                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       521358
________________________________

NEW YORK STATE UNITED TEACHERS,
   by its President, KAREN E.
   MAGEE, et al.,
                    Appellants,
      v                                     OPINION AND ORDER

STATE OF NEW YORK et al.,
                    Respondents.
________________________________

Calendar Date:   January 14, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________

      Richard E. Casagrande, New York State United Teachers,
Latham, for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Robert M.
Goldfarb of counsel), for respondents.

                             __________

Devine, J.

      Appeals (1) from an order of the Supreme Court (McGrath,
J.), entered October 3, 2014 in Albany County, which, among other
things, granted defendants' motion to dismiss the amended
complaint, and (2) from an order of said court, entered March 24,
2015 in Albany County, which, among other things, granted
defendants' motion to dismiss the second amended complaint.

      In 2011, the Legislature enacted "a comprehensive property
tax cap [to] help end the devastating impact of property taxes on
homeowners throughout New York" (Senate Introducer's Mem in
Support, Bill Jacket, L 2011, ch 97, at 16). Education Law
§ 2023-a was enacted as part of that legislation and provides
                               -2-                521358

that, "[u]nless otherwise provided by law, the amount of taxes
that may be levied by or on behalf of any school district, other
than a city school district of a city with [125,000] inhabitants
or more, shall not exceed" a tax levy limit as defined in that
section (Education Law § 2023-a [1]). The statute provides an
exception where a school district proposes a budget requiring a
property tax levy exceeding the limit, and that budget is
subsequently approved by a supermajority of at least 60% of
voters casting ballots (see Education Law §§ 2022, 2023-a [6]).

      Plaintiffs commenced this action in 2013, seeking a
declaration that the tax cap imposed by Education Law § 2023-a
was unconstitutional. In lieu of serving an answer, defendants
moved to dismiss the first amended complaint. The Legislature
created a real property tax freeze credit while that motion was
pending (see L 2014, ch 59, part FF), the purpose of which was to
provide a two-year income tax credit to eligible homeowners who
had paid real property taxes to school and municipal
jurisdictions that abided by the property tax cap and took
further steps to improve efficiency (see Education Law § 2023-b;
Tax Law § 606 [bbb]). Plaintiffs thereafter sought leave to
serve a second amended complaint that, among other things,
challenged the constitutionality of the tax freeze as well as the
tax cap.

      In an order entered in October 2014, Supreme Court
dismissed the first amended complaint and granted plaintiffs
leave to serve the second amended complaint. Following service
of the second amended complaint, defendants moved to dismiss it
for failure to state a cause of action. Supreme Court thereafter
issued an order in March 2015 that, among other things, granted
that motion. In so doing, Supreme Court rejected defendants'
contention that plaintiffs lacked standing to bring this action,
but determined that their claims uniformly failed to state a
cause of action. Plaintiffs now appeal from the October 2014 and
March 2015 orders.1

     1
        Any issues relating to the dismissal of the first amended
complaint are academic, as that "complaint was superseded by the
[second] amended complaint" (Gotlin v City of New York, 90 AD3d
                              -3-                521358

      Defendants argue as an alternative ground for affirmance
that plaintiffs lacked standing to bring suit. With regard to
the challenges to Education Law § 2023-a, the second amended
complaint alleges that the individual plaintiffs are all
taxpayers and that they voted for school district budgets in 2012
requiring property tax levies that exceeded the tax levy limit,
budgets that were supported by a simple majority of voters but
failed to achieve the supermajority required by Education Law
§ 2023-a (6). Plaintiffs accordingly claim that Education Law
§ 2023-a has impaired their constitutional rights, including the
"right to participate in the governance of their own schools,"
and has degraded their ability to provide school funding as they
see fit (Paynter v State of New York, 100 NY2d 434, 442 [2003]).
Applying the common-law standard for standing articulated in
Boryszewski v Brydges (37 NY2d 361, 364 [1975]), we agree with
Supreme Court that these allegations "gain [the individual
plaintiffs] standing to challenge the constitutionality of"
Education Law § 2023-a (Board of Educ., Shoreham-Wading Riv.
Cent. School Dist. v State of New York, 111 AD2d 505, 507 [1985],
lvs dismissed 66 NY2d 603, 854 [1985]; see Matter of Schulz v
State of New York, 81 NY2d 336, 344-345 [1993]; compare New York
State Assn. of Small City School Dists., Inc. v State of New
York, 42 AD3d 648, 651 [2007] [noting that "the parents and
students of individual school districts can challenge the
constitutionality of their school's funding"]). The individual
plaintiffs further allege that the tax freeze legislation
authorized "a wrongful expenditure, misappropriation,
misapplication, or . . . illegal or unconstitutional disbursement
of state funds" due to its allocation of those funds for a tax
credit, and such allegation affords them standing to challenge it
(State Finance Law § 123-b [1]; see Schulz v Silver, 134 AD3d
1139, 1371-1372 [2015], appeal dismissed 27 NY3d 939 [2016]).
Inasmuch as the individual plaintiffs have standing, we need not
go further and decide whether plaintiff New York State United
Teachers has organizational standing (see Saratoga County Chamber

605, 608 [2011]; see Chalasani v Neuman, 64 NY2d 879, 880
[1985]). We therefore focus our attention upon the dismissal of
the second amended complaint accomplished by the March 2015
order.
                              -4-                521358

of Commerce v Pataki, 100 NY2d 801, 813 [2003], cert denied 540
US 1017 [2003]).

      Turning to the arguments advanced by plaintiffs, in the
context of a motion to dismiss for failure to state a cause of
action, "[w]e accept the facts as alleged in the complaint as
true, accord plaintiffs the benefit of every possible favorable
inference, and determine only whether the facts as alleged fit
within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83,
87-88 [1994]; see J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 21
NY3d 324, 334 [2013]). Legislative acts nevertheless "enjoy a
strong presumption of constitutionality[, and] . . . parties
challenging a duly enacted statute face the initial burden of
demonstrating the statute's invalidity beyond a reasonable doubt"
(LaValle v Hayden, 98 NY2d 155, 161 [2002] [internal quotation
marks and citations omitted]; see Schulz v State of N.Y. Exec.,
134 AD3d 52, 55 [2015], appeal dismissed 26 NY3d 1139 [2016]).

      Plaintiffs allege that Education Law § 2023-a and the tax
freeze legislation run afoul of NY Constitution, article XI, § 1
(hereinafter the Education Article), which directs the
Legislature to "provide for the maintenance and support of a
system of free common schools, wherein all the children of this
state may be educated." The Education Article does not require
that equal educational offerings be provided to every student,
but does mandate defendant State of New York "to offer all
children the opportunity of a sound basic education" (Campaign
for Fiscal Equity v State of New York, 86 NY2d 307, 316 [1995];
see Reform Educ. Fin. Inequities Today [R.E.F.I.T.] v Cuomo, 86
NY2d 279, 283 [1995]; Board of Educ., Levittown Union Free School
Dist. v Nyquist, 57 NY2d 27, 47-48 [1982], appeals dismissed 459
US 1138, 1139 [1983]). As a result, even "gross educational
inequities" will not give rise to a claim under the Education
Article, and a plaintiff must allege "the deprivation of a sound
basic education, and causes attributable to the State" in order
to state a claim (New York Civ. Liberties Union v State of New
York, 4 NY3d 175, 178-179 [2005]).

      Plaintiffs acknowledge in their second amended complaint
that they are not "seek[ing] to establish any specific . . .
failure to provide a sound basic education" as a result of the
                              -5-                521358

challenged legislative acts. They nevertheless suggest that
their claim is viable because the Education Article acknowledges
that "a system of local school districts exists and will continue
to do so because the residents of such districts have the right
to participate in the governance of their own schools" (New York
Civ. Liberties Union v State of New York, 4 NY3d at 181 [internal
quotation marks and citation omitted]; accord Paynter v State of
New York, 100 NY2d at 442). It is true that "the Education
Article enshrined in the Constitution a state-local partnership
in which 'people with a community of interest and a tradition of
acting together to govern themselves' make the 'basic decisions
on funding and operating their own schools'" (Paynter v State of
New York, 100 NY2d at 442, quoting Board of Educ., Levittown
Union Free School Dist. v Nyquist, 57 NY2d at 46). That being
said, the provision is intended to ensure that education is "a
responsibility of the State" (New York Civ. Liberties Union v
State of New York, 4 NY3d at 182), and fundamentally protects
against failures by the State to provide "adequate instruction
and facilities" commensurate with that responsibility (Paynter v
State of New York, 100 NY2d at 442; see Campaign for Fiscal
Equity v State of New York, 100 NY2d at 922). Plaintiffs
therefore state a viable Education Article claim only if they
allege that the challenged legislation so impaired local
financing ability that it implicated the State's "duty . . . to
provide funding sufficient to bring the educational inputs
locally available up to a minimum standard" (Paynter v State of
New York, 100 NY2d at 442; see New York Civ. Liberties Union v
State of New York, 4 NY3d at 182; Campaign for Fiscal Equity,
Inc. v State of New York, 100 NY2d at 922; Reform Educ. Fin.
Inequities Today [R.E.F.I.T.] v Cuomo, 86 NY2d at 283-284). They
have made no effort to do so and, as such, their Education
Article claim fails.

      Plaintiffs next assert that Education Law § 2023-a and the
tax freeze legislation deprive school children of their right to
equal protection under the law. Education is not a fundamental
right under either the Federal or State Constitutions and, absent
any allegation that the challenged legislation discriminates
against a suspect class, binding precedent establishes that "the
rational basis test [is] the appropriate standard" (Campaign for
Fiscal Equity v State of New York, 86 NY2d at 320; see San
                              -6-                521358

Antonio Independent School Dist. v Rodriguez, 411 US 1, 40-44
[1973]; Reform Educ. Fin. Inequities Today [R.E.F.I.T.] v Cuomo,
86 NY2d at 285). The rational basis test is not demanding, and a
statute will pass muster under it unless a challenger meets "the
tremendous burden of demonstrating that no facts can reasonably
be conceived to show the existence of a rational basis in support
of some legitimate state interest in drawing the distinction"
(Sullivan v Paterson, 80 AD3d 1051, 1053 [2011]; see People v
Knox, 12 NY3d 60, 69 [2009], cert denied 558 US 1011 [2009]).
The burden further rests on the challenger to rebut the
presumption of validity and "negative every conceivable basis
which might support [the challenged legislation] . . . whether or
not the basis has a foundation in the record" (Affronti v
Crosson, 95 NY2d 713, 719 [2001] [internal quotation marks,
emphasis and citations omitted]; see Sullivan v Paterson, 80 AD3d
at 1053).

      Defendants suggest, and plaintiffs do not dispute, that
Education Law § 2023-a and the tax freeze legislation were
designed with the legitimate goal in mind of restraining onerous
property tax increases that were believed to be depressing
economic activity in the State (see e.g. Senate Introducer's Mem
in Support, Bill Jacket, L 2011, ch 97, at 16). Plaintiffs
suggest that it is irrational to achieve this legitimate aim in a
manner that impairs local control of schools and deters poorer
school districts that would otherwise seek a property tax
increase over the tax cap to keep pace with educational needs.
It suffices to say that, while Education Law § 2023-a and the tax
freeze legislation incentivize districts and their residents to
avoid property tax increases over the tax cap, neither prevents
such increases if sufficient community support exists for them
(see Education Law § 2023-a [6]). The differences in the
services offered by various school districts accordingly result
from a permissible consequence of local control over schools,
namely, the variable "willingness of the taxpayers of [different]
districts to pay for and to provide enriched educational services
and facilities beyond what the basic per pupil expenditure
figures will permit" (Board of Educ., Levittown Union Free School
Dist. v Nyquist, 57 NY2d at 45). Inasmuch as there is nothing
irrational in this, plaintiffs' equal protection claims fail (see
San Antonio Independent School Dist. v Rodriguez, 411 US at 54-
                              -7-                521358

55; Reform Educ. Fin. Inequities Today [R.E.F.I.T.] v Cuomo, 86
NY2d at 284-285; Board of Educ., Levittown Union Free School
Dist. v Nyquist, 57 NY2d at 44-47).

      Plaintiffs lastly argue that Education Law § 2023-a and the
tax freeze legislation offend the guarantee of due process
afforded by the State and Federal Constitutions (see US Const
5th, 14th Amends; NY Const, art I, § 6). "Protection for certain
fundamental rights is implicit within" those guarantees, and "[a]
law that impinges upon a fundamental right is subject to strict
scrutiny, whereas one that does not 'burden a fundamental right
. . . is valid if it bears a rational relationship to [a
legitimate governmental] interest'" (Samuels v New York State
Dept. of Health, 29 AD3d 9, 13 [2006], affd sub nom. Hernandez v
Robles, 7 NY3d 338 [2006], quoting Hope v Perales, 83 NY2d 563,
575 [1994]; see Washington v Glucksberg, 521 US 702, 719-721
[1997]). Plaintiffs point to two fundamental rights that are
purportedly implicated here, the right to vote and the right to
free speech.

      Plaintiffs assert that the fundamental right to vote is
impaired by the supermajority requirement imposed by Education
Law § 2023-a (6), but they are incorrect (see Golden v Clark, 76
NY2d 618, 624 [1990]). A supermajority requirement passes
constitutional muster unless it "discriminate[s] against or
authorize[s] discrimination against any identifiable class," and
nothing of the sort is alleged here (Gordon v Lance, 403 US 1, 7
[1971]; see Gray v Town of Darien, 927 F2d 69, 72 [2d Cir 1991],
cert denied 502 US 856 [1991]). Plaintiffs further argue that
the right to free speech is implicated by the tax freeze
legislation, which will only grant an income tax credit to
individuals in school districts that have enacted budgets
complying with the tax cap imposed by Education Law § 2023-a
(see Education Law § 2023-b [2]). Plaintiffs point out that
"[t]o deny an exemption [or credit] to [individuals] who engage
in certain forms of speech is in effect to penalize them for such
speech" (Speiser v Randall, 357 US 513, 518 [1958]; see Rumsfeld
v Forum for Academic and Institutional Rights, Inc., 547 US 47,
59 [2006]), but taxpayers remain free to vote as they wish in
school budget elections, and their individual vote (or nonvote)
will have no direct role in deciding their access to the tax
                              -8-                521358

credit here. Under these circumstances, taxpayers in school
districts where budgets with tax levies exceeding the property
tax cap are proposed and adopted "are not being denied a tax
[credit] because they engage in constitutionally protected
activities, but are simply being required to pay for [school
property taxes] entirely out of their own pockets" rather than
receiving a subsidy to offset those costs (Cammarano v United
States, 358 US 498, 513 [1959] [emphasis added]; see Leathers v
Medlock, 499 US 439, 450-453 [1991]; Regan v Taxation with
Representation of Washington, 461 US 540, 546 [1983]). Given
that no fundamental rights are implicated by Education Law
§ 2023-a and the tax freeze legislation – and both are rationally
related to the legitimate government interest of restraining
crippling property tax increases – plaintiffs' substantive due
process claims were properly dismissed.

      Plaintiffs' remaining contentions, to the extent that they
are properly before us, have been examined and rejected.

     McCarthy, J.P., Garry and Clark, JJ., concur.

Lynch, J. (concurring in part and dissenting in part).

      I respectfully dissent from that part of the majority that
dismissed plaintiffs' claims under NY Constitution, article XI, §
1 (hereinafter the Education Article) and the Equal Protection
Clause. As plaintiffs candidly concede in their brief, a claim
seeking additional state funding must allege that defendant State
of New York has failed to provide the funding necessary for a
sound basic education (see Board of Educ., Levittown Union Free
School Dist. v Nyquist, 57 NY2d 27 [1982], appeals dismissed 459
US 1138, 1139 [1983] [hereinafter Levittown]). No such claim is
being made here. Instead, plaintiffs maintain that the tax cap
and tax freeze credit enacted under Education Law §§ 2023-a and
2023-b unconstitutionally compromise their rights to local
control over education funding. This is, as plaintiffs concede,
a novel argument. Keeping in mind the procedural posture of this
case, it is my view that plaintiffs have stated viable claims.

     Under the challenged legislation, a school district may not
                              -9-                521358

adopt a budget above a statutory "cap" – generally the lesser of
2% or the rate of inflation – without the approval of a
supermajority of 60% of the voters (see Education Law § 2023-a).
For a school district that adopts budgets within the tax cap, its
taxpayers are eligible for a tax freeze credit (see Education Law
§ 2023-b). When a school district endeavors to adopt a budget in
excess of the cap but fails, even upon resubmission to the
voters, the district must levy a tax no greater than the tax
levied in the prior school year (see Education Law § 2023-a [8]).

      The majority has determined that plaintiffs' failure to
seek additional funding is fatal to their claim under the
Education Article. As the Court of Appeals recognized in Paynter
v State of New York (100 NY2d 434 [2003]), however, the Court has
"had no occasion to delineate the contours of all Education
Article claims" (id. at 441; see New York Civ. Liberties Union v
State of New York, 4 NY3d 175, 180 n 2 [2005]).

      Education funding in New York derives from a dual system of
local and state funding that dates back more than two centuries
(see Campaign for Fiscal Equity v State of New York, 86 NY2d 307,
326-327 [1995] [Levine, J., concurring]). Notwithstanding the
resulting economic disparity between school districts throughout
the State, the Court of Appeals upheld the constitutionality of
this system in Levittown. Applying the rational basis standard
delineated by the Supreme Court of the United States in San
Antonio Independent School Dist. v Rodriguez (411 US 1 [1973]),
the Court observed in Levittown "that the justification offered
by the State – the preservation and promotion of local control of
education – is both a legitimate State interest and one to which
the present financing system is reasonably related" (Board of
Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d at
44; see Campaign for Fiscal Equity v State of New York, 86 NY2d
at 319-320). In Paynter, the Court elaborated:

           "[T]he Education Article enshrined in the
           [NY] Constitution a state-local
           partnership in which people with a
           community of interest and a tradition of
           acting together to govern themselves make
           the basic decisions on funding and
                              -10-               521358

           operating their own schools . . . . The
           aim of the [Education] Article was to
           constitutionalize the established system
           of common schools rather than to alter its
           substance" (Paynter v State of New York,
           100 NY2d at 442 [internal quotation marks
           and citations omitted]).

Through this structure, the State's constitutional obligation is
to provide the additional funding that local school districts
need to provide students with a sound basic education.

      Our inquiry is not limited to a question of minimal
funding. Rather, the focus must be on the ability of a local
school district to provide funding for enriched educational
programs that go beyond the bare minimum (see Board of Educ.,
Levittown Union Free School Dist. v Nyquist, 57 NY2d at 45-46).
Plaintiffs persuasively argue that the Education Article embraces
and protects their rights to provide such funding. Pertinent to
this point, the Court of Appeals cautioned in Levittown:

           "Any legislative attempt to make uniform
           and undeviating the educational
           opportunities offered by the several
           hundred local school districts – whether
           by providing that revenue for local
           education shall come exclusively from
           State sources to be distributed on a
           uniform per pupil basis, by prohibiting
           expenditure by local districts of any sums
           in excess of a legislatively fixed per
           pupil expenditure, or by requiring every
           district to match the per pupil
           expenditure of the highest spending
           district by means of local taxation or by
           means of State aid (surely an economically
           unrealistic hypothesis) – would inevitably
           work the demise of the local control of
           education available to students in
           individual districts" (id.).
                              -11-               521358

In my view, the foregoing principles confirm that the right of
local control is a protected interest under the Education Article
that may not be compromised by undue State interference.

      It bears further emphasis that, in San Antonio, the Supreme
Court of the United States expressly declined to address the
constitutionality of a state law establishing a maximum tax rate
for school districts because no claim was made that the statutory
ceiling barred any desired tax increases (San Antonio Independent
School Dist. v Rodriguez, 411 US at 50 n 107). Here, in
contrast, plaintiffs have asserted that the tax cap and tax
freeze credit have, in effect, compromised their ability to
enhance the services offered to their students. Plaintiffs
further allege that the disparity in funding between wealthy and
poor school districts throughout the State is exacerbated by the
cap/credit. We thus have before us a constitutional claim
comparable to that reserved for another day in San Antonio.

      With respect to the equal protection claim, plaintiffs'
basic argument is that students receiving a public education in
wealthy districts have a greater ability to enjoy enhanced
educational opportunities than similarly situated students
receiving a public education in poor districts. By their
complaint, plaintiffs maintain that the wealthiest school
district in New York has more than 50 times the taxable wealth of
the average district, while the poorest district has less than
19% of the taxable wealth of the average district. It is this
wealth-based classification that plaintiffs assert has no
rational relationship to our State's education funding structure
(see Reform Educ. Fin. Inequities Today [R.E.F.I.T.] v Cuomo, 86
NY2d 279, 285 [1995]).

      The applicable standard is whether there is a rational
basis for the tax cap and credit (see San Antonio School Dist. v
Rodriguez, 477 US at 40-44; Campaign for Fiscal Equity v State of
New York, 86 NY2d at 314, 320; Board of Educ., Levittown Union
Free School Dist. v Nyquist, 57 NY2d at 41, 43-46). Here,
according to defendants, the Legislature had a rational basis to
enact the challenged legislation because New York had the highest
local property taxes in the country as a percentage of personal
income and it was necessary to reduce this burden and,
                              -12-                 521358

correspondingly, to enhance economic activity in the State.
While this objective certainly has great statewide significance,
it is difficult to discern how it bears any rational relationship
to the access that all publicly educated children have to the
funds available for public education. Given the asserted
impediment to local control, we cannot conclude, as in Levittown,
that the legislation is rationally related to "the permission and
encouragement of participation in and control of public schools
at the local district level" (Board of Educ., Levittown Union
Free School Dist. v Nyquist, 57 NY2d at 41). For purposes of
this motion, it is fair to assume a correlation between the
"amounts of money expended and the quality and quantity of
educational opportunity provided" (id. at 41 n 3). With the
conceded disparate funding, compounded by the fact that taxpayers
within the poorer school districts end up subsidizing, at least
in part, the tax credits granted to taxpayers within the
wealthier districts, I find that plaintiffs have stated a viable
equal protection claim (see Hargrave v Kirk, 313 F Supp 944, 946
[MD Fla 1970], vacated on other grounds sub nom. Askew v
Hargrave, 401 US 476 [1971]).

     ORDERED that the orders are affirmed, without costs.

                             ENTER:

                             Robert D. Mayberger
                             Clerk of the Court


114 F.Supp. 392 (1953)
JONCO AIRCRAFT CORP.
v.
FRANKLIN et al.
Civ. A. 5122.
United States District Court N. D. Texas, Dallas Division.
June 14, 1953.
Judgment Reversed November 9, 1953.
*393 Alto B. Cervin, Dallas, Tex., J. Rex Spurr, Shawnee, Okl., and John K. Pickens, Washington, D. C., for plaintiff.
Wallace C. Franklin Jr., Dallas, Tex., for defendants.
Before HUTCHESON, Chief Circuit Judge, ATWELL, Chief District Judge, and DAVIDSON, District Judge.
Judgment Reversed November 9, 1953. See 74 S.Ct. 126.
ATWELL, Chief Judge.
The plaintiff is a Delaware corporation with its principal office in Shawnee, Oklahoma. The defendants are citizens of Dallas, Texas. More than $3,000 are involved, exclusive of interest and costs.
The plaintiff seeks relief from a threatened hearing before the defendant on complaint filed by the Wage Stabilization Board, alleging that it is not in compliance with the orders and statutes of the United States. That a hearing by said Board, and the consequent penalties and punishments, for which the plaintiff has no legal remedy at law, make it imperative that such hearing be not held, and that a restraining order issue from this court.
After a careful analysis of the plaintiff's bill, the court concluded and called for the organizing of a three-judge court in *394 accordance with the statute, and, thereupon, Senior United States Circuit Judge of the Fifth Circuit was notified, and regulation notices were given to the Attorney General of the United States.
Such three-judge court heard the complaint, the answer thereto, and the arguments and testimony thereon, on Thursday, June 11, 1953, and conclude that the temporary restraint should be made permanent.
The plaintiff is engaged in the manufacture of precision tools and parts for the aircraft industry, and its plant is in Shawnee, Oklahoma. It is the largest producer of its kind in the mid-west, operating under fifteen prime national defense contracts, which include a majority of principal manufacturers of military aircraft. In excess of 98% of its production is for the national defense.
The defendants assert the power, as shown under E.S.A. General Order No. 15, to disallow a prior and unauthorized alleged payroll of plaintiff as of November 24, 1952, in the amount of $111,000, in addition to a total payroll of $575,000 for the period August 29, 1952 to February 2, 1953.
The burden and injury, because of the deprivation of Internal Revenue tax requirements and other penalties, fines, and indictments, required plaintiff to seek court refuge. See Defense Production Act 1950, as amended, 66 Stat. 296, Title 50 U.S.C.A.Appendix, § 2061 et seq.; also, General Order No. 15. 17 Federal Register 2994. Treating of the disallowance of wage payments, even for the entire amount. That such determination "shall be final and not subject to review by the Tax Court of the United States, or, by any court in any civil proceeding. See also Bureau Internal Revenue ruling IT-4105, wherein it announces disallowance for tax purposes wage payments in amount certified to it by the economic stabilization agency. No provision is made for the review of such certifications by the Bureau of Internal Revenue."
The recital of the above is sufficient without going through the entire category, to show the seriousness of the penalties liable to be imposed upon the plaintiff.
The allegation is made that such Defense Production Act, as amended, is unconstitutional.
See such cases as United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477; Bailey v. Drexel Furniture Co., 295 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817; United States v. Constantine, 296 U.S. 287, 56 S.Ct. 223, 80 L.Ed. 233; Lilly v. Commissioner of Internal Revenue, 343 U.S. 90, 72 S.Ct. 497, 96 L.Ed. 769, and National Life Ins. Co. v. United States, 277 U.S. 508, 48 S. Ct. 591, 72 L.Ed. 968.
Upon such questions as the delegation of legislative power, there is a line of decisions which classes it unconstitutional. See Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160; Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446. There are no standards with which the President could be guided in determining the policy or wishes of Congress.
An order of the Board is subject to review by the designated court, and only when sustained by the court may the order be enforced. Upon that review all questions of the jurisdiction of the Board and the regularity of its proceedings, all questions of constitutional right or statutory authority, are open to examination by the court. N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 81 L.Ed. 893. See also Stark v. Wickard, 321 U.S. 288, 309, 64 S.Ct. 559, 83 L. Ed. 733; Social Security Board v. Nierotko, 327 U.S. 358, 369, 66 S.Ct. 637, 90 L.Ed. 718; St. Joseph's Stockyards Co. v. United States, 298 U.S. 38, 73, 56 S.Ct. 720, 80 L.Ed. 1033. And these holdings support plaintiff's entrance here, and it is not obliged to pursue any so-called administrative remedy.
However, defendants contend that since the General Savings Statute, 1 U.S. C.A. § 109, saves the liability for illegal wage payments made during the life of the Act, therefore, perforce administrative enforcement continues. That statute is concerned only with the preservation of judicial proceedings and it never has been contended or held that such savings statute preserved *395 administrative proceedings. U. S. v. Hark, D.C., 49 F.Supp. 95, reversed on other grounds, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290, rehearing denied 321 U.S. 802, 64 S.Ct. 517, 88 L.Ed. 1089; Rodgers v. U. S., 6 Cir., 158 F.2d 835 reversed on other grounds, 332 U.S. 371, 68 S.Ct. 5, 92 L.Ed. 3.
It is also contended, and the contention seems to be correct, that the National Enforcement Commission has not been continued in existence by any executive order after April 30, 1953. The complaint against the plaintiff was issued on April 1, 1953 by the Board which acted through defendant Franklin, and who still purports to act. However, there has been no Wage Stabilization Board since December, 1952, when its members resigned.
Quite recent decisions in this field may be found in Woodworth Co. v. Kavanagh, D.C., 102 F.Supp. 9, affirmed 6 Cir., 202 F. 2d 154. Also, in Aircraft & Diesel Equipment Corporation v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796, Mr. Justice Rutledge said, "* * * The presence of constitutional questions, coupled with a sufficient showing of inadequacy of prescribed ministrative relief and of threatened or impending irreparable injury flowing from delay incident to following the prescribed procedure, has been held sufficient to dispense with exhausting the administrative process before instituting judicial intervention."
Helpful also, in this interesting search for controlling authorities, are, Skinner & Eddy Corporation v. United States, 249 U.S. 557, 39 S.Ct. 375, 63 L.Ed. 772; Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563; Public Utilities Commission v. United Fuel Gas Co., 317 U.S. 456, 63 S.Ct. 369, 87 L.Ed. 396; Miguel v. McCarl, 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901.
Likewise only a tripartite board, the members of which must be appointed by the President, by and with the advice and counsel of the Senate, as required by the Defense Production Act.
This is not a suit against the United States. The defendants cannot seek protection of their ultra vires acts by claiming that it is against the United States. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628.
"Quite recent cases by two three-judge statutory courts may be helpful. They are Grand Central Aircraft Co. v. Allen, D.C. N.D.Cal., 114 F.Supp. 389, interlocutory injunction granted May 28, 1953 (defendant's motion for stay order to U. S. Sup. Ct. filed June 5, 1953, denied in memorandum order June 15, 1953, 345 U.S. 988, 73 S.Ct., Page 1128. Also Dumbarton Bridge v. Norbeck, D.C.N.D. of Calif., No. 32722 Civil, and Harold Peters v. Rasell, D.C.N.D. of Ill., Civil No. 53C982 (preliminary injunction entered May 15, 1953). Judge Holtzoff granted the same relief in Hoffman Machinery Co. v. National Enforcement Commission, D.C., Dist. of Columbia, Civil No. 2125-53 (preliminary injunction entered May 29, 1953)."
The defendants concede that the entire violative payroll can be disallowed, and it is hardly logical for them to also assert that the amount of disallowance would be less than $10,000, or that they would only disallow such amounts for tax purposes, and would not disallow such wage payments as items of costs under plaintiff's government contracts. They cannot assure us that other statutory and administrative penalties would not be invoked at some time in the future, because they have no control over decisions of the National Enforcement Commission.
The facts set forth in the affidavit of Paul Willis show that plaintiff will suffer irreparable damage. For an indefinite period plaintiff will be subjected to the possibility of a huge penalty in the form of a disallowance for tax purposes, and in computing costs under its government contracts.
In the case of Woodworth v. Kavanagh, supra, plaintiff company received a determination on February 12, 1953, relating to its income tax liability for the years 1944 and 1945.
In addition, the Reconstruction Finance Corporation, and the participating bank, will call its loan a revolving credit fund *396 from which plaintiff is making its weekly payrolls, and the Air Force under its non-procurement policy, to allow sub-contracts to be let only to financially sound companies, will direct that plaintiff receive no more sub-contracts for tooling and aircraft parts. These are realities and require relief.
From the foregoing it seems to us that irreparable injury will be suffered by the plaintiff if restraint is not granted and made permanent.
HUTCHESON, Chief Circuit Judge, dissents.


786 F.2d 1153
Grimesv.City of Baltimore
86-7038
United States Court of Appeals,Fourth Circuit.
4/2/86

1
D.Md.

DISMISSED


Filed 6/25/13 P. v. Sanchez CA2/2
Opinion following remand from Supreme Court
                  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 TWO

THE PEOPLE,                                                          B230260

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA342179)
         v.

MARCOS SANCHEZ,

         Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Los Angeles County.
Lance A. Ito, Judge. Affirmed with directions.

         Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
                                  ____________________
       This case is before us on remand from the California Supreme Court. Pursuant to
the Supreme Court’s instructions, we have vacated our previous opinion in this case and
reconsidered the cause in light of Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455,
183 L.Ed.2d 407] (Miller). We conclude that the outcome remains the same.
                                    INTRODUCTION
       Appellant Marcos Sanchez appeals from the judgment following a trial by jury in
which he was convicted of first degree murder in violation of Penal Code section 187,
subdivision (a)1 (count 1), and conspiracy to commit murder in violation of section 182,
subdivision (a) (count 2). The jury found true the firearm allegations that a principal
personally used a firearm (§ 12022.53, subds. (b), (e)), personally and intentionally
discharged a firearm (§ 12022.53, subds. (c), (e)), and did so causing death (§ 12022.53,
subds. (d), (e)). The jury also found true the criminal street gang allegation (§ 186.22,
subd. (b)(1)). The trial court sentenced appellant to a mandatory term of 50 years to life
in state prison, calculated as 25 years to life on count 1, plus a consecutive term of 25
years to life for the firearm allegation that a principal personally and intentionally
discharged a firearm causing death. The court imposed the same sentence on count 2,
which was stayed pursuant to section 654. The court also imposed a 10-year sentence on
the gang finding, but stayed the sentence in order to impose the increased sentence on the
firearm enhancement. The court awarded appellant 998 days of actual custody credit and
ordered him to pay $6,382.17 to the California Victim Compensation and Government
Claims Board jointly and severally with his codefendant.
       Appellant contends (1) there was insufficient evidence to support his conviction
for conspiracy to commit murder, (2) his sentence was cruel and unusual in light of his
young age of 16 years and eight days, and (3) modifications must be made to the abstract
of judgment. We previously agreed that modifications must be made to the abstract of

1      All further statutory references are to the Penal Code unless otherwise indicated.
                                              2
judgment, but otherwise affirmed the judgment. On reconsideration of appellant’s case in
light of Miller, we affirm the judgment. The opinion we now file presents a revised
analysis of the second issue (cruel and unusual punishment), but is generally the same as
our original opinion regarding the remaining issues and the factual summary.
                                          FACTS
Prosecution Evidence
       On the evening of March 13, 2008, Jorge G. (Jorge) and some friends were
standing outside his apartment on 80th Street in Los Angeles when Jorge saw appellant,
whom he recognized as a student at his high school. Jorge had once seen appellant
fighting at school and heard him claim to be a member of the “Southgate Bay 13” gang.
Appellant approached the group with a much shorter male, who was later identified as
Pedro R. (Pedro). Both appellant and Pedro were wearing hooded sweatshirts and Jorge
testified they had the hoods over their heads. Jorge heard Pedro say that he and appellant
“were about to do something” and “about [to] kill somebody.”2 Appellant was wearing a
“doctor glove” on his right hand, and had a gun in his waistband. Appellant held the gun
“once in awhile.” When a car passed by, appellant put his hand on the gun. Pedro’s
hands were concealed. Jorge and his friends eventually went inside the apartment and
heard a “shot.” They went back outside and saw a body lying on the ground near Towne
Avenue.
       When the police first interviewed Jorge six months later on November 6, 2008, he
did not identify appellant or Pedro from photographic six-packs. Jorge did identify
appellant at the preliminary hearing on November 13, 2008.
       Angie R., who was standing outside with Jorge on the night of the murder,
identified appellant at a field show up later that night. She also identified appellant from
a photographic six-pack, and identified him in court. Angie R. confirmed that appellant
was wearing a plastic “doctor’s” glove. She admitted testifying at the preliminary
hearing that she saw appellant and Pedro walking up and down the street, looking at the

2      On cross-examination, Jorge testified Pedro said he was “going to blast someone.”
                                            3
victim’s house. While she could not recall having testified at the preliminary hearing that
appellant said he was “waiting for the other guy to come out so he could shoot him,” in
her recorded police interview played for the jury she stated that appellant “started talking
to me, you know, about that he was going to shoot him . . . .”
        Crystal C., who was also standing outside on the night of the murder, identified
appellant in court, and said she had “seen him around” and at school. Her cousin Danny
and appellant were friends, and she and Pedro were friends. On the night of the murder,
Crystal C. saw appellant and Pedro walking on 80th Street. She identified appellant and
Pedro in photographic six-packs shown to her by the police. With respect to appellant’s
photograph, Crystal C. wrote, “I seen him on the day they kill that man. That he was
taking a log [sic] time to come outside to shot [sic] him.” While she testified at trial that
what she had written was not true, she admitted telling the police that appellant said he
was going to shoot the victim, “that guy from the corner,” and it was taking a long time
for him to come outside.
        The victim, 18-year-old Ricardo R. (Ricardo), was a member of the Kansas Street
gang. On the night of the murder, his sister Kelley R. (Kelley) was standing outside her
house with a friend and Ricardo. She saw appellant and Pedro passing in front of her
house “over and over.” She identified appellant in court and testified that she had seen
him the day before the murder. She recognized Pedro because he had fought with her
brother two days earlier. At some point, appellant and Pedro stopped walking and stood
next to a tree near the corner of the street. Ricardo was leaning against a brick wall when
“out of nowhere,” he got shot in the head. Kelley identified appellant in a field show up
later that night and was “sure” it was him. While she could not identify appellant in a
photographic six-pack shown to her some time after the murder, she did identify
appellant at the preliminary hearing. She also identified Pedro from a photographic six-
pack.
        Ricardo’s autopsy results showed that he suffered a “through and through”
gunshot to his head. According to the medical examiner, a bullet shot from a short

                                              4
distance has a better chance of exiting the victim’s body. The medical examiner opined
that a .357 Magnum could propel a bullet through someone’s head if the range of fire was
not far away.
       The day after the murder the police searched Pedro’s house and recovered a .357-
caliber revolver in the bedroom, a yellow notebook with gang writing on it, and a latex
glove in the waste basket. The gun had a six-round capacity, and had five live rounds
and one expended round. Appellant lived next door to Pedro. His house was also
searched and the police recovered a shoebox with gang writing on it and numerous papers
with writing consistent with the Southgate Bay 13 gang.
       Los Angeles Police Department Detective Eric Crosson, who responded to the
crime scene, was at the field show up involving Angie R. and confirmed that she
identified appellant. Detective Crosson visited the crime scene numerous times.
Approximately four days after the murder, he found a latex glove on the sidewalk of the
7900 block of Towne Avenue. The glove he found was smaller than the one found in
Pedro’s bedroom.
       Detective Crosson taped some of the interviews he conducted during his
investigation of the shooting. In general, he did not inform witnesses they were being
taped. When he interviewed Crystal C., she stated “multiple times” that appellant said
what she had written, i.e., that it was taking the victim a long time to come outside to
shoot him.
       When appellant was arrested, he did not have any tattoos on his hand. He later
had “Bay” tattooed on his hand.
       Detective Derek O’Malley of the Southgate Police Department testified as a gang
expert. He was familiar with the Southgate Bay 13 gang, which had approximately
14 members and was a rival of the Kansas Street gang. Detective O’Malley knew Pedro,
whose moniker was “Demon.” Pedro had admitted to the detective that he was a member
of the Southgate Bay 13 gang. The notebook recovered from Pedro’s house was filled
with gang writing and gang monikers. According to Detective O’Malley, “Bay” stands

                                             5
for “Bad Ass Youngsters,” or “Barrio Ardmore Youngsters.” Detective O’Malley opined
that Pedro was an active member of the Southgate Bay 13 gang, and that appellant was
also a member of the gang. Detective O’Malley testified that the “y” in the “Bay” tattoo
on appellant’s hand was written in a manner associated with the gang. According to
Detective O’Malley, it was not uncommon for a gang member to let other people know
that he was planning to commit a crime. Based on a hypothetical using the facts of the
case, Detective O’Malley opined that Ricardo’s murder was committed for the benefit of,
at the direction of, and in association with a criminal street gang.
Defense Case
       Mitchell Eisen, who has a PhD in psychology and is an expert on eyewitness
memory, testified about the limitations of human memory and the factors that tend to lead
to inaccurate witness identification and testimony.
       Marie Rodriguez, a defense investigator, interviewed Crystal C. on April 29, 2009.
Crystal C. told her that she could not identify appellant because he had been wearing a
hooded sweatshirt, and that Jorge informed her of appellant’s identity.
       According to a DNA expert, the gun recovered by the police contained the DNA
of at least four different people, and the presence of appellant’s and Pedro’s DNA was
inconclusive. The latex glove found at Pedro’s house contained DNA from at least three
sources, including appellant and Pedro. And the latex glove found near the crime scene
did not contain DNA from appellant or Pedro.
Stipulations
       The parties entered into several stipulations, including that if Brenda German had
been called as a witness she would have testified to the following: “Brenda was present
on March 13, 2008, in the driveway where [Ricardo] was shot. Prior to the shooting,
Brenda saw two males walking back and forth on 80th Street. One male was taller than
the other. The taller one was wearing a hooded sweatshirt and kept the hood pulled up,
preventing Brenda from seeing his face. [¶] The two males went to the corner of Towne
Avenue and 80th Street and crouched down. It looked like the shorter male was trying to

                                              6
aim. Brenda and Ricardo went inside the house for about 30 minutes, and then went back
outside for about 30 minutes, at which time he was shot. [¶] Ricardo was leaning against
the wall when he was shot. Brenda was on his left, and [Kelley] was in front of him.
Brenda heard a single gunshot, and Ricardo fell to the ground. Brenda did not see who
shot or where the shot came from.”
                                       DISCUSSION
I. Substantial Evidence Supports Appellant’s Conviction for Conspiracy to Commit
Murder.
       Appellant contends that his conviction for conspiracy to commit murder must be
reversed because there was insufficient evidence to prove that he had agreed with anyone
to commit murder. We disagree.
       When determining whether the evidence is sufficient to sustain a conviction, “our
role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We
review the entire record in the light most favorable to the judgment to determine whether
a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.)
We presume in support of the judgment the existence of every fact that a trier of fact
could reasonably deduce from the evidence. This standard applies whether direct or
circumstantial evidence is involved. (People v. Thompson (2010) 49 Cal.4th 79, 113.)
“[I]t is the exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination depends.”
(People v. Maury (2003) 30 Cal.4th 342, 403.) Even when there is a significant amount
of countervailing evidence, the testimony of a single witness can be sufficient to uphold a
conviction. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) So long as the
circumstances reasonably justify the trier of fact’s finding, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant reversal of the judgment. (People v. Albillar (2010) 51 Cal.4th 47, 60;
People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal is not warranted unless it appears

                                               7
that “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
       A conspiracy is an agreement by two or more persons to commit an offense with
the specific intent to commit the elements of the offense, coupled with an overt act by
one or more of the conspirators in furtherance of the conspiracy. (§§ 182, subd. (a)(1),
184; People v. Jurado (2006) 38 Cal.4th 72, 130; People v. Russo (2001) 25 Cal.4th
1124, 1131.) “To prove an agreement, it is not necessary to establish the parties met and
expressly agreed” to commit the target offense. (People v. Vu (2006) 143 Cal.App.4th
1009, 1025.) Rather, “‘a criminal conspiracy may be shown by direct or circumstantial
evidence that the parties positively or tacitly came to a mutual understanding to
accomplish the act and unlawful design.’” (Ibid., quoting People v. Brown (1969) 272
Cal.App.2d 623, 628.) Thus, “‘a conspiracy may be inferred from the conduct,
relationship, interests, and activities of the alleged conspirators before and during the
alleged conspiracy. [Citations.]’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135;
People v. Herrera (2000) 83 Cal.App.4th 46, 64.)
       We reject appellant’s argument that there was insufficient evidence to show that
he agreed with Pedro to commit murder. The evidence established that on the night of
the murder appellant and Pedro were seen together, walking back and forth in front of
Ricardo’s house several times. Pedro had been in a fight with Ricardo a few days prior to
the murder. Appellant and Pedro were members of the same gang, and Ricardo was a
member of a rival gang. Appellant and Pedro talked with the group of people standing
outside on 80th Street before the murder, and either appellant or Pedro told them they
were planning to shoot someone and that it was taking this person a long time to come
outside. Appellant was wearing a latex glove on his right hand, and kept touching a gun
that was in his waistband. At some point, appellant and Pedro walked to the corner of
Towne Avenue and 80th Street and crouched down. It appeared that Pedro was trying to
take aim. The police recovered a .357-caliber gun and a latex glove from Pedro’s house.
One expended cartridge was found in the gun. Ricardo was shot by a single bullet to the

                                              8
head that may have been fired with a .357 Magnum. Moreover, in the gang expert’s
opinion, the crime was gang-related. Based on these circumstances, the jury could easily
infer that appellant and Pedro had a mutual agreement and intent to kill Ricardo.
Accordingly, appellant’s conviction for conspiracy to commit murder was
supported by substantial evidence.
II. Appellant’s Sentence is Not Cruel and Unusual.
        Appellant, who was 16 years eight days at the time of the murder, argues that his
 sentence of 50 years to life constitutes cruel and unusual punishment in violation of the
 federal and state Constitutions. Specifically, he argues that “his sentence of 50 years to
 life coupled with the fact that, had he been just 8 days younger, his case could not have
 been directly filed in adult court, and he may well have been treated as a juvenile, shocks
 the conscience, is grossly disproportionate to his crime, and violated the Eighth
 Amendment to the United States Constitution and the prohibition against cruel or
 unusual punishment under article I, section 17 of the California Constitution.” We
 disagree.
        A sentence constitutes cruel and unusual punishment under the Eighth
Amendment if it is grossly disproportionate to the severity of the crime. (Ewing v.
California (2003) 538 U.S. 11, 20; Rummel v. Estelle (1980) 445 U.S. 263, 271.)
Similarly, a sentence is cruel or unusual under California law if it is so disproportionate
to the crime as to shock the conscience and offend fundamental notions of dignity. (In re
Lynch (1972) 8 Cal.3d 410, 424; People v. Norman (2003) 109 Cal.App.4th 221, 230.)
The Lynch Court suggested a three-part analysis in which the court examines the nature
of the offense and the defendant, the punishment for more serious offenses within the
jurisdiction, and the punishment for similar offenses in other jurisdictions. (In re Lynch,
supra, 8 Cal.3d at pp. 425, 431, 436.) Disproportionality of any one of these three factors
can be sufficient to demonstrate that a particular punishment is cruel and unusual.
(People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38.) Here, appellant discusses only the
first factor.

                                              9
       In arguing that his sentence is disproportionate to his culpability, appellant
primarily relies on People v. Mendez (2010) 188 Cal.App.4th 47, in which this court held
that a sentence of 84 years to life imposed on a defendant who was 16 when he
committed several nonhomicide crimes was unconstitutional as constituting a de facto
sentence of life without parole (LWOP), which provided no meaningful opportunity for
release. In reaching our conclusion, we relied on the United States Supreme Court’s
decision in Graham v. Florida (2010) 560 U.S. 48 (Graham), in which the Supreme
Court held that a sentence of LWOP for any juvenile offender who did not commit a
homicide was categorically cruel and unusual under the Eighth Amendment. Following
Graham, our Supreme Court held that “sentencing a juvenile offender for a nonhomicide
offense to a term of years with a parole eligibility date that falls outside the juvenile
offender’s natural life expectancy constitutes cruel and unusual punishment in violation
of the Eighth Amendment.” (People v. Caballero (2012) 55 Cal.4th 262, 268 [reversing
110-year-to-life sentence imposed on 16-year-old convicted of three gang-related
attempted murders].)
       The United States Supreme Court recently held in Miller, supra, 132 S.Ct. 2455
that a mandatory LWOP sentence for those under the age of 18 at the time of their crimes
is cruel and unusual under the Eighth Amendment. (132 S.Ct. at p. 2460.) There, two
14-year-old offenders were convicted of murder and sentenced to LWOP. In neither case
did the sentencer have any discretion to impose a different punishment. (Ibid.) Relying
on Graham and Roper v. Simmons (2005) 543 U.S. 551, the Miller court concluded that
such a mandatory LWOP sentencing scheme for minors was unconstitutional because it
failed to consider the “foundational principle” that children are different from adults
(Miller, supra, at p. 2465); they have “diminished culpability and greater prospects for
reform” (id. at p. 2464).
       Miller is distinguishable because appellant did not receive an LWOP sentence.
Rather, he was sentenced to a mandatory term of 50 years to life (25 years to life for
homicide plus 25 years to life for the firearm enhancement). Appellant nevertheless

                                              10
argues that given his youth, this mandatory sentence constitutes an unconstitutional de
facto LWOP sentence. Citing various statistical sources, he asserts that his life
expectancy is somewhere between 64 to 76 years of age, without accounting for the
impact of incarceration. Taking into account the harsh realities of prison, he argues it is
reasonable to assume that he will actually live less than 50 years from the time he was
sentenced, thus precluding any meaningful prospect of ever facing parole or release.
       But we cannot necessarily conclude that a mandatory sentence of 50 years to life
imposed on a juvenile offender who was 16 when he committed homicide constitutes
de facto LWOP. It is entirely possible that appellant will become eligible for parole or
release during his lifetime.
       We are satisfied that under the circumstances here, appellant’s murder sentence is
not unconstitutional. The evidence showed that prior to the murder, appellant and fellow
gang member Pedro bragged to some people in the neighborhood that they were going to
shoot someone, and appellant was holding a gun while wearing a latex glove on his hand.
Appellant and Pedro laid in wait, walking back and forth in front of Ricardo’s house until
he came out. They crouched down and either appellant or Pedro shot Ricardo point blank
in the head with one bullet while Ricardo was standing with his sister and a friend.
Appellant’s actions demonstrated a complete lack of mercy and disregard for human life,
and a lack of concern whether others might also be shot.
       Appellant attempts to minimize the seriousness of his conduct by pointing out
there was no evidence or jury finding that he was the actual shooter. But had the jury
made a finding that appellant personally discharged the firearm causing death, he would
have received a mandatory 10-year increase in his sentence. (§§ 186.22, subd. (b)(1)(C),
12022.53, subd. (e)(2).)3

3      In sentencing appellant, the trial court stated: “And the jury found that your
participation—the fact that you brought the firearm to the event, that you told the people
there at the crime scene, that—the house three or four houses down, that you were there
waiting for some guy so you could blast him, sounds like you were lying in wait for the
victim to appear, and then you took advantage of the fact that he was not expecting you,
                                              11
       Appellant also points to his limited criminal record, which consists of a single
offense of vehicle theft committed when he was 15 years old for which he received home
probation and jurisdiction was terminated 10 months later. Based on the facts here, we
find that appellant’s youth and minor criminal record were “substantially outweighed by
the seriousness of the crime[s] and the circumstances surrounding [their] commission
. . . .” (People v. Gonzales (2001) 87 Cal.App.4th 1, 17.)
       As appellant acknowledges, successful challenges to sentences on the grounds of
cruel and unusual punishment are rare. (In re Nuñez (2009) 173 Cal.App.4th 709, 735;
Rummel v. Estelle, supra, 445 U.S. at p. 272.) Indeed, as the People note, appellant’s
sentence compares favorably with those in other cases rejecting cruel and unusual
punishment claims involving serious crimes committed by young defendants with limited
prior criminal records. (See, e.g., People v. Em (2009) 171 Cal.App.4th 964, 972–977
[upholding sentence of 50 years to life for 15-year-old gang member who committed
murder during a robbery and whose prior record was not extensive]; People v.
Demirdjian (2006) 144 Cal.App.4th 10, 14–16 [15-year-old’s sentence of two
consecutive terms of 25 years to life for two special circumstance murders did not violate
state or federal Constitutions]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1230–
1231 [upholding sentence of 40 years to life for 17-year-old gang member who
committed attempted murder with a firearm]; People v. Gonzales, supra, 87 Cal.App.4th
at p. 17 [upholding sentence of 50 years to life for 14-year-old gang member who
committed murder].) Appellant is a great danger to society. This is not one of the rare
cases in which the sentence imposed should be reduced as cruel and unusual.
III. Appellant Should be Awarded One Additional Day of Actual Custody Credit.
       Appellant contends, and the People concede, that he is entitled to one additional
day of actual custody credit.

you ambushed him, you and your friend. So the fact that you might not . . . have been the
person who actually pulled the trigger does not absolve you from criminal responsibility
in the state of California.”
                                            12
       Pursuant to section 2900.5, subdivision (a), a defendant convicted of a felony is
entitled to credit against a state prison term for actual time spent in custody before
commencement of the prison sentence, including the day of sentencing. (§ 2900.5,
subd. (a); People v. Smith (1989) 211 Cal.App.3d 523, 526.) Generally, an appellant may
not appeal an error in the calculation of presentence custody credit unless the claim is
first presented in the trial court, which did not occur here. (§ 1237.1.) However, the
Court of Appeal may address a presentence custody credit issue if other claims are also
raised on appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1100–1101; People v.
Acosta (1996) 48 Cal.App.4th 411, 420–421.)
       As a general rule, the time credited includes the date of arrest, the date of
sentencing, and every day in between. (People v. Smith, supra, 211 Cal.App.3d at p. 526
[“Since section 2900.5 speaks in terms of ‘days’ instead of ‘hours,’ it is presumed the
Legislature intended to treat any partial day as a whole day”].) The probation report
states that appellant was arrested on March 17, 2008, and he was sentenced on
December 10, 2010. This time span is 999 days. Because the trial court only awarded
appellant 998 days of custody credit, the abstract of judgment must be amended to reflect
999 days of actual custody credit.
IV. The Abstract of Judgment Must be Corrected Regarding the Payment of
Restitution.
       Appellant contends, and the People concede, that the abstract of judgment must be
corrected because it does not reflect that he and Pedro are jointly and severally liable to
pay $6,382.17 in restitution, and it improperly states that such restitution is to be paid to
the “victim(s),” rather than to the State Victim Compensation Board.
       At the sentencing hearing, the trial court ordered that appellant and Pedro are
jointly and severally liable to pay restitution, and that such restitution should be paid to
the “Victim Compensation Government Claims Board.” Because the oral
pronouncement of judgment by the sentencing judge is the judicial act which constitutes
the rendition of judgment, it controls over any conflicting written court documents.

                                              13
(People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8,
13; People v. Hong (1998) 64 Cal.App.4th 1071, 1075.) If an abstract of judgment fails
to reflect the judgment pronounced by the trial court, the error is clerical and the abstract
can be corrected at any time to make it reflect the true facts. (People v. Mitchell (2001)
26 Cal.4th 181, 185; People v. Williams (1992) 10 Cal.App.4th 827, 830, fn. 3; People v.
Jack (1989) 213 Cal.App.3d 913, 915; People v. Rowland (1988) 206 Cal.App.3d 119,
123; People v. Mesa, supra, at p. 471; In re Candelario (1970) 3 Cal.3d 702, 705.)
Accordingly, the abstract of judgment must be corrected here.
                                       DISPOSITION
       The trial court is directed to amend the abstract of judgment to reflect 999 days of
actual custody credit and to reflect that appellant is jointly and severally liable for
$6,382.17 in restitution to be paid to the California Victim Compensation and
Government Claims Board, and to forward the amended abstract to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                            ______________________________, J.
                                                  ASHMANN-GERST

We concur:

_______________________________, P. J.
           BOREN

_______________________________, J.
           CHAVEZ

                                              14


       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                              K.O., a child,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D18-2546

                            [March 20, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Stacy Ross, Judge; L.T. Case No. 18000951DLA.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    Appellant, a juvenile, challenges a judgment of delinquency, in which
the court found him guilty of unlawful use of a false name and resisting
without violence. He contends that the court erred in denying his motion
for judgment of dismissal because he was not lawfully detained at the time
that he gave a false name to the officers, nor were the officers engaged in
the lawful execution of a legal duty when he resisted arrest without
violence. We agree that he was not guilty of using a false name, but
conclude that the officers were in the execution of a legal duty and had
reasonable suspicion to stop him under the totality of the circumstances.
Thus, we reverse the adjudication of giving a false name, but we affirm the
adjudication of resisting arrest.

   K.O. was charged with violation of section 901.36(1), Florida Statutes
(2018), for giving a false name to police, and violation of section 843.02,
Florida Statutes (2018), for resisting arrest without violence. About 10:42
p.m. on March 14, 2018, three Fort Lauderdale police officers were
dispatched to a church to respond to a call about trespassers. When they
arrived, they observed seven juveniles hanging out at the church. There
was a posted yellow “no trespassing” sign on the church. The officers
exited their vehicles, and one of the officers asked the group of individuals
for their names and an explanation of what they were doing there. The
juveniles identified themselves accurately, except for K.O., who gave a false
name and birthdate. When the officer could not confirm his name and
birthdate, another officer went to his vehicle to obtain a fingerprint
scanner. At that point, K.O. ran away. The officers called for him to stop,
but he continued to run. After a chase, K.O. was detained and eventually
gave his real name and date of birth.

    The officer who asked for K.O.’s name admitted that she did not know
if the owner of the property had given K.O. an order to leave the property,
nor did she know whether the police had been authorized to issue a
trespass warning. The officers thought that their authority arose from the
“no trespassing” sign on the church.

   After the conclusion of the evidence, K.O. moved for a judgment of
dismissal, arguing that the officers were not in the lawful execution of a
legal duty. The trial court rejected the argument, noting that the issue
was whether, based upon the posted signs, the officer had the authority to
ask K.O. his name. Ultimately, the court entered a disposition, finding
K.O. guilty of both unlawful use of a false name and resisting without
violence. K.O. appeals this disposition.

   K.O. was charged with the violation of two statutes. Section 901.36(1),
Florida Statutes, provides that “[i]t is unlawful for a person who has been
arrested or lawfully detained by a law enforcement officer to give a false
name . . . .” (emphasis added). Section 843.02 provides:

      Whoever shall resist, obstruct, or oppose any officer as defined
      in s. 943.10(1), (2), (3), (6), (7), (8), or (9) . . . in the lawful
      execution of any legal duty, without offering or doing
      violence to the person of the officer, shall be guilty of a
      misdemeanor of the first degree . . . .

(emphasis added). Because K.O. was neither arrested nor lawfully
detained by the officer when he gave the officer the false name, he cannot
be guilty of a violation of section 901.36(1). The officers were, however, in
the lawful execution of a legal duty when they ordered him to stop.
Therefore, he is guilty of resisting an officer without violence under section
843.02.

  This case is controlled by D.T. v. State, 87 So. 3d 1235 (Fla. 4th DCA
2012), as to the violation of section 901.36(1). The opinion in D.T.

                                       2
addressed two consolidated cases, and this case is factually similar to one
of those cases, number 4D10-2760. There, an officer was driving in a
commercial plaza, which included a pizza restaurant, around 9:30 p.m.
Id. at 1237. A “no trespassing” sign was posted on the front of the building
and on the eastern side of the building. Id. The officer saw four
individuals, including D.T., at the east end of the building next to the
sidewalk. Id. Approaching the group, the officer identified himself as a
police officer and asked the juveniles for their names and why they were
loitering. Id. at 1237-38. D.T. gave a name to the officer. Id. at 1238.
While awaiting confirmation of the name with dispatch, another officer
arrived who was familiar with appellant and knew his name. Id. The
second officer attempted to arrest and handcuff appellant, who began
swinging his arms. Id. Based on this encounter, D.T. was charged with
giving a false name to the police and resisting without violence. 1 Id. at
1237.

   As to the charge of giving a false name, we noted that the statute
requires that a person be arrested or lawfully detained at the time the false
name is given. Id. at 1238. We determined that the encounter between
D.T. and the police when he gave the false name was a consensual
encounter, and thus, it did not violate the statute.

      “A detention does not occur simply because an officer
      approaches and asks questions, or requests to examine
      identification.” Brevick v. State, 965 So. 2d 1246, 1249 (Fla.
      5th DCA 2007). Contact with police rises to the level of a
      detention “when, ‘in view of all the circumstances surrounding
      the incident, a reasonable person would have believed that he
      was not free to leave.’” . . . Factors that might indicate a
      seizure include “the ‘threatening presence of several officers,
      the display of a weapon by an officer, some physical touching
      of the person of the citizen, or the use of language or tone of
      voice indicating that compliance with the officer's request
      might be compelled.’” State v. Dixon, 976 So. 2d 1206, 1209
      (Fla. 4th DCA 2008) (quoting P.W. v. State, 965 So. 2d 1197,
      1199 (Fla. 4th DCA 2007)).

1 The D.T. opinion states in one place that D.T. was adjudicated for the crimes of
providing a false name to police and resisting an officer without violence. Id. at
1237. Later on in the facts, the opinion states that he was charged with
trespassing and providing a false name. Id. at 1238. However, the legal
discussion involves providing a false name and resisting without violence.
Therefore, we consider the reference to the trespassing charge as a mistake.

                                        3
Id. The juveniles in D.T. were approached by a single officer who saw them
at a building marked with a “no trespassing” sign. The officer asked for
the juveniles’ names and identification. There was no show of authority
or indication that the juveniles were not free to leave. The juveniles were
not detained. Thus, we held:

      [A]t the time appellant provided the false name, the officer and
      appellant were engaged in a consensual encounter. See State
      v. Page, 73 So. 3d 351 (Fla. 4th DCA 2011) (holding contact
      was consensual encounter where officers approached
      appellant, who was standing on side of building, asked for
      name and date of birth and did warrants check based on
      information provided) . . . .

Id. at 1238. Accord Slydell v. State, 792 So. 2d 667, 672-73 (Fla. 4th DCA
2001) (noting officers were engaged in a consensual encounter when they
approached an individual on a property with “no trespassing” signs to
ascertain his identity).

   Similarly, K.O. was not detained at the time that he gave the officers
the false name. Although there were more officers involved, they did not
make any show of authority, touch K.O., or use language which would
suggest that K.O. was not free to leave. Thus, because K.O. and the officer
were engaged in a consensual encounter when he gave the false name, he
cannot be guilty of violating section 901.36(1).

    The court, however, did not err in denying the motion for judgment of
dismissal as to the charge of resisting arrest without violence. The officer
was investigating a call regarding trespassers on the church property. By
responding to the call, the officers were engaged in the lawful execution of
a legal duty. See Francis v. State, 736 So. 2d 97, 99 n.1 (Fla. 4th DCA
1999) (noting that an investigation following a 911 call was a lawful
execution of a legal duty); Brandful v. State, 858 So. 2d 367, 370 (Fla. 3d
DCA 2003) (finding that the trial court properly instructed the jury that
the investigation of a complaint constituted lawful execution of a legal
duty); P.B.P. v. State, 955 So. 2d 618, 623-24 (Fla. 2d DCA 2007)
(concluding that police officers investigating an anonymous call, in which
the caller complained about juveniles running through backyards of
homes in the middle of the night, constituted the lawful execution of a
legal duty). At least two of the officers testified to seeing a “No Trespassing”
sign on the building, although no one testified as to the size and location
of the sign. The officers suspected that K.O. was trespassing. See Ward
v. State, 21 So. 3d 896, 899-900 (Fla. 5th DCA 2009) (finding that although
the fact that the “no trespassing” sign did not comply with the statute may

                                       4
mean that the defendant did not actually commit a crime, an officer is not
required to conclusively determine that a crime has been committed in
order to detain an individual). When asked for his name, appellant gave
the officer a name which the officer could not confirm. Then the appellant
fled. Flight is a relevant factor in determining reasonable suspicion. See
Illinois v. Wardlow, 528 U.S. 119, 124 (2000); C.E.L. v. State, 24 So. 3d
1181, 1186 (Fla. 2009); Parker v. State, 18 So. 3d 555, 558-59 (Fla. 1st
DCA 2008) (“[U]nprovoked flight may give rise to a reasonable suspicion of
criminal activity even when the flight does not take place in a high-crime
area, depending on the remaining circumstances of the case.”). Although
the encounter began as a consensual one, by the time that the officer
ordered K.O. to stop, considering the totality of the circumstances, she
had reasonable suspicion of criminal activity, and K.O. resisted by
continuing to run away.

   For the foregoing reasons, we reverse the adjudication of giving a false
name, but affirm the adjudication of resisting arrest and remand for
resentencing on the resisting arrest charge.

DAMOORGIAN and LEVINE, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.

                                    5


736 N.E.2d 776 (2000)
Thomas A. RUDER, Appellant-Plaintiff,
v.
OHIO VALLEY WHOLESALE, INC., Appellee-Defendant.
No. 82A05-9909-CV-402.
Court of Appeals of Indiana.
October 17, 2000.
*778 Catherine A. Nestrick, Bamberger, Foreman, Oswald and Hahn, LLP, Evansville, Indiana, Attorney for Appellant.
R. Steven Krohn, Krohn and D'Amour, Jerry Atkinson, Evansville, Indiana, Attorneys for Appellee.

*777 OPINION
VAIDIK, Judge

Case Summary
Appellant, Thomas A. Ruder, appeals the trial court's denial of his request for specific performance to purchase a particular lot of the Pine Lake Estates Subdivision (Lot 20) and its grant of declaratory judgment to Ohio Valley Wholesale, Inc. (Ohio Valley) with respect to Lot 20 and another plat Lot 19. We find that Ruder fulfilled the conditions precedent to the contract, did not have unclean hands and that the purchase agreements were executed before any covenants or restrictions were recorded. Therefore, we reverse.[1]

Facts and Procedural History
The facts reveal that Ohio Valley is the owner and developer of Pine Lake Estates Subdivision, Section B. Ruder owns land west of Lots 19 and 20 of the subdivision. Ruder initially led an attempt to prevent the development of the adjacent land. However, after discovering that the sewer system of the subdivision would allow him to develop his land, he decided that he wanted to purchase Lots 19 and 20. Ohio Valley refused to sell to him because he wanted the lots to further develop his land.
Ruder then contracted with Lori Eaton, a real estate agent, to make an offer on Lot 20 for him. She signed the purchase agreement as Lori Eaton for undisclosed buyer. Record at 529. Eaton made the offer on January 21, 1997, and Raymond Michael Elliott, part owner and secretary treasurer of Ohio Valley, accepted the same day. The purchase was contingent on Ruder receiving and reviewing the restrictions and covenants for the lot within twenty-four hours of the acceptance. Ohio Valley sent the restrictions and Ruder accepted them. At the time of the purchase agreement, the restrictions had not yet been recorded by Ohio Valley. According to the language in the purchase agreement, the closing was to occur either within seven days after delivery of merchantable title or on February 14, 1997. The merchantable title was delivered on February 24, 1997, and therefore, the closing was to take place on or before March 3, 1997. Also on February 24, Ohio Valley recorded an amended list of restrictions and covenants which differed from the ones that it originally provided to Ruder. Ohio Valley then refused to close with Ruder because he requested that the original restrictions apply to Lot 20 and not the amended, recorded list of restrictions. Eventually, Ruder also wished to revoke the contract because of the amended restrictions.
*779 David Mounts, who had worked with Ruder's wife, offered to purchase two different lots from Ohio Valley after Ruder informed him that there were lots in a new subdivision in Pine Lake Estates. Mounts made the offers on January 22, 1997, and the offer for Lot 19 was accepted by Ohio Valley the next day. Eventually, Mounts decided he did not want the property because Ohio Valley would not close and he decided he paid too much for the lot. Record at 821-22. On February 6, 1997, Mounts assigned to Ruder all of his rights with respect to Lot 19.
Ruder filed suit for specific performance to complete the purchase of Lot 20 with the original list of restrictions that Ohio Valley gave him. Ohio Valley counterclaimed, claiming that the recorded list of amended restrictions should be applied to both Lots 19 and 20, which were the only lots in the subdivision sold before the restrictions were recorded. After filing the suit, Ruder put up a fence, which Elliott described as an eyesore, he put a satellite dish and tool shed on his property, he complained to the Soil and Water Conservation District, and he allegedly committed acts of vandalism. Record at 746-52.
After a bench trial, the judge denied Ruder's claim for specific performance and granted declaratory judgment to Ohio Valley listing specific restrictions from the amended restrictions list that were to be applied to the two lots.

Discussion and Decision
Thomas Ruder raises two arguments on appeal. First, he claims that the trial court erred in denying specific performance on the contract for Lot 20 because he fulfilled all the conditions precedent contained in the purchase agreement and his behavior did not rise to the level of unclean hands. Second, Ruder argues that the trial court erred in granting Ohio Valley declaratory judgment with respect to Lots 19 and 20 because the purchase agreements for both lots were completed before Ohio Valley recorded any restrictions. We address each argument in turn.

I. Specific Performance
Ruder appeals the trial court's denial of specific performance in relation to completing the purchase agreement for Lot 20. The decision whether to grant specific performance is a matter within the trial court's sound discretion. Kaghann's Korner, Inc. v. Brown & Sons Fuel Co., 706 N.E.2d 556, 563 (Ind.Ct.App.1999). Because an action to compel specific performance sounds in equity, particular deference must be given to the judgment of the trial court. Wagner v. Estate of Fox, 717 N.E.2d 195, 200 (Ind.Ct.App.1999). Specific performance is a matter of course when it involves contracts to purchase real estate. Id. It is an equitable remedy, and thus, the power to compel specific performance is an extraordinary power. Id. at 201. A party seeking specific performance of a real estate contract must prove that he has substantially performed his contract obligations or offered to do so. Claise v. Bernardi, 413 N.E.2d 609, 612 (Ind.Ct.App.1980).
Here, the purchase agreement was conditioned on a clause which stated: offer contingent upon purchaser's review of complete covenants and restrictions within 24 hours of acceptance of offer. If no written objections are presented by buyer's agent to selling agent within 24 hours of acceptance then these restrictions and covenants are deemed acceptable. Record at 528, Plaintiff's Exhibit 2. Ohio Valley provided a list of the restrictions to its agent who in turn gave it to Eaton. Ruder then examined the list and did not offer any written objection to them.

A. Conditions Precedent
Ruder argues that he fulfilled the conditions precedent to the purchase agreement. However, Ohio Valley alleges that the conditions precedent were not met because the purchase agreement was contingent on it providing a copy of the complete restrictions and covenants, and the restrictions it provided Ruder were only proposed restrictions since they had not *780 been recorded yet. This argument is not persuasive. Elliott testified that he knew of the language in the purchase agreement, and he then accepted the offer and sent a list of restrictions to Ruder through his agent. Record at 641-42. Further, neither the purchase agreement nor the list given to Ruder distinguishes between a proposed list of restrictions and a complete list of restrictions.
Ohio Valley also argues that Ruder failed to demand to close. As a general rule, a party cannot enforce the specific performance of a contract for the conveyance of real estate until he has made a demand to close. Timmonds v. Taylor, 48 Ind.App. 531, 96 N.E. 331, 333 (Ind.1911). Here, the purchase agreement contained a clause stating that the closing date was either February 14, 1997, or seven days after receiving the merchantable title which was February 24, 1997 (thus requiring the closing by March 3, 1997). Clearly, no closing occurred on or before March 3, 1997.
However, the demand to close is not necessary where a demand would be unavailing. Id. In the instant case, Elliott testified that Ohio Valley was ready to convey the real estate to Ruder, but that it did not because Ruder wanted the original covenants and restrictions. Record at 637-38. Based on this evidence, Ohio Valley would not have closed at any time even if Ruder had made a demand. Therefore, any demand by Ruder would have been unavailing, and thus, it was not necessary for him to demand to close after March 3, 1997. Therefore, we hold that Ruder fulfilled the conditions precedent to the contract.

B. Unclean Hands
Second, Ruder argues that specific performance is proper because he did not have unclean hands. The unclean hands doctrine is an equitable tenet which demands one who seeks equitable relief to be free of wrongdoing in the matter before the court. Stewart v. Jackson, 635 N.E.2d 186, 189 (Ind.Ct.App.1994), trans. denied. The alleged wrongdoing must have an immediate and necessary relation to the matter being litigated. Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245, 54 S.Ct. 146, 78 L.Ed. 293 (1933). Ohio Valley argues that Ruder had unclean hands because he initially opposed the development of the subdivision, and after he filed this lawsuit he put up an eyesore fence, left a satellite dish lying in his yard, put up a tool shed, committed vandalism, and complained to the Soil and Water Conservation Department about the subdivision. He also kept his identity hidden when he attempted to purchase Lot 20. Ohio Valley asserts that if it would have known the buyer was Ruder, it would not have sold him the lot. Again, we are not persuaded.
Ruder's opposition to the approval of the subdivision and his behavior after he filed the lawsuit do not equate to unclean hands. Ruder's behavior is not related to the cause of this litigation which is the contract for Lot 20. The only link that Ruder's behavior has to the current litigation is that Ohio Valley initially refused to sell to him. Although he originally attempted to keep Ohio Valley from developing the subdivision, Ohio Valley nevertheless received the necessary approval to develop the subdivision. Therefore, any previous attempts by Ruder to stop development are irrelevant to this matter.
Ruder also showed questionable behavior after he filed this lawsuit when he put up a fence on his property which was described by Elliott as an eyesore, left a satellite dish and what looked like a broken down chicken coop in his yard, allegedly filed a complaint with the Soil and Water Conservation District concerning silt fences and sandbags, and allegedly committed acts of vandalism. Record at 746, 749, 750-52. However, courts of equity are not primarily engaged in the moral reformation of the individual citizen. Keller v. Indiana Dep't of State Revenue, 530 *781 N.E.2d 787 (Ind. Tax Ct.1988) (quoting 27 AM. JUR.2d Equity § 138 (1974)). The purpose of the unclean hands doctrine is so that a party does not reap the benefit from his misconduct. HENRY MCCLINTOCK, HANDBOOK OF EQUITY 35 (1936). Here, Ruder did not benefit from his alleged misconduct. Elliott testified that Ohio Valley's failure to close had nothing to do with Ruder's actions. While Ruder's acts, if true, may be repugnant, they do not relate to this action and therefore, cannot be used to deny specific performance.
We also find that Ruder's purchase of Lot 20 through an agent as an undisclosed principal did not rise to the level of unclean hands. It is very familiar learning that the agent may enter into a contract for the purchase of land for an undisclosed principal.... Lenman v. Jones, 33 App. D.C. 7, (1909) (quoting Kelly v. Thuey, 143 Mo. 422, 45 S.W. 300, 304 (1898)), aff'd, 222 U.S. 51, 32 S.Ct. 18, 56 L.Ed. 89 (1911). Ruder never misrepresented the fact that there was an agency relationship between him and Lori Eaton, or that he was the undisclosed buyer. This is evidenced by the fact that Eaton signed the purchase agreement Lori Eaton as agent for undisclosed buyer. Record at 529, and Plaintiff's Exhibit 2. Ohio Valley never inquired about the identity of the undisclosed buyer. In fact, Elliott testified that he is not concerned with who the purchaser is on a purchase agreement when he signs it. Record at 716.
Ohio Valley relies on Favata v. Mercer, 409 Ill. 271, 99 N.E.2d 116 (1951), to assert that Ruder's failure to reveal his identity was unfair practice, and thus, specific performance should not be allowed. However, Favata is distinguishable from the case at hand. In Favata, the court denied specific performance to a purchaser who disguised his identity by using a false name in order to procure a purchase contract. Id. at 18, 99 N.E.2d 116. Here, Ruder did not use a false name, rather he was listed on the purchase agreement as an undisclosed buyer and any investigation would have revealed his identity. Ohio Valley could have decided not to sell to an undisclosed buyer, but chose to do so. They may not complain now. For the above reasons, we conclude that Ruder met all the conditions precedent and did not have unclean hands. Accordingly, specific performance should have been granted.

II. Declaratory Judgment
Finally, Ruder argues that the trial court should not have granted declaratory judgment to Ohio Valley. The trial court, in granting declaratory judgment, entered the following restrictions for both Lot 19 and Lot 20:
a. Except for platted streets and roadways, no street or roadway may be constructed over any lot within the subdivision known as Pine Lake Estates, Section B in Vanderburgh County, State of Indiana (the subdivision);
b. Use of the lots within the subdivision is restricted to single family dwellings and related uses: and
c. Any construction on a lot within the subdivision must be approved by the Review Committee before any construction may begin.
Record at 428, 432.
The trial court decided that the amended set of restrictions applied to the contracts for the sale of Lots 19 and 20. We disagree. In order for restrictions to be applicable to all lot owners, they must be recorded before the sale of the lots. Rogers v. City of Evansville, 437 N.E.2d 1019, 1028 (Ind.Ct.App.1982) (holding that where a sewer agreement was entered into and recorded after the sale of lots, the developer may not bind subsequent owners after he has divested himself of title). At the time of contract formation for both Lots 19 and 20, neither the restrictions given to Ruder or Ohio Valley's amended restrictions were recorded. Further, Ohio Valley accepted the offers to sell both lots well before it finally recorded the amended restrictions. Ohio Valley could have waited to sign any purchase *782 agreements or accept any money until the amended restrictions had been recorded. However, it did not do so. Instead, Ohio Valley sent Ruder a list of restrictions, which Ruder relied upon, and then subsequently recorded another set of restrictions. Therefore, the trial court's entry of declaratory judgment for Ohio Valley was erroneous.
We conclude that specific performance should be granted to Ruder with respect to the sale of Lot 20 and that the trial court erred in granting Ohio Valley declaratory judgment with respect to the applicable restrictions for Lots 19 and 20.
Therefore, we reverse and remand to the trial court to grant specific performance.
SULLIVAN, J., and BAILEY, J., concur.
NOTES
[1]  Ohio Valley filed a Motion to Strike Portions of Reply Brief of Appellant on May 9, 2000. We grant the appellee's motion. The portions of the reply brief that are consequently struck have not been considered in issuing this opinion.


                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 TERENCE SEAWRIGHT,

                        Plaintiff,

                        v.                          Case No. 14-cv-01624 (CRC)

 UNITED STATES POSTAL SERVICE,

                        Defendant.

                                              ORDER

       Terence Seawright, a letter carrier for the United States Postal Service, filed a form pro se

Complaint in the Superior Court of the District of Columbia in August 2014. After the Postal

Service removed the case to this Court, Seawright filed additional documents attempting to advance

additional claims. Together, his filings list claims for “employment discrimination, harassment,

breach of contract, abuse of process,” ECF No. 1-1, fraud, defamation, slander, “mental anguish,”

“continually malicious malice,” conspiracy, pain and suffering, and harassment, ECF No. 6. The

Postal Service moved to dismiss the complaint, or alternatively for summary judgment. After

Seawright largely failed to respond to the Postal Service’s arguments, the Court dismissed the

Complaint and allowed Seawright to file an amended complaint. See Mem. Op. & Order, Feb. 11,

2015, ECF No. 14.

       Seawright filed a response to the Court’s order, providing only a short statement attempting

to explain a few of his claims. See Response to Mem. Op. & Order, ECF No. 16. Because this

cursory statement was likewise insufficient to put the Postal Service on notice of the claims he

sought to pursue, the Court held a hearing on December 3, 2015 to give Seawright an opportunity to

describe his allegations. The Court informed Seawright of various resources available to him as a

pro se plaintiff, allowed him a further opportunity to amend his complaint as to certain of his
claims, and warned him that failure to respond to motions by the government could result in the

dismissal of his case. See Order, Dec. 7, 2015, ECF No. 17.

        Rather than amend his complaint, Seawright filed only a series of letters and other

documents concerning various complaints he had lodged with his union representatives. See

Response to Order, ECF No. 18. The Postal Service has again moved to dismiss the case, this time

with prejudice and for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and

Local Civil Rule 83.23. The Service contends that it has been prejudiced by the delay created by

Seawright’s failures to provide factual allegations and to adequately respond to the Court’s orders.

Seawright filed a brief response, noting only that he was unable to obtain an attorney and

conclusorily stating that he continues to experience harassment and unfair treatment at work.

        Rule 41(b) provides that “a defendant may move to dismiss [an] action or any claim against

it” if the “plaintiff fails to prosecute or to comply with . . . a court order.” And “[u]nless the

dismissal states otherwise, a dismissal under this subdivision,” with certain exceptions not relevant

here, “operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b). Local Civil Rule 83.23

provides that an “order dismissing a claim for failure to prosecute shall specify that the dismissal is

without prejudice, unless the Court determines that the delay in prosecution of the claim has

resulted in prejudice to an opposing party.”

        “A court acts in its discretion by dismissing a complaint, either with or without prejudice,

when a plaintiff fails to prosecute his or her case, . . . or fails to follow the court’s orders.” Allen v.

United States, 277 F.R.D. 221, 223 (D.D.C. 2011) (citing Fed. R. Civ. P. 41(b); LCvR 83.23).

Dismissal is appropriate where “the plaintiff’s conduct fails to put the defendant[] on notice of the

claim or interferes with the defendant[’s] ability to obtain evidence relevant to the plaintiff’s

claims.” B.R. ex rel. Rempson v. Dist. of Columbia, 262 F.R.D. 11, 16 (D.D.C. 2009).

                                                     2
        So it is here. Seawright’s failure to file a proper complaint in response to the Court’s order

constitutes a failure to put the Postal Service on notice of the claims Seawright seeks to lodge

against it, and it interferes with the agency’s ability to proceed with its defense in any way. See

Stella v. Mineta, 231 F.R.D. 44, 49 (D.D.C. 2005) (granting a motion to dismiss pursuant to Rule

41(b) due to plaintiff’s “failure to file a second amended complaint,” which “precluded [d]efendants

from offering evidence” to support their defense, and noting that defendants had “expended

resources in order to file” the resulting motions). Dismissal is appropriate here notwithstanding

Seawright’s status as pro se. See Allen, 277 F.R.D. at 223 (“The court’s authority to dismiss a case

for failure to prosecute or failure to follow the court’s orders is not discarded simply because a

plaintiff is proceeding pro se.”). That said, even though the Court has provided Seawright ample

opportunity to correct the deficiencies in his filings, and warned him that failure to respond to

motions by the government could result in the dismissal of his claims, the Court will exercise its

discretion and dismiss this case without prejudice so as not to permanently foreclose a properly

fashioned suit.

        For the foregoing reasons, it is hereby

        ORDERED that [19] Defendant’s Motion to Dismiss for lack of prosecution be GRANTED

IN PART and DENIED IN PART. This case is hereby DISMISSED WITHOUT PREJUDICE.

        SO ORDERED.

                                                              CHRISTOPHER R. COOPER
                                                              United States District Judge

Date:    July 20, 2016

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