Bank N.A., 164 AD3d 145, 152). Where the plaintiff, however, lacks standing to foreclose, the mortgage loan is not accelerated by the commencement of such an action (see Milone v US Bank N.A., 164 AD3d at 153). Here, in support of her cross motion, the defendant established, prima facie, that the six-year statute of limitations (see CPLR 213[4]) began to run on the entire debt in June 2007, when Countrywide commenced the 2007 foreclosure action seeking to recover the entire unpaid loan balance (see Bank of N.Y. Mellon v Alli, 175 AD3d 1472, 1473; Deutsche Bank Natl. Trust Co. v Adrian, 157 AD3d 934, 935). Since the plaintiff did not commence the instant action until July 20, 2017, the defendant met her initial burden of demonstrating, prima facie, that the instant action was untimely (see Milone v US Bank N.A., 164 AD3d at 153; Deutsche Bank Natl. Trust Co. v Adrian, 157 AD3d at 935). The burden then shifted to the plaintiff to present admissible evidence establishing that the action was timely or to raise a triable issue of fact with respect thereto (see U.S. Bank, N.A. v Kess, 159 AD3d 767, 768). In opposition, the plaintiff's sole argument was that the loan was never successfully accelerated by the 2007 foreclosure action because final judgment was not entered in that action. On appeal, the plaintiff has abandoned that argument, instead contending that the loan was not accelerated because Countrywide did not have standing to commence the 2007 foreclosure action and because the defendant failed to establish that Countrywide served a notice of default as required under the terms of the mortgage agreement prior to commencing the 2007 foreclosure action. However, those arguments, raised for the first time on appeal, are not properly before this Court (see HSBC Bank USA, N.A. v Gold, 171 AD3d 1029, 1031). Accordingly, we agree with the Supreme Court's determination granting the defendant's cross motion for summary judgment dismissing the complaint insofar as asserted against her as time-barred and denying that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the defendant. MASTRO, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:41.026055+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07242.htm

U.S. Bank N.A. v Kohanov (2020 NY Slip Op 07242) U.S. Bank N.A. v Kohanov 2020 NY Slip Op 07242 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. JOSEPH J. MALTESE HECTOR D. LASALLE LINDA CHRISTOPHER, JJ. 2018-04223 (Index No. 706366/15) [*1]U.S. Bank National Association, etc., respondent, v George Kohanov, appellant, et al., defendants. Menashe & Associates, LLP, Montebello, NY (Shoshana Schneider of counsel), for appellant. Woods Oviatt Gilman, LLP (Reed Smith, LLP, New York, NY [Andrew B. Messite and Kerren B. Zinner], of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendant George Kohanov appeals from an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered February 26, 2018. The order, insofar as appealed from, upon a decision of the same court dated December 20, 2016, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant George Kohanov, to strike that defendant's answer, and to appoint a referee to ascertain and compute the amount due and owing to the plaintiff. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant George Kohanov, to strike that defendant's answer, and to appoint a referee to ascertain and compute the amount due and owing to the plaintiff are denied. On September 7, 2005, the defendant George Kohanov (hereinafter the defendant) executed a note in favor of Meridian Residential Capital, LLC, in the sum of $455,000. The note was secured by a mortgage on real property located in Flushing. On June 5, 2015, by corrective assignment, Mortgage Electronic Registration Systems, Inc., as nominee for Meridian Residential Capital, LLC, assigned the mortgage to the plaintiff. On June 18, 2015, the plaintiff commenced this action to foreclose the mortgage against, among others, the defendant. The plaintiff moved, inter alia, for summary judgment on the complaint, to strike the defendant's answer, and to appoint a referee to compute the amount due and owing to the plaintiff. The defendant cross-moved pursuant to CPLR 3211(a) to dismiss the complaint insofar asserted against him. In a decision dated December 20, 2016, the Supreme Court determined that the plaintiff's motion should be granted and the defendant's cross motion should be denied. In an order entered February 26, 2018, the court, among other things, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and to appoint a referee to ascertain and compute the amount due and owing to the plaintiff. The defendant appeals. "[I]n a residential foreclosure action, a plaintiff moving for summary judgment must tender sufficient evidence demonstrating the absence of material issues as to its strict compliance [*2]with RPAPL 1304" (U.S. Bank N.A. v Henderson, 163 AD3d 601, 602 [internal quotation marks omitted]). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (id. at 602 [internal quotation marks omitted]). Pursuant to RPAPL 1304(1), "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower[ ] . . . , including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." The notice "shall be sent by such lender, assignee (including purchasing investor) or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage" (RPAPL 1304[2]). "Notice is considered given as of the date it is mailed" (RPAPL 1304[2]). "By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing" (Everbank v Greisman, 180 AD3d 758, 760). Proof of the requisite mailing "can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" (id. at 760). "There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon" (U.S. Bank N.A. v Goldberg, 171 AD3d 981, 982 [internal quotation marks omitted]). "[M]ailing may be proved by any number of documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518" (id. at 982 [internal quotation marks omitted]). Here, we disagree with the Supreme Court's determination that the plaintiff established, prima facie, that it strictly complied with RPAPL 1304. In support of its motion, the plaintiff submitted the affidavit of DiMario Abrams, a vice president for the plaintiff's loan servicer, as well as copies of the notices and the envelopes in which the notices were allegedly mailed. Abrams did not purport to have personal knowledge of the actual mailing of the notices pursuant to RPAPL 1304, he did not purport to have personal knowledge of the mailing procedures utilized by the plaintiff's loan servicer, and he did not lay a proper foundation under the business records exception to the hearsay rule with respect to the notices and envelopes attached to his affidavit (see Everbank v Greisman, 180 AD3d at 760; U.S. Bank N.A. v Goldberg, 171 AD3d at 982). Moreover, even if the records attached to his affidavit were admissible, they did not establish strict compliance with RPAPL 1304 (see RPAPL 1304[2]). The plaintiff's attempt to submit additional evidence in its reply papers in further support of its motion was improper and should not have been considered by the court (see Lee v Law Offs. of Kim & Bae, P.C., 161 AD3d 964, 965; Board of Mgrs. of Foundry at Washington Park Condominium v Foundry Dev. Co., Inc., 111 AD3d 776, 777; Matter of Allstate Ins. Co. v Dawkins, 52 AD3d 826, 827). In any event, the evidence that the plaintiff submitted in reply did not establish strict compliance with RPAPL 1304. The plaintiff similarly failed to establish, prima facie, that it had delivered the required notice of default in accordance with paragraphs 15 and 22 of the mortgage. Abrams failed to lay a proper foundation under the business records exception to the hearsay rule with respect to the alleged notice of default and envelope attached to his affidavit (see US Bank N.A. v Hunte, 176 AD3d 894, 896). Moreover, there was no indication that those records were delivered as required by paragraphs 15 and 22 of the mortgage. "Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" (Bank of Am., N.A. v Sebrow, 180 AD3d 982, 984 [internal quotation marks omitted]). Where "a defendant has challenged the plaintiff's standing in a foreclosure action, a plaintiff must also demonstrate that it was the holder or assignee of the note at the time the action was commenced" (id. at 984). "Either a written assignment of the underlying note or the physical [*3]delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (id. [internal quotation marks omitted]). Pursuant to UCC 3-804, "[t]he owner of an instrument which is lost, whether by destruction, theft or otherwise, may maintain an action in [its] own name and recover from any party liable thereon upon due proof of [its] ownership, the facts which prevent [its] production of the instrument and its terms." Here, we disagree with the Supreme Court's determination that the plaintiff established, prima facie, that it had standing to commence this action. The plaintiff submitted a lost note affidavit prepared by Dereje D. Badada, a vice president for its loan servicer. According to that affidavit, the note had "been inadvertently lost, misplaced or destroyed," and the loan servicer had "not pledged, assigned, transferred, hypothecated or otherwise disposed of the note." There was no allegation in the lost note affidavit that the note had ever been delivered or assigned to the plaintiff, nor were there any details regarding when or how the note was lost, who searched for the note, or when they searched for the note. Therefore, the lost note affidavit did not establish the plaintiff's ownership of the note or the facts preventing it from producing the note (see UCC 3-804; Wells Fargo Bank, N.A. v Meisels, 177 AD3d 812, 814-815). Accordingly, the Supreme Court should have denied the plaintiff's motion regardless of the sufficiency of the defendant's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). SCHEINKMAN, P.J., MALTESE, LASALLE and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:41.253912+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07241.htm

U.S. Bank N.A. v Itshak (2020 NY Slip Op 07241) U.S. Bank N.A. v Itshak 2020 NY Slip Op 07241 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. JOHN M. LEVENTHAL BETSY BARROS PAUL WOOTEN, JJ. 2018-10684 (Index No. 23065/09) [*1]U.S. Bank National Association, etc., respondent, v Azaria Ben Itshak, etc., appellant, et al., defendants. Berger Fink LLP, New York, NY (Jason M. Fink and Leslie Perez-Bennie of counsel), for appellant. Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendant Azaria Ben Itshak appeals from an order of the Supreme Court, Queens County (Lee A. Mayersohn, J.), entered June 12, 2018. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate so much of an order of the same court dated October 21, 2016, as granted the plaintiff's motion for an order of reference, upon his failure to appear or answer the complaint, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. ORDERED that the order entered June 12, 2018, is affirmed insofar as appealed from, with costs. In 2009, the plaintiff commenced the instant foreclosure action against, among others, the defendant Azaria Ben Itshak (hereinafter the defendant). The defendant failed to answer the complaint or otherwise appear in the action. In 2014, the plaintiff moved for an order of reference upon the defendant's default. The defendant opposed the motion and cross-moved to dismiss the action pursuant to CPLR 3215(c). In an order dated October 21, 2016, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. The defendant thereafter moved, inter alia, pursuant to CPLR 5015(a)(4) to vacate so much of the October 21, 2016 order as granted the plaintiff's motion for an order of reference on default, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, claiming that he was not properly served with the summons and complaint. In an order entered June 12, 2018, the Supreme Court, among other things, denied those branches of the defendant's motion. The defendant appeals. Contrary to the Supreme Court's conclusion, the defendant did not waive his jurisdictional defense by cross-moving to dismiss the complaint pursuant to CPLR 3215(c), as such a motion by a defendant "does not constitute an appearance in the action" (CPLR 3215[c]). Nevertheless, the defendant failed to rebut the presumption of proper service established by the affidavit of the plaintiff's process server. "A process server's affidavit of service [*2]constitutes prima facie evidence of proper service" (Taron Partners, LLC v McCormick, 173 AD3d 927, 928). "To be entitled to an evidentiary hearing on the issue of service, [a] defendant [is] required to rebut the plaintiff's prima facie showing by submitting a sworn denial of receipt of service containing specific facts to refute the statements in the process server's affidavit" (Countrywide Home Loans, Inc. v Smith, 171 AD3d 858, 859). Here, the process server averred, among other things, that after unsuccessfully attempting to effect personal delivery of the summons and complaint at the defendant's residence on different days and at different times of day when the defendant could reasonably have been expected to be found at home, the process server affixed the complaint to the door of the residence, and later mailed a copy of the same to that address by first-class mail (see CPLR 308[4]; Taron Partners, LLC v McCormick, 173 AD3d at 929). In opposition to this prima facie showing, the defendant failed to address the process server's averments regarding all of his attempts at service (see Countrywide Home Loans, Inc. v Smith, 171 AD3d at 859). Additionally, the defendant failed to submit any affidavits from his wife and adult son, who also lived at the residence, as to whether they ever saw a copy of the summons and complaint, either affixed to the door or in the mail, or whether they ever witnessed any attempts at service (see id.). Accordingly, those branches of the defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate so much of the October 21, 2016 order as granted the plaintiff's motion for an order of reference on default, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, were properly denied. The plaintiff's remaining contentions need not be reached in light of our determination. BALKIN, J.P., LEVENTHAL, BARROS and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2021-01-26 21:12:34.36844+00

FILED Jan 26, 2021 02:42 PM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT MEMPHIS JOSHUA BRYANT, ) Docket No. 2020-08-0309 Employee, ) v. ) MALCO THEATERS INC., ) State File No. 97676-2017 Employer, ) And ) LIBERTY MUTUAL FIRE INS. CO., ) Judge Allen Phillips Carrier. ) EXPEDITED HEARING ORDER DENYING BENEFITS This case came before the Court for an Expedited Hearing on January 13, 2021. Mr. Bryant requested additional medical and temporary disability benefits for a head injury. Malco asserted that he filed his Petition for Benefit Determination (PBD) outside the applicable statute of limitations and it had paid all benefits to which Mr. Bryant was entitled. The Court finds Mr. Bryant filed his PBD outside the applicable statute of limitations and denies his request for benefits at this time. History of Claim On December 14, 2019, Mr. Bryant hit his head on a wooden column at Malco’s theater. He said he immediately became dizzy and experienced impaired vision and hearing. After reporting the injury, he laid down to regain his composure and then went home. Mr. Bryant awoke the next morning with the same symptoms and went on his own to St. Francis Hospital. There, a CT scan of the brain was interpreted as normal, and a provider diagnosed a closed-head injury. Mr. Bryant returned two days later, received the same diagnosis, and underwent another CT that was interpreted as showing no acute findings. 1  Mr. Bryant then received an authorized medical evaluation at Methodist Minor Medical, where he reported blurred vision, a headache and feeling unsteady. The provider recommended a neurological evaluation. Malco offered Mr. Bryant a panel of neurologists, from which he chose Dr. Alan Nadel. On January 10, 2018, Dr. Nadel did not find “anything specific” and stated he “really wonder[ed] if some of [Mr. Bryant’s] symptoms [were] factitious.” However, he placed Mr. Bryant off work. On February 1, Dr. Nadel again stated that he questioned “how much of this is factitious altogether” but continued the off-work restriction. He obtained an MRI of the brain that showed no acute findings. In March, again questioning Mr. Bryant’s symptoms, he nonetheless recommended a second opinion. Malco provided a second opinion with Dr. Mohammed Assaf, who saw Mr. Bryant on April 9. The limited record of that visit includes Dr. Assaf’s notation that Mr. Bryant exhibited decreased strength when tested but was able to lift himself from the examination table using only his arms. Dr. Assaf diagnosed headaches and dizziness and believed Mr. Bryant could return to work. On April 10, Dr. Nadel completed a final medical report in which he placed Mr. Bryant at maximum medical improvement with no impairment and returned him to regular duty. In an affidavit, Malco’s payroll manager, Nancy Keough, stated she learned of Mr. Bryant’s release on April 16 and told him he could return to work. Mr. Bryant reported for work on April 28, but before his shift ended, he complained of dizziness and ultimately called an ambulance. Medical records from that date document only the ambulance transport and that a provider at Baptist Hospital said Mr. Bryant could return to work on May 2. According to Ms. Keough, Mr. Bryant repeatedly said that he was unable to work. Malco responded that the treating physicians had cleared him to do so, and, if he felt otherwise, he would need to obtain another diagnosis on his own. Because of Mr. Bryant’s continued assertions that he could not work, Malco terminated him on May 16. Afterward, Mr. Bryant continued treating on his own. Records from those providers include the history and treatment for the injury and for vertigo. In the last note, dated October 22, 2020, a provider advised Mr. Bryant to return in six months. The records contain no opinion as to a causal relationship between vertigo, or any other condition, and the work injury. Mr. Bryant filed a PBD on March 26, 2020, in which he said he was not given proper medical treatment and wanted Malco to pay the bills he incurred for the treatment he received after his release from Dr. Nadel. He also said that Dr. Nadel “took me off work for months starting Jan. 10, 2018.” At the hearing, Mr. Bryant requested the Court order 2 Malco to pay the bills and temporary total disability from “February 2018 through April 2018.” For its part, Malco offered the affidavit of its claim handler, who said Malco paid Mr. Bryant benefits through April 10, 2018, when Dr. Nadel released him. As to medical benefits, the claims handler stated Malco issued the last payment on March 22, 2019. Thus, Malco maintained that Mr. Bryant filed his PBD more than one year after the last payment and further argued it had provided all medical treatment made necessary by his injury. Findings of Fact and Conclusions of Law At an Expedited Hearing, Mr. Bryant must show he would likely prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239 (d)(1) (2019). Under Tennessee law, when an employer voluntarily pays benefits, the employee must file a PBD within one year of the later of two events. Specifically, the employee must file a PBD within one year of either the date of the last authorized treatment or the date that the employer ceased payments of compensation, whichever is later. Tenn. Code Ann. § 50-6-203 (b)(2) (Emphasis added). Here, Malco’s claim representative stated he issued the last payment of medical benefits on March 22, 2019. Mr. Bryant offered no contrary evidence. He likewise did not dispute that he filed his PBD on March 26, 2020, more than one year later. Thus, Mr. Bryant’s claim is barred by the one-year statute of limitations, and the Court denies his request for benefits at this time. Because of this finding, the Court need not address the issue of Mr. Bryant’s entitlement to further benefits. IT IS, THEREFORE, ORDERED AS FOLLOWS: 1. The Court denies Mr. Bryant’s request for benefits at this time. 2. The Court sets a Status Hearing on Monday, March 22, 2021, at 9:00 a.m. Central Time. The parties must call 731-422-5263 or toll-free at 855-543-5038 to participate in the Hearing. Failure to call might result in a determination of the issues without the party’s participation. ENTERED January 26, 2021. ______________________________________ JUDGE ALLEN PHILLIPS Court of Workers’ Compensation Claims 3  APPENDIX Exhibits 1. First Report of Work Injury 2. Wage Statement 3. Employee’s Choice of Physician Form 4. Separation Notice 5. Job Description 6. Employee’s Affidavit (filed December 7, 2020) 7. Affidavit of Nancy Keough 8. Affidavit of Joseph Medvescek 9. Medical records of St. Francis Hospital 10. Medical records of Methodist Minor Medical 11. Medical records of Dr. Alan Nadel 12. Medical records of Dr. Mohammad Assaf 13. Medical records of Rural Metro/Collierville Fire/Baptist Hospital (collective) 14. Medical records of Shea Clinic 15. Medical records of Methodist Primary Care Technical record 1. Petition for Benefit Determination 2. Dispute Certification Notice 3. Order Setting Case for Show Cause Hearing 4. Order Allowing Additional Time to File Hearing Request 5. Request for Expedited Hearing 6. Employer’s Motion to Attend Expedited Hearing by Telephone 7. Order Granting Teleconference Expedited Hearing 8. Employer’s Petition Statement for Expedited Hearing 9. Employer’s Witness and Exhibit List 4  CERTIFICATE OF SERVICE I certify that a copy of this Order was sent as indicated on January 26, 2021. Name USPS Via Email Service Sent To: Joshua Bryant, Employee X X 9146 Forest Island Dr., N., Collierville, TN 38017 joshuamusic7@yahoo.com Effie B. Cozart, X effie.cozart@libertymutual.com Employer’s Attorney kathleen.langston@libertymutual.com ______________________________________ Penny Shrum, Court Clerk Wc.courtcler@tn.gov 5  Expedited Hearing Order Right to Appeal: If you disagree with this Expedited Hearing Order, you may appeal to the Workers’ Compensation Appeals Board. To appeal an expedited hearing order, you must: 1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the Clerk of the Court of Workers’ Compensation Claims within seven business days of the date the expedited hearing order was filed. When filing the Notice of Appeal, you must serve a copy upon all parties. 2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar days after filing of the Notice of Appeal. Payments can be made in-person at any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the alternative, you may file an Affidavit of Indigency (form available on the Bureau’s website or any Bureau office) seeking a waiver of the fee. You must file the fully- completed Affidavit of Indigency within ten calendar days of filing the Notice of Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will result in dismissal of the appeal. 3. You bear the responsibility of ensuring a complete record on appeal. You may request from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of the proceedings is to be filed, a licensed court reporter must prepare the transcript and file it with the court clerk within ten business days of the filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within ten business days of the filing of the Notice of Appeal. The statement of the evidence must convey a complete and accurate account of the hearing. The Workers’ Compensation Judge must approve the statement before the record is submitted to the Appeals Board. If the Appeals Board is called upon to review testimony or other proof concerning factual matters, the absence of a transcript or statement of the evidence can be a significant obstacle to meaningful appellate review. 4. If you wish to file a position statement, you must file it with the court clerk within ten business days after the deadline to file a transcript or statement of the evidence. The party opposing the appeal may file a response with the court clerk within ten business days after you file your position statement. All position statements should include: (1) a statement summarizing the facts of the case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition of the case as a result of the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, or other authority. For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.  NOTICE OF APPEAL Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-work/ wc.courtclerk@tn.gov | 1-800-332-2667 Docket No.: ________________________ State File No.: ______________________ Date of Injury: _____________________ ___________________________________________________________________________ Employee v. ___________________________________________________________________________ Employer Notice is given that ____________________________________________________________________ [List name(s) of all appealing party(ies). Use separate sheet if necessary.] appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file- stamped on the first page of the order(s) being appealed): □ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________ □ Compensation Order filed on__________________ □ Other Order filed on_____________________ issued by Judge _________________________________________________________________________. Statement of the Issues on Appeal Provide a short and plain statement of the issues on appeal or basis for relief on appeal: ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ Parties Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee Address: ________________________________________________________ Phone: ___________________ Email: __________________________________________________________ Attorney’s Name: ______________________________________________ BPR#: _______________________ Attorney’s Email: ______________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________ * Attach an additional sheet for each additional Appellant * LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________ Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee Appellee’s Address: ______________________________________________ Phone: ____________________ Email: _________________________________________________________ Attorney’s Name: _____________________________________________ BPR#: ________________________ Attorney’s Email: _____________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________ * Attach an additional sheet for each additional Appellee * CERTIFICATE OF SERVICE I, _____________________________________________________________, certify that I have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this case on this the __________ day of ___________________________________, 20 ____. ______________________________________________ [Signature of appellant or attorney for appellant] LB-1099 rev. 01/20 Page 2 of 2 RDA 11082

2020-12-02 21:09:48.234431+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07218.htm

People v Colon (2020 NY Slip Op 07218) People v Colon 2020 NY Slip Op 07218 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. BETSY BARROS FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ. 2018-04754 (Ind. No. 16-01459) [*1]The People of the State of New York, respondent, v Jerry Colon, appellant. Gerald Zuckerman, Croton on Hudson, NY, for appellant, and appellant pro se. Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jill Oziemblewski and William C. Milaccio of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Westchester County (George E. Fufido, Jr., J.), rendered March 27, 2018, convicting him of robbery in the first degree, criminal possession of a weapon in the third degree, criminal possession of stolen property in the fifth degree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The indictment charged the defendant with robbery in the first degree (Penal Law § 160.15[3]), menacing in the first degree (Penal Law § 120.13), criminal possession of a weapon in the third degree (Penal Law § 265.02[1]), criminal possession of stolen property in the fifth degree (Penal Law § 165.40), attempted assault in the second degree (Penal Law §§ 110.00, 120.05[2]), and criminal mischief in the fourth degree (Penal Law § 145.00). Following a jury trial, the defendant was convicted on the charges of robbery, criminal possession of a weapon, criminal possession of stolen property, and criminal mischief, and was acquitted on the remaining charges. The County Court imposed sentence and the defendant appeals. The defendant's contention that a reference by one of the People's witnesses to an alleged uncharged crime deprived him of a fair trial is without merit. Any prejudice to the defendant was ameliorated when the County Court sustained his objection to the improper testimony and instructed the jury during the jury charge that "[t]estimony which was stricken from the record or which an objection was sustained must be disregarded by you" (see People v Johnson, 139 AD3d 967, 975; People v Braithwaite, 126 AD3d 993, 995). The defendant's contention that a witness's unsolicited comment characterizing the defendant as a threat to the community deprived him of a fair trial is unpreserved for appellate review because defense counsel failed to object to those remarks at trial or request a curative instruction (see People v Mitchell, 137 AD3d 944, 945; People v McNeil, 77 AD3d 685, 685). Moreover, any error in failing to strike these comments or issue a curative instruction was harmless, as the evidence of the defendant's guilt, without reference to the improper comments by the witness, was overwhelming, and there was no significant probability that, but for the error, the jury would have acquitted the defendant (see People v Crimmins, 36 NY2d 230, 241-242; People v Gutierrez, 172 AD3d 1094, 1095; People v Owens, 129 AD3d 995, 995-996). Any cumulative effect of these errors does not require reversal. The defendant further argues that the jury's finding of guilt on the count charging him with robbery in the first degree is irreconcilable with its acquittal of the defendant on the count charging him with menacing in the first degree. We disagree. "When there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury" (People v Tucker, 55 NY2d 1, 4; see People v Muhammad, 17 NY3d 532, 538-539). Here, as charged to the jury, the acquittal on the charge of menacing in the first degree did not negate any essential element of robbery in the first degree (see Penal Law § 160.15[3]; cf. Penal Law §§ 120.14[1]; 160.15[4]). The defendant's contention, raised in his pro se supplemental brief, that the jury's finding of guilt on the count charging him with criminal possession of a weapon in the third degree is irreconcilable with its acquittal of the defendant on the count charging him with menacing in the first degree is unpreserved for appellate review, as the defendant failed to challenge the verdicts before the jury was discharged (see CPL 470.05[2]; People v Alfaro, 66 NY2d 985, 987; People v Danon, 167 AD3d 930, 931). In any event, this contention is without merit, since, as charged to the jury, the acquittal of menacing in the second degree did not negate any essential element of criminal possession of a weapon in the third degree (see People v James, 249 AD2d 919, 919). The defendant's further contention, raised in his pro se supplemental brief, that the jury's finding of guilt on the count charging him with robbery in the first degree is irreconcilable with its acquittal of the defendant on the count charging him with assault in the second degree is without merit, since, as charged to the jury, the acquittal of menacing in the second degree did not negate any essential element of criminal possession of a weapon in the third degree (see Penal Law § 160.15[3]; cf. Penal Law § 120.05[2]). The defendant, in his pro se supplemental brief, further asserts that the jury verdict convicting him of robbery in the first degree was against the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633). The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit. DILLON, J.P., BARROS, CONNOLLY and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:48.454913+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07217.htm

People v Colon (2020 NY Slip Op 07217) People v Colon 2020 NY Slip Op 07217 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department JOHN M. LEVENTHAL, J.P. SHERI S. ROMAN JEFFREY A. COHEN JOSEPH J. MALTESE, JJ. 2017-00613 (Ind. No. 2518/03) [*1]The People of the State of New York, respondent, v Dennis Colon, appellant. Paul Skip Laisure, New York, NY (David L. Goodwin of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent. DECISION & ORDER Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (James P. Sullivan, J.), dated November 23, 2016, which denied, without a hearing, his motion pursuant to CPL 440.20 to set aside a sentence of the same court imposed July 20, 2006, as amended July 26, 2006, upon his convictions of burglary in the first degree, rape in the first degree, sexual abuse in the first degree, and assault in the second degree, upon a jury verdict. ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was to modify the periods of postrelease supervision imposed upon the convictions of sexual abuse in the first degree and assault in the second degree, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, and the matter is remitted to the Supreme Court, Kings County, for the imposition of an appropriate period of postrelease supervision in accordance herewith. In 2006, the defendant was convicted of burglary in the first degree, rape in the first degree, sexual abuse in the first degree, and assault in the second degree. The defendant was sentenced to 25 years of imprisonment and 3 years of postrelease supervision upon his conviction of burglary in the first degree, 25 years of imprisonment and 5 years of postrelease supervision upon his conviction of rape in the first degree, 5 years of imprisonment and 5 years of postrelease supervision upon his conviction of sexual abuse in the first degree, and 5 years of imprisonment and 5 years of postrelease supervision upon his conviction of assault in the second degree. The sentences imposed upon the convictions of burglary in the first degree, rape in the first degree, and assault in the second degree were to run concurrently with each other. The sentence imposed upon the conviction of sexual abuse in the first degree was to run consecutively to the sentences imposed upon the convictions of burglary in the first degree and rape in the first degree. We affirmed the judgment on the defendant's direct appeal (People v Colon, 61 AD3d 772, 772). In 2016, the defendant moved pursuant to CPL 440.20 to set aside his sentence. By order dated November 23, 2016, the Supreme Court denied the motion, and we granted leave to appeal. A court "must deny" a motion pursuant to CPL 440.20 "when the ground or issue raised thereupon was previously determined on the merits upon an appeal from the judgment or sentence, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue" (CPL 440.20[2]). We disagree with the Supreme Court's determination that the defendant was procedurally barred from arguing that the sentence imposed upon the conviction of sexual abuse in the first degree was required to run concurrently with [*2]the sentences imposed upon the convictions of burglary in the first degree and rape in the first degree because each of those sentences was required to run concurrently with the sentence imposed upon the conviction of assault in the second degree (see People v Boykins, 161 AD3d 183, 185-186; People v Baker, 85 AD3d 935, 935-936). This issue is distinct from the issue previously determined on the merits by this Court that "the trial court legally imposed consecutive sentences for his convictions of rape in the first degree and sexual abuse in the first degree, as each count involved a separate sexual act constituting a distinct offense" (People v Colon, 61 AD3d at 773). Since the record before this Court is sufficient to determine the subject issue, we need not remit the matter to the Supreme Court to do so (see People v Neely, 219 AD2d 444, 446). Although the sentences imposed upon the convictions of sexual abuse in the first degree, robbery in the first degree, and rape in the first degree were each required to run concurrently with the sentence imposed upon his conviction of assault in the second degree, as each of those convictions could have served as the predicate felony for the assault in the second degree conviction (see Penal Law §§ 70.25[2]; 120.05[6]; People v Parks, 95 NY2d 811, 814-815), the defendant's contention that the sentence imposed upon the conviction of sexual abuse in the first degree was then also required to run concurrently with the sentences imposed upon the convictions of burglary in the first degree and rape in the first degree is without merit (see People v Ennis, 139 AD3d 505, 506; People v Riley, 309 AD2d 879, 880-881; People v Mebert, 194 AD2d 809, 810). However, as the People concede, the periods of postrelease supervision imposed upon the convictions of sexual abuse in the first degree and assault in the second degree exceed the statutorily authorized maximum terms of 1½ to 3 years for those offenses (see Penal Law § 70.45[2][e]). Accordingly, we vacate the periods of postrelease supervision imposed upon the convictions of sexual abuse in the first degree and assault in the second degree and remit the matter to the Supreme Court, Kings County, for the imposition of appropriate periods of postrelease supervision on these counts in accordance with Penal Law § 70.45(2)(e). LEVENTHAL, J.P., ROMAN, COHEN and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-01-17 22:01:56.122005+00

Phillips

*912OPINION. Phillips : The single question presented is whether the three companies which merged and consolidated on December 17, 1918, or any two of them, are affiliated within section 240 of the Revenue Act of 1918 which provides: (b) For tbe purpose of this section two or more domestic corporations shall be deemed to be affiliated (1) if one corporation owns directly pr controls *913through closely affiliated interests or by a nominee or nominees substantially all the stock of the other or others, or (2) if substantially all the stock of two or more corporations is owned or controlled by the same interests. It is clear that these corporations are not within the clause numbered (1). The question then is whether substantially all of the stock was owned or controlled by the same interests. The claim made by petitioner is that the stock not owned by the group consisting of Hicks, Patterson, Hill, and Sargent was controlled by them. The respondent urges that in determining what is “ substantially all ” of the stock, we are controlled by section 240 (c) of the Revenue Act of 1924 where Congress provided: (c) JTor the purpose of this section two or more domestic corporations shall be deemed to be affiliated (1) if one corporation owns at least 95 per centum of the voting stock of the other or others, or (2) if at least 95 per centum of the voting stock of two or more corporations is owned by the same interests. * * * We believe such a contention to be without merit. United States v. Field, 255 U. S. 257. The membership of the Congress and of the committees responsible for drafting these two Acts was substantially different. The report of the Committee shows no thought that this provision was interpretative and by its express terms it is limited to the purposes of this section.” It leaves out of consideration any element of control, making identity of ownership the measure of affiliation. It is impossible to read into this section any thought that it controls or interprets the prior acts. There is a further consideration which must be weighed which bears on the argument respecting Congressional intent as well as respondent’s contention that, “ the words ‘ substantially all ’ should be construed so as to minimize the number of stockholders who receive the benefits of losses of corporations of which they do not share the burdens.” The Revenue Acts of 1918 and 1921 imposed heavy excess-profits taxes. The amount and rate of tax depended not only upon the amount of income, but also upon the amount of invested capital. Under those Acts the shifting of profits from one corporation to another might alter substantially the tax to be paid. Affiliation of corporations owned or' controlled by the same interests was as necessary to protect the revenues, and perhaps more than it was to protect the corporations or their stockholders. See discussion of the purpose of the affiliation provision in Utica Knitting Co. v. United States, decided by Court of Claims, May 6, 1929. The Revenue Act of 1924 and subsequent acts have imposed only an income tax based upon a fixed percentage of all corporate income. There is no longer the same incentive to work a fictitious allocation of profits. Except in unusual circumstances, affiliation benefits the taxpayer without any corresponding benefit to the Government such as existed during the *914period when excess-profit taxes were imposed. Congress had no such reason for restricting affiliations under the prior acts as it had under the Act of 1924 and subsequent acts. Any principle which is enunciated must work against the Government as well as in its favor. To restrict affiliation to those cases where 95 per cent of the stock is owned or controlled by the same interests would not only read into the Revenue Act of 1918 something which is not there, but might well defeat its purpose. We have heretofore held that in determining whether corporations were affiliated under the Revenue Act of 1918 all of the facts must be taken into consideration. The statute uses three phrases, none of which are susceptible of precise measurement: “ substantially,” “ controlled ” and same interests.” The manner in which the corporations are operated or profits shifted may indicate an identity of interests which would not be disclosed by a mere tabulation of stock-holdings. Stock may be controlled other than through ownership. If Congress had not recognized such to be the case the words “ or controlled ” might well have been omitted as they were in the 1924 Act. But control of the stock means more than control of the management of the corporation. In the instant proceeding the evidence discloses only that the same persons controlled the operations of the three corporations, that the minority stockholders were quiescent and satisfied with the operation, that at times they executed proxies and at other times did not, and that in the matter of the merger of the three corporations they were content to follow the plan recommended by the majority and active stockholders who were also the directors. Except for a common management, the three corporations were operated as separate units. There are no such intercompany transactions or unity of operation as would indicate an identity of interests among all the stockholders, nor are there facts which indicate that the active stockholders had any control over the stock of the minority. Watsontown Brick Co., 3 B. T. A. 85; Goldstein Bros. Amusement Co., 3 B. T. A. 408; News Publishing Co., 6 B. T. A. 1257; aff'd. 29 Fed. (2d) 955; Ice Service Co., 9 B. T. A. 386; aff'd. 30 Fed. (2d) 230. We are of the opinion that the Commissioner properly held that these corporations were not entitled to file a consolidated return. Reviewed by the Board. Decision will be entered for the respondent.

2020-12-02 21:09:50.046222+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07215.htm

People v Bellucci (2020 NY Slip Op 07215) People v Bellucci 2020 NY Slip Op 07215 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. MARK C. DILLON HECTOR D. LASALLE LINDA CHRISTOPHER, JJ. 2016-08390 (Ind. No. 384/10) [*1]The People of the State of New York, respondent, v Eric Bellucci, appellant. Janet E. Sabel, New York, NY (Natalie Rea of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William Garnett, J.), rendered August 2, 2016, convicting him of murder in the first degree (two counts), upon a jury verdict, and imposing sentence. ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Richmond County, for further proceedings in accordance herewith. In 2010, the defendant, a diagnosed paranoid schizophrenic, was charged with two counts of murder in the first degree in connection with the death of his parents. On four occasions over the next five years, the defendant was deemed incompetent to stand trial and was hospitalized. In June 2015, an examining expert concluded that the defendant was then competent, noting that he had been compliant with his medication since being prescribed Lithium. However, the expert stated that should the defendant become noncompliant, it was likely that he would decompensate, be unable to withstand courtroom stress, and have increased psychiatric symptoms. At a pretrial hearing on November 30, 2015, the Supreme Court stated that it found the defendant to be competent to stand trial. On at least two subsequent occasions prior to the start of the defendant's trial in April 2016, the People joined in defense counsel's requests that the defendant undergo a new competency examination, as the defendant had become noncompliant with his medication and was not able to communicate rationally with his attorney. That there was serious reason to be concerned as to the defendant's competency is reflected in the fact that, in addition to joining in defense counsel's requests for a competency examination, the People also commenced a CPLR article 78 proceeding seeking to compel the Supreme Court to direct a new competency examination. In support of the application, the People noted that the prior finding of competency was predicated on the condition that the defendant remain medicated. The People reported that, once the defendant was relocated to Rikers Island, he refused to take his medication and there was no one at Rikers Island who could compel him to do so. The Supreme Court denied the requests, stating that, although "[b]oth sides appear[ed] to be willing to continue [the defendant] in a cycle of psychological evaluations," the [*2]defendant had "a right to have his case resolved and not remain in Article 730 limbo." The case proceeded to a jury trial. Despite the Supreme Court's refusal to order a competency examination and the defendant's vehement and consistent objection to his counsel presenting an insanity defense, the court stated that it was "order[ing]" defense counsel to present such a defense. The court stated that "[i]t doesn't make any sense that the law allows a defendant who is fit to proceed but who suffers from a mental illness to make the crucial strategic choice of pursuing an insanity defense." During the trial, defense counsel presented both an insanity defense, as directed by the court, and a justification defense, as directed by the defendant. The defendant refused to cooperate with the defense psychologist who testified in support of the insanity defense, interrupted the proceedings to the point where he was removed from the courtroom, and refused to return to court for the testimony of the People's psychiatric expert, who did not interview him. The defendant was convicted of two counts of murder in the first degree. CPL 730.30(1) provides that "[a]t any time after a defendant is arraigned upon an accusatory instrument other than a felony complaint and before the imposition of sentence, or at any time after a defendant is arraigned upon a felony complaint and before he is held for the action of the grand jury, the court wherein the criminal action is pending must issue an order of examination when it is of the opinion that the defendant may be an incapacitated person" (CPL 730.30[1]). An "incapacitated person" is defined as a "defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense" (CPL 730.10[1]). Here, the defendant had been found incompetent on four previous occasions, and an expert had concluded that the defendant would likely decompensate if he stopped taking his medication. Under the circumstances, when confronted with evidence that the defendant was not taking his required medication and was not able to communicate rationally with his attorney, the Supreme Court should have granted the joint applications of the People and the defense to have the defendant examined pursuant to CPL 730.30(1) to determine his fitness to proceed (see People v Peterson, 40 NY2d 1014, 1015; People v Heston, 72 AD3d 701, 702). We note that, while it is for the court to decide whether to order a competency examination, when both the defense and the People agree that a competency examination is warranted, the court should hesitate before disagreeing. In view of the passage of time and the lack of contemporaneous psychiatric reports of the defendant's mental condition at the time of trial, it would be futile to remit the matter for a reconstruction hearing to attempt to determine the defendant's fitness to proceed at that time (see People v Peterson, 40 NY2d at 1015; People v Heston, 72 AD3d at 702; People v Hussari, 17 AD3d 483, 483-484). Accordingly, we reverse the judgment and remit the matter to the Supreme Court, Richmond County, for further proceedings on the indictment, subject to the Supreme Court's discretion or the motion of either party raising the issue of the defendant's capacity to proceed with the criminal proceedings (see CPL art 730; People v Heston, 72 AD3d at 702; People v Hasenflue, 48 AD3d 888, 891). If the court "is of the opinion that the defendant may be an incapacitated person" (CPL 730.30 [1]), it shall issue an order of examination. Since there may be a new trial, we note that a defendant found competent to stand trial has the ultimate authority, even over counsel's objection, to reject the use of a psychiatric defense (see People v Petrovich, 87 NY2d 961, 963; People v Colletta, 106 AD3d 927, 928; People v Constas, 59 AD3d 729, 730). Thus, once the Supreme Court determined the defendant to be competent to stand trial, it should not have interfered with that authority by "order[ing]" defense counsel, over the defendant's objection, to present an insanity defense. In light of our determination, we need not reach the defendant's remaining contention. SCHEINKMAN, P.J., DILLON, LASALLE and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:41.482213+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07240.htm

U.S. Bank N.A. v Donovan (2020 NY Slip Op 07240) U.S. Bank N.A. v Donovan 2020 NY Slip Op 07240 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ. 2019-13959 (Index No. 17410/09) [*1]U.S. Bank National Association, etc., respondent, v Pamela Donovan, appellant, et al., defendants. Jeffrey B. Hulse, Sound Beach, NY, for appellant. RAS Boriskin, LLC (McCalla Raymer Leibert Pierce, New York, NY [Daniel S. LoPresti], of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendant Pamela Donovan appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered October 23, 2019. The order denied that defendant's motion pursuant to CPLR 5015(a)(4) to vacate an order and judgment of foreclosure and sale (one paper) of the same court entered March 28, 2019, upon her failure to answer the complaint, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. ORDERED that the order is affirmed, with costs. On August 27, 2009, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Pamela Donovan (hereinafter the defendant). The defendant served an answer dated February 3, 2011, wherein she asserted, inter alia, the affirmative defense of lack of personal jurisdiction. The plaintiff rejected the answer on the ground that it was untimely. On October 11, 2018, the Supreme Court entered an order of reference upon the defendant's failure to answer the complaint. On March 28, 2019, the court entered an order and judgment of foreclosure and sale. On August 16, 2019, the defendant moved pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. In an order entered October 23, 2019, the court denied the defendant's motion, and the defendant appeals. "[A]n objection that the summons and complaint . . . was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship" (CPLR 3211[e]). Here, the defendant failed to move to dismiss the complaint insofar as asserted against her on the ground of lack of personal jurisdiction based on improper service within 60 days after her answer was served. Additionally, she did not claim any undue hardship that would have prevented her from making such a motion within the requisite statutory time period. Although it is undisputed that the answer was rejected, a purported rejection of the defendant's answer does not extend the 60-day time limit (see Deutsche Bank Natl. Trust Co. v Acevedo, 157 AD3d 859, 861; Dimond v Verdon, 5 AD3d 718, 719). The defendant did not move to dismiss the complaint insofar as asserted against her until approximately 8½ years after [*2]her answer was served. Under these circumstances, the defendant waived her objection to personal jurisdiction based on improper service (see Deutsche Bank Natl. Trust Co. v Acevedo, 157 AD3d at 861; Dimond v Verdon, 5 AD3d at 719; see also Bulkan v Stepp's Towing Serv., Inc., 166 AD3d 576). Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion to vacate the order and judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against her. In light of our determination, we have not reached the issue of whether service was properly effected (see Federici v Metropolis Night Club, Inc., 48 AD3d 741, 742). MASTRO, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:41.712309+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07239.htm

U.S. Bank N.A. v Coleman (2020 NY Slip Op 07239) U.S. Bank N.A. v Coleman 2020 NY Slip Op 07239 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. JOHN M. LEVENTHAL HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ. 2017-11350 (Index No. 68506/13) [*1]U.S. Bank National Association, etc., respondent, v Constance Coleman, et al., appellants, et al., defendants. Wayne Gabel, Ossining, NY, for appellants. Reed Smith, New York, NY (Kerren B. Zinner, Andrew B. Messite, and Joseph S. Jacobs of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendants Constance Coleman and Tanai Coleman appeal from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 11, 2017. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Constance Coleman and Tanai Coleman, to strike their answer, and for an order of reference, and, in effect, denied those defendants' application for leave to amend their answer. ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, in effect, denied the application of the defendants Constance Coleman and Tanai Coleman for leave to amend their answer is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further, ORDERED that the order is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. The plaintiff commenced this action to foreclose a mortgage against, among others, the defendants Constance Coleman and Tanai Coleman (hereinafter together the defendants). The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference. The defendants opposed the motion and made an application for affirmative relief consisting of leave to amend their answer. In an order dated September 11, 2017, the Supreme Court granted the plaintiff's motion and, in effect, denied the defendants' application. The defendants appeal. We agree with the Supreme Court's determination to grant those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference. The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law (see Deutsche Bank Natl. Trust Co. v Auguste, 185 AD3d 657, 658). The defendants failed to raise a triable issue of fact in opposition. Further, the Supreme Court, having exercised its discretion to entertain the defendants' application for leave to amend their answer (see Fried v Jacob Holding, Inc., 110 AD3d 56, 65), in effect, denied that application, and we agree with this determination under the circumstances (see CPLR 3025[b]; Deutsche Bank Natl. Trust Co. v Auguste, 185 AD3d at 658). RIVERA, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:42.336759+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07237.htm

Turner v Owens Funeral Home, Inc. (2020 NY Slip Op 07237) Turner v Owens Funeral Home, Inc. 2020 NY Slip Op 07237 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. JOSEPH J. MALTESE HECTOR D. LASALLE LINDA CHRISTOPHER, JJ. 2018-12577 (Index No. 606377/16) [*1]Shatima Turner, et al., respondents, v Owens Funeral Home, Inc., et al., appellants, et al., defendants. McCarthy & Associates, Melville, NY (Michael D. Kern of counsel), for appellants. C. Robinson & Associates, LLC, New York, NY (W. Charles Robinson of counsel), for plaintiffs-respondents. DECISION & ORDER In an action, inter alia, to recover damages for violation of the common-law right of sepulcher, the defendants Owens Funeral Home, Inc., Isaiah Owens, and Andrew Cleckley appeal from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered October 12, 2018. The order, insofar as appealed from, granted specified portions of that branch of the plaintiffs' cross motion which was for a protective order precluding certain questioning at the plaintiffs' depositions and granted the branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability against the defendant Andrew Cleckley. ORDERED that the appeal from so much of the order as granted specified portions of that branch of the plaintiffs' cross motion which was for a protective order precluding certain questioning at the plaintiffs' depositions is dismissed, without costs or disbursements; and it is further, ORDERED that the order is reversed insofar as reviewed, on the law, and that branch of the plaintiffs' motion which was for summary judgment on the issue of liability against the defendant Andrew Cleckley is denied; and it is further, ORDERED that one bill of costs is awarded to the defendants. The plaintiffs' decedent, James Turner, died on December 28, 2011, while in the care of the defendants North Shore-Long Island Jewish Medical Center, North Shore-Long Island Jewish Health System, Inc., North Shore-Long Island Jewish Medical Care, PLLC, and North Shore-Long Island Jewish Medical Group (hereinafter collectively the hospital). On December 30, 2011, the plaintiffs asked that the decedent's body be released to their chosen funeral home; however, it is undisputed that the body had already been released to the defendant Owens Funeral Home, Inc. (hereinafter the funeral home). The decedent's body was later transferred to the plaintiffs' preferred funeral home for burial. In February 2012, the plaintiffs commenced this action in the Supreme Court, Bronx County, against the funeral home, Isaiah Owens, and Andrew Cleckley (hereinafter collectively the [*2]defendants) and the hospital seeking, inter alia, to recover damages for interference with their common-law right of sepulcher. The Supreme Court, Bronx County, later granted the motions of the defendants and the hospital to change venue to Nassau County. Due to discovery disputes arising during the depositions of the plaintiffs, the defendants moved to dismiss the complaint, to preclude the plaintiffs from presenting evidence at trial pursuant to CPLR 3126, or to appoint a referee to oversee and compel discovery pursuant CPLR 3104 and 3124. The plaintiffs cross-moved for a protective order, to strike the defendants' answer, and for summary judgment on the issue of liability against Owens and Cleckley. The Supreme Court, inter alia, granted specified portions of the branch of the plaintiffs' motion which was for a protective order and granted summary judgment on the issue of liability against Cleckley. The defendants appeal. "The common-law right of sepulcher affords the deceased's next of kin an absolute right to the immediate possession of a decedent's body for preservation and burial . . . , and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body" (Shipley v City of New York, 25 NY3d 645, 653 [internal quotation marks omitted]; see Cansev v City of New York, 185 AD3d 894). "To establish a cause of action for interference with the right of sepulcher, [a] plaintiff must establish that: (1) plaintiff is the decedent's next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff's right to immediate possession of the decedent's body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish" (Green v Iacovangelo, 184 AD3d 1198, 1200 [internal quotation marks omitted]; see Shipley v City of New York, 25 NY3d at 653; Martin v Ability Beyond Disability, 153 AD3d 695, 696-697). Here, is it undisputed that the plaintiffs were the decedent's next of kin and had a right to his remains, and that the funeral home was not authorized to take possession, and the plaintiffs have presented sufficient evidence to establish prima facie that they were aware of the interference and were caused distress (see Green v Iacovangelo, 184 AD3d at 1200). However, to recover for emotional injuries caused by interference with the right of sepulcher, a plaintiff must demonstrate that "the injuries were 'the natural and proximate consequence of some wrongful act or neglect on the part of the one sought to be charged'" (Mack v Brown, 82 AD3d 133, 138, quoting Stahl v William Necker, Inc., 184 App Div 85, 92). Here, the evidence establishes that Cleckley, who was then satisfying a residency to become a licensed funeral director, was directed by his superior to collect and transport the decedent's body to the funeral home. The plaintiffs presented no evidence either that Cleckley was aware that the funeral home was not authorized to take possession of the decedent's body or that he was negligent in failing to verify that his superior was authorized to direct him to collect and transport the decedent's body. Thus, the plaintiffs failed to meet their prima facie burden to show that he wrongfully interfered with the plaintiffs' right to immediate possession of the decedent's body (see Shipley v City of New York, 25 NY3d at 653; Cansev v City of New York, 185 AD3d 894; Green v Iacovangelo, 184 AD3d at 1200). The plaintiffs likewise failed to demonstrate that Cleckley acted wrongfully or negligently such that he may be held liable for their emotional injuries (see Mack v Brown, 82 AD3d at 138; Hassard v Lehane, 150 App Div 685, 687-688; see also Sarlo v Fairchild Sons, 256 AD2d 322). Accordingly, the Supreme Court should have denied that branch of the plaintiffs' motion which was for summary judgment on the issue of liability against Cleckley. So much of the order appealed from as granted specified portions of that branch of the plaintiffs' cross motion which was for a protective order precluding certain questioning at the plaintiffs' depositions is akin to a ruling made in the course of the deposition itself and is thus not appealable as of right (see Jayne v Smith, 184 AD3d 557, 558; Donato v Nutovits, 149 AD3d 1037, 1038; Braverman v Bendiner & Schlesinger, Inc., 85 AD3d 1074; Taylor v New York City Hous. Auth., 83 AD3d 929; Nappi v North Shore Univ. Hosp., 31 AD3d 509; Tardibuono v County of Nassau, 181 AD2d 879, 880). The defendants have not sought leave to appeal, and there is nothing in the record which would warrant granting leave to appeal on the Court's own motion (see Donato [*3]v Nutovits, 149 AD3d at 1038; Braverman v Bendiner & Schlesinger, Inc., 85 AD3d at 1074; Taylor v New York City Hous. Auth., 83 AD3d at 929; Nappi v North Shore Univ. Hosp., 31 AD3d at 509). In light of the foregoing, we need not reach the defendants' remaining contentions. SCHEINKMAN, P.J., MALTESE, LASALLE and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:42.570374+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07236.htm

St. Lucy's Cathedral Old R.C. Church v Sacred Heart of Jesus English Rite Catholic Church, Inc. (2020 NY Slip Op 07236) St. Lucy's Cathedral Old R.C. Church v Sacred Heart of Jesus English Rite Catholic Church, Inc. 2020 NY Slip Op 07236 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. ROBERT J. MILLER JOSEPH J. MALTESE PAUL WOOTEN, JJ. 2017-04991 (Index No. 512525/16) [*1]St. Lucy's Cathedral Old Roman Catholic Church, respondent, v Sacred Heart of Jesus English Rite Catholic Church, Inc., et al., appellants. Wolodymyr M. Starosolsky, New York, NY, for appellants. Cullen and Dykman LLP, Garden City, NY (Peter J. Mastaglio of counsel), for respondent. DECISION & ORDER In an action pursuant to RPAPL article 15 to quiet title to certain real property and to recover damages for slander of title, the defendants appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated April 4, 2017. The order, insofar as appealed from, granted the plaintiff's motion for summary judgment on its cause of action to quiet title to certain real property and denied the defendants' cross motion pursuant to CPLR 3211(a) to dismiss the complaint. ORDERED that the order is affirmed insofar as appealed from, with costs. During the pendency of a prior action before the Supreme Court, Kings County, to determine, inter alia, the lawful trustees of the plaintiff, St. Lucy's Cathedral Old Roman Catholic Church, the defendants Vincent E. Natoli and Joyce Allyene (hereinafter together the individual defendants) executed a deed that purported to transfer the plaintiff's real property in Brooklyn (hereinafter the subject property) to the defendant Sacred Heart of Jesus English Rite Catholic Church, Inc. (hereinafter Sacred Heart), without prior notice to the court or the other parties to that action. When the court learned of the conveyance it ordered that the subject property be returned to the plaintiff. The subject property was returned by deed recorded in April 2014. The prior action was marked dismissed on October 15, 2015. Subsequently, in January 2016, the individual defendants executed and recorded a new deed that purported to transfer the subject property from the plaintiff back to Sacred Heart, again without any notice to the court or the other parties to the prior action. Upon learning of the purported new conveyance, the plaintiff commenced this action against the defendants, inter alia, pursuant to RPAPL article 15 to quiet title. The plaintiff then moved for summary judgment on its cause of action to quiet title, and the defendants cross-moved pursuant to CPLR 3211(a) to dismiss the complaint, inter alia, for lack of standing. The Supreme Court granted the plaintiff's motion and denied the defendants' cross motion, and the defendants appeal. We agree with the Supreme Court's determination granting the plaintiff's motion for summary judgment on its cause of action to quiet title to the subject property and denying the defendants' cross motion to dismiss, inter alia, for lack of standing. "Religious Corporations Law [*2]§ 12(1) provides that in order to sell any of its real property, a religious corporation must apply for, and obtain, leave of court pursuant to Not-For-Profit Corporation Law § 511" (Congregation Nachlas Jacob Anshe Sfard of Jackson Hgts. v Schwarz, 152 AD3d 647, 647; see Levovitz v Yeshiva Beth Henoch, 120 AD2d 289, 295-296). "The purpose of this requirement is to protect the members of the religious corporation, the real parties in interest, from loss through unwise bargains and from perversion of the use of the property" (Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712, 716, affd 54 NY2d 742). Here, contrary to the defendants' contentions, the plaintiff established, prima facie, that the 2016 conveyance of the subject property was invalid because it was made without leave of court (see Religious Corporation Law § 12[1]; Congregation Nachlas Jacob Anshe Sfard of Jackson Hgts. v Schwarz, 152 AD3d at 647). In opposition, the defendants failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562). In particular, as the owner of the subject property prior to the January 2016 conveyance at issue in this case, the plaintiff had standing to assert its cause of action to quiet title against the defendants (see RPAPL 1501[1]). Moreover, to the extent that the defendants assert an ultra vires argument based on evidence regarding the proper composition of the plaintiff's board of trustees, their contention also fails to preclude an award of summary judgment in the plaintiff's favor (see Not-for-Profit Corporation Law §§ 103, 201, 203; Religious Corporations Law § 2-b; Congregation Yetev Lev D'Satmar v 26 Adar N.B. Corp., 219 AD2d 186, 190; see also Business Corporation Law § 203). The parties' remaining contentions either need not be reached in light of the foregoing or are without merit. MASTRO, J.P., MILLER, MALTESE and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:42.879658+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07235.htm

Smith v Sommer (2020 NY Slip Op 07235) Smith v Sommer 2020 NY Slip Op 07235 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. MARK C. DILLON HECTOR D. LASALLE LINDA CHRISTOPHER, JJ. 2018-02617 (Index No. 156/15) [*1]Earl Smith, et al., respondents, v Eric Adam Sommer, etc., et al., appellants, et al., defendants. Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY (Christopher Simone and Nicholas Tam of counsel), for appellants. Gaines, Novick, Ponzini, Cossu & Venditti, LLP, White Plains, NY (Denise M. Cossu of counsel), for respondents. DECISION & ORDER In an action, inter alia, to recover damages for medical malpractice, etc., the defendants appeal from a judgment of the Supreme Court, Putnam County (Robert M. DiBella, J.), entered January 24, 2018. The judgment, upon a jury verdict, is in favor of the plaintiffs and against the defendants in the principal sum of $500,000. ORDERED that the judgment is affirmed, with costs. On December 26, 2013, the plaintiff Earl Smith (hereinafter the plaintiff) underwent a Nissen fundoplication with paraesophageal hernia repair by the defendant Eric Adam Sommer to repair a hiatal hernia and treat the plaintiff's gastroesophageal reflux disease. On March 12, 2014, after complaining of abdominal pain and difficulty eating, the plaintiff was diagnosed with gastroparesis, a form of stomach paralysis that impedes the ability to digest food. The plaintiff, and his wife suing derivatively, commenced the instant action against, among others, Sommer and his practice, New York Bariatric Group (hereinafter together the defendants), asserting, inter alia, a cause of action to recover damages for medical malpractice. Following discovery, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them. By order dated October 26, 2017, the Supreme Court denied the defendants' motion. Thereafter, the case proceeded to a trial, after which the jury returned a verdict finding that Sommer departed from good and accepted medical practice by not following the appropriate steps during the plaintiff's December 26, 2013 surgery, and that the departure was a substantial factor in causing the plaintiff's gastroparesis. On January 24, 2018, a judgment was entered in favor of the plaintiffs and against the defendants in the principal sum of $500,000. The defendants appeal. The elements of a medical malpractice cause of action are "that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries" (Stukas v Streiter, 83 AD3d 18, 23). A defendant moving for summary judgment in a medical malpractice action must demonstrate the absence of any triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324) with respect to at least one of those [*2]elements (see DiLorenzo v Zaso, 148 AD3d 1111, 1112; Cham v St. Mary's Hosp. of Brooklyn, 72 AD3d 1003, 1004). Where a defendant physician makes a prima facie showing as to both elements, "the burden shifts to the plaintiff to rebut the defendant's showing by raising a triable issue of fact as to both the departure element and the causation element" (Stukas v Streiter, 83 AD3d at 25 [emphasis added]). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions," as "[s]uch credibility issues can only be resolved by a jury" (Feinberg v Feit, 23 AD3d 517, 519). Here, the defendants established their entitlement to judgment as a matter of law by submitting the affirmation of their expert, who opined that Sommer did not deviate from the standard of care in his performance of the fundoplication procedure, that gastroparesis is often idiopathic, and that Sommer's alleged negligence did not cause the plaintiff to develop gastroparesis (see Joyner v Middletown Med., P.C., 183 AD3d 593; Castillo v Surasi, 181 AD3d 786, 788). In opposition, however, the plaintiffs raised a triable issue of fact by submitting the affirmations of their experts, who opined that Sommer failed to timely identify and protect the vagus nerves during the procedure and that such failure caused the plaintiff's gastroparesis by injuring the vagus nerves (see Castillo v Surasi, 181 AD3d at 788; Barnett v Fashakin, 85 AD3d 832, 835). Accordingly, we agree with the Supreme Court's determination denying the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them. The defendants' contention that the Supreme Court improperly admitted into evidence at trial a certain manual, on the ground that it constituted hearsay because the plaintiffs relied on it to establish the standard of care, is unpreserved for appellate review. While the defendants raised a general objection to the admission of the material, when that objection was overruled, the defendants were required to make a specific objection on the ground now urged, and by failing to do so, they waived the objection (see People v Vidal, 26 NY2d 249, 254; Cooper v Nestoros, 159 AD3d 1365, 1367; Wolf v Persaud, 130 AD3d 1523, 1525). In any event, we agree with the plaintiffs that the manual was not used to establish the standard of care, but rather, was properly admitted during the plaintiffs' direct examination of Sommer to question him on the fact that his operative report from the plaintiff's procedure was inconsistent with the manual, which he considered authoritative (see Fridovich v Meinhardt, 247 AD2d 791, 792; cf. Spensieri v Lasky, 94 NY2d 231). We agree with the Supreme Court's determination to charge the jury with respect to res ipsa loquitur. "Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event" (Bernard v Bernstein, 126 AD3d 833, 835, citing Restatement [Second] of Torts § 328D). "'Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant's relation to it'" (Frank v Smith, 127 AD3d 1301, 1302, quoting Kambat v St. Francis Hosp., 89 NY2d 489, 494). Res ipsa loquitur "'derives from the understanding that some events ordinarily do not occur in the absence of negligence'" (Bernard v Bernstein, 126 AD3d at 835, quoting States v Lourdes Hosp., 100 NY2d 208, 211). "'In addition to this first prerequisite, plaintiff must establish, second, that the injury was caused by an agent or instrumentality within the exclusive control of defendant and, third, that no act or negligence on the plaintiff's part contributed to the happening of the event. Once plaintiff satisfies the burden of proof on these three elements, the res ipsa loquitur doctrine permits the jury to infer negligence from the mere fact of the occurrence'" (Bernard v Bernstein, 126 AD3d at 835 [citation omitted], quoting States v Lourdes Hosp., 100 NY2d at 211-212). "Moreover, expert testimony may be properly used to help the jury 'bridge the gap' between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians, which does" (Bernard v Bernstein, 126 AD3d at 835 [internal quotation marks omitted]). Here, the plaintiffs presented expert testimony that, in a first time fundoplication procedure like the plaintiff's, injury to the vagus nerves should not occur if the surgeon adheres to the accepted standard of care and follows the proper surgical sequence. While the defendants [*3]presented evidence that gastroparesis can be idiopathic, "a plaintiff need not conclusively eliminate the possibility of all other causes of the injury to rely on res ipsa loquitur" (Bernard v Bernstein, 126 AD3d at 835-836; see Antoniato v Long Island Jewish Med. Ctr., 58 AD3d 652, 655). SCHEINKMAN, P.J., DILLON, LASALLE and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:43.186551+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07234.htm

Siegler v Lippe (2020 NY Slip Op 07234) Siegler v Lippe 2020 NY Slip Op 07234 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. JOHN M. LEVENTHAL BETSY BARROS PAUL WOOTEN, JJ. 2019-00235 (Index No. 703444/18) [*1]Suzanne Siegler, etc., appellant, v Barbara Kaye Nixon Tinkelman Lippe, etc., et al., respondents. Sperber & Stein, LLP, Garden City, NY (Michelle S. Stein of counsel), for appellant. Olshan Frome Wolosky LLP, New York, NY (Peter M. Sartorius of counsel), for respondents. DECISION & ORDER In an action, inter alia, to recover damages for conversion and breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered November 26, 2018. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint. ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the first, second, third, fourth, fifth, sixth, seventh, eighth, twelfth, and thirteenth causes of action, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements. The plaintiff commenced this action, inter alia, to recover damages for conversion and breach of fiduciary duty. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. They argued that the Supreme Court should direct dismissal of the complaint pursuant to CPLR 3211(a)(1), (5), and (7). In an order entered November 26, 2018, the Supreme Court granted the defendants' motion. The plaintiff appeals. A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Creative Rest., Inc. v Dyckman Plumbing & Heating, Inc., 184 AD3d 803, 804). On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that is barred by the statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to commence an action has expired, whereupon the burden shifts to the plaintiff to raise a question of fact (see Creative Rest., Inc. v Dyckman Plumbing & Heating, Inc., 184 AD3d at 804-805). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Creative Rest., Inc. v Dyckman Plumbing & Heating, Inc., 184 AD3d at 804). Applying these standards, we agree with the Supreme Court's determination to grant [*2]those branches of the defendants' motion which were to dismiss the ninth cause of action for an accounting, the tenth and eleventh causes of action for certain specific performance, and the fourteenth cause of action to recover damages for money had and received. However, we disagree with the Supreme Court's determination to grant those branches of the defendants' motion which were to dismiss the first through seventh causes of action to recover damages for conversion. A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession (see Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50). Two key elements of conversion are the plaintiff's possessory right or interest in the property and the defendant's dominion over the property or interference with it, in derogation of the plaintiff's rights (see id. at 50). A cause of action to recover damages for conversion is subject to a three-year limitation period (see CPLR 214[3]; Obstfeld v Thermo Niton Analyzers, LLC, 168 AD3d 1080, 1083). For statute of limitations purposes, a cause of action to recover damages for conversion generally accrues when the conversion takes place (see Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36, 44). However, where possession is originally lawful, a conversion does not occur until the owner makes a demand for the return of the property and the person in possession of the property refuses to return it (see Matter of Rausman, 50 AD3d 909, 910). Here, in light of allegations concerning events that took place in 2016 and 2017, the defendants failed to meet their initial burden of demonstrating, prima facie, that the causes of action to recover damages for conversion are time-barred in this action commenced in 2018. Moreover, we reject the defendants' contentions, raised as alternative grounds for affirmance with respect to most of the causes of action to recover damages for conversion, that dismissal of these causes of action should be directed pursuant to CPLR 3211(a)(1) or (7). The documentary evidence presented in support of the motion failed to utterly refute the allegations, conclusively establishing a defense to these causes of action as a matter of law, and the defendants did not show that the plaintiff has no causes of action to recover damages for conversion. Next, we disagree with the Supreme Court's determination to grant that branch of the defendants' motion which was to dismiss the eighth cause of action to recover damages for breach of fiduciary duty. The elements of a cause of action to recover damages for breach of fiduciary duty are the existence of a fiduciary relationship, misconduct by the defendant, and damages directly caused by the misconduct (see Mann v Sasson, 186 AD3d 823, 824). A cause of action for breach of fiduciary duty is governed by a three-year statute of limitations where, as here, the plaintiff seeks money damages only (see Dignelli v Berman, 293 AD2d 565, 565). The statute of limitations on a cause of action alleging a breach of fiduciary duty does not begin to run until the fiduciary has openly repudiated his or her obligation or the relationship has been otherwise terminated (see NM v Estate of Grainger, 171 AD3d 1197, 1198). Here, in light of allegations concerning events that took place in 2016 and 2017, the defendants failed to meet their initial burden of demonstrating, prima facie, that the cause of action to recover damages for breach of fiduciary duty is time-barred in this action commenced in 2018. Moreover, the documentary evidence presented in support of the motion failed to utterly refute the allegations, conclusively establishing a defense to this cause of action as a matter of law, and the defendants did not show that the plaintiff has no cause of action to recover damages for breach of fiduciary duty. Additionally, we disagree with the Supreme Court's determination to grant that branch of the defendants' motion which was to dismiss the twelfth and thirteenth causes of action to recover damages for unjust enrichment. The theory of unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties (see Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516). The essential inquiry in an action for unjust enrichment is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered (see Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421). To adequately plead such a cause of action, a plaintiff must allege that the other party was enriched, at that party's expense, and that it is against equity and good conscience to permit the other party to retain what is sought to be recovered (see Georgia Malone & Co., Inc. v Rieder, 19 NY3d at 516). A three-year statute of limitations governs causes of action alleging unjust enrichment when the plaintiff is seeking monetary relief (see CPLR [*3]214[3]; Ingrami v Rovner, 45 AD3d 806, 808). The statute of limitations on such a cause of action begins to run on the occurrence of the wrongful act giving rise to the duty of restitution (see Ingrami v Rovner, 45 AD3d at 808). Here, in light of allegations concerning events that took place in 2016 and 2017, the defendants failed to meet their initial burden of demonstrating, prima facie, that the cause of action to recover damages for unjust enrichment is time-barred in this action commenced in 2018. Moreover, the documentary evidence presented in support of the motion failed to utterly refute the allegations, conclusively establishing a defense to these causes of action as a matter of law, and the defendants did not show that the plaintiff has no cause of action to recover damages for unjust enrichment. The plaintiff's remaining contention is without merit. BALKIN, J.P., LEVENTHAL, BARROS and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:43.415807+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07233.htm

Shapiro v Kurtzman (2020 NY Slip Op 07233) Shapiro v Kurtzman 2020 NY Slip Op 07233 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ. 2019-04524 (Index No. 7875/01) [*1]Susan Hito Shapiro, etc., et al., respondents, v Deborah Shapiro Kurtzman, appellant, et al., defendants (and related actions). Cole Schotz P.C., New York, NY (Jed M. Weiss of counsel), for appellant. Keane & Beane, P.C., White Plains, NY (Edward F. Beane of counsel), for respondent Susan Hito Shapiro. DECISION & ORDER In an action, inter alia, to recover proceeds of certain loans, the defendant Deborah Shapiro Kurtzman appeals from an order of the Supreme Court, Rockland County (Thomas E. Walsh II, J.), entered February 14, 2019. The order denied the motion of the defendant Deborah Shapiro Kurtzman to restore the action to the active calendar and that defendant's separate motion for an award of attorney's fees based on frivolous conduct in this action pursuant to 22 NYCRR 130-1.1. ORDERED that the order is modified, on the law, by deleting the provision thereof denying the motion of the defendant Deborah Shapiro Kurtzman for an award of attorney's fees based on frivolous conduct in this action pursuant to 22 NYCRR 130-1.1; as so modified, the order is affirmed, with costs to the defendant Deborah Shapiro Kurtzman, and the matter is remitted to the Supreme Court, Rockland County, for further proceedings consistent herewith. On a prior appeal in this action and a related action, this Court determined that in this action (referred to as Action No. 1 on the prior appeal), upon a motion made by the defendant Deborah Shapiro Kurtzman, the Supreme Court erred in granting Kurtzman's request for an award of attorney's fees based on frivolous conduct in this action pursuant to 22 NYCRR 130-1.1. Kurtzman specified for the first time in her reply papers that she sought an award of attorney's fees pursuant to 22 NYCRR 130-1.1. Consequently, this Court determined that, as Kurtzman's adversary did not have notice, Kurtzman was not entitled to an award of attorney's fees without first giving her adversary an opportunity to be heard (see Shapiro v Kurtzman, 149 AD3d 1117). Following this Court's determination, Kurtzman moved to restore this action to the active calendar and separately moved for an award of attorney's fees based on frivolous conduct in this action pursuant to 22 NYCRR 130-1.1. In the order appealed from, the Supreme Court denied Kurtzman's motions, determining that the action terminated when this Court did not specifically reserve Kurtzman's right to re-file a motion for an award of attorney's fees pursuant to 22 NYCRR 130-1.1 and, therefore, the court lacked jurisdiction to restore the action. We agree with Kurtzman's contention that the Supreme Court erred in determining that it lacked jurisdiction to consider her motion in this action for an award of attorney's fees [*2]pursuant to 22 NYCRR 130-1.1. Since Kurtzman never before made a formal motion for an award of attorney's fees pursuant to 22 NYCRR 130-1.1 in this action, and this Court's prior determination that the Supreme Court's award of attorney's fees was made in error did not reach the merits of Kurtzman's request, Kurtzman was not precluded from making the subsequent motions at issue here. Since the Supreme Court decided not to entertain the merits of the motion for an award of attorney's fees pursuant to 22 NYCRR 130-1.1 on jurisdictional grounds, the matter is remitted to the Supreme Court, Rockland County, for a determination of that motion on the merits (see American Fedn. of School Adm'rs, AFL-CIO v Council of Adm'rs & Supervisors, 266 AD2d 417). We agree with the Supreme Court's determination to deny Kurtzman's motion to restore this action to the active calendar. This Court's decision on the prior appeal to reverse the Supreme Court's order granting Kurtzman's request for an award of attorney's fees and to vacate so much of a subsequent order as awarded Kurtzman attorney's fees in connection with this action did not have the effect of dismissing this action, and therefore, Kurtzman's motion to restore the action was unnecessary (cf. Ryskin v Corniel, 181 AD3d 742). MASTRO, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:43.64632+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07206.htm

S.P. v Town of Babylon (2020 NY Slip Op 07206) S.P. v Town of Babylon 2020 NY Slip Op 07206 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX JOSEPH J. MALTESE, JJ. 2019-02028 (Index No. 9706/15) [*1]S. P., etc., et al., appellants, v Town of Babylon, respondent. John L. Juliano, P.C., East Northport, NY, for appellants. Milber Makris Plousadis & Seiden, LLP, Woodbury, NY (Stuart P. Besen and Lynsay A. Dyszler of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Denise F. Molia, J.), dated November 19, 2018. The order granted the defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied. The infant plaintiff was nine years old when she fell from a climbing rock in a playground located in the Town of Babylon and fractured her right leg. The infant plaintiff, by her father and natural guardian, and her father suing derivatively, commenced this personal injury action against the Town, alleging, inter alia, that the surface on which the infant plaintiff fell was in disrepair. The Town moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiffs appeal. The Town failed to make a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint, since it failed to submit evidence that the playground was maintained in a safe condition, and its submissions indicated that there were triable issues of fact as to whether the playground surface was in disrepair, and whether the surface was a proximate cause of the infant plaintiff's injuries (see J.R. v City of New York, 170 AD3d 1211, 1212). Rather, on its motion, the Town merely pointed to purported gaps in the plaintiffs' evidence, which failed to satisfy its burden on the motion (see Velasquez v Gomez, 44 AD3d 649; Ramos v Mac Laundry Hemp, Inc., 22 AD3d 822). The Town also failed to establish its prima facie entitlement to judgment as a matter of law based upon the doctrine of primary assumption of risk, since the alleged defects may have unreasonably enhanced the risks involved (see J.R. v City of New York, 170 AD3d at 1213; Stillman v Mobile Mtn., Inc., 166 AD3d 1580). Since the Town failed to establish its prima facie entitlement to summary judgment, the Supreme Court should have denied its motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). MASTRO, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:43.868136+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07169.htm

S.G. v Singh (2020 NY Slip Op 07169) S.G. v Singh 2020 NY Slip Op 07169 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. SHERI S. ROMAN BETSY BARROS LINDA CHRISTOPHER, JJ. 2019-02328 (Index No. 717607/17) [*1]S. G., etc., et al., respondents, v Harjinder Singh, et al., defendants, Metropolitan Transportation Authority, et al., appellants. Lawrence Heisler, Brooklyn, NY (Harriet Wong of counsel), for appellants. DECISION & ORDER In an action to recover damages for personal injuries, etc., the defendants Metropolitan Transportation Authority, MTA New York City Transit, New York City Transit Authority, and Leonard Velez appeal from an order of the Supreme Court, Queens County (Joseph Risi, J.), entered December 20, 2018. The order, insofar as appealed from, granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability against the defendants Metropolitan Transportation Authority, MTA New York City Transit, New York City Transit Authority, and Leonard Velez. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs' motion which was for summary judgment on the issue of liability against the defendants Metropolitan Transportation Authority, MTA New York City Transit, New York City Transit Authority, and Leonard Velez is denied. The plaintiffs were passengers in an Uber vehicle operated by the defendant Harjinder Singh and owned by the defendant NY4 Leasing Corp (hereinafter together the Singh defendants), when it was involved in an accident with a vehicle operated by the defendant Leonard Velez and allegedly owned by the defendants Metropolitan Transportation Authority, MTA New York City Transit, and New York City Transit Authority (hereinafter collectively the MTA defendants). At the time of the collision, the MTA defendants' vehicle was traveling southbound, into an intersection, and the Singh defendants' vehicle, which had been traveling northbound, was attempting to make a left turn at the intersection, across the southbound lanes. The plaintiffs subsequently commenced this action, inter alia, to recover damages for personal injuries, and after joinder of issue, moved for summary judgment on the issues of the liability of all of the defendants and the plaintiffs' freedom from comparative fault. The Supreme Court granted the motion. The MTA defendants appeal from so much of the order as granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability against the MTA defendants. Pursuant to Vehicle and Traffic Law § 1141, "[t]he driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard" (see Brodney v Picinic, 172 AD3d 673, 674; Giannone v Urdahl, 165 AD3d 1062, 1063). [*2]"The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law" (Attl v Spetler, 137 AD3d 1176, 1176; see Lebron v Mensah, 161 AD3d 972, 974). "A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Tsyganash v Auto Mall Fleet Mgt., Inc., 163 AD3d 1033, 1033-1034). Here, the plaintiffs failed to eliminate triable issues of fact as to whether the operator of the MTA defendants' vehicle, who had the right-of-way, was negligent in the operation of the vehicle (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, the Supreme Court should have denied that branch of the plaintiffs' motion which was for summary judgment on the issue of liability against the MTA defendants. BALKIN, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-12-02 21:09:44.320032+00

http://www.courts.state.ny.us/reporter/3dseries/2020/2020_07230.htm

People v Thomas (2020 NY Slip Op 07230) People v Thomas 2020 NY Slip Op 07230 Decided on December 2, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 2, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. MARK C. DILLON HECTOR D. LASALLE LINDA CHRISTOPHER, JJ. 2019-02114 (Ind. No. 82/18) [*1]The People of the State of New York, respondent, v Mark S. Thomas, appellant. Salvatore C. Adamo, New York, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Kristen A. Rappleyea of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered January 18, 2019, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence. ORDERED that the judgment is affirmed. The defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Sanders, 25 NY3d 337, 341; People v Lopez, 6 NY3d 248, 256). Although the defendant's contention that his plea of guilty was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v Ramos, 164 AD3d 922), the record demonstrates that his plea was knowingly, voluntarily, and intelligently entered (see People v Seeber, 4 NY3d 780, 781; People v Fiumefreddo, 82 NY2d 536, 543). Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel during the plea proceeding as his attorney provided meaningful representation (see People v Ford, 86 NY2d 397, 404; People v Ingvarsdottir, 118 AD3d 1023, 1024). Further, the defendant failed to demonstrate the absence of a strategic or other legitimate explanation for counsel's challenged conduct in permitting the defendant to waive his right to appeal as part of the plea agreement (see People v Miller, 161 AD3d 1579, 1580; People v Turck, 305 AD2d 1072, 1073). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v Lopez, 6 NY3d at 255). SCHEINKMAN, P.J., DILLON, LASALLE and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

2020-09-04 20:03:10.654641+00

https://www.courts.ca.gov/opinions/nonpub/C088549.PDF

Filed 9/4/20 P. v. Lehman CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C088549 Plaintiff and Respondent, (Super. Ct. No. 18FE003743) v. WESLEY ALAN LEHMAN, Defendant and Appellant. A jury convicted Wesley Alan Lehman of one count of residential burglary with a finding that the inhabitant of the residence was present during the burglary. Lehman’s defense at trial, where he represented himself and testified, was that he was not the person who burglarized the residence. On appeal, Lehman contends that: (1) after the jury reported an impasse, the trial court abused its discretion in instructing the jury to continue deliberating without inquiring of jurors whether there was a reasonable probability that a verdict could be reached; (2) the court’s so-called “firecracker” instruction to the jury to continue deliberating was coercive; (3) the portion of the pattern instruction on eyewitness 1 identification, CALCRIM No. 315, which directed the jury to consider the certainty with which the identification was made, violated due process; (4) the pattern instruction on possession of stolen property as evidence of a theft crime, CALCRIM No. 376, constituted an alternate, legally invalid theory of guilt; and (5) the trial court should have granted defendant’s motion for discovery of the personnel records of the lead detective, Carlos Vina, under Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess). We reject Lehman’s claims of error on issues one through four as forfeited by Lehman’s failure to object, lack of merit, or both. As for the Pitchess motion, on appeal Lehman attempts to narrow its focus to Detective Vina, based on Lehman’s report that the detective was motivated by a personal relationship with the victim. However, Lehman’s motion alleged a conspiracy of multiple officers to plant and tamper with evidence and make false statements. On this basis, the trial court found the motion lacked good cause. Even if it were permissible to change his theory on appeal, his new theory alleging misconduct by only Detective Vina would not present an “alternate version of the facts” that is “internally consistent” sufficient for a finding of good cause. (People v. Thompson (2006) 141 Cal. App. 4th 1312 , 1316-1318 (Thompson); People v. Sanderson (2010) 181 Cal. App. 4th 1334 , 1340- 1341 (Sanderson).) Lastly, the trial court sentenced Lehman to two additional years under Penal Code section 667.5, subdivision (b), for two prior prison terms he served.1 While this appeal was pending, Senate Bill No. 136 (Stats. 2019, ch. 590) became effective and changed the rules governing prior prison term enhancements. The parties agree that his priors no longer qualify. We concur and accordingly strike the sentence for Lehman’s prior prison terms. 1 Statutory references are to the Penal Code unless otherwise designated. 2  The judgment is affirmed as modified. FACTUAL BACKGROUND Brett L. testified that, on January 4, 2018, he left his home in Elk Grove at about 8:00 a.m. for work. He returned about 1:15 p.m. and walked into the kitchen. He heard footsteps coming down the hallway. A man came around the corner of the hallway. The man was startled when he saw Brett L. The man said, “hey, how you doin’,” turned and went out the back. Brett L. described the intruder as a Caucasian male, 23 to 25 years old, about six feet to 6 feet 2 inches tall, with a week or two of facial hair growth, and wearing a green hooded sweatshirt. The hood was not all the way on and Brett L. could see the man’s face. Also, Brett L. had turned on the kitchen lights and there was midday light coming through the windows. Brett L. looked at the man’s face for two or three seconds. Brett L. identified Lehman in the courtroom as the man he had seen in his home. Brett L. started looking through the bedrooms. He could see that someone had gone through the dresser drawers and the master bedroom was a mess. In the master bathroom, the window was open and there were muddy footprints on the countertop. Brett L. determined that four laptops and some banking records were missing. About an hour later, police officers recovered a backpack belonging to Brett L. containing four laptops, a camera, some cables, and four passports. After the man went out the back, Brett L. saw a flash of movement at the back fence adjacent to a park. Brett L. went outside and looked along the fence line. He saw a gentleman with a young child playing in the park. Brett L. asked him if he had seen somebody with a backpack jump the fence and the man answered, yes. At about 1:30 p.m. on January 4, 2018, an Elk Grove resident looked out the window and saw a Caucasian man walking down the street. He was wearing black pants, a white tank top and a long-sleeved black sweatshirt. He was carrying a black backpack on his back. He stopped in front of a neighbor’s trash can across the street, opened the lid 3 and put the sweatshirt in. A moment later, the man started running down the street. When the police arrived, the resident told them what he had seen and they opened the garbage can. A black sweatshirt (with two gloves in a pocket) and T-shirt, none of which belonged to the neighbor, were retrieved from the can. The resident got a “pretty good look” at the man but could not identify him in police photos. At about 2:00 p.m. on January 4, 2018, Sheriff’s Deputy Pedro Avalos, a school resource officer, was in a patrol car monitoring Elk Grove Police Department radio when he heard a report of a residential burglary where the suspect was said to be heading in his vicinity. The suspect was described as male, Caucasian, wearing a hooded sweatshirt. The officer saw in front of him a Caucasian male wearing a white tank top and dark pants and carrying a dark-colored backpack. The officer planned to drive past the man because he did not fit the description of the suspect as wearing a hoodie. As Deputy Avalos got close, the man turned and looked back, and then did so again. Deputy Avalos made eye contact with the man and had a clear view of his face. The man dropped the backpack and ran. Deputy Avalos identified Lehman in court as the man. The next day Detective Vina returned to the area to determine if there was any evidence in the area of the fence behind Brett L.’s home. On the park side of the fence pushed down into the bushes, Detective Vina found a red baseball cap with a black bill and the word “California” and a California bear on it. About six weeks after the burglary, Detective Vina showed Brett L. a photographic lineup. Brett L. testified that the detective put a series of photos before him and he narrowed it down to two people. Brett L. then picked the one out of the two that he was confident was the person who had burglarized his home. Detective Vina testified somewhat differently. The detective stated that Brett L. eliminated four of the six photos and said the other two had “similarities to the suspect that he viewed in his home, but that he could not say for certain.” The photo of Lehman 4 was one of the photos Brett L. picked. Brett L. did not say whether he was leaning one way or the other between the two photos. Detective Vina also showed Deputy Avalos a photographic lineup. Deputy Avalos selected one photo out of the six he was shown. He testified that he was confident the photo he selected was the person he saw on January 4, 2018, and that person was Lehman sitting in court. Deputy Avalos testified he was 100 percent certain that he picked the photo of the person he saw. On cross-examination by Lehman, Deputy Avalos testified of the photo, “I know it was you. It looked just like you.” A criminalist examined a black hooded sweatshirt, a black T-shirt, a black left- handed Nike batting glove, a black right-handed knit glove, and a black and red California Republic hat. The criminalist obtained a DNA reference sample from Lehman. The items examined included a mixture of DNA from more than one individual. Lehman was determined to be a potential DNA contributor to the sweatshirt, T-shirt and hat. Lehman was not a contributor to the DNA on the Nike batting glove and the knit glove was uninterpretable. Lehman contributed 72 percent of the DNA to the hat, 87 to 91 percent to the sweatshirt, and 93 percent to the T-shirt. Lehman’s shoes were compared to a photograph of the muddy footprint at Brett L.’s residence. The sole pattern on the Air Jordan shoes obtained from Lehman was very similar to the impression left at the residence. Savannah Espinoza, Lehman’s girlfriend, testified on his behalf.2 From December 2017 to February 2018, Espinoza lived with Lehman, a person named Connor, a person named Bob, and other unnamed people at a house on Misty Meadow Way in Elk Grove. Espinoza testified that it was common for many people to live in the house, to do laundry together, and to borrow outfits from each other while they did their laundry. 2 On cross-examination, Espinoza admitted she gave a false name to police in 2015 and committed forgery in 2017. 5  Espinoza testified that, on January 4, 2018, before noon, she and Lehman left the house on Misty Meadow Way to visit her sister in Fair Oaks. Espinoza’s mother drove. It took about an hour to get to there. That night they went to the hospital at 9:00 p.m. and didn’t leave until 3:00 or 4:00 the next morning, arriving back at the house at 5:00 to 6:00 a.m. Upon arrival, they noticed Lehman’s sweatshirt and hat were missing. Lehman testified on his behalf. He admitted a conviction in 2009 for possession of a firearm by a felon and a 2015 stolen vehicle conviction. Lehman testified that, on January 4, 2018, he and Espinoza left the Misty Meadow Way house at about noon. Espinoza’s mother picked them up and drove them to the house in Citrus Heights of someone Espinoza refers to as her sister. Later that night, Espinoza had “medical issues” and had to go the hospital. Lehman stayed the entire night with her and they did not return to the Misty Meadow Way house until 4:00 in the morning. When they returned, the sweatshirt and the hat were missing. Lehman testified that he and Connor had been involved in an altercation. Lehman testified that Connor did not like him and “had any motivation and every motivation to do something that could land negatively on my behalf.” On cross-examination, Lehman admitted that, on the day he was arrested, when Detective Vina asked if he was living at the Misty Meadow Way house, Lehman said he was just there to pick up furniture. Lehman admitted that he did not tell Detective Vina he had been in Citrus Heights on January 4, 2018. Lehman admitted that, when Detective Vina told him his DNA had been found on some clothes that a suspect had discarded and asked if others borrowed his clothes, Lehman did not say that he lived in a house where they shared clothes. Lehman admitted that he did not mention that when he came home after January 4, 2018, he noticed clothing items were missing. Lehman admitted that during a videotaped interview with Detective Vina, when Lehman was left alone, he wiped the rim of the water bottle from which he had been drinking. Lehman testified that 6 after being told his DNA was on the gloves, which he did not think possible, he wiped the water bottle to avoid being framed. DISCUSSION Inquiry Regarding Reasonable Probability That Deadlocked Jury Could Reach a Verdict Lehman contends it was an abuse of discretion for the trial court “to instruct the jury to continue their deliberations without speaking to a single juror and without conducting any inquiry whether there was a reasonable probability that the jury could reach a verdict notwithstanding their declared deadlock.” Jurors had deliberated for approximately four and a half hours on the first day and approximately three and a half hours on the second day,3 when the jury sent the following note to the court: “At this point we are split on our position of guilt or innocent. After multiple votes and no movement in votes it is our contention that a verdict can [sic] be reached based on the evidence provided.” After the court read the note to the prosecutor and Lehman, this exchange occurred: “[Prosecutor]: Have you firecrackered them yet, Judge? “Mr. Lehman: What is a fire cracker? “The Court: No, because that would require you to be here. So if that happened, you would know about it. I am about to explain what I intend to do. [¶] So I’m going to call them in, and I’m going to give them a further instruction that may assist them in their deliberations, and then I’m going to send them back. And if they try those further suggestions and they are not able to reach a verdict, then at that point I would be inclined to declare a mistrial but not right now. 3 A portion of the time in deliberations was devoted to reading back testimony to the jury. 7  “Mr. Lehman: Would that be tomorrow or at the end of the day today? “The Court: It might be later today. “Mr. Lehman: Are we going to read off the instructions, or is there just like a general instruction that is always given at this point? “The Court: It’s a general instruction that I give. But I don’t want to waste time so can we get them in? “The Bailiff: Yes. “The Court: I just wanted to go over what has transpired and where we’re at and what we’re going to do. [¶] . . . [¶] “Mr. Lehman: Are they going to tell us -- not the direction of the split but the number? “The Court: I’m not even going to ask that.” When the jurors reentered the courtroom, the trial court confirmed with Juror No. 4 that the word “can” in the note was an error and “cannot” was meant. The court asked how many votes had been taken and Juror No. 4 said, “Two.” The trial court then addressed the jury: “All right. So I appreciate that you have been deliberating for a while now and that you’ve been working hard, and people are seeing the case differently, and I’m sure that creates some difficulties. But I’m going to ask that you continue your deliberations. So I have a further instruction that I’m going to read that it’s my hope will be helpful. “I’m not yet convinced that you will not be able to come to a verdict. It is not uncommon for a jury which initially reported it was unable to reach a verdict to ultimately be able to arrive at one . . . on one or more of the counts before it. So I’m going to direct that you continue to deliberate and will provide you some further instructions to assist you in your deliberations. 8  “Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict regardless of . . . how long it takes to do so. “It is your duty as jurors to consider, weigh, and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors. “In the course of your further deliberations, you should not hesitate to reexamine your own views, or to request your fellow jurors to reexamine theirs. “You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong. “Fair and effective jury deliberations require a frank and forthright exchange of views. As I previously instructed you, each of you must decide the case for yourself, and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your individual judgment. “You have discretion to conduct your deliberations in any way you deem appropriate. May I suggest that since you have not been able to arrive at a verdict using the methods you have used thus far, that you consider trying new methods at least temporarily. “For example, you may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse role playing by having those on one side of an issue present and argue the other side’s position and vice versa. This might enable you to better understand the others’ positions. “By suggesting you should consider changes in your methods of deliberations, I want to stress I am not dictating or instructing you as to how to conduct your deliberations. I also suggest that perhaps you reread CALCRIM Instructions 200 -- that is the very first instruction and 3550, which is the very last instruction. These 9 instructions pertain to your duties as jurors and make recommendations on how you should deliberate. “The decision the jury renders must be based on the facts and the law. You must determine what facts have been proved from the evidence received in the trial and not from any other source. Second, you must accept and follow the law as I have stated it to you, regardless of whether you agree with it. “If anything concerning the law said by [the prosecutor] or Mr. Lehman in their arguments or at any other time during the trial conflicts with my instructions, you, of course, must follow my instructions. You should keep in mind the recommendations this instruction suggests when considering the additional instructions, comments, and suggestions I have made in the instructions now presented to you. “I hope my comments and suggestions may be of some assistance to you. You’re ordered to continue your deliberations at this time. If you have other questions, concerns, requests, or any communications you desire to report to me, please continue to put those in writing. “And if there is any -- if any aspect of the law, the legal instructions, are a sticking point and a clarification of those instructions may be of benefit, that could be a request as well, and I would assess whether I could give some clarification of the law and provide that to you if that is a sticking point. So I’m going to ask that you continue deliberations.” The jury deliberated for an hour and 24 minutes more that day. The next day the jury deliberated for one hour and 55 minutes—which included another reading of testimony by the court reporter—before informing the trial court that a verdict had been reached. The colloquy set forth above shows the trial court fully informed Lehman what the court intended to do after receiving the jury’s note, that is, find out “what has transpired and where we’re at,” give the court’s usual “firecracker” instruction to the jury to 10 continue deliberations with suggestions how jurors might come to an agreement, and declare a mistrial if jurors were still unable to reach verdict. The court also informed Lehman what it was not going to do: ask the numbers of the split in the jury’s vote. The court did exactly what it said it would do. Lehman made no objection to this procedure and thereby forfeited a claim on appeal that the trial court erred. (People v. Young (2007) 156 Cal. App. 4th 1165 , 1171.) Even assuming that Lehman had not forfeited the issue, we would reject his contention on the merits. Section 1140 provides in relevant part that a “jury cannot be discharged” without having rendered a verdict unless, “at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.” “The determination whether there is reasonable probability of agreement rests in the sound discretion of the trial court.” (People v. Rodriguez (1986) 42 Cal. 3d 730 , 775.) When the jury sent the note, the jury had deliberated for just over one full day. Courts have upheld denials of mistrials even after fruitless deliberations for longer periods. (See, e.g., People v. Bell (2007) 40 Cal. 4th 582 , 617 [10 hours], overruled on other grounds by People v. Sanchez (2016) 63 Cal. 4th 665 , 686 & fn. 13; People v. Sandoval (1992) 4 Cal. 4th 155 , 194-197 [14 hours over five days].) California Rules of Court, rule 2.1036, entitled “Assisting the jury at impasse,” provides that “[a]fter a jury reports that it has reached an impasse in its deliberations,” the trial judge “should ask the jury if it has specific concerns which, if resolved, might assist the jury in reaching a verdict.” (Cal. Rules of Court, rule 2.1036(a).)4 Rule 2.1036 further specifies that “[i]f the trial judge determines that further action might assist the jury in reaching a verdict, the judge may: [¶] (1) Give additional instructions; 4 Undesignated rule references are to the California Rules of Court. 11 [¶] (2) Clarify previous instructions; [¶] (3) Permit attorneys to make additional closing arguments; or [¶] (4) Employ any combination of these measures.” (Rule 2.1036(b).) Rule 2.1036 does not require the trial judge to inquire of jurors about the reasonable probability of reaching a verdict. At most, the rule recommends that the trial court ask jurors about concerns implicated in the reported impasse. There is no mention of polling the jury. Indeed, the California Supreme Court in People v. Peoples (2016) 62 Cal. 4th 718 , held that “a trial court does not abuse its discretion merely by declining to poll the jury as to the likelihood of reaching a unanimous verdict.” (Id. at p. 782.) On the other hand, the rule does provide that trial judge may give additional instructions, as the trial court did here, to assist a jury at an impasse. (Rule 2.1036(b)(1).) Nonetheless, Lehman contends it was an abuse of discretion for the trial judge to instruct jurors to continue their deliberations without speaking to any of them about the probability of reaching a verdict. In People v. Moore (2002) 96 Cal. App. 4th 1105 (Moore), however, we rejected a claim that the trial court should have questioned the jury as to whether there was a reasonable probability of reaching a verdict before giving the firecracker instruction. We noted “section 1140 vests the trial court with discretion to determine whether there is a reasonable probability of agreement among jurors who have reported an impasse. [Citations.]” (Id. at p. 1121.) We concluded that it was a proper exercise of discretion for the trial court to determine further deliberations might be beneficial without express questioning of the jury “presumably because of the relatively brief duration of deliberations conducted by the jurors before they announced they could not reach a verdict.” (Id. at p. 1122.) Lehman contends that that the trial court erred in deciding to simply instruct the jury “after lengthy deliberations in a simple case” involving eyewitness identification. We disagree. Lehman acknowledges that the jury “asked seven questions directly related to the eyewitness identification evidence” and took two votes over eight hours of deliberations. The fact the jury asked seven questions indicates the case was not as 12 simple and straightforward as Lehman asserts and eight hours is not a lengthy period of deliberation. In any event, the jury deliberated for just over three hours following receipt of the firecracker instruction before reaching a verdict. In Moore, supra , 96 Cal. App. 4th 1105 , the jury returned a verdict in two additional hours of deliberation (id. at p. 1120) and we noted that “[t]he fact the jury was able to reach a verdict relatively quickly after being further instructed reflects the court properly exercised its discretion.” (Id. at p. 1122.) On this record, we do not find an abuse of discretion in the trial court’s failure to make a formal inquiry of the jury regarding the helpfulness of further deliberations before providing a supplemental instruction directing them to continue deliberations. Instruction to Jury to Continue Deliberations In a related contention, Lehman maintains that the trial court’s decision to give the firecracker instruction was coercive. Lehman argues that, after eight hours of deliberation and seven questions to the court, the jury had thoroughly considered the pertinent issue of identity of the perpetrator and would have understood any instruction to continue deliberations as a direction to reach a verdict. Lehman points to the court’s prefatory comment as confirming that conclusion. “Specifically, the court told the jury ‘I’m not yet convinced that you will not be able to come to a verdict.’ In other words, the judge clearly implied that he believed the jury would be able to come to a verdict.” As noted, Lehman did not object to this instruction when it was given, thereby forfeiting any claim of error. (People v. Lewis and Oliver (2006) 39 Cal. 4th 970 , 1038 (Lewis and Oliver); People v. Neufer (1994) 30 Cal. App. 4th 244 , 253-254.) However, Lehman did challenge the instruction in a motion for new trial, which the court denied. Lehman argued that the “wording” of the instruction was “reversible error.” 13  The court responded: “I understand your argument that the standard instruction when a jury comes back reporting that they are at that point unable to reach a verdict, a unanimous verdict, should not have been given and it was in error. It’s a standard instruction. It’s reflected in the CALCRIM book of standard instructions, and it’s consistent with applicable case law.” The court continued that “if you think there was an error in that instruction or the wording, you can bring it up on appeal, but there is no -- this is not something that you have to preserve at this point.” Defendant does not claim on appeal that the court erred in denying his motion for new trial. (See § 1181, subd. (5).) Nonetheless, we consider his claim that the instruction was coercive on the merits and reject it. As the trial court noted, much of the wording of the instruction is taken from CALCRIM No. 3551, as well as the firecracker instruction we approved in Moore, supra , 96 Cal.App.4th at pages 1119-1121 (which was a source for CALCRIM No. 3551, Judicial Council of California Criminal Jury Instructions (2020 ed.) p. 1055). Further, Lehman has not identified any language in the trial court’s instruction as coercive and we do not find any. (Compare People v. Hinton (2004) 121 Cal. App. 4th 655 , 659-660 [court’s remarks to deadlocked jury contained all three components of an improper instruction, (1) suggesting minority jurors defer to the majority’s view, (2) implying the case would be retried if the jury could not agree, and (3) emphasizing the costs of trial and implying that further costs would be expended in a retrial].) Finally, we do not view the court’s prefatory comment as suggesting a verdict must be reached, in light of the instruction that “[y]our goal as jurors should be to reach a fair and impartial verdict if you are able to do so . . . .” (Italics added.) The court repeated this statement: “It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your individual judgment.” (Italics added.) “Telling a jury it should reach a verdict if it can . . . is not coercive.” (People v. Santiago (2009) 178 Cal. App. 4th 1471 , 1476; People v. Whaley (2007) 14  152 Cal. App. 4th 968 , 975 [the phrase “if you can” indicates that jurors may deadlock and does not tell them they must render a verdict].) The court’s comment simply provided jurors with an explanation for the trial’s instruction to continue deliberating. We conclude there was no error in the trial court’s provision of the firecracker instruction in this case. CALCRIM No. 315 The trial court gave the jury the pattern instruction on eyewitness identification, CALCRIM No. 315. The instruction advised the jury that “[a]s with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.” The instruction continued, “[i]n evaluating identification testimony, consider the following questions,” and set forth 14 separate questions. The eleventh question was: “How certain was the witness when he or she made an identification?” Lehman contends that “[i]nstructing the jury to consider the eyewitness’s confidence when evaluating the reliability of the identification violated the appellant’s Fourteenth Amendment right to a fair trial.” Lehman did not object to this instruction or request that the witness certainty factor be eliminated or modified. Lehman thereby forfeited this claim of error. (People v. Sánchez (2016) 63 Cal. 4th 411 , 461 (Sánchez) [“If defendant had wanted the court to modify the [certainty] instruction, he should have requested it. The trial court had no sua sponte duty to do so”]; People v. Rodriguez (2019) 40 Cal. App. 5th 194 , 199-200 (Rodriguez) [“Rodriguez argues CALCRIM No. 315 violates his Fourteenth Amendment due process rights because it tells the jury to consider eyewitness certainty. Rodriguez’s counsel did not object at trial. This is forfeiture”].) Even were this claim preserved for appeal by a timely objection, we would reject it on the merits. Lehman refers to a “meta-analysis of scientific studies” that eyewitness confidence does not correlate with eyewitness accuracy. This argument is not new. The 15 California Supreme Court in Sánchez acknowledged that “some courts have disapproved instructing on the certainty factor in light of the scientific studies.” (Sánchez, supra , 63 Cal.4th at p. 462.) The court upheld its previous decisions approving an instruction including the certainty factor. (Ibid., citing People v. Wright (1988) 45 Cal. 3d 1126 , 1141; People v. Johnson (1992) 3 Cal. 4th 1183 , 1231-1232.) We are bound to follow the Supreme Court’s holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450 , 455.) Lehman directs our attention to People v. Lemcke, review granted October 10, 2018, S250108, in which the Supreme Court granted review to consider whether the certainty factor in CALCRIM No. 315 violates due process. We observe, as did our sister court, “the Supreme Court has not issued an opinion in Lemcke. Sánchez remains valid law.” (Rodriguez, supra , 40 Cal.App.5th at p. 200.) We also note that the United States Supreme Court continues to consider “ ‘the level of certainty demonstrated’ ” by an eyewitness as a relevant factor in evaluating the accuracy of a witness’s identification. (See Perry v. New Hampshire (2012) 565 U.S. 228 , 239, fn. 5 [ 181 L. Ed. 2d 694 ]; Arroyo v. Biter (C.D.Cal., June 22, 2012, No. ED CV12-00088-GAF (RZ)) 2012 U.S.Dist. LEXIS 180579, pp. *13-14 [“Petitioner has pointed to no United States Supreme Court case holding that due process is violated when, in assessing the reliability of a witness’s identification of a defendant, the jury considers the witness’s level of certainty in making the identification. On the contrary, the existing Supreme Court precedent appears to approve of such considerations”].) Lehman has not cited any California case that found a violation of the federal or California Constitutions in instructing the jury that witness certainty is a factor in evaluating eyewitness identification testimony. Lehman’s citation to psychology journal articles and cases from other states does not persuade us to conclude that such a violation 16 occurred here. (See, e.g., State v. Lawson (2012) 352 Or. 724 ; State v. Ledbetter (2005) 275 Conn. 534 ; State v. Delgado (2006) 188 N.J. 48 .)5 We conclude the trial court did not err in instructing the jury with CALCRIM No. 315. CALCRIM No. 376 The trial court also instructed the jury with CALCRIM No. 376, “Possession of Recently Stolen Property as Evidence of a Crime.”6 As given by the court, CALCRIM No. 376 stated: “If you conclude that the defendant knew he possessed property, and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed burglary. “The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant . . . circumstances tending to prove his guilt of burglary. “Remember that you may not convict the defendant of any crime unless you are 5 Lehman argues that Sánchez is distinguishable because it considered CALJIC No. 2.92, not CALCRIM No. 315, which Lehman claims differ. However, Sánchez itself cited CALCRIM No. 315 as including a certainty factor comparable to CALJIC No. 2.92. (Sánchez, supra , 63 Cal.4th at p. 461; see also Webb v. Holland (E.D.Cal., October 30, 2019, No. 2:16-cv-01368 TLN AC) 2019 U.S. Dist. LEXIS 188522 , p. *54 [“The certainty factor in CALCRIM No. 315 is indistinguishable in substance from that set forth in CALJIC No. 2.92 . . .”].) 6 Again, Lehman did not object to the instruction. However, courts have held that failure to object does not forfeit a challenge to CALCRIM No. 376. (People v. O’Dell (2007) 153 Cal. App. 4th 1569 , 1574 (O’Dell); People v. Lopez (2011) 198 Cal. App. 4th 698 , 708 (Lopez).) 17 convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.” Next the court instructed the jury with CALCRIM No. 1700 on burglary, which stated in relevant part: “The defendant is charged with burglary in violation of Penal Code Section 459. To prove that the defendant is guilty of this crime, the People must prove, number one, the defendant entered a building, and, number two, when he entered the building, he intended to commit theft. “In deciding whether the defendant intended to commit theft, please refer to the separate instruction that I have given you on that crime. “A burglary was committed if the defendant entered with the intent to commit theft. The defendant does not need to have fully committed theft as long as he entered with the intent to do so.” The court then instructed the jury with CALCRIM No. 1800, as referenced in CALCRIM No. 1700: “To prove . . . that defendant committed a theft, the People must prove that, one, defendant took possession of property owned by someone else, two, the defendant took the property without the owner’s consent, three, when the defendant took the property, he intended to deprive the owner of it permanently, and, four, the defendant moved the property even a small distance and kept it for any period of time however brief.” Lehman asserts that CALCRIM No. 376 “created an alternate theory of guilt where the jury could find appellant guilty of burglary based on two ‘essential facts’ instead of upon proof of each statutory element of the offenses [sic].”7 7 (People v. Green (1980) 27 Cal. 3d 1 , 69 [reversal required when a verdict may rest on two or more alternate legal theories, some legally correct and others invalid, unless the record shows the verdict necessarily rests on a legally valid ground]; People v. Guiton (1993) 4 Cal. 4th 1116 , 1127-1128 [distinguishing legally invalid theories from factually unsupported theories].) 18  In reviewing a challenge to a jury instruction, we consider the instructions given as a whole. We assume jurors can understand and correlate all the instructions given. (People v. Fitzpatrick (1992) 2 Cal. App. 4th 1285 , 1294.) A single instruction may not be judged in isolation but must be viewed in the context of the entire charge. (People v. Frye (1998) 18 Cal. 4th 894 , 957, disapproved on another ground in People v. Doolin (2009) 45 Cal. 4th 390 , 421, fn. 22.) We conduct an independent review of issues pertaining to instructions. (People v. Cooksey (2002) 95 Cal. App. 4th 1407 , 1411; see also Lopez, supra , 198 Cal.App.4th at p. 708 [“We review de novo whether a jury instruction correctly states the law. [Citation]”].) To reverse the judgment based on instructional error, we must find a reasonable likelihood that “any allegedly erroneous instruction would have led the jury to misapply the law.” (People v. Mehserle (2012) 206 Cal. App. 4th 1125 , 1155.) “Similar to its predecessor, CALJIC No. 2.15, CALCRIM No. 376, is based on a ‘long-standing rule of law [that] allows a jury to infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property when coupled with slight corroboration by other inculpatory circumstances [that] tend to show guilt.’ [Citation.]” ( Lopez, supra , 198 Cal.App.4th at p. 709, fn. omitted.) Lehman acknowledges that the California Supreme Court and Courts of Appeal have repeatedly upheld CALCRIM No. 376 and CALJIC No. 2.15. (See, e.g., People v. Gamache (2010) 48 Cal. 4th 347 , 375-376; People v. Holt (2010) 15 Cal. 4th 619 , 677; Lopez, supra , 198 Cal.App.4th at p. 712; O’Dell, supra , 153 Cal.App.4th at p. 1576.) Lehman attempts to distinguish these cases based on the final admonishment in CALCRIM No. 376 that the jury may not convict unless it is “convinced that each fact essential to the conclusion that the defendant is guilty of [the] crime has been proved 19 beyond a reasonable doubt.”8 Lehman maintains that “CALCRIM No. 376 is a stand- alone theory of guilt—complete with required elements and a burden of proof—whereas CALJIC no. 2.15 was not.” According to Lehman, “each fact essential to the conclusion that the defendant is guilty” in CALCRIM No. 376 would be understood by the jury to refer only to (1) possession of stolen property, and (2) supporting evidence tending to prove guilt. Lehman misreads CALCRIM No. 376. The instruction did not tell the jurors they could ignore the elements of burglary to find Lehman guilty. The instruction only addressed the sufficiency of the evidence, not the factual elements of burglary that the prosecution was required to prove. The final paragraph of the instruction told jurors they could convict Lehman only if they found all the factual elements of the crime true beyond a reasonable doubt. The jury was not left in doubt what were the elements of burglary. Immediately after instructing the jury with CALCRIM No. 376, the trial court gave CALCRIM No. 1700, which set forth the elements of the crime. As noted above, instructions are not to be considered in isolation, and must be considered as a whole. On that score, the trial court began by giving CALCRIM No. 200, which included the admonishment: “Pay careful attention to all of these instructions and consider them together.” The court gave CALCRIM No. 220 on reasonable doubt which included the directions that “[w]henever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt” and that “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and 8 Lehman cites no authority regarding a claimed due process violation based on the inclusion of the final admonishment in CALCRIM No. 376 that CALJIC No. 2.15 lacks. In fact, it is the other way around. The California Supreme Court recently rejected a claim regarding the omission of a similar reminder in CALJIC 2.16, on dog-tracking evidence, which the court said bears a substantial similarity to CALJIC No. 2.15 and CALCRIM No. 376. (People v. Westerfield (2019) 6 Cal. 5th 632 , 709.) 20 you must find him not guilty.” In addition to CALCRIM No. 1700, the trial court instructed the jury with CALCRIM No. 1800, which set forth the elements of theft, the crime that Lehman must have intended to commit in order for the jury to find him guilty of burglary. The court also gave CALCRIM No. 1701 on first degree burglary, of which he was convicted, telling the jury: “The People have the burden of proving beyond a reasonable doubt that the burglary was first degree rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree burglary.” Lehman’s argument requires us to accept that the jury ignored all these instructions in favor of Lehman’s interpretation of CALCRIM No. 376, which we may not do. Considering the instructions in their entirety, and crediting jurors with common sense and intelligence, we conclude the jury was adequately and correctly informed that it must find each element of the burglary charge beyond a reasonable doubt to find Lehman guilty. Pitchess Motion Lehman contends that the trial court improperly denied his motion for discovery of the personnel records of Detective Vina for lack of good cause. Lehman argues he “specifically alleged that Detective Vina had admitted to falsely arresting him, and appellant’s sole defense was that he was falsely accused of the crime. Thus, appellant met the good cause requirement: there was a direct link between the discovery sought— prior instances of false arrests—and the pending charge, and the discovery would have supported appellant’s defense that he was falsely arrested.” We disagree. On June 6, 2018, Lehman filed a Pitchess motion.9 Lehman sought discovery of 9 Lehman filed multiple Pitchess motions that were denied by the trial court on various grounds. On appeal, Lehman challenges only the court’s ruling on his motion filed on June 6, 2018. 21 personnel records of Detective Vina and five other officers from the Elk Grove Police Department and Deputy Avalos from the Sacramento County Sheriff’s Department regarding “[a]cts of dishonesty,” including conspiring with fellow officers to direct an investigation in a way contrary to the evidence, planting or tampering with evidence, conspiring to frame or set up suspects, illegally obtaining evidence, acts of class-based prejudice, lying to protect fellow officers, conspiring to mislead investigations, encouraging a corrupt work environment, prejudicial and malicious assignment of officers to the case, providing false information to an investigation, false and untrue identifications of individuals (in the case of Deputy Avalos), and conspiring to alter the direction of an investigation. In 11 pages of Lehman’s supporting declaration, he alleged misconduct by these seven officers before and after his arrest. In addition, regarding Detective Vina specifically, Lehman stated that, at the conclusion of an interview, “Detective Vina spoke to the defendant off Camera [sic] and told him that the Victim was a good friend of his and that he would Go [sic] to any means ‘To book your ass’ and described how Elk Grove has much more money, resources and better personnel than the Sacramento Sheriff’s Department to do so with.” Lehman sought discovery of complaints regarding Detective Vina’s “Accepting cases where he has a personal relationship with the victim, example; [sic] Friend, Family, Neighbor, Lover, Supportive, Business ect. [sic][.]” The trial court denied the motion for failure to establish good cause and exceeding the scope of permissible discovery. The court found that Lehman was “basically saying that all these officers engaged in a conspiracy.” The court observed that Lehman alleged that Detective Vina “said now I want to set this guy up because the victim was my neighbor” and “gathered these officers together in some grand conspiracy,” so “they’re all dishonest because they all decided to tamper with evidence or plant evidence.” The court noted that Lehman’s request “is all based on the fact that because Detective [Vina] was a neighbor slash friend of the victim, that every officer involved in this case basically 22 was involved in . . . a conspiracy with Detective [Vina]. [¶] You don’t have any . . . other evidence against these officers for your position other than if [Vina] is bad and was trying to tamper with the evidence that -- that he must have . . . gathered all these other officers into his conspiracy.” The procedures articulated in Pitchess for discovery of personnel records of law enforcement officers have been codified in Evidence Code sections 1043 through 1047. Under these procedures, the trial court must find “good cause” for the discovery requested based on showing that the records and complaints are “material[] . . . to the subject matter involved in the pending litigation.” (Evid. Code, § 1043, subd. (b)(3).) To establish materiality, the party requesting the records must (1) set forth a “specific” and “plausible” “factual scenario of officer misconduct,” and (2) must establish both how the information sought is “similar” to the alleged misconduct and how the information would support a defense to the People’s case. (Warrick v. Superior Court (2005) 35 Cal. 4th 1011 , 1021, 1025-1027; California Highway Patrol v. Superior Court (2000) 84 Cal. App. 4th 1010 , 1021.) A showing of “good cause” requires that the “factual scenario of officer misconduct” must present an “alternate version of the facts” that is “internally consistent” and comports with “common sense.” (Sanderson, supra , 181 Cal.App.4th at pp. 1340-1341; People v. Galan (2009) 178 Cal. App. 4th 6 , 12-13 (Galan).) The proposed scenario need not be “persuasive,” “reasonably probable” or even “credible.” (Thompson, supra , 141 Cal.App.4th at pp. 1316-1317; Sanderson, at p. 1340; Warrick, at pp. 1025-1026.) But the scenario must be more than merely “possible,” “conceivable” or “imaginable.” (Thompson, at pp. 1318-1319.) The trial court is vested with broad discretion in ruling Pitchess motions (Haggerty v. Superior Court (2004) 117 Cal. App. 4th 1079 , 1086), and we review the trial court’s ruling for abuse of discretion. (Lewis and Oliver, supra , 39 Cal.4th at p. 992.) The trial court did not abuse its discretion in determining that Lehman did not set forth a plausible factual scenario. It is not plausible that seven officers conspired to 23 “fabricate virtually all the events preceding and following [a defendant’s] arrest” based on the explanation that one officer knew the victim. (Thompson, supra , 141 Cal.App.4th at p. 1318.) As the trial court noted, Lehman had no evidence or explanation for the existence of this conspiracy other than Detective Vina was “bad” and all the other officers went along with him to fabricate evidence and make false statements against Lehman. He did not set forth, however, what the officers’ motivation would have been to join in a conspiracy to vindicate an acquaintance of Detective Vina. The implausibility of Lehman’s claimed conspiracy is highlighted by the fact that it includes Deputy Avalos, who is not a member of the Elk Grove Police Department but a deputy sheriff in the Sacramento County Sheriff’s Department. The misconduct Lehman attributes to Deputy Avalos that is the basis for the discovery request is falsely identifying Lehman as the person who dropped the backpack and fled, when, according to Lehman, the deputy did not get a clear view of the suspect’s face. Lehman does not explain how, when or why Deputy Avalos would enter into a conspiracy directed by Detective Vina to give false testimony to frame Lehman. The notion of allegiance between members of the Elk Grove Police Department that seemingly underlies Lehman’s theory of an implicit conspiracy among the officers from the department involved in the investigation does not extend to Deputy Avalos. Indeed, the statement that Lehman attributes to Detective Vina disparages the Sacramento County Sheriff’s Department. On appeal, Lehman asserts that he is only seeking the personnel records of Detective Vina. Lehman fails to mention that, as set forth above, he based his showing of good cause to the trial court on the existence of an implausible conspiracy among six officers from the Elk Grove Police Department and one officer from the Sacramento County Sheriff’s Department to falsify virtually every item of evidence in the People’s case. A defendant generally may not change his theory on appeal. (People v. Pecci (1999) 72 Cal. App. 4th 1500 , 1503; People v. Borland (1996) 50 Cal. App. 4th 124 , 129.) 24 Even if Lehman could, without the old theory attributing various acts of misconduct to other officers as part of a conspiracy, Lehman no longer presents an “alternate version of the facts” that is “internally consistent,” for example, to explain the undisputed fact that his sweatshirt and his T-shirt with his DNA on them were found in the trash can or Deputy Avalos’s identification of Lehman as the man who dropped the backpack and ran. (Sanderson, supra , 181 Cal.App.4th at pp. 1340-1341; Galan, supra , 178 Cal.App.4th at pp. 12-13.) Lehman’s new theory does not provide “good cause” for Pitchess review. Senate Bill No. 136 Under section 667.5, subdivision (b), the trial court imposed two 1-year enhancements for prior prison terms Lehman served for (1) counterfeiting (§ 480), and (2) for vehicle theft and bringing drugs into jail (§ 4573; Veh. Code, § 10851). In supplemental briefing, the parties agree that Senate Bill No. 136, amending section 667.5, subdivision (b), applies retroactively and this case should be remanded to the trial court to strike two 1-year enhancements added to his sentence under the statute. However, as the People correctly note, the trial court imposed the maximum penalty for residential burglary. Therefore, we need not remand for resentencing, but will simply strike the enhanced sentence imposed under current section 667.5, subdivision (b).10 10 As amended section 667.5, subdivision (b) limits the one-year enhancement to a prior prison term imposed for “a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.” While the amendment became effective January 1, 2020, (Stats. 2019, ch. 590, § 1) we assume, absent a clear indication to the contrary, that the Legislature intended an “amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date.” (People v. Brown (2012) 54 Cal. 4th 314 , 323; In re Estrada (1965) 63 Cal. 2d 740 , 742-748; People v. Lopez (2019) 42 Cal. App. 5th 337 , 341.) The amendment applies here. However, “[b]ecause the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion.” (Lopez, at p. 342, citing People v. Buycks (2018) 5 Cal. 5th 857 , 896, fn. 15.) 25  DISPOSITION The judgment is modified to strike the two 1-year enhancements imposed under section 667.5, subdivision (b). With this modification, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment deleting reference to the enhancements and reflecting a total prison sentence of six years. The court shall forward a certified copy of the same to the Department of Corrections and Rehabilitation. /s/ RAYE, P. J. We concur: /s/ BLEASE, J. /s/ DUARTE, J. 26