Opinion
No. A140464.
04-10-2017
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER CERVANTES, Defendant and Appellant.
[Modification of opinion (9 Cal.App.5th 684; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT: — IT IS ORDERED that the opinion filed herein on March 13, 2017, be modified as follows:
1. On page 25, the first paragraph, lines 13 through 22 [9 Cal.App.5th 703, advance report, 3d par., lines 11-19], following the sentence ending with "(California Building Industry Assn., at p. 462.)" the remainder of the paragraph is modified to read as follows:
No matter how it is viewed, consumers' payment of the sales tax reimbursement does not effect a "taking": To the extent we focus on the retailer's initial collection of the tax sales reimbursement, it is not a "taking" because the retailer is not a government entity (City of Perris v. Stamper (2016) 1 Cal.5th 576, 591 [205 Cal.Rptr.3d 797, 376 P.3d 1221] ["The takings clause ... prohibits a governmental entity from taking private property for public use without just compensation" (italics added)]); to the extent we focus on the Board's subsequent receipt of that money as part of the retailer's sales tax, it is not a "taking" because "`[t]axes and user fees ... are not "takings"'" (Koontz v. St. Johns River Water Mgmt. Dist. (2013) 570 U.S. ___, ___ [186 L.Ed.2d 697, 133 S.Ct. 2586, 2600]; United States v. Sperry Corp. (1989) 493 U.S. 52, 62, fn. 9 [107 L.Ed.2d 290, 110 S.Ct. 387]; accord, San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 671-672 [117 Cal.Rptr.2d 269, 41 P.3d 87] [noting that "the taking of money is different, under the Fifth Amendment, from the taking of real or personal property"]). Thus, the collection of sales tax reimbursement from consumers does not implicate the takings clause.
2. On page 28, line 8, footnote 9 [9 Cal.App.5th 705, advance report, 1st par., line 15] should be inserted after the sentence ending with "[same].)" The text of footnote 9 should read:
In their 73-page petition for rehearing, the customers thank this Court for "grappling with this difficult area of law" and, noting that briefing "may not
[10 Cal.App.5th 749e]
have sufficiently anticipated and focused upon this [C]ourt's concerns," proceed to "supply the necessary focus" to their appeal by raising several new arguments that appear nowhere in their prior briefs — namely, that denying them a remedy violates the contract clause of our Constitution, that denying them a remedy violates due process because the collection of sales tax reimbursement by retailers effects an "escheat" to the state, that denying them a remedy effectively invalidates section 6597, and that they can rebut Civil Code section 1656.1's presumption of a contractual agreement with the retailers to collect sales tax reimbursement by showing actual fraud, constructive fraud, undue influence, mistake of fact, and mistake of law. Because the initial round of briefing on appeal is not a dry run for a whole new round of post-opinion briefing on rehearing, we respectfully decline to consider these arguments for the first time on rehearing. (E.g., Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1013 [36 Cal.Rptr.2d 40, 884 P.2d 988].)
There is no change in the judgment.
Appellants' petition for rehearing is denied.