[00:00:12] Speaker 01:
So I appreciate the court's focus order.

[00:00:15] Speaker 01:
So unless your honors would like to begin elsewhere, I'll start by addressing first the stay, and then second, whether California penal code 273.5 is a block of felony.

[00:00:26] Speaker 01:
So with regard to whether a stay is appropriate, I think obviously this court has discretion to stay in the case if it wants to.

[00:00:40] Speaker 01:
I think it's pretty clear from the record that he was first arrested in this case back in April of 2021.

[00:00:47] Speaker 01:
So he's been in custody now for 40 months.

[00:00:50] Speaker 01:
And if you give jail credit, there might also be good time credit, et cetera.

[00:00:55] Speaker 01:
I think there's a very high risk that he will actually over-serve, assuming Gomez remains law.

[00:01:09] Speaker 01:
I just want to put a button on this point.

[00:01:13] Speaker 01:
So in the lower court sentencing counsel calculated the guidelines without ACCA, without the 2K 2.1 enhancement as 30 to 37 months.

[00:01:23] Speaker 01:
So even assuming that he gets the high end or thereabouts, again, he's pretty much already served that much.

[00:01:30] Speaker 04:
So if you would really get

[00:01:57] Speaker 01:
and not stay, sorry for the double negative.

[00:02:17] Speaker 01:
So I'm not going to belabor the point with the other arguments.

[00:02:21] Speaker 01:
I would just ask that if the court is inclined to stay, that it not be indefinite.

[00:02:26] Speaker 01:
I think I just saw on my phone that the government asked for an extension of time on its PFR in Gomez.

[00:02:34] Speaker 01:
I wasn't able to pull it up on my phone, but I think it was for 30 days.

[00:02:38] Speaker 01:
So I would just ask that if the government doesn't maybe

[00:02:51] Speaker 04:
Again, though, this is all going to turn on your next argument, right?

[00:02:54] Speaker 04:
So I mean, is it true that the extension of 30 days or 60 days or whatever they might do really isn't going to matter if HACA is still going to apply?

[00:03:02] Speaker 01:
So I'll turn to the second argument, Your Honor.

[00:03:04] Speaker 01:
So the first thing I want to just mention is that I would humbly request for supplemental briefing if the court is going to address this issue.

[00:03:34] Speaker 04:
So why would it be different now?

[00:03:38] Speaker 01:
I think it's the same argument.

[00:03:39] Speaker 01:
Yeah.

[00:03:39] Speaker 04:
So why do you need more briefing?

[00:03:41] Speaker 01:
Well, the government has made new arguments that didn't make an answering brief.

[00:03:45] Speaker 01:
So in

[00:04:04] Speaker 01:
District Court, that's at 2ER 174 and 175, as well as 2ER 245.

[00:04:13] Speaker 01:
So I think it's kind of almost a case of affirmative waiver here.

[00:04:16] Speaker 01:
But assuming the court does not apply the strict waiver rule to the government, even though we think it should, I think there's plenty of California authority for the proposition that assault and battery have the exact same mens rea in California.

[00:04:30] Speaker 04:
Okay, that may be true as a general matter.

[00:04:33] Speaker 04:
So, I mean, I do think the briefing here talked a lot about categories as a general matter, but this particular 273.2

[00:05:00] Speaker 01:
I'm not sure if I'm gonna get to all of them, but

[00:05:25] Speaker 01:
And they both say that for a California battery offense, you don't have to have any intent.

[00:05:34] Speaker 01:
Are they specific to 273.5?

[00:05:38] Speaker 01:
I think they are, but I don't want to misrepresent anything.

[00:05:41] Speaker 01:
I also have cases that are specific to 273.5.

[00:05:43] Speaker 01:
I believe we have a couple of cases, I think, to look forward.

[00:05:47] Speaker 01:
I believe Thurston, if I recall correctly, is actually a 273.5 case.

[00:05:52] Speaker 01:
And that case says that, just as in Gomez,

[00:06:01] Speaker 01:
You don't need to have knowledge.

[00:06:06] Speaker 04:
Yes, your honor.

[00:06:08] Speaker 01:
And the reason for that, I would I would point your honor to first of all, if you look at 273.5, it says willfully.

[00:06:41] Speaker 01:
resulting in a traumatic condition.

[00:06:44] Speaker 01:
And the problem with that, under Borden, is it's not satisfying the targeting requirement.

[00:06:48] Speaker 01:
There's no requirement of the intent to cause the injury.

[00:06:51] Speaker 01:
It could just be that you touch the person and they happen to get injured and you have no intent to hurt them.

[00:06:56] Speaker 04:
That's enough.

[00:06:57] Speaker 04:
Well, but the language is not willfully taking an action that then does the

[00:07:14] Speaker 01:
bottle time.

[00:07:15] Speaker 00:
So, um, I will, I will hold for her bottle, and hopefully... I have a question.

[00:07:22] Speaker 00:
Assuming we say 273.5 is a violent felony, can we look at the indictment which lists three separate 273.5 convictions on separate dates?

[00:07:31] Speaker 00:
Can we rely on those to affirm the district court?

[00:07:34] Speaker 01:
I don't believe so, Your Honor.

[00:07:36] Speaker 01:
I think if, if Your Honor is suggesting that the modified categorical approach applies, I think you could look at it to,

[00:07:53] Speaker 00:
I know the district courtroom, you can take two of them, but if you look at the indictment, there's a third one.

[00:07:57] Speaker 00:
Yes, there are three.

[00:07:59] Speaker 04:
I thought you were going to argue that a jury would need to find that they happen on different occasions.

[00:08:03] Speaker 01:
Is that true?

[00:08:04] Speaker 01:
That is my other argument that I didn't have time to get to today.

[00:08:09] Speaker 04:
Do you think we can find ourselves now that the sentence is the same or would have to be removed?

[00:08:18] Speaker 01:
You know, I think under Erlinger that has to happen, and I think the government has not proved harmlessness beyond a reasonable doubt.

[00:08:23] Speaker 01:
So I think another option that the court could do is, I mean, we're in a weak position here because the legal framework for both issues has shifted so much since the district court made its decision.

[00:08:32] Speaker 01:
And I think, you know, in all fairness, it would kind of make sense to just send it back down to the district court to redo.

[00:08:38] Speaker 04:
But- But doing that before we know if Gomez remains, it would be a waste of time, right?

[00:08:43] Speaker 01:
Right.

[00:08:43] Speaker 01:
Yeah.

[00:08:49] Speaker 01:
extremely lengthy or indefinite stay, just given the risk of over-serving.

[00:08:54] Speaker 01:
Hopefully I can reserve the rest of my time to- I'm sorry.

[00:08:57] Speaker 01:
Yeah, thank you.

[00:08:58] Speaker 01:
Well, you can link up with them.

[00:09:08] Speaker ?:
Good morning, Your Honors.

[00:09:09] Speaker 02:
May I please report the USA David Williams for the government?

[00:09:22] Speaker 02:
with mental state as a general matter.

[00:09:24] Speaker 02:
And the reason it did that is because at the time, it didn't matter.

[00:09:27] Speaker 02:
The case law was uniform.

[00:09:29] Speaker 02:
It was thorough.

[00:09:31] Speaker 02:
Post-Borden, there were 10 unpublished cases from this circuit reaffirming the pre-Borden decision.

[00:09:36] Speaker 02:
And that makes sense because Borden itself said that it was agreeing with this circuit in footnote two.

[00:09:42] Speaker 02:
Borden can't have changed the law.

[00:09:44] Speaker 02:
I think Gomez was wrong when it said that Borden changed the law.

[00:09:47] Speaker 02:
But Borden can't have changed

[00:09:53] Speaker 04:
Maybe my colleagues disagree, but I don't think re-arguing Gomez is useful, right?

[00:09:56] Speaker 04:
We can't do anything about it.

[00:09:58] Speaker 04:
We can vote on Bonk maybe, but we're not going to decide it here.

[00:10:01] Speaker 02:
I agree as to the 245, but as to the 273.5, I think that it does matter because Borden didn't change the law as to 273.5, and Olia Serafina predated Gomez.

[00:10:13] Speaker 02:
That was one of the cases I cited in that Friday letter.

[00:10:30] Speaker 04:
into this problem in a way that I don't really understand.

[00:11:03] Speaker 02:
Williams.

[00:11:04] Speaker 02:
And it talks about arson as whether or not it's reckless.

[00:11:10] Speaker 02:
And it talks about it as that recklessness can sometimes be general intent and sometimes not.

[00:11:15] Speaker 02:
And the notion that general intent encompasses a spectrum.

[00:11:19] Speaker 02:
And so California general intent is a little bit weird.

[00:11:23] Speaker 02:
I think that's what this court's case law has talked about.

[00:11:26] Speaker 02:
California general intent is a little bit weird.

[00:11:28] Speaker 02:
But that it can encompass things that are significantly more than recklessness.

[00:11:35] Speaker 02:
has said 273.5 falls into that category of more than recklessness.

[00:11:41] Speaker 02:
And so the reason we briefed it the way we did is because at the time that was the law.

[00:11:46] Speaker 02:
I think one of the things that I think might be more, I'm sorry, a cite for Atkins 25.

[00:11:51] Speaker 04:
Do you think we need more briefing on this?

[00:11:54] Speaker 02:
I would be happy to provide more briefing.

[00:11:55] Speaker 02:
I think it's an unusual issue.

[00:11:56] Speaker 02:
I don't think it's necessary because I think the 273.5 case law is settled and I think the 273.5 distinction, the

[00:12:14] Speaker 02:
And one of the best comparison points, I think, is the Benuelis-Ayon case, which cites People v. Jackson, a California court of appeal case.

[00:12:23] Speaker 02:
And it describes 273.5 as a very particular battery that, quote, is not violated unless the corporal injury results from a direct application of the force on the victim by the defendant.

[00:12:35] Speaker 02:
And I think that's very different from

[00:12:47] Speaker 04:
I came in today thinking this had already been briefed, but it seems like both sides are citing cases I've never heard of.

[00:12:55] Speaker 02:
So most of these cases were previously cited in the briefs.

[00:12:59] Speaker 02:
We just didn't get into the reasons for why they held it because at the time it didn't matter, is what I would say.

[00:13:06] Speaker 03:
So if we agree with you that 273.5

[00:13:18] Speaker 03:
What's the next step?

[00:13:21] Speaker 02:
I would ask the court to simply affirm.

[00:13:22] Speaker 02:
I don't think that it needs to be remanded.

[00:13:24] Speaker 03:
Um, we went through, uh, in- in the- Well, the district court did not consider the third 273.5 conviction.

[00:13:50] Speaker 02:
And we have a question about whether they happen on different occasions or not.

[00:14:19] Speaker 02:
that they couldn't have been counted separately, that those were the same thing.

[00:14:23] Speaker 02:
The second 273.

[00:14:24] Speaker 04:
They've been making an Erlinger argument, so I don't understand what point you just made.

[00:14:29] Speaker 02:
That the 245 and one of the 273.5s were on the same date, but if the 245 falls out.

[00:14:34] Speaker 04:
But now if that 245 goes away, we still have to know whether the three 273.5s are all on the different dates, and that doesn't speak to that, right?

[00:14:46] Speaker 04:
But wasn't that not determined, because Erlinger hadn't been decided yet?

[00:14:50] Speaker 02:
It was determined.

[00:14:52] Speaker 02:
It was just determined by the judge, because it wouldn't have been determined.

[00:14:54] Speaker 04:
OK, but so they've been making an argument that that needs to be made by the jury, right?

[00:14:58] Speaker 02:
They've been making that argument.

[00:15:00] Speaker 02:
As we discussed in the briefing, I think they waived that argument.

[00:15:02] Speaker 02:
They specifically argued in their briefing that the Fifth and Sixth Amendment required a jury finding.

[00:15:08] Speaker 02:
And yet, nevertheless, they wanted to proceed as it was.

[00:15:11] Speaker 02:
So they waived a jury trial.

[00:15:12] Speaker 02:
They waived a jury trial, accepting that the mandatory- They gave, like, a chance to-

[00:15:17] Speaker 04:
and they would like a chance to unwaive because of a new case, I'm not sure why we shouldn't let them.

[00:15:22] Speaker 02:
If the court wants to remand and start everything from scratch, the government is happy to do that.

[00:15:26] Speaker 02:
We can simply present everything to the jury in the first instance.

[00:15:30] Speaker ?:
That is, the government has always been willing to do that.

[00:15:32] Speaker 02:
We've been trying to present this case to the fact finder that this court has said we need to present it to.

[00:15:37] Speaker 02:
At the time, we were told we had to present it to the judge, so we did.

[00:15:46] Speaker 04:
the basis for us deciding it now, which is what you started with.

[00:15:50] Speaker 02:
It's simply a harmless error finding that the 245 and the 273.5 are the same thing, that they have occurred on the same date and that you can substitute the 273.5 in.

[00:15:59] Speaker 02:
If you disagree, it is perfectly – the government is perfectly happy to re-prove that to a jury.

[00:16:13] Speaker 02:
Let's see.

[00:16:17] Speaker 02:
I did want to talk briefly about the concern about overstaying his sentence.

[00:16:23] Speaker 02:
He talks about a 36-month guidelines range.

[00:16:26] Speaker 02:
The guidelines range would certainly be lower if the ACA doesn't apply.

[00:16:31] Speaker 02:
When I calculated it, I came out to something more in the mid-50s.

[00:16:51] Speaker 02:
rest in any of the briefing.

[00:16:52] Speaker 02:
I think his sentence, it would drop in all candidness to the court, but it would not drop, I don't think, all the way down to the 36 months.

[00:17:01] Speaker 02:
There would still be some time left, just not years.

[00:17:04] Speaker 04:
And how many months have already been served?

[00:17:06] Speaker 02:
About 40, I think 40 and a half.

[00:17:08] Speaker 02:
And I think my calculation on the guidelines put it in the low 50s.

[00:17:17] Speaker 04:
So the 50s, if there is a non-bond proceeding, it's going to use up that time.

[00:17:21] Speaker 02:
It could.

[00:17:22] Speaker 02:
But again, the 273.5s, I don't think, need to be implicated by that.

[00:17:26] Speaker 02:
The 273.5s contemplate willful infliction.

[00:17:29] Speaker 02:
Infliction necessarily contemplates a target of your action.

[00:17:33] Speaker 02:
And when Borden is talking about recklessness not being enough, the reason recklessness is not enough is because recklessness is not directed against somebody.

[00:17:42] Speaker 02:
And so Borden is using recklessness one

[00:17:56] Speaker 02:
California, regardless of what recklessness means, willful infliction of a traumatic injury is targeted at a domestic partner.

[00:18:03] Speaker 02:
And so, regardless of the definition of recklessness, 273.5 is more than that.

[00:18:09] Speaker 02:
And that's, I think, when you look at the case law of 273.5, the cases that we cited, Ben Loewer, Zion V. Holder, and Jackson talk about that.

[00:18:20] Speaker 02:
So I don't think that you need to

[00:18:28] Speaker 02:
simply on the 273.5s, or send it back saying that 273.5 is still a violent felony and let it be decided by a jury, or simply affirm because there's no universe where these were not separate offenses on separate occasions.

[00:19:01] Speaker 01:
The guidelines, you know, they may be slightly different than the 30 to 37 month range that was cited below, but again, the district court specifically said it would have imposed a variance due to the really strong mitigation here, so that's something to also consider.

[00:19:29] Speaker 01:
That's a case where the defendant, he was charged with ripping off the acrylic nail of his former girlfriend.

[00:19:41] Speaker 01:
The evidence at trial was equivocal.

[00:19:45] Speaker 01:
her phone and accidentally ripped it off.

[00:19:48] Speaker 01:
The California Court of Appeal affirmed the conviction and it said it doesn't matter what his intent was.

[00:19:52] Speaker 01:
He touched her.

[00:19:53] Speaker 01:
That was enough.

[00:19:55] Speaker 01:
It only requires the Volitional Act.

[00:19:57] Speaker 04:
That was 273.5, not some other kind of battery.

[00:20:00] Speaker 01:
That was 273.5 and it's 2005 Westlaw 1230772.

[00:20:06] Speaker 01:
I see I'm out of time, Your Honors.

[00:20:12] Speaker 03:
of, um, United States versus Malaysia at this minute.