[0:03] Bailiff: The Honorable Chief Justice

[0:04] and the Associate Justices of the Supreme Court of California.

[0:07] Hear ye, hear ye, hear ye.

[0:09] The Honorable Supreme Court, sitting en banc,

[0:12] is now in session.

[0:21] Chief Justice Guerrero: Good afternoon, and welcome

[0:23] to the oral argument for the California Supreme Court.

[0:27] Before we begin, I understand that we have several students,

[0:30] I believe 15 from Berkeley Law

[0:33] who are here present with their professor.

[0:35] So welcome to all of you

[0:37] and welcome to especially the students.

[0:39] The clerk may call the calendar, please.

[0:41] Clerk: Good afternoon. The Supreme Court of California

[0:44] hearing oral arguments in San Francisco

[0:46] on Wednesday, September 6, 2023, at 1:30 p.m.

[0:49] Case number S275788, the People, plaintiff and respondent,

[0:54] versus Norman Thomas Salazar, defendant and appellant.

[0:57] For appellant, Ms. Arielle Bases,

[0:59] appearing by video conference.

[1:02] Arielle Bases: Ready.

[1:03] Clerk: And for respondent, Mr. David F. Glassman.

[1:07] Case Number S272238, the People, plaintiff and respondent,

[1:11] versus Freddy Alfredo Curiel, defendant appellant.

[1:15] Respondent, Ms. Lynne G. McGinnis.

[1:19] And for appellant is Michelle May Peterson.

[1:23] Case Number S273340,

[1:26] Anthony Gantner, appellant, versus PG&E Corporation,

[1:30] Pacific Gas and Electric Company, respondents.

[1:33] For appellant, Mr. Nicholas A. Carlin.

[1:37] For respondent, Mr. Omid H. Nasab.

[1:40] And for amicus curiae California Public Utilities Commission,

[1:43] Ms. Candace J. Morey.

[1:47] Chief Justice Guerrero: Thank you.

[1:49] Calling the first matter, the People versus Mr. Salazar.

[1:54] Ms. Bases, you've asked for 20 minutes,

[1:57] and you're reserving ten. Whenever you're ready.

[2:00] Arielle Bases: Thank you, Your Honor.

[2:02] May it please the court, Arielle Bases

[2:05] for the appellant, Norman Salazar.

[2:07] I'm going to be talking about three points.

[2:10] First, the significant changes in the statute.

[2:15] Second, why remand is required here under Gutierrez.

[2:21] And third, the proper role of the reviewing court.

[2:26] 1170(b)(6) created significant changes

[2:31] to the court's discretion.

[2:33] It created a new presumption in favor of the lower term

[2:37] if there is evidence of trauma

[2:39] that was a contributing factor to the offense.

[2:42] And it created a new incentive

[2:45] to present evidence of that trauma

[2:47] and the nexus between that trauma and the offense.

[2:52] So there is no way to determine on this record

[2:58] that the sentencing court,

[2:59] which operated under the old law,

[3:03] had all of the relevant factors,

[3:04] was presented with all of the evidence of trauma

[3:07] and the nexus between that trauma and the offense.

[3:12] Further, the presumption in favor of the lower term

[3:18] is a big deal, matters.

[3:20] And I submitted some supplemental authority Falcon

[3:23] which also talks about that as well as Gutierrez.

[3:27] Basically, the presumption informs the court

[3:31] how to weigh the evidence or gives the court,

[3:33] the sentencing court, a new framework for determining,

[3:42] for exercising its discretion.

[3:44] And there is no way to determine what the court would have done

[3:50] had it had this proper, this presumption,

[3:54] have been aware of this presumption.

[3:56] In fact, as Gutierrez says, a court that is not aware

[4:01] of the proper scope of its discretion

[4:04] cannot properly exercise its discretion.

[4:07] And the defendant has a right

[4:08] to a sentence imposed in accordance with the law

[4:13] and imposed with the proper exercise of discretion.

[4:16] So given these significant changes,

[4:19] there is no way that anyone, including a reviewing court,

[4:23] can get inside of the sentencing court's head

[4:26] and figure out what that court would have,

[4:30] how that court would have exercised its discretion

[4:33] under the new law.

[4:35] I mean, it's a brand new analysis.

[4:37] You have to figure out --

[4:39] Chief Justice Guerrero: Ms. Bases.

[4:40] Arielle Bases: Yes, Your Honor.

[4:41] Chief Justice Guerrero: Are you arguing that

[4:42] there would be no scenario

[4:44] under which we could state with the clear certainty

[4:47] how the court would have ruled?

[4:51] Arielle Bases: I'm saying it's very rare.

[4:55] You can't in a case like this

[4:57] where the discretion has changed so much,

[5:01] where there's a new presumption,

[5:02] so you can't determine what the court would have,

[5:06] would have found under the new presumption.

[5:09] I suppose that in a case where there was --

[5:12] where the court had no choice, for example,

[5:14] if there's a sentence for first degree murder,

[5:18] 25 years to life, yes, you can.

[5:20] You can determine that that there's no --

[5:24] you don't have to remand it for that.

[5:26] Or if there's a situation,

[5:28] and I think it would be very rare,

[5:31] on the triad, the statute we're talking about here,

[5:36] where it's crystal clear, there's a clear indication,

[5:39] there's no qualifying aggravating factors.

[5:42] The court imposed the middle term,

[5:45] and it's crystal clear there are no mitigating factors.

[5:49] And that, and I don't know how --

[5:52] this would be very rare circumstances --

[5:54] where it's crystal clear also that no additional

[5:56] mitigating circumstances under the new law

[5:59] regarding the new trauma requirement would be presented,

[6:02] other than those circumstances.

[6:03] Justice Jenkins: So, counsel, let me ask you --

[6:05] Sounds like your argument,

[6:09] which language drew my colleague's question,

[6:11] seems like an absolute argument that there are no circumstances.

[6:14] What do you envision a record would have to reveal

[6:19] before we can make the determination

[6:22] as to how the court might have exercised discretion.

[6:25] For instance, the heinousness of a crime,

[6:28] the depravity of the crime, articulation of those facts.

[6:31] Would those suffice?

[6:35] Arielle Bases: It's not enough, because it is

[6:37] up to the sentencing court to exercise proper discretion.

[6:41] And for example, in Gutierrez,

[6:43] where the sentencing courts actually said

[6:47] that the aggravated term was the only appropriate term

[6:50] given the circumstances of the crimes.

[6:53] This court remanded the case because it couldn't determine

[6:59] what the sentencing court's analysis would have been under,

[7:04] under the, with the proper scope of discretion.

[7:08] Justice Jenkins: But didn't we also --

[7:09] didn't we also include in that case

[7:11] that there was a presumption at foot.

[7:13] And I think we even say in the opinion

[7:15] that we presume the court relies on the law

[7:18] as it is at the time of the sentence.

[7:21] So that that played a distinct role in the remand, did it not?

[7:26] Arielle Bases: It did, yes. And it would apply here also.

[7:30] There's a presumption that the court applied

[7:34] the law as it applied at that time,

[7:36] which meant that it had broad discretion/

[7:39] Didn't consider the new presumption

[7:42] under the new statute,

[7:43] and therefore its analysis would be completely different

[7:46] if it followed the new statute.

[7:48] Justice Evans: Counsel, what, if anything,

[7:50] can we discern from the court's denial of the Romero motion?

[7:55] Arielle Bases: So the Romero motion

[8:01] requires an entirely different analysis

[8:04] than weighing aggravating and mitigating circumstances.

[8:08] It talks -- It really is an exception.

[8:11] The court has to find

[8:13] that the defendant is outside of the three strikes,

[8:17] the spirit of the three strikes law.

[8:19] It's an exception.

[8:20] While, here, the exception would be not to impose the lower term.

[8:25] And also, Romero does not do the weighing.

[8:29] It doesn't weigh aggravating versus mitigating circumstances

[8:33] in the same way that it's required in the triad situation.

[8:40] And I would also like to point out that this court,

[8:44] this sentencing court, did not, did not indicate in any way

[8:51] that the aggravating circumstances

[8:54] outweigh the mitigating circumstances.

[8:56] All the language about aggravating circumstances

[8:59] outweigh the mitigating circumstances matter of law.

[9:03] The crime was horrendous. That is all the majority opinion

[9:08] making its own analysis of the facts,

[9:12] not based on anything that the lower court said.

[9:15] The lower court did not specifically talk

[9:18] about weighing,

[9:20] about finding that the aggravating circumstances

[9:22] outweigh the mitigating circumstances.

[9:24] And in fact, the lower court

[9:26] did not give the maximum term that it could have.

[9:31] In the weighing that it did,

[9:33] it didn't find that the maximum term was the appropriate term.

[9:36] So there's really not an indication on the record

[9:39] that the lower court found that the aggravating circumstances

[9:44] so outweigh the mitigating circumstances.

[9:48] And that's another reason why a remand

[9:51] would be required in this case.

[9:53] Justice Groban: I'm still considering

[9:54] your responses to the questions from my colleagues

[9:57] about what kind of record would clearly indicate

[10:00] that remand would be unnecessary.

[10:04] And by the time you were done with your answer,

[10:07] including wanting assurances that if given another chance

[10:12] at sentencing the defendant might,

[10:16] we'd want to rule out that they couldn't come forward

[10:18] with new mitigating evidence

[10:20] that wasn't presented previously.

[10:23] I worry that you've created a nil

[10:25] set that really there's no situation

[10:28] in which remand would be inappropriate.

[10:30] But that doesn't seem to be what Gutierrez says.

[10:33] There's clearly some space, right --

[10:36] If the record clearly indicates, no need to remand.

[10:39] So I may be repeating the questions of my colleagues,

[10:43] but in part to give you another chance, tell me more --

[10:48] try to give me an example of a case where --

[10:51] or a kind of record where the record would clearly indicate

[10:56] that remand was unnecessary.

[11:00] Arielle Bases: Okay, thank you.

[11:01] I appreciate you asking me the question.

[11:06] It would be a case where the record shows --

[11:11] clearly indicates that the court could not have

[11:18] given any other sentence besides the sentence that it gave.

[11:23] If there is discretion involved,

[11:26] and the framework for the discretion

[11:28] has been changed by a presumption,

[11:31] then the court, the reviewing court,

[11:33] can't speculate what discretionary decision

[11:37] the lower court would have made.

[11:39] So you're asking me for a scenario.

[11:43] I gave an example if there's only one sentence

[11:46] that can be imposed, and that's clear

[11:49] For example, if the lower court gave the middle term

[11:56] and there is no evidence of any aggravating circumstances

[12:01] that qualify, and there's no evidence

[12:04] of any mitigating circumstances that qualify.

[12:08] And so the term has to be the middle term.

[12:12] Justice Liu: Counsel, it probably shouldn't be

[12:13] that surprising,

[12:15] given the inherent nature of this problem

[12:18] that it's hard to come up with scenarios.

[12:20] Isn't that true?

[12:21] I mean, the whole point is that the discretion is being --

[12:25] the framework within which discretion

[12:27] is exercised is being changed.

[12:29] And so one wouldn't really expect the trial court

[12:32] operating under prior law

[12:34] to have known that's exactly the problem in these cases,

[12:37] to have known what the range of its discretion was.

[12:40] And thus, there would have been no reason

[12:42] to put on the record these kinds of things in an ordinary case.

[12:46] Maybe there are some extraordinary cases,

[12:47] but it seems that the inherent construct of the problem

[12:51] makes this question very difficult to answer.

[12:55] Arielle Bases: That's correct, Your Honor.

[12:58] And I also believe there are very few instances

[13:01] where remand would not be required.

[13:04] And I suppose it's the same,

[13:05] it's similar to what you're saying.

[13:07] Very few instances where remand wouldn't be required

[13:10] or where the discretion has changed.

[13:13] Justice Groban: Let me give you one example

[13:14] on the absolute outer perimeter.

[13:16] It's an example we can see in the unpublished cases.

[13:20] It's sentencing courts aware that this bill or laws like it

[13:26] are about to be enacted, and the sentencing court says,

[13:31] "I am aware that this bill is about to be enacted.

[13:35] Even if I was operating under the new law,

[13:40] I would not impose the low term."

[13:43] I take it you'd say there no remand would be necessary?

[13:47] The record would clearly indicate?

[13:49] Arielle Bases: I think that's a different situation.

[13:51] I think -- I think that the court was aware

[13:56] of its discretion in that case and acted within its discretion.

[14:01] I think the problem is when the court

[14:04] is unaware of its discretion.

[14:05] Justice Groban: Just to be -- Just to be clear,

[14:08] and maybe I could have stated it more precisely,

[14:11] the law hasn't taken effect yet.

[14:12] Let's say it's passed, but the effective date is January 2023,

[14:17] and it's December 2022. And so they know what's coming.

[14:22] And they say, "I'm not operating under the new law,

[14:26] but I know it's coming.

[14:27] And if I were operating under the new law,

[14:30] I still would not impose the lower term."

[14:34] That's the hypo I'm giving you.

[14:36] Arielle Bases: So...

[14:38] Justice Groban: So they don't have the discretion

[14:39] at the moment. They don't actually

[14:40] have the discretion at the moment.

[14:42] Arielle Bases: Yes, I think that's different

[14:43] because I think it's easier for -- in that case,

[14:46] the reviewing court can say there's a clear indication

[14:50] what the lower court would have done

[14:56] if it had been aware of its discretion

[14:58] because it stated it on the record.

[15:00] Instead of trying to speculate and get inside the court's head

[15:03] and figure out what they would have done.

[15:04] Justice Corrigan: So if I understand your response,

[15:07] you are harkening back to the way you framed the issue,

[15:10] which is a reviewing court

[15:12] can't get into the trial court's head.

[15:14] The exception to that might be when the trial court says,

[15:17] here's what's going on in my head.

[15:19] I know that -- Arielle Bases: That's right.

[15:21] Justice Corrigan: I get it. Thank you.

[15:22] Arielle Bases: That's right. That's right.

[15:26] Now, with regards to the proper role of the reviewing court,

[15:32] it cannot substitute its judgment

[15:34] for the sentencing court. The sentencing court,

[15:37] its job is to exercise proper discretion and sentencing.

[15:42] And the reviewing court's job is to make sure

[15:45] that the lower court exercised proper discretion.

[15:48] Justice Kruger: So the Court of Appeal...

[15:50] May I ask, so the Court of Appeal in this case,

[15:52] in addition to a discussion of how the trial court

[15:56] would have exercised its discretion,

[15:59] had this law been in effect at the time,

[16:01] also says that as a matter of law,

[16:03] it would have been an abuse of discretion

[16:05] under these circumstances

[16:07] to have given a lower term sentence.

[16:09] I understand that you disagree with that conclusion,

[16:14] but wonder if you agree with the premise

[16:16] that there are some situations

[16:18] in which a reviewing court can say,

[16:21] based on the facts presented to the court,

[16:24] that it would be an abuse of discretion

[16:25] to exercise discretion in a particular manner.

[16:31] Arielle Bases: I think that is substituting

[16:33] its judgment for the lower court.

[16:35] I think that if the lower court had exercised proper discretion,

[16:40] was aware of the law, I'm sorry, exercise discretion,

[16:46] aware of the law, and then made a mistake,

[16:49] then the reviewing court can go in and correct that mistake

[16:53] and say it's an abuse of discretion.

[16:55] But to actually step in and determine

[16:59] what would be an abuse of discretion

[17:01] before the sentencing court

[17:03] has actually had the opportunity to exercise proper discretion,

[17:08] I think that is an improper role for the reviewing court.

[17:13] And I think it precludes the lower court

[17:15] from the opportunity to actually sentence

[17:18] someone in accordance with the law.

[17:20] And I think it precludes the defendant from his right

[17:24] to be sentenced in accordance with the law

[17:27] and with the proper exercise of discretion.

[17:30] And I also think there are many factors that go into sentencing

[17:34] that the sentencing court itself is privy to,

[17:38] and that's why, that's why the sentencing court

[17:41] makes the decision.

[17:43] While the reviewing court

[17:44] may not have all of that information such as,

[17:49] you know, the demeanor of the of the defendant

[17:52] or different things that have happened

[17:54] that the sentencing court is aware of the defendant.

[17:59] And I would also like to point out

[18:01] that the sentencing court here was very aware of the defendant

[18:05] and spoke to him about a lot of different factors,

[18:10] including trauma and his relationship with his family.

[18:14] And that it wished that he, when this was done,

[18:17] he could be the best version of himself.

[18:20] But it operated, it didn't operate under the proper law.

[18:24] It didn't have the opportunity to do that.

[18:27] And so it should be --

[18:31] the sentencing court should have the opportunity

[18:34] to make a careful and considerate decision

[18:36] based on all of the factors in front of it

[18:39] instead of the reviewing court jumping in

[18:42] and making the decision for the sentencing court.

[18:47] Did I answer your question, Your Honor?

[18:50] Justice Kruger: You did. I mean, I guess I wonder

[18:54] whether the sort of the theoretical question

[18:57] of whether there's any set of circumstances

[18:59] in which it would be possible to say as a matter of law,

[19:02] this would be a sentencing decision

[19:05] that is an abuse of discretion,

[19:07] is something that we have to answer in this case.

[19:11] Because typically the, as you say,

[19:16] the sentencing decisions are going to involve a very careful

[19:21] and sensitive weighing of multiple considerations

[19:23] that make it very difficult for a reviewing court

[19:27] to reach that sort of across the board

[19:32] as a matter of law sort of conclusion

[19:35] about what an appropriate sentence

[19:37] might be under the circumstances.

[19:39] So if there were ever a case in which that were appropriate,

[19:43] maybe that's not something that we need to decide

[19:45] definitively for purposes of resolving this case.

[19:50] Arielle Bases: I would also like to point out

[19:52] that the new statute asked the sentencing courts

[19:58] to consider additional factors,

[19:59] including trauma and why people acted the way they did

[20:03] and to look at a more holistic approach to sentencing.

[20:07] Which actually wasn't in front of the same court

[20:12] at the time it made a decision.

[20:19] So if there are no further questions,

[20:23] I would ask for the rest of the time be reserved for rebuttal.

[20:27] Are there further questions?

[20:30] Chief Justice Guerrero: You'll have the rest of your time

[20:31] for rebuttal. Thank you for your arguments.

[20:32] Arielle Bases: Thank you.

[20:34] Chief Justice Guerrero: We'll now hear from Mr. Glassman.

[20:37] David Glassman: Thank you, Chief Justice Guerrero,

[20:39] and may it please the court.

[20:40] We ask that the court affirm

[20:43] the judgment of the Court of Appeal on this case.

[20:46] Because this record clearly indicates that

[20:49] if this trial judge, not some hypothetical judge,

[20:52] but looking at this record, if this judge was aware

[20:56] of the amended provisions of Section 1170(b)(6),

[20:59] the judge would have imposed at a minimum the middle term.

[21:03] Chief Justice Guerrero: Where do you get that from?

[21:05] If you look at the Court of Appeal's opinion,

[21:07] there is language in there talking about

[21:10] the crime being sadistic, akin to torture, aggravated.

[21:16] But when you look at the actual transcript,

[21:19] it doesn't read that way. Those words aren't in there.

[21:21] What is in there that's sufficient?

[21:23] David Glassman: What is in there

[21:24] is what Gutierrez asks us to look at.

[21:27] Namely, Gutierrez asks that we look at the record

[21:31] in this case of sentencing

[21:33] and whether or not there was a clear indication

[21:35] of what the sentence would have been.

[21:37] So I'm not addressing myself

[21:39] to the observations of the Court of Appeal,

[21:41] for better or worse.

[21:42] I'm focusing on what the judge said

[21:45] and how the judge evaluated this case.

[21:47] And Gutierrez, I think I can speak with some background

[21:52] on that case since I lost it in this court,

[21:54] Gutierrez is a sea change

[21:57] in terms of the evaluation of the responsibility

[22:00] or the culpability of a youthful killer.

[22:04] Of a of a young adult sentenced to life imprisonment.

[22:07] This is a significant change. It's not Gutierrez.

[22:10] It doesn't involve interpretation

[22:12] in Miller versus Alabama and all sorts of things that,

[22:15] as Justice Jenkins indicated,

[22:16] led the court to acknowledge or observe

[22:19] that Gutierrez represented, that is, the prior law

[22:23] represented a virtual presumption

[22:25] in favor of a life sentence. We don't have that.

[22:27] We have a holistic sentencing determination that is made

[22:30] by a trial judge in the exercise of discretion already here.

[22:34] And in doing that, I would point to various observations

[22:38] and rulings this judge made,

[22:40] all of which point in one direction

[22:42] and none of which were addressed by counsel.

[22:45] So the first is the Romero motion.

[22:49] That was touched upon.

[22:50] The Romero motion, as the court is well aware,

[22:53] asks whether or not it is appropriate

[22:54] under the circumstances of a given case to relieve

[22:57] the defendant of the burden of a prior strike offense

[23:01] which will substantially increase his or her sentence.

[23:06] And the judge in this case, aware of the allegations,

[23:11] all sorts of allegations that one might group

[23:15] under the general rubric of trauma here,

[23:17] although I think that's also

[23:18] a very debatable terminology in this case.

[23:21] Nevertheless, the judge said, I'm going to decline

[23:26] to disallow the Romero application here,

[23:30] although I am aware, for example, of the drug use.

[23:33] So that is --

[23:35] Justice Groban: Isn't Romero very different?

[23:36] I mean, it seems like in many ways Romero is the opposite.

[23:40] Romero, even as you describe it,

[23:43] it's a presumption in favor of the harsher sentence.

[23:46] The judge wants to deviate from the harsher sentence.

[23:49] She has to explain why she's deviated from that sentence.

[23:53] This is just the opposite, isn't it?

[23:54] It's a presumption in favor of the more lenient sentence.

[23:57] So how much can we rely on the Romero decision?

[24:00] David Glassman: We note it as one factor

[24:02] in a series of observations the judge makes.

[24:05] It is not an apples to apples analogy.

[24:08] It is a related determination made by a judge

[24:11] when asked to depart from a sentence presumption.

[24:15] And the judge says in this case, I won't do it.

[24:18] So that's one indication.

[24:20] And, vis-?-vis, by the way, the showing that's made

[24:24] and the argument that's made here today

[24:25] that somehow we have a different version of information

[24:28] that will go to the judge.

[24:30] This judge looks at a 50-page sentencing memorandum

[24:34] presented on the defendant's behalf

[24:37] with eight or nine exhibits

[24:39] and an extremely elaborate documentation

[24:42] of this defendant's background.

[24:44] And the judge compliments it

[24:45] at least three times on the record

[24:48] and describes what a thorough job

[24:51] has been done to explain the background of this defendant.

[24:56] What the judge doesn't do, it's true,

[24:58] is explicitly articulated in the language of the Court of Appeal,

[25:02] how extraordinarily aggravated this crime is.

[25:05] This is not a routine false imprisonment,

[25:08] which is not a routine offense.

[25:09] This is a 20-hour ordeal visited on a woman

[25:13] who gets pulled into a motel room by this defendant.

[25:16] Justice Jenkins: In some ways, that means we'd be

[25:18] substituting our subjective weight to those facts for --

[25:23] in the absence of the judge having any opportunity to do so.

[25:28] David Glassman: Your Honor, if my interpretation

[25:30] is reasonable,

[25:32] what I'm saying is we are doing the opposite.

[25:34] So we are looking first at the Romero motion

[25:37] in which the judge says no.

[25:38] Then we're looking at a second intermediate decision

[25:42] the judge is making with respect

[25:43] to whether or not to apply concurrent sentences.

[25:46] And the judge observes that over 20 hours,

[25:50] when she's repeatedly beaten,

[25:52] bitten, sprayed with pepper spray,

[25:55] dragged out of that motel to steal her money from her bank,

[25:59] dragged to a drug deal,

[26:02] and eventually end up in that bank.

[26:03] And she lowers sunglasses to show the black eye

[26:06] she sustained over the broken bone in her face

[26:10] and says to the teller, call the police.

[26:13] The judge says, I'm not imposing concurrent sentences

[26:16] because there are different objectives here,

[26:20] acts committed at different times with different purposes.

[26:23] Is that language as dramatic as the Court of Appeal's?

[26:26] No. But it's an indication

[26:28] of the extraordinarily brutal nature of this case.

[26:32] Chief Justice Guerrero: Isn't that -- I'm sorry.

[26:34] Justice Groban: It's not that it's not as dramatic.

[26:36] It's totally devoid from the record

[26:39] of the sentencing transcript.

[26:41] On the issue of consecutive sentences,

[26:45] the grand total of what the judge said,

[26:47] near as I can tell, is, "Based on everything I've said,

[26:52] I'm imposing consecutive."

[26:53] And just as you say, that inquiry is about

[26:56] whether it's a continuous course of conduct

[26:59] or a break in the conduct.

[27:00] I mean, that seems very, very different from a deterrent,

[27:04] from a weighing of aggravating and mitigating factors.

[27:07] As you know, it's a pretty -- actual technical determination.

[27:11] Was there a break, or was it continuous contact?

[27:14] David Glassman: I think a reasonable interpretation

[27:16] in terms of the judge's amenability

[27:18] to a mitigated sentence of the lowest term.

[27:21] It is reasonable to infer

[27:23] that when the judge describes multiple objectives,

[27:26] over multiple -- over different times.

[27:28] Just as, for example it is --

[27:29] Chief Justice Guerrero: Isn't that required?

[27:31] I mean it's not as though the judge made a deliberate choice

[27:34] to emphasize certain things in that respect.

[27:38] It was required to order or to do that analysis

[27:43] to determine whether it should be concurrent or consecutive.

[27:46] David Glassman: Yes, Your Honor.

[27:47] But I think that the question, again,

[27:49] under Gutierrez is, is there a clear indication,

[27:52] we take as a given that we don't know definitively know

[27:57] what a ruling would be under an amended statute.

[28:00] But if counsel is correct with the defense position

[28:03] in this case is correct,

[28:05] I think counsel said it effectively, if not literally.

[28:09] They are arguing for a per se rule of reversible error,

[28:12] subject to that rare case where a judge says, for example,

[28:16] if the law were different, my sentence would be different.

[28:19] Hopefully, I don't think we encourage judges to opine

[28:23] about how they would sentence under other circumstances.

[28:25] They apply the law as it is that day,

[28:28] on this day, under these circumstances,

[28:30] getting back to what this judge said.

[28:32] When the judge refers to the Romero motion,

[28:35] getting back to the Romero motion,

[28:37] the judge says this is a 30-year-long

[28:41] and continuous criminal history.

[28:43] And it involves constant assault of conduct,

[28:47] often against women who are in a relationship

[28:50] with this defendant.

[28:51] It also involves carjackings. It involves other things.

[28:55] It involves a whole variety of offenses

[28:57] stretching over this person's adult lifetime.

[29:01] Now, I realize we're not here to argue per se,

[29:04] the application of this trauma,

[29:06] but I want to point something out about

[29:07] how the claim of trauma operates in this case.

[29:11] Because again, that is something

[29:13] that is not specified by this legislation.

[29:16] When the judge looks at all of this and compliments

[29:19] to showing that has been made,

[29:21] no one is talking about, for example,

[29:24] an allegation of childhood abuse.

[29:26] And that, I think it is fair to say, is the,

[29:30] to the extent that trauma is identified in this appeal

[29:32] as triggering the statute, that's the claim.

[29:35] The allegation of childhood abuse

[29:38] is found in two lines of the criminal history

[29:43] of this defendant from remote,

[29:45] that is remote in time evaluations of him.

[29:48] What he tells the sentencing mitigation expert

[29:52] whose report is in the clerk's transcript at page 503,

[29:57] remember, this is again as to the alleged trauma

[29:59] coming from his father.

[30:02] He says my father was my best friend

[30:05] and my relationship with him,

[30:07] although he was strict on me as a child,

[30:11] was the greatest thing that ever happened to me.

[30:13] So again, to be fair to what happened in this case,

[30:17] there was an extensive mitigation history offered.

[30:20] The judge did offer the defense the opportunity

[30:22] to present more evidence at the hearing. They declined.

[30:25] No one alleged this type of trauma in the trial court.

[30:29] No one did. Can you go back and comb

[30:33] through a 30-year criminal history

[30:35] and find a line about it? Yes.

[30:38] And is it -- can you further say --

[30:40] although no one attempted to say it,

[30:41] the statute didn't exist then -- it's not just trauma.

[30:45] If there is a line that suggests

[30:46] that someone has identified trauma

[30:49] in someone's upbringing, for example,

[30:52] it has to have a connection to the crime.

[30:55] Justice Corrigan: Mr. Glassman, can I ask,

[30:57] and I'm going to take a little left turn here.

[30:59] So I apologize if I take you off your game.

[31:03] David Glassman: As soon as I'm on it, but go ahead.

[31:07] Justice Corrigan: We have a circumstance

[31:09] in which the legislature has articulated a new standard

[31:12] under the circumstances that it articulates.

[31:16] And we all agree that the change applies

[31:20] retroactively to this defendant. I'm trying to get a sense

[31:25] of exactly what we're fighting over here.

[31:29] Where is the downside under these circumstances?

[31:34] In the absence of a definitive statement by the trial court,

[31:38] even if I had the discretion, I wouldn't do it.

[31:41] Where is the big injury to the body of jurisprudence if we say,

[31:47] let's give the trial court another opportunity

[31:49] to exercise the discretion that it now has?

[31:52] David Glassman: Well, to use a court's term,

[31:56] the injury or the consequence

[31:58] is there is agreement in this case

[32:01] that Gutierrez sets the standard.

[32:02] And the standard under Gutierrez is whether or not

[32:05] there is a clear indication on the record.

[32:08] There was a discussion earlier about whether that would apply

[32:10] in most cases or in some cases.

[32:12] It might be rare, but there are cases

[32:15] where there is a clear indication

[32:17] of what a sentence would be.

[32:18] And as far as the value or the danger of making

[32:23] that sort of assessment in other contexts,

[32:28] for example, for better or worse,

[32:30] this court routinely engages in harmless error evaluations.

[32:34] This court decides in most of the cases it hears,

[32:37] certainly most of the capital cases,

[32:39] whether or not an error made a difference

[32:42] by one standard or another standard.

[32:44] Well, do we know definitively that it did?

[32:48] We don't, but that is an established role

[32:50] that the courts play.

[32:52] But here, the standard that I'm describing,

[32:54] which comes from Justice Lewis' opinion,

[32:56] is a more concrete one,

[32:58] namely, either the record shows it or it doesn't.

[33:02] And our argument is that where every intermediate decision

[33:06] made by a judge goes in one direction,

[33:09] declining to lower the sentence below the lower term --

[33:14] I'm sorry, below the middle term --

[33:16] that is an indication of where this judge

[33:18] comes out on this case.

[33:19] Justice Kruger: Is it irrelevant in that framework

[33:23] what questions the judge had to ask

[33:25] in order to answer those questions

[33:27] about whether to lower the sentence or not?

[33:30] In other words, do those questions have to relate

[33:34] in some way in large part to the kinds of questions

[33:39] that trial courts are now instructed to ask and answer

[33:44] under this newly applicable statute?

[33:46] David Glassman: Justice Kruger,

[33:48] although there is certainly a significant change

[33:51] that the new legislation creates, the judge --

[33:56] the questions and the statements that the judge asked before

[34:01] had to do with assessments that are relevant

[34:04] in a related predictive context.

[34:07] That is why, for example, all the arguments that are made

[34:11] are based on record-based showings

[34:14] or alleged showings of mitigation.

[34:15] It was all put into the record. The defendant's lawyer

[34:18] was obviously incentivized to do that.

[34:21] It is true that now 1170(b) specifically says trauma.

[34:27] But it's also true that there's nothing new about a judge

[34:31] considering all sorts of background factors.

[34:35] The rules of court that guide

[34:37] whether or not a sentence is mitigated

[34:38] or aggravated explicitly speak of any condition

[34:42] that could minimize or reduce culpability, and --

[34:46] Justice Liu: As a set up or as presumption

[34:48] you go low term. Does it -- David Glassman: There is no --

[34:52] Justice Liu: Under 1170(b) --

[34:54] David Glassman: Right. There is no presumption,

[34:56] but I think that there is an ability

[34:58] to nevertheless to look at the circumstances of a case.

[35:02] Now did the judge, again, did the judge opine

[35:05] about what a hypothetical sentence

[35:07] under other conditions would have been?

[35:08] No. And did the judge sort of regale us with a reiteration

[35:12] of how extraordinarily diabolical this case was?

[35:19] No. And is it necessary to estimate

[35:21] whether or not an abuse of discretion would be involved

[35:23] in the lower term? No.

[35:25] But I think it is fair to say as a predictive matter in this case

[35:29] and in other cases that if you have, for example,

[35:32] in the assessment of this case no mitigating factors were noted

[35:37] when this case was analyzed.

[35:39] Not in the probation report, not anywhere else, none were.

[35:43] Multiple aggravating factors were noted.

[35:46] Chief Justice Guerrero: Can we go back to the --

[35:49] compare Gutierrez and the situation here?

[35:51] David Glassman: Yes, Your Honor.

[35:53] Chief Justice Guerrero: Gutierrez establishes

[35:54] that we have to have a confidence

[35:55] in what the trial court would have done.

[35:58] And in that case, we were presented with statements

[36:00] by the trial court stating it was absolutely convinced

[36:05] that the certain sentence should be imposed.

[36:08] And how does that language compare to what we have here?

[36:13] It seems in this case we have even less of an indication

[36:16] of what the trial court was convinced

[36:18] was the correct sentence.

[36:20] David Glassman: Well, I think the appropriate way

[36:24] to view the trial court statements in that case

[36:27] were that regardless of how convinced

[36:30] the judge indicated in the prior sentencing,

[36:34] that ruling was made

[36:36] without the benefit of this court's decision.

[36:38] And this court's decision makes very clear

[36:41] exactly how different a post-Gutierrez sentencing

[36:45] is for a youthful killer.

[36:48] And so in that, I don't want to speak for the court,

[36:52] but I think it's fair to say that it really

[36:54] was not dispositive how convinced the judge was

[36:58] of an LWOP sentence being appropriate

[37:00] under a sentencing scheme that was on its way out.

[37:04] As a practical matter, does it matter in an individual case

[37:08] when Gutierrez went back,

[37:10] he got LWOP under the new decision.

[37:14] But the point is that, as I said,

[37:18] the Gutierrez affected a much

[37:20] more comprehensive reevaluation of juvenile

[37:23] or of sentences that apply in those circumstances.

[37:27] This is a change, but it is not akin to Gutierrez.

[37:30] And the Gutierrez standard, whether it applies rarely,

[37:34] frequently or somewhere in the middle,

[37:36] is what does the record indicate?

[37:39] We don't want to see --

[37:40] Justice Liu: Counsel, I think that --

[37:41] I mean, if we could focus on the nature of the change.

[37:45] I mean, I think Justice Jenkins kind of put his finger on it,

[37:48] which is that the language of the statute,

[37:52] I think is very clear. Which is to say -- Here it is.

[37:58] It says "Unless the court finds the aggravating circumstances

[38:01] outweigh the mitigating,

[38:03] that imposition of the lower term

[38:04] would be contrary to the interest of justice,

[38:06] the court shall -- shall --

[38:10] order imposition of the lower term,

[38:12] right, if any of the qualifying factors are present."

[38:15] So I think that's -- I mean,

[38:18] these words carry a kind of normative force, don't they?

[38:22] I mean, the legislature spoke here in a mandate,

[38:26] and it's the trial court's burden really to make

[38:29] the requisite finding to dislodge that mandate.

[38:33] Now I don't -- I mean, this is, of course, a --

[38:38] still requires some sort of exercise

[38:40] of judgment by the trial court.

[38:41] But I think the legislature is being very clear that,

[38:46] you know, we expect, you know, the lower term to be imposed

[38:51] unless there is some clear finding here

[38:53] within the relevant framework specified in the statute.

[38:56] Now, I don't question that, you know,

[38:58] many of the points you raise about this particular record

[39:02] and what the trial court said are suggestive.

[39:05] For sure they are. The nature of the crime,

[39:08] the fact of the denial of the Romero,

[39:11] the imposition of the consecutive sentencings.

[39:14] All these things are suggestive.

[39:16] But I think it's a different question

[39:18] when the legislature has focused your attention

[39:21] with clear language on what is required

[39:23] for a particular determination and has said,

[39:26] you know, absent that, it shall be the lower term.

[39:31] So I think that's kind of part of the,

[39:33] it's not just the clearly indicates language

[39:35] from the Gutierrez which, of course,

[39:37] I mean we can debate all the days long

[39:39] what clearly, what is clearly indicated.

[39:41] But it's also the nature, I think,

[39:43] of this particular injunction

[39:45] that the legislature has decided to enact

[39:50] that makes it particularly necessary

[39:52] I think to arrive at a conclusion

[39:54] that the correct framework has been applied.

[39:57] David Glassman: Two points in response, Justice Liu.

[40:00] The first is I think there is some ambiguity relevant

[40:06] to this case in terms of whether or not a recognition of trauma

[40:11] that the legislature,

[40:13] to the extent that we have insight into that --

[40:15] From the history that was included in our brief,

[40:20] the motivation appeared to be a recognition of people

[40:24] who have been traditionally disserved

[40:28] by the legal system, marginalized, typically for --

[40:32] the examples they give are gender based --

[40:35] and that there should be a recognition

[40:37] that when trauma plays a role in the offense,

[40:40] that presumption applies.

[40:42] Now, I'm simply saying that, on the first point,

[40:46] that one can still question whether or not

[40:51] a line about trauma

[40:53] in a 500-page clerk's transcript triggers all of this,

[40:59] and what the possible rationale or attempt

[41:04] to equate a completely undeveloped statement

[41:07] about trauma with the commission of these crimes would be.

[41:11] Nevertheless, the last thing --

[41:13] Justice Liu: Can I just pause and ask -- Can I ask, just on that very point --

[41:15] That's a good point. Was that addressed in the CA opinion,

[41:18] the connection between the trauma and the crime?

[41:21] David Glassman: No.

[41:22] Justice Liu: Has it been addressed --

[41:23] I mean, it hasn't really been addressed.

[41:25] David Glassman: Well, but I think to the point,

[41:29] no one in the trial court --

[41:30] Forget about legislation that wasn't here yet.

[41:33] No one in the trial court attempted to explain how.

[41:36] I mean the, for example, the alternative trauma,

[41:39] the death of a parent as an adult,

[41:41] when that trauma occurred, assuming that it was traumatic

[41:44] and I don't deny that it was,

[41:46] this is a career criminal who's incarcerated

[41:49] and is 38 and 40 years old. So these terms can become,

[41:55] can sort of be bandied about, I think unfortunately.

[41:57] The last thing I will say with respect to your observation

[42:00] about the command of 1170 is, it may be that in many cases

[42:06] it can't be deciphered or determined.

[42:09] But I'm very mindful of your holding in Gutierrez.

[42:15] Does the record clearly indicate,

[42:17] so that contemplates that a record can,

[42:20] and this record did.

[42:22] Unless the court has any questions, I'll submit.

[42:25] Chief Justice Guerrero: Thank you, Mr. Glassman.

[42:28] Ms. Bases.

[42:32] Arielle Bases: First of all, the lower court

[42:35] did not give the maximum sentence it could have given.

[42:39] So under the framework that it had,

[42:42] the weighing that it did, it did not determine

[42:44] that the highest sentence it could give was appropriate.

[42:49] With regard to the trauma,

[42:52] there is evidence of childhood trauma.

[42:55] There is also evidence of mental health issues.

[42:59] And to the extent the respondent has argued

[43:03] that mental health issues may not be the kind of trauma

[43:08] that the legislature intended,

[43:10] they did, they did say psychological trauma.

[43:13] And the banner court noted it is very difficult

[43:18] to separate mental health issues from the trauma

[43:23] that comes from mental health issues.

[43:25] And there is evidence on this record

[43:27] that Mr. Salazar suffered trauma from his mental health issues.

[43:33] Justice Liu: Could I ask you, counsel,

[43:35] if this case is sent back,

[43:37] and the attorney general, I think, has signaled

[43:41] pretty clearly that they take a different view

[43:44] than you do on that particular issue.

[43:46] How will that be litigated if this is sent back?

[43:49] Is that a litigation about what the record,

[43:53] the trial record, already showed --

[43:55] or the sentencing record already showed?

[43:57] Or will the parties be arguing about different things

[44:02] that go beyond the record?

[44:06] I think -- So, I think, just to put a fine point,

[44:08] and I think the attorney general's making the argument

[44:11] that no one raised this

[44:12] or no one made a big deal about this

[44:15] in the actual proceedings in the trial court.

[44:21] Maybe you disagree, but I'm just trying to understand

[44:23] the scope of what will be considered

[44:26] if this case is sent back.

[44:29] Arielle Bases: So there wasn't an incentive

[44:32] to show at the time

[44:33] the nexus between the trauma and the offenses.

[44:38] So if it did go back,

[44:40] then I believe that the trial court,

[44:44] that the trial counsel would show evidence of that.

[44:48] Justice Liu: There's not an incentive,

[44:49] there's not an incentive to generally

[44:52] try to mitigate the crime?

[44:54] Arielle Bases: To show the connection

[44:56] between the trauma and the offense.

[45:00] Because under the under the statute,

[45:03] under the amended statute,

[45:06] trauma which is a contributing factor to the offense

[45:09] is what qualifies.

[45:10] And so the respondent argued there wasn't evidence

[45:15] that it contributed to the offense.

[45:17] But there was an incentive to present

[45:20] that evidence under the prior law.

[45:24] Now, under the new statute, there would be.

[45:26] And so, the trial counsel would present more evidence

[45:32] of the connection between the trauma and the offense.

[45:36] And if there is any discussion or any problem

[45:43] with the trauma that appellant suffered

[45:49] because of his mental health issues,

[45:51] that too would be developed on remand.

[45:55] Because if there is a new requirement

[45:59] that not only must he show evidence

[46:01] of his mental health issues,

[46:03] but also evidence that he suffered trauma

[46:06] because of those mental health issues,

[46:08] which I think he showed on the record.

[46:10] But if there's this new requirement,

[46:12] then the case should be remanded

[46:13] so that he can show that evidence of that trauma.

[46:18] And I would also say, you know,

[46:20] there is evidence of childhood abuse.

[46:22] And there's evidence of substance abuse

[46:25] which began when he was 13 years old.

[46:28] So I don't know how you separate, you know,

[46:31] taking acid and other hard drugs when you're 13 from child abuse.

[46:38] So I think that all of that is on the record,

[46:44] is a reason why he would qualify under the statute.

[46:46] But I think that it hasn't been developed to its fullest,

[46:50] especially if the government is going to require or suggesting

[46:55] that there be a requirement that there's a showing of the nexus

[47:00] between the trauma and the offense.

[47:03] And there is a specific showing of trauma

[47:08] because of his, of mental health issues

[47:11] as opposed to just the evidence of the mental health issues.

[47:16] Did I answer your question, Your Honor?

[47:18] Justice Liu: You did, thank you.

[47:19] Arielle Bases: Okay.

[47:24] I also wanted to mention that, again,

[47:29] sentencing is nuanced and that even when the court

[47:35] made a decision about the Romero motion

[47:37] and talked about appellant's criminal background.

[47:43] But the sentencing court also specifically

[47:46] talked about his substance abuse issues

[47:48] and how that, he factored that in.

[47:51] And how that had a lot to do with his criminal history.

[47:54] So it wasn't just his criminal history,

[47:56] and he considered, the court, the sentencing court,

[48:00] considered the nuance.

[48:02] So anyway, bottom line, the reviewing court

[48:08] cannot get into the sentencing court's head

[48:12] and determine what that court would have found

[48:16] under the significant changes in the statute.

[48:20] And I disagree with respondent.

[48:21] I do believe these are very significant changes.

[48:25] They changed from a court having blanket discretion

[48:29] to just broad discretion

[48:30] to decide whatever of the three terms

[48:33] to the legislature actually telling the court

[48:37] you should be imposing the lower term

[48:39] if there are these mitigating factors.

[48:41] Unless, unless, and that makes a huge difference.

[48:45] So we can't determine what the court,

[48:47] the sentencing court, would have done.

[48:49] And the only appropriate remedy here

[48:52] is to remand the case so that the lower court,

[48:55] the sentencing court, can make a proper decision

[48:58] with the exercise of proper discretion

[49:00] and considering all relevant factors

[49:05] under the new statute.

[49:08] Chief Justice Guerrero: Thank you, counsel.

[49:10] Did you have anything further? I didn't want to cut you off.

[49:13] Arielle Bases: No, you didn't cut me off.

[49:14] Chief Justice Guerrero: Okay.

[49:16] Arielle Bases: If there are no questions, then I'll submit.

[49:18] Chief Justice Guerrero: Okay, thank you to both counsel

[49:19] for your arguments. We appreciate them.

[49:21] And the matter is submitted.

[49:24] Arielle Bases: Thank you.

[49:26] Chief Justice Guerrero: Calling the next matter,

[49:28] the People versus Mr. Curiel.

[49:34] Ms. McGinnis, you've asked for 23 minutes for your opening.

[49:38] Lynne McGinnis: May it please the court.

[49:40] An undisturbed true finding on a special circumstance

[49:43] requiring an intent to kill,

[49:45] such as the gang murder special circumstance here,

[49:49] precludes A defendant from obtaining relief

[49:52] under Penal Code Section 1172.6 as a matter of law.

[49:57] The remedial legislation is limited to persons

[50:01] who could have been convicted under the natural

[50:03] and probable consequences doctrine

[50:06] or a theory of felony murder.

[50:08] Relief is not available to defendants such as Curiel,

[50:13] who acted with murderous intent, namely malice.

[50:17] The Court of Appeals' conclusion that Section 1172.6 required

[50:23] is showing that Curiel committed,

[50:25] also committed the acts necessary to subject him

[50:28] to murder liability as well as a necessary mental state

[50:33] is contrary to the statutory language and purpose.

[50:37] As we pointed out in our briefing,

[50:39] the legislature had a singular focus in amending Section 188,

[50:44] namely to ensure that the defendants were,

[50:47] that only defendants who had malice

[50:50] were convicted of murder under the new law.

[50:53] Justice Liu: Can I ask you, counsel,

[50:54] so on that position, under what theory in this case

[51:00] is Mr. Curiel validly convicted of murder?

[51:04] Lynne McGinnis: Mr. Curiel is validly convicted

[51:06] under a direct aiding and abetting theory.

[51:08] Justice Liu: And what are the elements

[51:09] of direct aiding and abetting?

[51:12] Lynne McGinnis: The elements of direct aiding and abetting

[51:14] are with knowledge of the purpose of the perpetrator,

[51:19] the person had intent to facilitate

[51:22] the commission of the crime.

[51:24] Now, our brief discussed the McCoy decision

[51:27] and the actus reus requirement.

[51:29] And I want to discuss that a little bit because

[51:33] when the Court of Appeal said you need an actus reus,

[51:36] it didn't explain what actus reus you need.

[51:39] But if you -- The reason Mr. Curiel was convicted

[51:43] under a direct aiding and abetting theory

[51:46] is because, under McCoy, the acts of the perpetrator

[51:51] and the acts of the aider and abetter merge.

[51:55] Justice Liu: Okay, let me pause you there.

[51:57] I don't want to get quite to the actus reus just yet,

[52:00] but you, I think, nicely summarized

[52:03] the mental state required,

[52:05] which is not just the intent of the aider and abetter

[52:10] but also the knowledge of the aider

[52:12] and abetter of the perpetrator's intent.

[52:16] And that's the part that I'm kind of curious about.

[52:23] Was there a jury finding with respect

[52:25] to what Mr. Curiel knew about the perpetrator's intent?

[52:32] Lynne McGinnis: Well, thank you, Your Honor.

[52:34] That element has stated that, but it's a little misleading.

[52:37] Because if you look at the Mendoza decision,

[52:40] which was cited in my friend's reply brief,

[52:44] it states that you can't have knowledge of something

[52:48] or you can't intend to do something

[52:49] without also have knowledge of what they,

[52:52] or you can't aid and abet something

[52:54] without having knowledge of what they intended to do.

[52:57] Now the knowledge language is a little misleading.

[53:00] And the reason is that, and again, I return to McCoy,

[53:04] you don't even have to, the perpetrator, for example,

[53:09] doesn't even need to intend to commit murder.

[53:12] For example, if you're the aider and abetter

[53:16] and you encourage someone to kill somebody,

[53:19] or you have the intent to kill

[53:21] and you tell them to do something

[53:23] and that person ends up acting in self-defense,

[53:27] you're still liable as an aider and abetter.

[53:30] So in that case, you wouldn't necessarily,

[53:33] there wouldn't even be an intent to kill

[53:35] on the part of the direct perpetrator.

[53:37] So the knowledge language is a little misleading in that sense.

[53:41] Justice Kruger: So I understood McCoy's treatment

[53:43] of the knowledge component here

[53:45] as sort of exceeding kind of the typical formulation

[53:50] of aiding and abetting liability.

[53:51] But there has to be shared intent

[53:54] between the perpetrator and the aider and abetter.

[53:56] But still having sort of separate content,

[53:58] meaning the aider and abetter still has to have knowledge

[54:02] that the actual perpetrator is going to engage in the act

[54:06] that causes the prescribed harm.

[54:09] So, for example,

[54:11] if the actual perpetrator negligently kills somebody,

[54:15] the aider and abetter still has to have knowledge

[54:17] that a person is going to undertake that act.

[54:20] Then maybe just negligent on the part of the perpetrator

[54:24] rather than intentional. But nevertheless,

[54:26] there has to be some sort of -- some sort of knowledge.

[54:28] And I guess I'm -- to get to Justice Liu's question --

[54:32] assuming that I'm correct about that,

[54:34] what part of the jury verdict here

[54:37] speaks to that component of knowledge

[54:39] of what the actual perpetrator was going to do

[54:41] that caused the lethal harm?

[54:43] Arielle Bases: Well, the jury verdict

[54:48] found that he acted with the intent to kill.

[54:51] And the case law says that when you have the intent,

[54:55] you necessarily have the knowledge that's inferred

[54:58] by the intent to kill.

[55:01] So the jury was instructed that --

[55:04] Chief Justice Guerrero: What knowledge are you talking about

[55:06] when you just made that statement?

[55:07] Whose knowledge?

[55:08] Lynne McGinnis: You have to have knowledge

[55:09] that the perpetrator intends to do something.

[55:14] You don't have to know that they're going to kill somebody.

[55:19] Your mental state under McCoy is that

[55:21] you have to intend to kill or intent that someone be killed

[55:26] and that you have to encourage the perpetrator to do that.

[55:30] You don't have to know in your mind

[55:32] that the perpetrator is going to be doing that.

[55:35] You can hope that they don't do that.

[55:36] But for example, if there are two gang members

[55:41] and you hope

[55:43] that the perpetrator is going to kill somebody,

[55:45] or even if you just have knowledge

[55:47] that they're a dangerous gang member,

[55:49] you can encourage them to kill by engaging in some act,

[55:53] and then they can kill. You don't have to have knowledge

[55:58] that they're actually going to kill.

[56:01] Justice Corrigan: I'm troubled by one

[56:04] kind of unusual aspect of this case.

[56:08] We often think of the felony [inaudible] rule

[56:11] applying when there is an intent to do a robbery,

[56:15] and everybody knows they're going to do a robbery.

[56:16] And they go in to do the robbery and sadly someone is killed.

[56:20] This, it seems to me, if I'm understanding the record here,

[56:24] that the crimes that you're suggesting Mr. Curiel

[56:28] aided and abetted were disturbing the peace

[56:33] and gang gun possession. Is that correct?

[56:36] Lynne McGinnis: Yes, Your Honor.

[56:38] Justice Corrigan: It seems to me there's a big leap

[56:39] between aiding and abetting and disturbing the peace

[56:43] and a murder conviction.

[56:46] Lynne McGinnis: Well, under --

[56:48] Justice Corrigan: Help me out there.

[56:49] Lynne McGinnis: Thank you, Your Honor.

[56:51] Under McCoy, it's not just a disturbing the peace,

[56:54] because your acts --

[56:55] the acts of the perpetrator become your acts.

[56:59] So it's a course of conduct,

[57:00] whereas where you have the intent to kill,

[57:03] and you share that, and you have that intent

[57:06] and you encourage the perpetrator,

[57:09] then you become liable not only for your acts

[57:12] but the acts of the perpetrator.

[57:14] Justice Corrigan: But the acts the perpetrator

[57:16] do still have to be reasonably foreseeable, don't they?

[57:19] Lynne McGinnis: Yes, Your Honor, and the jury --

[57:21] Justice Corrigan: Isn't that a big leap

[57:22] from disturbing the peace

[57:23] to reasonably foreseeable homicide.

[57:26] Lynne McGinnis: It might be, Your Honor,

[57:28] but that would be an argument that would be made to the jury.

[57:31] And when the jury convicted Curiel of murder

[57:34] under the natural improbable consequences doctrine,

[57:37] the jury found that the murder was reasonably foreseeable.

[57:42] And so when you add the intent to kill,

[57:44] the murder was not only reasonably foreseeable,

[57:47] it was intended.

[57:49] And that's how we get to direct aider and abetter liability.

[57:51] Justice Jenkins: That seems like the problem.

[57:53] The knowledge element is drawn to the target offenses.

[57:57] As my colleague says, disturbing the peace and concealed,

[58:01] carrying a concealed firearm or having concealed firearm,

[58:05] not to the mens rea that's required for murder.

[58:09] Which is, includes intent to kill,

[58:12] but it also has to be knowledge of the unlawful purpose,

[58:15] the murderous intent.

[58:17] What on the record, even in the instructions,

[58:19] indicates to the jury may, necessarily made such a finding?

[58:24] Lynne McGinnis: Well, Your Honor, first of all,

[58:25] as far as the instructions,

[58:27] the jury was instructed with CALCRIM number 252.

[58:30] Every crime, every special circumstance in this case

[58:34] requires proof of the union or joint operation of act

[58:38] and wrongful intent.

[58:40] And then it said, for the special circumstance to be true,

[58:43] a person must not only intentionally commit

[58:46] the prohibited act,

[58:47] but must do so with a specific intent or mental --

[58:50] Justice Jenkins: It doesn't focus on knowledge at all.

[58:53] It says has the intent to kill,

[58:56] but it doesn't focus on these sub elements

[58:59] that we're discussing here.

[59:02] Lynne McGinnis: Well, Your Honor, the problem

[59:05] with the language and knowledge of the murderous intent,

[59:09] because the direct perpetrator does not even

[59:12] need to have murderous intent under McCoy.

[59:15] For example, we talk about disturbing the peace

[59:19] and carrying a concealed weapon,

[59:21] and that that seems like de minimis conduct

[59:25] as opposed to intent to murder. The conduct of the aider,

[59:30] the conduct can be entirely innocent

[59:32] on the part of the aider and abetter

[59:36] if it's done with murderous intent

[59:38] on the part of the aider and abetter.

[59:40] For example, the aider and abetter can sit at home

[59:43] and give the direct perpetrator the address of somebody

[59:47] and hope the direct perpetrator will kill that person.

[59:52] And if the direct perpetrator goes to that person's house

[59:55] and a fight ensues and the direct perpetrator kills

[59:59] that person in self-defense,

[1:00:01] then the aider and abetter can still be liable for murder

[1:00:05] even if the direct perpetrator

[1:00:07] had a defense personal to himself.

[1:00:10] And in McCoy, they used the example of --

[1:00:13] the Shakespearean example of "Othello,"

[1:00:16] where all the person did was tell the direct perpetrator,

[1:00:21] "Your wife's having an affair."

[1:00:23] That doesn't even rise to the level of disturbing the peace.

[1:00:27] That's just innocent conduct. And if the help --

[1:00:30] Justice Corrigan: Well, it's not innocent conduct,

[1:00:32] if it's done with the intent that a murder will ensue.

[1:00:36] I think you can make an argument

[1:00:37] that Iago in the Shakespearean play

[1:00:41] truly was an aider and abetter in the sense

[1:00:45] that he encouraged Othello to kill Desdemona.

[1:00:49] But none of those players are in play here,

[1:00:52] and it seems to me that I'm still struggling

[1:00:56] with what exactly you think Mr. Curiel did that aided

[1:01:02] and abetted the crime of murder. Yelling, it's my neighborhood.

[1:01:07] Lynne McGinnis: Yelling, "It's my neighborhood,"

[1:01:08] pushing the person and yelling out a gang name.

[1:01:14] Now the problem I'm having, Your Honor,

[1:01:16] is that the jury found that murder

[1:01:19] was a reasonably foreseeable consequence of this conduct.

[1:01:24] The jury also found that Mr. Curiel

[1:01:27] had the intent to kill,

[1:01:29] because it found the special circumstance true.

[1:01:33] That was a finding made by the jury.

[1:01:35] So the only question for purposes of 1172.6

[1:01:40] is whether that jury finding is binding

[1:01:43] for purposes of the prima facie case.

[1:01:46] Another, reasonable minds might differ

[1:01:49] about whether yelling out a gang name is enough to be,

[1:01:55] foreseeably lead to a murder,

[1:01:57] but that issue was decided by the jury.

[1:01:59] Justice Liu: Well, I think -- I think, in some ways, right,

[1:02:01] that kind of illustrates the problem

[1:02:04] that the legislature sought to address by passing the law here.

[1:02:12] Which is that it's perhaps a pretty low bar,

[1:02:18] let's say, for the jury to find reasonable foreseeability,

[1:02:21] especially after the fact.

[1:02:23] Everything looks foreseeable after the fact, right.

[1:02:26] So maybe that's part of the issue

[1:02:29] that the legislature is trying to remedy.

[1:02:33] And what's missing is then what are the more stringent elements

[1:02:37] that are required under, let's call it,

[1:02:40] you know, more conventional murder theories,

[1:02:44] theories of murder liability.

[1:02:45] And I guess the questions from the bench are directing you

[1:02:49] towards this one particular element,

[1:02:52] not the act, but rather the state of mind of Mr. Curiel

[1:02:57] with respect to what the perpetrator did, right.

[1:03:01] And I thought we had just addressed this very point

[1:03:05] in People versus Reyes just a few months ago.

[1:03:08] You remember that was a case about a bunch

[1:03:11] of young people riding bicycles.

[1:03:14] And one of the problems in that case,

[1:03:17] in fact one of the key problems in that case

[1:03:20] was that although, right,

[1:03:22] the defendant went up to the point

[1:03:26] of where the shooting actually happened,

[1:03:29] there was no finding, right, that the that the defendant

[1:03:33] knew the state of mind of the shooter.

[1:03:37] And that was I think quite expressly featured in our,

[1:03:41] in our opinion as an essential element,

[1:03:45] right, necessary to establish direct

[1:03:47] aiding and abetting liability for murder.

[1:03:51] And I think that's the part I just don't,

[1:03:53] I don't hear you responding to.

[1:03:55] You're either saying it doesn't exist as an element,

[1:03:58] which I'm not sure I understand that argument,

[1:04:01] because I think we have said it does exist.

[1:04:04] Or that there's something in this record

[1:04:06] that establishes it, which I don't see.

[1:04:08] Lynne McGinnis: I understand, Your Honor.

[1:04:10] I think the central question

[1:04:11] is whether that's an element that needs to be found

[1:04:14] for purposes of the prima facie case.

[1:04:17] And the element that's in question here

[1:04:21] is intent to kill and whether Mr. Curiel acted or meant --

[1:04:27] whether Mr. Curiel had malice,

[1:04:30] that when the jury found that Mr. Curiel

[1:04:35] encouraged the perpetrator

[1:04:37] or did these acts with the intent to kill,

[1:04:39] that necessarily subsumes the knowledge requirement

[1:04:43] because the two could not be separated

[1:04:45] for purposes of what they mean. The jury made that finding.

[1:04:50] So under Mendoza, you can't separate -- you know,

[1:04:54] if you encourage someone to do something

[1:04:56] or have the intent that someone do something,

[1:04:58] the case law says that that subsumes knowledge

[1:05:02] on the part of the person.

[1:05:03] So that was a finding made by the jury.

[1:05:05] Justice Liu: Well, I guess I'm --

[1:05:07] So, can I just unpack that just a little?

[1:05:08] So intent to kill, as I understand it

[1:05:11] with respect to the mens rea of the aider and abetter,

[1:05:15] simply describes the aider and abetter's,

[1:05:19] let's say desire for what should happen, right.

[1:05:23] The aider and abetter desires that the victim be killed.

[1:05:27] But it says nothing about the means, right,

[1:05:30] by which that is to occur.

[1:05:32] And that's where aiding abetting comes in,

[1:05:33] because it's a particular theory

[1:05:35] of the means by which murder happens.

[1:05:38] And so this additional element,

[1:05:40] knowledge of the perpetrator's intent

[1:05:44] is what essentially connects, right,

[1:05:46] the aider and abetter to the act of the perpetrator.

[1:05:50] It isn't just the aider abetter's intent.

[1:05:52] I mean the aider and abetter, can wish all the day

[1:05:55] is long that someone be killed.

[1:05:57] But unless it's connected somehow

[1:05:59] to what the perpetrator did, that intent isn't enough.

[1:06:03] Lynne McGinnis: Well, the question, Your Honor,

[1:06:05] is whether it's enough for purposes

[1:06:06] of the prima facie case.

[1:06:08] There are plenty, there are other elements

[1:06:10] of aiding and abetting liabilities,

[1:06:11] such as the Court of Appeal found the actus reus

[1:06:14] that may be important for aiding and abetting liability.

[1:06:17] But the question is what did the legislature intend

[1:06:20] when it amended section 188

[1:06:23] to require that the person shall act with malice aforethought.

[1:06:27] And malice aforethought is the equivalent

[1:06:30] of the intent to kill.

[1:06:31] Justice Liu: But do you agree, counsel,

[1:06:32] that at the very end of the day,

[1:06:33] there has to be some valid theory of murder

[1:06:35] in order for the conviction to be sustained?

[1:06:38] I mean, I know you're focused on the language,

[1:06:40] and you have a point.

[1:06:42] The legislature spoke about malice aforethought

[1:06:44] and was specifically concerned about the intent.

[1:06:48] But to the extent that natural

[1:06:51] and probable consequences liability is removed now,

[1:06:54] there has to be some valid theory, right, of murder.

[1:06:57] And there has to be some satisfaction

[1:06:59] of the elements of that valid theory.

[1:07:03] Isn't that -- I mean, am I wrong about that?

[1:07:07] Lynne McGinnis: Well, Your Honor,

[1:07:08] our position is that the jury made that finding

[1:07:12] because they found that he intended to kill

[1:07:15] and he encouraged Mr. Hernandez

[1:07:17] in the conduct that led to the murder.

[1:07:20] And that was a finding made by the jury

[1:07:23] and that the knowledge element has been found.

[1:07:26] And that that is not a finding open to re-litigation in 1172.6.

[1:07:33] Justice Kruger: May I ask you, so you've said several times

[1:07:36] that the intent findings subsumes the necessary knowledge

[1:07:40] finding with respect to a direct

[1:07:43] aiding abetting liability theory.

[1:07:46] And I guess I'm wondering what your,

[1:07:49] what authority you're looking to for that proposition,

[1:07:52] that finding of intent to kill in connection

[1:07:56] with a murder conviction

[1:07:57] based on a natural improbable consequences.

[1:08:01] Liability theory necessarily satisfies the knowledge

[1:08:06] requirement with respect to the perpetrator's intent

[1:08:09] under a direct theory of aiding and abetting liability.

[1:08:12] Is there such a case?

[1:08:13] Lynne McGinnis: Well, Your Honor,

[1:08:15] People versus Mendoza,

[1:08:16] which is cited in appellant's brief states

[1:08:19] we cannot mechanically divide the defendant's mental state

[1:08:22] into knowledge and intent.

[1:08:23] One cannot intend to help someone do something

[1:08:25] without knowing what that person meant to do. And --

[1:08:30] Justice Kruger: But here we're talking about --

[1:08:33] So the intent that the jury actually found under,

[1:08:36] you know, sort of an assumed natural

[1:08:38] and probable consequences theory concerns a different act

[1:08:42] of the perpetrator, right?

[1:08:43] It concerns the disturbing the peace

[1:08:45] and unlawful possession of a weapon.

[1:08:47] It wasn't necessarily specific to the murder,

[1:08:51] which we're now concerned with. Correct?

[1:08:53] Lynne McGinnis: Well, I would disagree, Your Honor,

[1:08:56] because we have two findings that are combined.

[1:08:59] There's the natural and probable consequences doctrine,

[1:09:02] which requires not only disturbing the peace,

[1:09:05] but also that that foreseeably led to a murder.

[1:09:10] So there has to be something

[1:09:11] that foreseeably led to the murder,

[1:09:13] which is something that the jury found under the natural

[1:09:15] and probable consequences doctrine.

[1:09:18] But when they find the intent to kill

[1:09:21] by finding the special circumstance true,

[1:09:24] they not only find it was foreseeable,

[1:09:26] they find it was an intended consequence of the actions.

[1:09:32] So that brings him within the statute

[1:09:36] which precludes him from obtaining relief

[1:09:39] under section 180 1172.

[1:09:41] Justice Corrigan: If I understand the analysis

[1:09:42] of the Court of Appeal, it is that simply finding

[1:09:46] that somebody intends for somebody to be killed,

[1:09:51] which sadly is not unknown in our society.

[1:09:57] You have to have more than that to impose criminal liability.

[1:10:01] The defendant has to actually do something.

[1:10:07] And here... Lynne McGinnis: Precisely.

[1:10:09] Justice Corrigan: ...the jury found

[1:10:10] that the defendant intended the victim to die.

[1:10:15] But what did the defendant do to aid and abet the conduct

[1:10:22] that directly led to the decedent's death?

[1:10:26] Lynne McGinnis: Well, Your Honor,

[1:10:28] with all due respect, that assumes that the defendant

[1:10:31] had to do something to aid and abet the conduct in order --

[1:10:34] Justice Corrigan: You do have to do something

[1:10:36] to aid and about the conduct.

[1:10:37] You can't just have bad thoughts and hope someone will die

[1:10:41] and then wait and see if they do.

[1:10:43] Lynne McGinnis: No, I understand, Your Honor.

[1:10:44] I apologize. If, to use my example from before,

[1:10:49] the defendant had just given the perpetrator

[1:10:52] the victim's address,

[1:10:54] that would be aiding and abetting the conduct.

[1:10:57] Here the aiding and abetting consisted of pushing,

[1:11:01] shoving, making gang references

[1:11:04] which the gang expert put into context.

[1:11:06] Now we can debate whether that testimony

[1:11:09] would be admissible or enough today.

[1:11:11] But those were the acts that were done,

[1:11:13] in the context of the gang expert testimony,

[1:11:15] that aided and abetted in the murder

[1:11:18] and, under the natural and probable consequences doctrine,

[1:11:21] foreseeably led to the murder.

[1:11:23] The defendant doesn't have to hand Mr. Hernandez a weapon

[1:11:28] and say, "Shoot."

[1:11:30] He just has to do something that leads to the murder,

[1:11:33] such as giving an address,

[1:11:35] telling, telling the perpetrator your wife's having an affair,

[1:11:39] or in this case pushing, shoving, yelling out gang names,

[1:11:43] which the gang expert testified

[1:11:45] was not just pushing, shoving and yelling.

[1:11:47] But in the gang context meant something.

[1:11:51] Justice Corrigan: I may have misread the record,

[1:11:53] but are you suggesting that the record shows

[1:11:55] that the defendant, Mr. Curiel engaged in pushing and shoving?

[1:12:00] Or was it the co-defendant who engaged in pushing and shoving?

[1:12:03] Lynne McGinnis: Mr. Curiel argued

[1:12:06] there's some debate in the testimony

[1:12:08] about whether he was pushing and shoving.

[1:12:10] Different witnesses gave different testimony,

[1:12:12] but I believe one witness testified he pushed and shoved.

[1:12:16] He confronted the people and said, "This is OTH.

[1:12:20] This is my neighborhood."

[1:12:22] And at the trial at the time, a gang expert could testify,

[1:12:28] and may still be able to,

[1:12:29] that this kind of conduct can lead to violent behavior,

[1:12:34] even including a shooting or a killing.

[1:12:37] So Mr. Curiel didn't just stand by.

[1:12:40] He actually was involved in the confrontation

[1:12:43] that led to the shooting

[1:12:47] that resulted in the death of Mr. Tejada.

[1:12:52] Chief Justice Guerrero: Ms. McGinnis,

[1:12:53] if you'd like to reserve your seven minutes,

[1:12:55] you can conclude here or you can continue.

[1:12:57] Lynne McGinnis: No, I will reserve my time.

[1:12:58] Chief Justice Guerrero: Thank you.

[1:13:01] Ms. Peterson, whenever you're ready.

[1:13:17] Michelle Peterson: Thank you, Chief Justice Guerrero.

[1:13:19] And may it please the court.

[1:13:21] To briefly answer that question,

[1:13:24] we have found no evidence that Freddy Curiel was involved

[1:13:27] in pushing or shoving anybody.

[1:13:29] The Court of Appeal opinion says that,

[1:13:32] but I canvassed the record on explicitly that topic,

[1:13:38] and in footnote 2 on page 20 of our brief,

[1:13:42] we put the places in the record

[1:13:43] where we found evidence of pushing and shoving.

[1:13:45] And we saw no evidence that Freddy was involved in that.

[1:13:50] On the current record, if an evidentiary hearing

[1:13:54] were held tomorrow under Section 1172.6, Subdivision 3,

[1:13:59] Freddy Curiel would win.

[1:14:01] Not just a prima facie case, he would win.

[1:14:05] The gang expert testimony about gang culture

[1:14:09] and violent Hispanic gangs that, with no effort to link

[1:14:14] any of that to Mr. Curiel, would be excluded.

[1:14:17] The attorney general has made no argument to the contrary.

[1:14:20] The fact witness evidence provided no evidence

[1:14:23] that Mr. Curiel harbored malice

[1:14:26] or that he did anything to aid or abet,

[1:14:29] and thus there's no evidence of murder under current law.

[1:14:33] On this record, Mr. Curiel's LWOP conviction

[1:14:37] for special circumstance murder would be redesignated

[1:14:41] to aiding and abetting disturbing the peace.

[1:14:44] His sentence would be dropped from LWOP to two years,

[1:14:49] because the misdemeanor would have a gang felony.

[1:14:52] He's been incarcerated for 21.

[1:14:55] That's the kind of case that the legislature had in mind

[1:14:58] in enacting SB1437 to eliminate these kinds

[1:15:02] of imputed malice liabilities for murder.

[1:15:06] And we've never heard of any case in which a party

[1:15:11] has been issue precluded from making a prima facie case

[1:15:15] when the only admissible evidence after the judgment

[1:15:18] and after massive changes in the law subsequent

[1:15:21] to the judgment

[1:15:23] which would require that that party would win.

[1:15:27] Now the attorney general has made no case

[1:15:30] against anything I just said. The attorney general just claims

[1:15:33] this court can't consider any of it,

[1:15:36] because the jury received another instruction

[1:15:39] that intent to kill

[1:15:40] was an element of the gang circumstance.

[1:15:42] And the gang found,

[1:15:43] the jury found the gang special circumstance true.

[1:15:46] So the attorney general claims that by itself

[1:15:49] is issue preclusive of the whole section set 1132.6 petition,

[1:15:54] full stop, no exceptions.

[1:15:57] Never mind whether this record has admissible evidence

[1:16:00] of intent to kill under current law.

[1:16:02] Never mind all of the new statutes in case law

[1:16:05] that have come into effect that are directly relevant

[1:16:07] to this case, SB1437.

[1:16:09] This court's Sanchez opinion, this court's Valencia opinion,

[1:16:12] this court's Sargon opinion, as amicus points out.

[1:16:15] Or that if counsel in 2006 had argued for first degree murder

[1:16:20] without a gang special circumstance,

[1:16:23] instead of solely seeking acquittal,

[1:16:25] he would have been arguing for a sentence of 50 years to life.

[1:16:29] The functional equivalent of LWOP as this court

[1:16:31] has called it for a crime of disturbing the peace.

[1:16:35] Well, the attorney general says

[1:16:36] this court can't consider any of that either.

[1:16:40] The attorney general has cited --

[1:16:42] Justice Corrigan: I want to make sure

[1:16:43] that I understand your argument.

[1:16:45] Are you arguing today, in light of the jury's finding,

[1:16:48] that the defendant did act with intent to kill,

[1:16:51] or are you arguing that the admissible evidence

[1:16:53] is insufficient to support that finding?

[1:16:57] Michelle Peterson: We are arguing that, Your Honor.

[1:16:58] However, our argument does not turn on that.

[1:17:01] What the argument turns on is the question

[1:17:04] of whether the elements or of issue preclusion

[1:17:08] apply to this case, or there are any applicable exceptions.

[1:17:12] It's an issue preclusion argument.

[1:17:14] Issue preclusion does not depend

[1:17:16] on its insufficiency of evidence.

[1:17:17] I merely highlighted that to highlight

[1:17:20] how dramatic what the attorney general is arguing

[1:17:25] and how unfair it would be.

[1:17:26] And after all, issue preclusion is an equitable doctrine.

[1:17:30] And equitable doctrines are based in fairness,

[1:17:33] and this court in people versus Strong

[1:17:35] reiterated that issue preclusion

[1:17:37] is an equitable doctrine based in fairness.

[1:17:41] Justice Kruger: Can I ask you,

[1:17:42] before you get to questions of exceptions...

[1:17:44] Michelle Peterson: Yes, Justice Kruger.

[1:17:45] Justice Kruger: ...to the issue preclusion doctrine.

[1:17:47] You've heard the questioning from the bench

[1:17:49] which really concerns whether or not,

[1:17:51] even if we were to give preclusive effect

[1:17:54] to all of the findings that are embodied

[1:17:56] in the jury's verdict in this case,

[1:17:59] does that necessarily establish that Mr. Curiel

[1:18:02] would still be liable for murder under current law,

[1:18:07] under 1457, under a direct aiding and abetting liability?

[1:18:12] [Inaudible] probable consequences theory.

[1:18:14] And you've heard questions that sort of go to this question

[1:18:17] of the sort of the degree to which those findings

[1:18:20] cover the necessary elements of direct aiding and abetting.

[1:18:24] Can you address that issue for us?

[1:18:26] Michelle Peterson: Yes, thank you, Justice Kruger.

[1:18:27] And that issue is covered in

[1:18:29] arguments 4 and 5 of our brief, but I will elaborate on things

[1:18:32] that I've heard of the questioning.

[1:18:35] I begin by stating that contrary to my colleague's position,

[1:18:40] we have found no evidence

[1:18:42] that Mr. Curiel pushed anybody in this record.

[1:18:45] And I would again refer the court back

[1:18:48] to page 20, footnote 2 of our brief,

[1:18:51] where we cited testimony from Raul, testimony from Lupe.

[1:18:55] There were one or two other witnesses

[1:18:57] where they talked about the pushing.

[1:18:59] They all referred to it as Hernandez.

[1:19:02] So that's the first thing.

[1:19:03] As far as yelling out gang names are concerned,

[1:19:08] there's no -- well, first of all,

[1:19:10] there's no jury finding that

[1:19:13] Mr. Curiel knew that Mr. Hernandez

[1:19:18] was going to pull out a gun and shoot Cesar Tejada.

[1:19:21] And there's a very good reason for that,

[1:19:24] because it doesn't even make any sense.

[1:19:26] All of the evidence points to that incident having happened

[1:19:30] spontaneously as a result of Cesar pushing Hernandez.

[1:19:35] Now it may be some of the witnesses said

[1:19:39] Cesar pushed Hernandez over a shopping cart or a bicycle.

[1:19:43] Raul Ramirez said no, he pushed him

[1:19:46] and then Hernandez chased him.

[1:19:48] But nobody said that, after the push,

[1:19:52] Freddy Curiel said, "Shoot the guy, shoot the guy,"

[1:19:55] or that he knew that Hernandez was going to do it.

[1:19:58] And apart from the inadmissible gang expert testimony,

[1:20:01] there isn't even evidence that that he knew

[1:20:03] Hernandez had a gun.

[1:20:05] Justice Kruger: You've heard the arguments on the other side,

[1:20:07] which is that you can sort of put two things together

[1:20:09] that we know the jury must have concluded

[1:20:11] in order to return the verdict that it did.

[1:20:15] One is that Mr. Curiel, in sort of the role

[1:20:19] that he played in instigating this confrontation,

[1:20:21] did so with an intent to kill.

[1:20:24] And the jury thought that it was reasonably foreseeable

[1:20:28] that the consequence of instigating this confrontation

[1:20:31] was going to be that somebody who was going to get killed.

[1:20:34] I take the argument is if you put those things together,

[1:20:37] that's sufficient to conclude that the jury must have thought

[1:20:42] and essentially found that Mr. Curiel aided

[1:20:46] and abetted the murder itself.

[1:20:48] Michelle Peterson: Well, that may be

[1:20:49] my esteemed colleague's argument,

[1:20:50] but there isn't any evidence of it.

[1:20:52] First of all, there's no evidence

[1:20:54] that Freddy Curiel said anything at all

[1:20:57] with the intent of provoking a murder.

[1:20:59] There's just none.

[1:21:01] Chief Justice Guerrero: You answered the question --

[1:21:02] Setting aside the sufficiency argument of the evidence

[1:21:05] and just address as a legal matter

[1:21:07] the question that was asked?

[1:21:09] Michelle Peterson: Certainly.

[1:21:10] Thank you, Justice Guerrero.

[1:21:12] But the second thing is

[1:21:13] that there's no evidence to link the two.

[1:21:16] And I do need to adhere to Your Honor's request.

[1:21:23] But the lack of evidence is part of why,

[1:21:27] with no instruction on knowledge,

[1:21:30] no instruction of any sort of need for linkage,

[1:21:34] that if the jury's not instructed on it

[1:21:37] and there's no evidence of it,

[1:21:38] then how can the jury have made that finding?

[1:21:41] What we're talking about here

[1:21:42] is for purposes of a prima facie case,

[1:21:45] what findings the jury did or did not necessarily make.

[1:21:49] And as Justice Chin wrote in People versus Garcia,

[1:21:52] certainty is the element of all estoppels.

[1:21:55] So unless it is certain that the jury found

[1:21:59] that Mr. Curiel had knowledge

[1:22:02] that Mr. Hernandez intended to kill

[1:22:05] or intended to ask Mr. Hernandez to kill based on this record,

[1:22:10] then there's no issue preclusion,

[1:22:13] and there's a prima facie case.

[1:22:15] And with no instruction and no evidence,

[1:22:17] I don't see how there can be any certainty.

[1:22:19] I don't see anything at all.

[1:22:21] Chief Justice Guerrero: I guess the combination

[1:22:23] that's being presented here is the intent to kill,

[1:22:25] which you acknowledge was a finding by the court,

[1:22:28] right, for the special circumstance.

[1:22:32] Michelle Peterson: Yes, Your Honor.

[1:22:33] There was a jury instruction on that. Yes.

[1:22:35] Chief Justice Guerrero: Finding by the jury

[1:22:36] on the court's instruction for the special circumstance.

[1:22:38] That combined with, I think the argument is the natural

[1:22:43] and probable consequences doctrine,

[1:22:45] the portion of it where the jury was asked

[1:22:48] to make a determination

[1:22:49] as to whether the murder was foreseeable.

[1:22:52] You combine those two, I understand it,

[1:22:55] the argument is that there's sufficient showing of direct

[1:23:00] aiding and abetting liabilities with those two.

[1:23:02] Michelle Peterson: Well, of course,

[1:23:03] natural and probable consequences

[1:23:05] is no longer in play after SB1437.

[1:23:07] So we, in our view, we shouldn't even be talking about that.

[1:23:12] But what Your Honor is asking about,

[1:23:16] and let me rephrase for a moment,

[1:23:20] the Court of Appeal talked about the possibility

[1:23:24] that the jury may have found the mindset of a murderer.

[1:23:29] First of all, that only came from the gang evidence,

[1:23:33] the gang expert evidence. And the gang expert evidence

[1:23:35] didn't even talk about the mindset of a murderer,

[1:23:38] let alone try to link acts of shouting out gang names

[1:23:44] with yes this murder was going to happen.

[1:23:47] Or that a person who shouts out a gang name

[1:23:49] necessarily believes that a murder is going to happen.

[1:23:52] The gang expert said violence can result

[1:23:55] from shouting out a gang name.

[1:23:57] sometimes does result from shouting out a gang name.

[1:24:02] But he never said it does result.

[1:24:04] So again, you've got a combination

[1:24:07] of no instruction on knowledge,

[1:24:09] nothing to link a natural and probable consequences

[1:24:12] finding to intent to kill other

[1:24:15] than the gang expert suggesting that people in gangs

[1:24:19] and Hispanic violent gangs have intent to kill.

[1:24:24] But intent to kill Cesar Tejada?

[1:24:26] There's no finding of that either.

[1:24:27] There there's no finding whatsoever that links

[1:24:32] whatever it is that Freddy Curiel did

[1:24:34] to a purported intent to kill Cesar Tejada.

[1:24:39] And the intent to kill Cesar Tejada

[1:24:41] is the only thing that is that issue

[1:24:45] in this Section 1172.6 petition.

[1:24:48] I'd also go back to the supplemental brief

[1:24:50] that we filed on this court's Ware and Lopez opinions

[1:24:55] because I believe it was in Ware --

[1:24:58] the court knows better than I do,

[1:24:59] so I could be wrong -- that the court was talking about

[1:25:03] how merely having a mindset of a gang member

[1:25:07] doesn't necessarily constitute evidence of intent

[1:25:12] on a particular occasion.

[1:25:14] And that also came from the Ninth Circuit's Garcia opinion,

[1:25:17] which we did cite,

[1:25:18] and this court's Ware opinion cited it also.

[1:25:20] So you've got this gang expert kind of talking about,

[1:25:23] well, these violent Hispanic gang members

[1:25:25] all have this violent intent and they're willing to kill.

[1:25:30] But willingness to kill and actual intent to kill

[1:25:34] on this occasion, in this case,

[1:25:37] are two completely separate things.

[1:25:39] And there's no jury instruction to link the two.

[1:25:42] And there's no evidence to link the two.

[1:25:43] So no, Your Honor, we respectfully disagree

[1:25:45] that just because the jury found

[1:25:48] that our client had intent to kill

[1:25:50] based on the gang expert testimony,

[1:25:53] that meant that he had knowledge that Hernandez could

[1:25:56] or would kill Cesar Tejada in this particular case

[1:26:00] or that he intended to do so.

[1:26:02] Justice Jenkins: What is your response

[1:26:04] to counsel's argument that the intent to kill finding

[1:26:10] really subsumes the knowledge element?

[1:26:12] And she relies on Mendoza for that proposition,

[1:26:15] citing to us some general language from that case.

[1:26:18] Do you have a rejoinder to that?

[1:26:21] Michelle Peterson: Well, Your Honor, of course,

[1:26:23] the jury didn't read Mendoza,

[1:26:25] and nor did the jury receive instructions

[1:26:29] that contain that particular principle.

[1:26:33] As a matter of common sense,

[1:26:36] again, we're talking about two completely separate things.

[1:26:38] We're talking about gang expert testimony

[1:26:41] that says that yes,

[1:26:42] these are violent Hispanic gang members,

[1:26:44] and they have all these violent thoughts and violent intents,

[1:26:49] much like defendant Hoskins in Ware.

[1:26:52] But that's not evidence

[1:26:54] of intent to kill on this particular occasion.

[1:26:56] And Mendoza wasn't addressing that particular situation.

[1:27:00] But indeed, if the jury found intent to kill

[1:27:05] in the abstract based on the gang expert testimony,

[1:27:08] or as the Court of Appeal called it the mindset of a murderer,

[1:27:11] and but there's nothing to link it to this particular case,

[1:27:16] then the Mendoza language can be reframed

[1:27:19] to match this particular case as saying that

[1:27:23] one can't have intent to kill Cesar Tejada without knowledge

[1:27:29] that there's going to be a homicide of Cesar Tejada.

[1:27:33] Well, there's no evidence of any such knowledge.

[1:27:37] There's no evidence that Mr. Curiel did anything

[1:27:39] with any such knowledge, and there's no intent.

[1:27:43] And the jury made no such finding

[1:27:44] because it was never asked to do so.

[1:27:46] And the gang officer didn't tell them

[1:27:49] that they could make such a finding.

[1:27:51] And if the gang officer had told them that,

[1:27:53] that would, in our view, be profile evidence

[1:27:58] that just because this guy's a violent Hispanic gang member,

[1:28:02] that must mean that every time he shouts out a gang challenge,

[1:28:05] he intends to kill people.

[1:28:07] Even the gang expert didn't go there.

[1:28:09] And if it did go there, it would be inadmissible today.

[1:28:12] And we respectfully disagree with any theory

[1:28:17] that admissibility today

[1:28:19] is irrelevant to this court's determination.

[1:28:23] Because after all, the question that we're talking about

[1:28:25] is what is a prima facie case?

[1:28:27] And historically, throughout the ages

[1:28:30] and nowadays, a prima facie case is the quantum of evidence

[1:28:36] that a party must show or to be able to demonstrate

[1:28:40] that there is a fact worth litigating,

[1:28:43] That they're entitled to a full trial

[1:28:45] or a full evidentiary hearing.

[1:28:47] The classic prima facie case in civil law

[1:28:49] is a motion for summary judgment.

[1:28:51] That's a prima facie case issue also.

[1:28:54] So when we are talking about an SB1437 1172.6 petition now,

[1:29:00] we're talking about evidence

[1:29:02] of what the trier of fact under 1172.6 could consider nowadays.

[1:29:07] Well, the trier of fact can't consider

[1:29:10] inadmissible evidence.

[1:29:12] And when the legislature enacted SB1437 in 2018,

[1:29:19] it is presumed to have knowledge of the decisions of this Court

[1:29:25] that are relevant to the legislation it was enacting.

[1:29:29] Well, that includes this Court's 2016 Sanchez opinion

[1:29:33] and this 2000, and this Court's 2012 Sargon opinion.

[1:29:36] So in that respect, SB1437 and therefore 1172.6,

[1:29:42] can be determined to subsude --

[1:29:44] I'm sorry, subsume, the principles --

[1:29:46] Justice Liu: Counsel, can I take you back?

[1:29:48] Just a couple steps.

[1:29:49] So to the other part of Justice Kruger's question,

[1:29:55] you've made your point about why intent to kill

[1:29:58] does not subsume knowledge of the perpetrator's intent.

[1:30:03] What about the reasonably foreseeable part?

[1:30:08] I take it that part of the opposing argument here

[1:30:12] is that reasonable foreseeability

[1:30:15] encompasses some notion that the target crime,

[1:30:19] though definitionally somewhat minor,

[1:30:26] was thought -- was found by the jury

[1:30:31] to reasonably foreseeably lead to a killing.

[1:30:36] And the mechanism by which that occurred

[1:30:39] traveled through the direct perpetrator's acts.

[1:30:43] And I take it that the argument is that this is,

[1:30:46] this is part of the reasonable foreseeable element

[1:30:48] which helps the opposing arguments.

[1:30:52] This is the claim, the opposing arguments claim about knowledge.

[1:30:56] Michelle Peterson: Well, Your Honor,

[1:30:58] reasonable foreseeability,

[1:31:00] that's natural and probable consequences.

[1:31:02] That's just rehashing a doctrine of murder

[1:31:05] that no longer exists. Certainly we agree --

[1:31:07] Justice Liu: No, no longer exists.

[1:31:08] I'm just saying that it's a jury finding.

[1:31:10] Michelle Peterson: And we have no doubt

[1:31:12] that the jury -- that's what it took for the jury

[1:31:16] to get to a finding of first degree murder.

[1:31:19] That somebody, another gang member

[1:31:21] pulling out a gun and blowing somebody away

[1:31:23] as a reasonably foreseeable consequence

[1:31:26] of being involved in shouting out gang challenges.

[1:31:30] But that's not your improbable consequences.

[1:31:32] If the jury -- And that's the whole point.

[1:31:35] An 1172.6 petition nowadays, we can't consider that.

[1:31:39] So we can't consider what was reasonably foreseeable.

[1:31:42] There's a huge difference

[1:31:44] between what is reasonably foreseeable

[1:31:48] and what the evidence actually shows Mr. Curiel

[1:31:53] to have subjectively foreseen.

[1:31:56] Yes, if he subjectively foresaw that,

[1:32:00] if he uttered a gang, you know, if he said OTH,

[1:32:04] then Cesar Tejada would push Abraham Hernandez,

[1:32:09] and Hernandez would then take out a gun and blow him away.

[1:32:12] Sure, If he subjectively foresaw that,

[1:32:15] then that would be evidence toward aiding.

[1:32:17] But there's no evidence of that.

[1:32:18] That is such a farfetched speculative theory.

[1:32:22] And speculative theories simply don't rise

[1:32:25] to the level of evidence. So we can't use that as a basis

[1:32:29] for precluding Mr. Curiel from his current petition.

[1:32:32] Chief Justice Guerrero: Assume that you could use

[1:32:34] that finding, or a jury finding,

[1:32:36] what would your argument be?

[1:32:41] Michelle Peterson: If you could use a jury finding

[1:32:44] that is based on no evidence, what would the argument be?

[1:32:49] Chief Justice Guerrero: Yes. Michelle Peterson: Okay.

[1:32:50] Chief Justice Guerrero: Assume with me,

[1:32:52] even though you clearly disagree.

[1:32:53] But I'm not talking about the sufficiency.

[1:32:55] I want you to be able to respond

[1:32:57] to counsel's argument on that point.

[1:33:00] Michelle Peterson: Thank you, Justice Guerrero.

[1:33:04] I'd say two things along those lines.

[1:33:05] First of all, in many respects, that harkens me back

[1:33:10] to the Court of Appeal opinions

[1:33:14] that preceded this court's opinion in People v. Strong.

[1:33:18] There was the Secrease opinion, the Pineda opinion.

[1:33:20] There were two others. I can't remember the names of them.

[1:33:23] They're already published now.

[1:33:25] And this court rejected them in Strong.

[1:33:27] But the premise of those opinions was that in order to --

[1:33:33] in the Strong type situation,

[1:33:34] in order to be able to make a prima facie case,

[1:33:37] you had to show there was no substantial evidence

[1:33:40] under current law.

[1:33:42] Now we don't agree that that is the only way

[1:33:44] to make a prima facie case,

[1:33:45] and this court rejected that in Strong.

[1:33:47] But we would agree that is a way to make a prima facie case.

[1:33:51] And in that respect, this court never rejected that and Strong.

[1:33:55] And it makes perfect sense,

[1:33:56] because if there's no evidence to support a conclusion

[1:34:01] that a person is liable for malice murder under current law,

[1:34:05] how can that not be a prima facie case

[1:34:07] that there's enough evidence to go to an evidentiary hearing?

[1:34:10] Justice Liu: If I may, Ms. Peterson,

[1:34:12] I think you made a crucial point a second ago,

[1:34:14] which I don't think we focused on enough,

[1:34:16] which is that the reasonable foreseeable --

[1:34:18] reasonable foreseeability finding, right,

[1:34:21] is an objective finding by the jury.

[1:34:23] It is not a finding about a state of mind. Yeah.

[1:34:26] Michelle Peterson: Yes, I absolutely agree with that.

[1:34:28] And that's the linkage that my esteemed colleague

[1:34:32] has failed to make here.

[1:34:35] She talks about what's foreseeable,

[1:34:39] what's objectively foreseeable, what's objectively foreseeable.

[1:34:42] And I guess that's part of the reason

[1:34:43] that I have kind of gotten stuck on that's natural

[1:34:46] and probable consequences.

[1:34:47] Because to get to aiding and abetting murder

[1:34:52] with malice nowadays, that's not enough.

[1:34:55] You need subjective intent, subjective knowledge,

[1:35:00] to kill this particular victim.

[1:35:02] And that is not embodied in a finding of natural

[1:35:05] and probable consequences.

[1:35:10] Does the court have any more questions

[1:35:11] on that particular point?

[1:35:13] Of these points relevant to the Court that Appeal's opinion?

[1:35:16] I just have a couple of other things

[1:35:19] that I want to say along those lines.

[1:35:23] Justice Liu: Could you address --

[1:35:25] We haven't spent much time on this,

[1:35:27] but it has come up. On the issue preclusion point,

[1:35:30] why is this finding of intent to kill not preclusive under,

[1:35:38] well, I must say, issue of preclusion

[1:35:40] is not the easiest doctrine to understand.

[1:35:44] But in in common sense sort of equitable fairness

[1:35:48] kind of terms, what is missing here?

[1:35:51] Was there a lack of incentive to litigate this?

[1:35:53] Was there a lack of opportunity to litigate this?

[1:35:55] Was there something different about the finding made

[1:35:59] then with regard to the special circumstance

[1:36:02] versus what an intent to kill looks like

[1:36:05] for regular murder liability?

[1:36:07] What would be the hang up for issue preclusion?

[1:36:12] Michelle Peterson: The hang-ups are many, Justice Liu.

[1:36:15] The three primary hang ups are lack of foreseeability.

[1:36:21] Lack of foreseeability is divided into two subcategories.

[1:36:24] The whole reason that we're here, in a sense,

[1:36:26] is because trial counsel in 2006 chose not to argue,

[1:36:32] "But if you find my client guilty of murder,

[1:36:35] then you should at least find

[1:36:37] the special circumstance not true."

[1:36:38] And that wouldn't have made any sense to do so,

[1:36:41] because then he'd be telling the jury, "Yeah,

[1:36:43] you can find my client guilty,

[1:36:46] and we'll just take the sentence of 50 years to life,"

[1:36:48] which this court knows is the functional equivalent of LWOP.

[1:36:51] Of course he didn't argue that.

[1:36:53] And so that's problem number one.

[1:36:55] Now, since he didn't argue it and certainly lacked incentive

[1:37:01] to make that argument, let alone vigorously and forcefully,

[1:37:05] the attorney general is saying, "Well, that that's enough.

[1:37:08] Too bad, so sad."

[1:37:10] Justice Liu: Well, that -- Well, let me just pause there.

[1:37:11] I mean, that's a problem

[1:37:13] that inheres in lots of cases, though.

[1:37:14] I mean, defense counsel makes tactical choices.

[1:37:18] They face numerous charges. Sometimes you try to make

[1:37:23] all the arguments in the alternative,

[1:37:24] even though that may erode your credibility.

[1:37:26] But these are, but these are choices

[1:37:28] that the defendants have to make.

[1:37:30] Michelle Peterson: First, Your Honor,

[1:37:31] I agree totally with that.

[1:37:32] The problem is that when we talk about tactical choices,

[1:37:36] where we tend to be using the language

[1:37:37] of ineffective assistance of counsel.

[1:37:39] This is not an ineffective assistance of counsel argument.

[1:37:42] It wasn't that counsel lacked competence.

[1:37:45] What counsel lacked was a crystal ball.

[1:37:48] He couldn't possibly foresee that 12 years later,

[1:37:52] suddenly I'd be standing here, well 17 years later,

[1:37:55] and we'd be arguing over the preclusive effect of legislation

[1:37:59] that didn't even exist in 2006. And that nobody --

[1:38:02] Chief Justice Guerrero: But looking at the intent to kill component of it...

[1:38:04] Michelle Peterson: Correct.

[1:38:06] Chief Justice Guerrero: ...and that was an element of the offense?

[1:38:09] Michelle Peterson: It's an element of the special.

[1:38:10] Chief Justice Guerrero: Why wasn't there

[1:38:12] an adequate opportunity to litigate that issue?

[1:38:15] Michelle Peterson: Because the issue preclusion

[1:38:16] exceptions that are recognized by the second restatement,

[1:38:19] as Justice Liu said,

[1:38:20] it's a little bit of an abstruse topic.

[1:38:23] Include lack of foreseeability of preclusive consequences,

[1:38:27] in fact, I would turn back to this court's decision

[1:38:29] in Murray versus Alaska Airlines

[1:38:31] as a really good illustration of that particular point.

[1:38:35] In Murray, which we talked about in our answer

[1:38:39] to the OSPD's amicus brief, the court divided four to three.

[1:38:45] But they didn't divide four to three --

[1:38:47] it didn't divide four to three on the importance

[1:38:50] of foreseeability of preclusive consequences.

[1:38:53] What it divided four to three on

[1:38:55] was whether the particular action

[1:38:57] taken by Murray in that case, which was not --

[1:39:02] which was to abandon as administrative remedy

[1:39:04] and not to request an ALJ hearing,

[1:39:08] would have issued preclusive consequences.

[1:39:10] The majority said yes because he had noticed foreseeability,

[1:39:15] that it would have issue preclusive consequences.

[1:39:18] Justice Werdegar's three-justice dissent said no.

[1:39:22] There was no notice of the foreseeability

[1:39:26] of preclusive consequences.

[1:39:28] And here's all the reasons why foreseeability

[1:39:30] of preclusive consequences

[1:39:32] is extremely important to any form of issue preclusion.

[1:39:36] So all seven members of the court

[1:39:39] focused on foreseeability, notice,

[1:39:42] if you will, of preclusive consequences

[1:39:45] as crucial to the doctrine issue preclusion.

[1:39:48] You have none of that here.

[1:39:51] So that's problem number one, that nobody in 2006 could have

[1:39:55] foreseen the issue of preclusive consequences of SB1437

[1:40:00] because nobody could have foreseen SB1437.

[1:40:03] Justice Corrigan: But that's slightly different

[1:40:04] from an incentive to raise the issue.

[1:40:09] And it is certainly not unheard of in death penalty cases

[1:40:14] for most of the dispute to be about the specials.

[1:40:20] And I think it's a little too blithe to say,

[1:40:24] well, he was going to get a long sentence anyway,

[1:40:26] so there was no incentive

[1:40:28] to try to take the death penalty off the table.

[1:40:31] That seems like a difficult argument to make.

[1:40:37] Michelle Peterson: This wasn't a capital case.

[1:40:39] Does that matter, Your Honor?

[1:40:40] Justice Corrigan: Well, it matters whether or not

[1:40:42] it's going to be a life without full stop or life with.

[1:40:48] Michelle Peterson: In 50 years.

[1:40:50] Justice Corrigan: Well, depending on how the court --

[1:40:52] whether the court makes

[1:40:54] other sentences consecutive and all the rest.

[1:40:57] But to avoid a life without full stop sentence seems to be --

[1:41:05] if you can do it, seems to be a pretty fair incentive.

[1:41:09] Michelle Peterson: Well, actually, it wouldn't

[1:41:10] have been consecutive sentences, Your Honor,

[1:41:12] because it would be an automatic 25 to life for the murder

[1:41:15] and an extra 25 to life for the gun under 1202 2253(e).

[1:41:19] It was an automatic sentence of 50 years to life.

[1:41:22] But I think, Justice Corrigan,

[1:41:23] your question is really well addressed

[1:41:25] kind of in the broader questions that this court has to face,

[1:41:29] which is, well, let's say it's 35 years to life,

[1:41:31] or let's say it's 25 years to life.

[1:41:33] And so I don't want to be on record

[1:41:36] as having said that there was no incentive there.

[1:41:40] There's always some incentive.

[1:41:42] But the case law that talks about this particular exception,

[1:41:49] and we cited the Sokol case, which is one of the reasons

[1:41:52] that we focused on incentive.

[1:41:55] It kind of goes in two different directions,

[1:41:57] and they all lead back to the same place.

[1:41:59] One is let's take a hypothetical that

[1:42:01] in a civil case a person who's out of state is sued

[1:42:04] for $1.00 in small claims court, and they default.

[1:42:09] The attorney general's position is that's it.

[1:42:13] Their issue precluded,

[1:42:14] so that later there's a case for $1,000,000,

[1:42:17] they can't litigate anything because their issue precluded

[1:42:19] on everything. That's not the law.

[1:42:22] The restatement doesn't support that.

[1:42:23] It's contrary to the restatement.

[1:42:25] It's contrary to all of the case law in this area.

[1:42:27] So it's not just that, well, yes,

[1:42:30] they could have submitted evidence, but they didn't.

[1:42:32] And they can argue but they didn't do so.

[1:42:35] That's not the law of issue preclusion.

[1:42:37] And the other thing we would point out

[1:42:39] and it kind of goes along those lines is that in the cases

[1:42:43] that we signed an argument 1(d) of our responsive brief,

[1:42:49] a lot of those cases,

[1:42:51] one or two of which were cited in the US Supreme

[1:42:53] Court's opinion of Park Lane Hosiery versus Shore.

[1:42:58] Where cases where there's litigation

[1:43:02] for some relatively small amount

[1:43:04] and nobody's anticipating the later litigation.

[1:43:07] And so they don't contest the small amount litigation much

[1:43:11] or they default or whatever.

[1:43:12] And suddenly later there's a litigation for $200 million

[1:43:16] that they didn't foresee.

[1:43:17] So there's also an interplay between foreseeability

[1:43:22] of issue preclusive consequences,

[1:43:24] which I just talked about, and incentive to litigate.

[1:43:28] If because of the un-foreseeability

[1:43:31] of the future litigation

[1:43:33] at the time of the original case,

[1:43:35] there are some impairments of incentive to litigate,

[1:43:41] and it's not any incentive to litigate.

[1:43:43] The case law says incentive to litigate vigorously

[1:43:46] or to the hilt and as in Herring versus Precise.

[1:43:50] When you've got that combination of un-foreseeability

[1:43:55] and low incentive in the first case,

[1:43:58] you have no issue preclusion.

[1:44:00] And I would further, Justice Corrigan and the court,

[1:44:03] to argument 1(d) of our brief where we talked about that.

[1:44:09] We did talk about incentives separately in argument 1(c),

[1:44:13] simply because Sokol from the Second Circuit

[1:44:16] was an interesting case where there was foreseeability,

[1:44:21] but the defendant's position, it was a doctor,

[1:44:26] and he didn't want to be convicted

[1:44:27] because if he gets convicted, he'd lose his license.

[1:44:29] So he and his counsel focused everything

[1:44:32] on trying to get acquitted.

[1:44:35] And this local court held that despite the foreseeability

[1:44:38] of issue preclusive consequences,

[1:44:41] the incentive was not there.

[1:44:42] And that too, even apart from foreseeability,

[1:44:46] is the position that we saw Bill Kelly in 2006,

[1:44:50] that he's trying to get a client acquitted.

[1:44:52] He doesn't want 50 years to life.

[1:44:55] So he's in the same position as Dr. Sokol.

[1:44:59] But when you combine that with the foreseeability question,

[1:45:04] the restatement, second restatement of judgments

[1:45:06] is very firm and say no issue preclusion.

[1:45:10] Chief Justice Guerrero: We've taken you over your time.

[1:45:12] Michelle Peterson: Thank you, Chief Justice.

[1:45:13] Chief Justice Guerrero: Thank you.

[1:45:14] We appreciate your argument.

[1:45:15] Michelle May Peterson: I appreciate the time.

[1:45:20] Chief Justice Guerrero: Ms. McGinnis,

[1:45:21] you have seven minutes.

[1:45:22] Lynne McGinnis: Thank you, Your Honor.

[1:45:24] I just want to point out first of all that counsel

[1:45:26] isn't entirely correct about the instructions,

[1:45:29] because they were given direct

[1:45:31] aiding and abetting instructions.

[1:45:32] They were not just instructed on the natural

[1:45:34] and probable consequences doctrine.

[1:45:37] They were given CALCRIM 400 and 401

[1:45:39] regarding the requirements for direct aiding and abetting,

[1:45:42] which did include a knowledge requirement.

[1:45:45] And it's our position that once they found an intent to kill,

[1:45:49] rather than just foreseeability,

[1:45:52] he became a direct aider and abetter.

[1:45:54] And they would have turned to

[1:45:56] the direct aiding and abetting instructions for guidance.

[1:45:59] I want to talk a little about this issue preclusion idea

[1:46:03] and the question of incentive to litigate.

[1:46:06] And as I understand counsel's argument,

[1:46:09] the argument is that 1172.6 is a change in law,

[1:46:14] and it was unforeseeable

[1:46:15] and that there was no incentive to litigate.

[1:46:18] The problem I'm having with that argument

[1:46:21] is that no one can make a prima facie case

[1:46:25] if that's what the collateral estoppel

[1:46:29] unforeseeability requirement meant.

[1:46:32] But the legislature indeed built a prima facie case requirement

[1:46:36] into the statute.

[1:46:39] And this court stated in Strong, for example,

[1:46:42] that post Banks and Clark findings would preclude

[1:46:46] a defendant from making a prima facie case for relief.

[1:46:51] But the same thing, no incentive to litigate

[1:46:53] or unforeseeability could be said about a defendant

[1:46:57] who had a felony murder charge

[1:47:00] or felony murder theory and special circumstance.

[1:47:04] That's -- While felony murder was easy,

[1:47:07] so we're not going to contest the special circumstance.

[1:47:11] Now collateral estoppel can certainly be used as a guide

[1:47:14] and was used in Strong. But it's an equitable doctrine

[1:47:18] and has to be considered along with the principle

[1:47:22] that the legislature did not want

[1:47:24] to have all murder defendants go to a resentencing hearing.

[1:47:28] And the arguments made by counsel, for example,

[1:47:32] Sanchez, Sargon, Valencia being changes in the law,

[1:47:36] if we apply those as changes in the law,

[1:47:39] then even defendants who were not convicted

[1:47:43] on faulty theories,

[1:47:45] if they were only given, for example,

[1:47:47] direct aiding and abetting instructions,

[1:47:48] they could say, well, Sanchez or Valencia

[1:47:51] or AB 333 or Sargon constitutes a change in the law.

[1:47:56] And so I want my murder conviction

[1:47:58] to be relitigated in an evidentiary hearing.

[1:48:01] But that's clearly not what the legislature intended. Now.

[1:48:06] Chief Justice Guerrero: Could you also address

[1:48:08] the argument that

[1:48:09] they actually litigated incentive to litigate component

[1:48:13] as an exception to issue preclusion?

[1:48:16] Specifically the Contreras case and the argument being that

[1:48:20] there was a finding there that LWOP and 50 years

[1:48:23] are functionally equivalent.

[1:48:25] Lynne McGinnis: Certainly, Your Honor.

[1:48:26] Again, we have to look -- That that goes to the problem

[1:48:31] with, number one, rendering all murder convictions

[1:48:36] where there were no faulty theories

[1:48:37] and a person didn't have incentive to litigate.

[1:48:40] If you superimpose that collateral estoppel requirement

[1:48:43] and you have a murder conviction

[1:48:45] where just direct aiding and abetting theories,

[1:48:47] the defendant could say, under principles

[1:48:49] of collateral estoppel,

[1:48:50] "I didn't have incentive to litigate,

[1:48:52] therefore I'm entitled to an evidentiary hearing."

[1:48:55] The other problem we have is that it's unfair because,

[1:49:02] and it involves looking beyond the record of conviction

[1:49:06] to see whether the defendant is entitled to relief.

[1:49:09] For example, in some cases, this was a 50 to life case,

[1:49:13] but there could be a case where there was no gun enhancement

[1:49:17] and it's 25 to life.

[1:49:18] So in those cases they would not get an evidentiary hearing.

[1:49:23] And that goes beyond looking at the record of conviction.

[1:49:27] The other problem with incentive

[1:49:29] that goes beyond looking to the record of conviction

[1:49:32] is we would have to look at the record to see

[1:49:35] if something was litigated or was not litigated.

[1:49:38] And that involves precisely the kind of fact

[1:49:40] finding that the legislature did not want to do

[1:49:43] in the prima facie case stage.

[1:49:47] The other thing I wanted to point out

[1:49:49] is, certainly, we have come a long way

[1:49:51] in our understanding of gang cases

[1:49:53] since this case was tried in 2006.

[1:49:56] And there have been a lot of developments in the gang laws.

[1:50:01] And the arguments, you know, about insufficiency

[1:50:03] of the evidence in Sanchez and Sargon are understandable.

[1:50:08] But the question is whether 1170.2.6 is

[1:50:13] the remedy for rectifying these problems.

[1:50:17] There are a lot of special circumstances

[1:50:19] that require an intent to kill,

[1:50:22] and in Strong this court pointed out a number of them.

[1:50:25] There's the witness killing, the juror killing,

[1:50:30] the judge killing, the torture killing.

[1:50:35] And a requirement that goes beyond

[1:50:39] looking to the record of conviction

[1:50:41] and the malice murder requirement

[1:50:43] of what the legislature intended to do with section 1170.2.6

[1:50:49] would affect a large number of these cases.

[1:50:53] Now there may indeed,

[1:50:55] may or may not be other remedies for gang cases.

[1:50:59] The other difficulty I'm having is what I alluded to earlier

[1:51:03] is that there are gang cases out there

[1:51:06] where there were no instructions on natural

[1:51:08] and probable consequences.

[1:51:10] And they're based on the same evidence,

[1:51:13] type evidence that we had in this case.

[1:51:16] And the defendant doesn't get to petition for resentencing

[1:51:21] because that evidence is no longer admissible today.

[1:51:25] The remedy, if any, lies with other --

[1:51:29] If there is a remedy, it lies with other means,

[1:51:32] such as determining whether Sanchez, Sargon, or AB 333

[1:51:36] are retroactive to final judgment.

[1:51:41] And so I would encourage this court,

[1:51:44] and the last thing I would point out is that, again --

[1:51:48] Justice Evans: Counsel, say more about that.

[1:51:49] What is your -- What is your problem or question?

[1:51:52] What is the -- You have a problem or question

[1:51:55] with the disparity between those two classes of cases?

[1:51:58] What is -- What's the point you're making there?

[1:52:01] Lynne McGinnis: I'm sorry. The point I'm making,

[1:52:02] Your Honor, is that clearly, if there were only direct

[1:52:05] aiding and abetting theories instructed on,

[1:52:08] then the person would not pass

[1:52:11] the prima facie case requirement.

[1:52:13] They would not get an evidentiary hearing.

[1:52:16] We couldn't say, for example,

[1:52:17] that under 1172.6 this gang evidence was skimpy

[1:52:22] and is no longer admissible today.

[1:52:25] So we're going to go to an evidentiary

[1:52:27] hearing under 1172.6.

[1:52:30] But under my friend, on the other side's theory,

[1:52:33] we could say because there was a natural

[1:52:35] and probable consequences instruction,

[1:52:37] even though it didn't factor into the jury's decision

[1:52:40] because they found an intent to kill,

[1:52:42] we could go to an evidentiary hearing on this

[1:52:45] now what we consider to be skimpy gang evidence.

[1:52:48] And that's not what the, the legislature did create

[1:52:51] this private fascia case requirement.

[1:52:56] I would just urge the court to look at this record

[1:53:00] and how the jury was instructed

[1:53:02] and the fact that we talk about foreseeability.

[1:53:06] But once they found an intent to kill,

[1:53:10] they didn't find foreseeability. They found intent to kill.

[1:53:15] They were instructed to connect the actus reus

[1:53:19] with the intent to kill.

[1:53:21] Under McCoy, the acts merge

[1:53:24] and become the acts of the perpetrator.

[1:53:29] The knowledge requirement was a requirement

[1:53:32] that the jury understood

[1:53:33] from the direct aiding and abetting instructions.

[1:53:36] The jury made that finding, and that finding is not open

[1:53:40] to re-litigation in the section 1172.6 context.

[1:53:45] Therefore, in the gang context, like in any other finding

[1:53:49] where there is an intent to kill which equates

[1:53:52] with actual malice, the defendant is for --

[1:53:57] if that finding is undisturbed,

[1:53:59] the defendant is precluded from resentencing relief

[1:54:02] as a matter of law.

[1:54:04] The matter does not go to an evidentiary hearing.

[1:54:07] Thank you, Your Honor.

[1:54:08] Chief Justice Guerrero: Thank you to both counsel.

[1:54:10] We appreciate your helpful arguments here today.

[1:54:16] We'll now call the next matter.

[1:54:21] The next matter is Mr. Gantner versus PG&E.

[1:54:36] We're joined here and welcome Justice O'Rourke

[1:54:40] from the Fourth District Court of Appeal, Division One.

[1:54:47] Mr. Carlin, whenever you're ready.

[1:54:49] You've asked for 20 minutes for opening.

[1:54:53] Nicholas Carlin: Thank you.

[1:54:54] Thank you, Your Honor. Thanks.

[1:54:56] Thank you, Justice Guerrero. May it please the court.

[1:54:58] Nicholas Carlin on behalf of the plaintiff and petitioner,

[1:55:02] Anthony Gantner.

[1:55:06] We are here today on two certified questions

[1:55:09] from the Ninth Circuit --

[1:55:10] Whether Public Utilities Code Section 1759 preempts this case,

[1:55:16] and whether Tariff Rule 14 immunizes PG&E

[1:55:20] from its own negligence.

[1:55:22] The answer to both questions is no.

[1:55:26] This case arose from PG&E's

[1:55:28] criminally negligent maintenance of its electric grid,

[1:55:32] which resulted in devastating wildfires.

[1:55:35] In the fall of 2019, in an effort to mitigate the damage,

[1:55:40] PG&E blacked out huge swaths of Northern California.

[1:55:44] People were without power for up to ten days at a time.

[1:55:48] As usual, the hardest hit were the most vulnerable.

[1:55:52] The fundamental question before this court today

[1:55:55] is whether PG&E will be held responsible

[1:55:57] for both types of harm caused by its negligence,

[1:56:02] wildfires and blackouts?

[1:56:05] Or will it be immunized from one?

[1:56:07] But to immunize PG&E from blackout damages

[1:56:11] would be terrible public policy,

[1:56:13] as it would create a disincentive for it

[1:56:15] to comply with its legal obligations

[1:56:18] to maintain a safe grid.

[1:56:21] All it would have to do would be to shut off the power

[1:56:24] whenever the winds got to a moderate level

[1:56:26] without any consequence.

[1:56:29] Justice Liu: Counsel, this is a very complicated issue.

[1:56:36] Wildfires are a big problem in this state,

[1:56:39] and no doubt the utility companies

[1:56:43] have some responsibilities with regard to it.

[1:56:48] But like a lot of complicated issues,

[1:56:49] there are multiple ways to address them.

[1:56:53] And so, I guess I just begin by questioning your basic claim

[1:57:01] that if your client's lawsuit does not proceed

[1:57:05] that the utility is somehow immunized from liability

[1:57:10] or that they -- that there's no other mechanism, right,

[1:57:15] to get them to, in your view,

[1:57:16] do the right thing by maintaining their grid properly.

[1:57:22] There are lots of spheres in which regulatory agencies

[1:57:26] create quite significant schemes

[1:57:30] that preclude litigation as an alternative precisely

[1:57:34] because litigation doesn't in the,

[1:57:39] in the lawmakers' point of view, legislators' point of view,

[1:57:43] appropriately balance all the equities

[1:57:45] that need to be balanced in a given situation.

[1:57:48] And the lawsuits are, you know, X versus Y,

[1:57:52] and that's the framing, right.

[1:57:54] But this is a big public policy issue for the state.

[1:57:58] And so I guess I just wonder,

[1:58:00] I just question your premise, you know, from the beginning,

[1:58:04] why, how does this fit, I guess, within the overall scheme.

[1:58:08] Because there is a big scheme here,

[1:58:10] and it would seem that this is riding,

[1:58:14] well, I mean the other side is going to say

[1:58:15] it's riding contrary to it.

[1:58:17] But at least it's riding on top of it somewhere.

[1:58:19] And I'm just trying to understand

[1:58:20] from your point of view how it's all supposed to work.

[1:58:23] Nicholas Carlin: Well, the scheme is that

[1:58:31] when a company or a party is negligent,

[1:58:36] just as a basic principle of tort law,

[1:58:38] they should be responsible for all the damage

[1:58:41] caused by that negligence.

[1:58:43] If there has been, Justice Luis you suggested,

[1:58:48] some determination by the legislature

[1:58:52] or by regulatory agency

[1:58:57] that the utility in this case should be exempt from liability

[1:59:01] for a particular type of harm it causes,

[1:59:05] then fine, it would make that determination.

[1:59:09] But that's just not the case here.

[1:59:10] Justice Liu: Well, we don't have an --

[1:59:12] we don't have an exemption or an immunity revision.

[1:59:14] But what we do have is a very carefully articulated scheme

[1:59:17] for these power shutoffs, right.

[1:59:20] And your client is claiming that there are damages

[1:59:24] that resulted from a set of 2019 power shutoffs

[1:59:29] that resulted in $2 1/2 billion of damage, right.

[1:59:35] Now, if you were to succeed, I would wager to say

[1:59:39] that utility companies would take note.

[1:59:42] No utility company wants to pay $2 1/2 billion of damages.

[1:59:46] And it would alter their behavior.

[1:59:49] It would alter their behavior in ways

[1:59:51] that wouldn't necessarily accord with the regulator's view

[1:59:54] of what public safety requires.

[1:59:58] And that's the rub.

[1:59:59] I think that's the difficulty here, is that, yes,

[2:00:04] there are losses that you might say,

[2:00:06] in a kind of baseline presumption,

[2:00:08] ought to be compensable.

[2:00:10] But the law actually makes lots of tort losses not compensable,

[2:00:14] for other reasons -- for public policy reasons

[2:00:18] that the parties to a lawsuit cannot account for.

[2:00:22] Nicholas Carlin: Right, well...

[2:00:26] What you're getting at, Justice Liu,

[2:00:28] is sort of their central defense here or argument.

[2:00:32] Justice Liu: Right.

[2:00:33] Nicholas Carlin: And I call it the money argument.

[2:00:35] That, well, if we have to pay damages here --

[2:00:38] And there's really two sides to it, by the way.

[2:00:39] One is the PG&E aspect of it where they say

[2:00:44] if we have to pay money to,

[2:00:48] in this lawsuit, for damages, it will affect our behavior.

[2:00:52] And the other side of it is the PC argument

[2:00:55] that, well, we would have taken this into account

[2:00:58] in developing our procedures for the PSPS's.

[2:01:05] So if we take first the argument about it's too much money,

[2:01:09] we'll change our behavior.

[2:01:10] Frankly, I believe that is a really cynical

[2:01:15] and shocking kind of argument for PG&E to make.

[2:01:20] Because what they're saying essentially is that

[2:01:23] if we have to pay damages for our own negligence,

[2:01:26] for the problem we created and very significant harm

[2:01:33] that was caused to all these people

[2:01:35] who were blacked out for days and weeks at a time,

[2:01:39] well, we're not going to follow the rules anymore

[2:01:43] that have been laid down to us by the PUC.

[2:01:46] The rules laid down by the PUC

[2:01:48] are you have to balance the risk of wildfire

[2:01:51] versus the potential harm to the community,

[2:01:54] not the cost to the company.

[2:01:57] So to say that they would change their behavior

[2:02:02] if they knew they had to pay some damages here

[2:02:05] is essentially to say

[2:02:08] they're going to make it more likely to start a fire.

[2:02:11] And that is, you know, a kind of threat

[2:02:14] really to the people of the state of California

[2:02:17] that I don't think we should be cottoning to frankly.

[2:02:20] So now as far as the PUC side of it

[2:02:27] that they claim that well we would have taken these factors

[2:02:32] in into account in regulating and determining

[2:02:37] what the criteria are for implementing a PSPS.

[2:02:43] Well, the fact of the matter is that the notion of damages

[2:02:46] for negligently caused outages is not new.

[2:02:50] It's been out there for years,

[2:02:52] since this court's Langley decision in 1950.

[2:02:56] There's the 2008 San Diego Gas and Electric decision

[2:03:04] that we've discussed in our briefs,

[2:03:07] where San Diego Gas and Electric

[2:03:08] wanted to specifically get immunity from damages

[2:03:14] caused by power -- public safety power outages.

[2:03:18] And the PUC told them, no, you can't get that.

[2:03:25] And so what are we to assume at that point?

[2:03:29] What we must assume is that it's implicit already

[2:03:34] that the risk of damages for negligently caused outages

[2:03:38] was out there and is already part of the calculus

[2:03:44] for determining what to do a PSPS.

[2:03:50] Now, if we're to get to the Ninth Circuit specific question,

[2:03:57] Your Honor,

[2:03:59] their first question asked whether, as a legal matter.

[2:04:03] whether Section 1759 preempts a case where that 1759 claim

[2:04:10] is not based on the conduct challenged by the lawsuit.

[2:04:14] And here, the challenged conduct in this lawsuit

[2:04:18] is PG&E's negligent maintenance.

[2:04:20] We do not contend that PG&E did anything wrong in connection

[2:04:25] with the implementation of the PSPS's,

[2:04:29] the decision to do them, or any other aspect

[2:04:33] of the PUC regulated portion of these PSPS's.

[2:04:38] Chief Justice Guerrero: Don't all of the damages

[2:04:40] that are being alleged stem from the shut offs themselves?

[2:04:43] Nicholas Carlin: Sure, but it's simply the final link

[2:04:46] in the chain of causation.

[2:04:47] It just happens to be that,

[2:04:49] because of their negligence they had to shut off the power.

[2:04:53] And they had the ability, they were given that tool

[2:04:59] by the Public Utilities Commission

[2:05:02] that you can shut off the power under certain circumstances.

[2:05:06] And they used that tool.

[2:05:09] But in order for it to be under this court's jurisprudence,

[2:05:13] under Covalt and Hartwell and Orloff,

[2:05:16] in order for the case actually to be preempted,

[2:05:21] you have to look at the factors, the Covalt factors.

[2:05:27] And the third factor that we've all focused on

[2:05:29] is actual interference. So --

[2:05:33] Justice Jenkins: But the hinder or interfere

[2:05:35] aspect of that third factor

[2:05:37] seems broader than just a direct conflict, right.

[2:05:43] Nicholas Carlin: Well --

[2:05:45] Justice Jenkins: I mean, Hartwell itself

[2:05:46] is a case where the court looked at the record before it

[2:05:52] and with respect to the adequacy of the action

[2:05:56] that was taken to prevent contamination of the water,

[2:06:00] the court looked at the overarching supervision

[2:06:05] that was given by the regulated entity there

[2:06:11] and said that aspect is preemptive

[2:06:15] because it would interfere with those adequacy determinations.

[2:06:19] And it seems to me that your damages remedy here

[2:06:24] arguably impacts the PUC's efforts to confine

[2:06:32] when these PSPS's are appropriate.

[2:06:36] And there's some public policy concerns that go both ways.

[2:06:40] You're not shutting down consumers necessarily,

[2:06:43] unless the factors that the PUC has looked at have been met.

[2:06:49] That's nowhere an issue with respect

[2:06:52] to the straight tort claim that you make here.

[2:06:57] Nicholas Carlin: Well, Justice Jenkins,

[2:07:00] you're right about Hartwell.

[2:07:01] The distinction that was made in Hartwell, though,

[2:07:04] was between the parts portions of the claim

[2:07:08] that alleged that the PUC's determination

[2:07:15] of what the appropriate level of contamination was,

[2:07:20] was itself unsafe.

[2:07:23] Which the court held is preempted

[2:07:25] because the PUC has already spoken to that.

[2:07:28] So that's an actual interference.

[2:07:30] But the portion of the claim that said that the water,

[2:07:36] the contamination was unsafe

[2:07:41] because it was above the limits allowed by the PUC,

[2:07:45] that was allowed to proceed

[2:07:46] despite the water company's argument

[2:07:52] that this whole area was being regulated by the PUC.

[2:07:56] And in fact, I think in that case

[2:07:58] there was even the injunctive portion of it was preempted,

[2:08:02] but the damages portion was allowed to go forward

[2:08:05] because it didn't actually interfere

[2:08:08] with the PUC regulations.

[2:08:09] I think that's the same situation we have in Orloff.

[2:08:14] And in Orloff,

[2:08:15] this court said the mere possibility of or potential

[2:08:21] for conflict with the PUC is insufficient for preemption.

[2:08:25] And that's really what they're talking about here.

[2:08:28] Justice Groban: Let's think of it this way.

[2:08:31] As part of the PUC's reasonableness review,

[2:08:35] would the utility's grid maintenance

[2:08:37] be an appropriate consideration for the PUC

[2:08:40] as part of that review?

[2:08:43] Nicholas Carlin: Would the PUC's grid maintenance --

[2:08:46] Justice Groban: Would the utility's grid maintenance

[2:08:48] be appropriate for the PUC

[2:08:51] to consider as part of a reasonableness review

[2:08:53] conducted after a power shutoff?

[2:08:56] Nicholas Carlin: It could be, but it hasn't.

[2:08:59] I think the record shows they've never actually done that.

[2:09:02] And I think consistent with Hartwell and with Orloff,

[2:09:07] if they were at some point to do, that doesn't interfere,

[2:09:14] or this case doesn't interfere with that.

[2:09:16] They can do that at some point in the future.

[2:09:19] Justice Groban: Why were they to do it,

[2:09:22] unless the -- unless the trial that you want to have happen

[2:09:27] has exactly the same view of grid maintenance as the PUC?

[2:09:33] That seems like it has great potential

[2:09:34] to hinder or frustrate the PUC's province, right.

[2:09:38] Nicholas Carlin: No, to the contrary, Your Honor.

[2:09:42] As this court said in Hartwell,

[2:09:46] the case is not preempted if it's in aid of

[2:09:50] and not in derogation of the PUC's policies.

[2:09:55] And here when we're talking about looking into

[2:10:01] whether they were negligent in their grid maintenance,

[2:10:03] that goes directly to that.

[2:10:05] We are only contending in this case

[2:10:08] that PG&E violated existing PUC regulations

[2:10:12] and statutes regarding grid maintenance.

[2:10:15] Justice Liu: I think that's -- I think that's true,

[2:10:17] but the problem here is we're talking about

[2:10:20] two different time frames,

[2:10:22] and I think that's really important, right?

[2:10:24] So the shutoff scheme is meant to govern decisions

[2:10:31] that have to be made in the moment.

[2:10:34] And these are crucial decisions, right?

[2:10:37] I mean, you know, we've seen devastation,

[2:10:41] you know, enough in this state to know

[2:10:44] that these are very difficult decisions

[2:10:47] that are happening in the moments on the ground.

[2:10:50] And I don't think it's too much to say that here the PUC decided

[2:10:55] that in the context of the crucible of this

[2:10:58] in the moment decision making, they didn't want companies

[2:11:01] to have to think about $2 1/2 billion of liability

[2:11:06] resulting from a follow on lawsuit

[2:11:12] resulting from a shutoff event.

[2:11:14] Now you say that it's not the shut off event

[2:11:16] that you're litigating, right.

[2:11:18] But the fact is as the Chief Justice pointed out,

[2:11:20] all the damage you're claiming are not directly

[2:11:23] from the grid negligence, it's from the shutoff event.

[2:11:27] And so, cynical or not, I think we live in the real world,

[2:11:31] which is that a company faced with this situation

[2:11:34] is going to think twice about its cost benefit analysis

[2:11:38] in the moment when public safety demands a laser like focus

[2:11:43] on what is good, right, in light of all the factors.

[2:11:46] And you have this lurking massive liability

[2:11:49] in the background.

[2:11:51] I just think that that puts the decision makers

[2:11:56] in a very, very difficult spot

[2:11:58] that the PUC did not contemplate putting them in.

[2:12:01] Nicholas Carlin: Well, Justice Liu,

[2:12:02] I think there's two parts to that.

[2:12:04] First, as to whether they never contemplated it,

[2:12:07] as I've said, I think they must have.

[2:12:09] I think we have to assume they did

[2:12:10] after the 2008 San Diego Gas and Electric decision,

[2:12:15] which clearly said that they could be liable,

[2:12:21] utilities could be liable for public safety power shutoffs.

[2:12:26] So there could be liability, and they knew it.

[2:12:28] But in terms of what would PG&E think,

[2:12:31] or are we really going to say, are they going to say,

[2:12:36] that they would rather risk starting more fires

[2:12:42] and potentially have to pay some damages for blackout liability.

[2:12:47] I mean the risk to them is so much greater of starting a fire.

[2:12:51] We're talking civil liability, criminal liability.

[2:12:58] They, I think it's incongruous to imagine

[2:13:04] that they would actually prefer to risk

[2:13:10] starting a fire than to perhaps

[2:13:12] risk paying some blackout damages here.

[2:13:15] And keep in mind, Your Honor, we're only talking about damages

[2:13:19] that are actually due to their negligence.

[2:13:21] We're not seeking damages

[2:13:23] for every public safety power shutoff,

[2:13:26] only those that are caused by their negligence. And --

[2:13:31] Judge Groban: Are you arguing that no claims seeking damages

[2:13:35] for past negligence could ever be preempted by 1759?

[2:13:39] Are you arguing something less than that?

[2:13:48] Nicholas Carlin: I think claims for past damages,

[2:13:52] and I think this court's jurisprudence has said that...

[2:13:57] when it's not implicating future regulation, is decoupled.

[2:14:05] That you can you can proceed on the damage claims,

[2:14:08] even if potentially the future,

[2:14:11] there's going to be future regulation in the area.

[2:14:13] I think that's Hartwell and Orloff.

[2:14:18] I may have gone past my time, I'm not sure.

[2:14:21] Chief Justice Guerrero: You have one minute left.

[2:14:23] Nicholas Carlin: Okay. I'll keep going then.

[2:14:25] Chief Justice Guerrero: But you don't need to use it

[2:14:26] if you're ready to stop.

[2:14:27] Nicholas Carlin: Answer any more.

[2:14:29] One other thing I would say is that whatever future regulation

[2:14:33] there may be wouldn't even be in the PUC.

[2:14:37] Primarily the entire Wildfire Safety Division

[2:14:41] has been moved to the Office of Energy Infrastructure.

[2:14:44] Justice Jenkins: But it comes back

[2:14:46] and gets ratified by the PUC, doesn't it?

[2:14:47] Nicholas Carlin: It gets ratified, but --

[2:14:49] Justice Jenkins: So they're still involved in the game.

[2:14:50] Nicholas Carlin: They're involved,

[2:14:52] but it's much more attenuated, Your Honor.

[2:14:54] Much more attenuated.

[2:14:55] And if we're talking about degrees of interference,

[2:14:58] it's a much lesser degree of interference.

[2:15:01] I would just like --

[2:15:03] just to briefly discuss Tariff Rule 14.

[2:15:06] Our position is, as suggested by the Ninth Circuit,

[2:15:10] that this court, consistent with lower court cases

[2:15:13] such as Pink Dot, adopt the rule the tariffs

[2:15:16] should be strictly construed against the utilities.

[2:15:21] And in this case, however,

[2:15:22] whether or not the court adopts that rule,

[2:15:25] the history and plain language of Tariff Rule 14 show

[2:15:29] that it does not exempt PG&E from liability.

[2:15:33] I think the San Diego decision supports

[2:15:37] that where the PUC at that time made it clear that that tariff,

[2:15:43] PG&E's Tariff Rule 14 was enacted in response

[2:15:47] to the direct access program

[2:15:50] and the deregulation of the electric grid

[2:15:52] in the late 1990s had nothing to do

[2:15:55] with public safety power shutoffs.

[2:15:57] And so it was simply not contemplated at the time.

[2:16:00] And just the plain language of Tariff Rule 14 itself

[2:16:04] supports that the first paragraph,

[2:16:08] which talks about it's liable for,

[2:16:13] well, it's not liable for any shutoffs

[2:16:17] that are caused by outside forces,

[2:16:19] except for those due to its own lack of diligence.

[2:16:23] And the fourth paragraph, I think,

[2:16:24] needs to be read in context with that.

[2:16:26] Happy to answer any questions about that as well.

[2:16:30] Chief Justice Guerrero: Thank you, Mr. Carlin.

[2:16:31] Nicholas Carlin: Let my esteemed colleague

[2:16:33] take the podium now.

[2:16:34] Chief Justice Guerrero: Thank you. Mr. Nasab.

[2:16:38] Omid Nasab: Good afternoon, Your Honors,

[2:16:40] and may it please the court.

[2:16:42] The PUC has given the utilities in the state,

[2:16:45] through regulations, guidelines, decisions and review

[2:16:50] and approval of wildfire mitigation plans,

[2:16:53] a very detailed road map for when,

[2:16:57] how and why they are to use the public safety tool

[2:17:01] of a power shutoff.

[2:17:03] his lawsuit represents a sweeping attack

[2:17:07] on that framework,

[2:17:08] because it seeks to impose liability

[2:17:10] for every single customer

[2:17:12] and every single shutoff on the basis --

[2:17:16] or, I should say, without any regard whatsoever

[2:17:21] for the utility's compliance

[2:17:23] with that detailed regulatory framework.

[2:17:27] And to punish compliance with a detailed regulatory framework

[2:17:31] such as this is to interfere with that framework,

[2:17:34] as this court held in Covalt and Hartwell.

[2:17:38] Moreover, it would also interfere

[2:17:40] with the commission's jurisdiction,

[2:17:43] not only because the reality of the relief

[2:17:45] sought would alter the utility's behavior, right.

[2:17:48] We're talking about $2 1/2 billion of damages

[2:17:52] for one utility, for one season,

[2:17:55] and not even getting to the punitives

[2:17:56] that have been requested.

[2:17:58] That kind of relief would also force the regulator's hand

[2:18:03] to change their framework.

[2:18:04] Because the current framework, as my friend pointed out,

[2:18:08] does not want the utilities focused on economic harms.

[2:18:13] And not just the economic harm of the utility,

[2:18:16] which is not to be looked at,

[2:18:18] but the economic harms to customers

[2:18:21] is de-emphasized in the commission's judgment.

[2:18:25] And instead what is elevated

[2:18:26] is the competing safety considerations

[2:18:29] of keeping the power on or turning it off.

[2:18:32] That's what the commission wants to focus on.

[2:18:35] If this lawsuit were to prevail and these massive costs

[2:18:40] would then have to be internalized at the utilities,

[2:18:43] well, then something would have to give.

[2:18:44] Either the guidelines would have to change

[2:18:46] to elevate the economic harms at the expense of safety,

[2:18:51] or there would have to be a way to pay for this.

[2:18:54] And whether that's through rates or through diverting investments

[2:18:57] that would otherwise be going to hardening the grid,

[2:19:00] whatever the commission's response is,

[2:19:02] to force the commission's hand in that way is interference.

[2:19:06] And I do want to get to,

[2:19:07] I think, an important point here,

[2:19:09] which is that my friend started out by saying

[2:19:11] that it would be terrible public policy to not punish

[2:19:16] PG&E for engaging in these authorized shutoffs

[2:19:20] because then PG&E would keep doing it.

[2:19:22] The record since this case has been filed has been very clear.

[2:19:26] Each and every year,

[2:19:28] and this is because of the commission's very laser

[2:19:31] like focus on this issue, each and every single year.

[2:19:35] The number of customers impacted by PSPS

[2:19:38] has gone down significantly.

[2:19:39] Indeed, last year there were no PSPS events

[2:19:42] because the commission is closely looking over

[2:19:46] investments in the grid,

[2:19:48] hardening investments like under-grounding,

[2:19:51] investing in very cutting-edge weather models

[2:19:54] that can more accurately predict

[2:19:56] where this dangerous weather will be.

[2:19:58] And that program is having demonstrable success

[2:20:01] in reducing the need for PSPS over time.

[2:20:07] Justice Groban: Do you contend that section 1759

[2:20:11] would preclude someone

[2:20:13] from seeking damages for a power shutoff that might,

[2:20:17] you know, have directly failed to comply with PUC guidelines?

[2:20:22] I'm essentially asking you kind of this Hartwell dividing line.

[2:20:25] It says on this half you can't go forward,

[2:20:28] but on this half you can.

[2:20:29] So I'm, in that framework, I'm asking you is

[2:20:34] there is there a world in the in the power shutoff scheme

[2:20:38] or somebody actually can, despite 1759,

[2:20:42] go forward even if it's not this complaint.

[2:20:46] Omid Nasab: Absolutely, Your Honor,

[2:20:47] because I do think compliance with the commission's guidelines

[2:20:49] is a really important part of the analysis.

[2:20:52] So just as an example, let's say that there is a --

[2:20:56] and there are -- commission requirements

[2:20:58] that a particular customer or a class of customers

[2:21:01] needs to have a certain amount of notification before shutoff.

[2:21:04] And because of negligence,

[2:21:06] that that notification is not given.

[2:21:08] Then I do believe there would be a claim

[2:21:09] for that kind of violation of the guidelines.

[2:21:12] And you know, it depends really on what the claim is, right.

[2:21:15] If somebody is saying a shutoff was unreasonable

[2:21:19] and the framework is different

[2:21:20] than the commission's framework, right,

[2:21:22] we'd have to address the allegations on their own terms.

[2:21:26] But if they're alleged violations,

[2:21:27] that's a very different case than what we have here,

[2:21:30] which is, as my friend said,

[2:21:32] you know, we're not alleging there were any violations

[2:21:35] of this very detailed road map at all.

[2:21:38] Justice Groban: I guess the flip side of the question

[2:21:40] is if the PUC is authorized it,

[2:21:44] is your position then 1759 covers it preempted.

[2:21:50] There is no circumstance,

[2:21:53] if the conduct is authorized by the PUC,

[2:21:56] a complaint saying something to the contrary

[2:22:00] is immunized 100% of the time in those circumstances.

[2:22:04] Omid Nasab: Well, Your Honor, and I think the PUC criticized

[2:22:07] maybe our over reliance on the word "authorized,"

[2:22:09] and I thought had a fair point

[2:22:11] when it said it's not just that it's been authorized.

[2:22:14] But in the context of PSPS,

[2:22:16] there's really this comprehensive,

[2:22:19] detailed regulatory framework that is --

[2:22:22] I don't think the regulation could get any more intense,

[2:22:25] right, than what it is on this particular issue.

[2:22:27] And so we're not asking for some rule that, hey,

[2:22:31] if the commission has "authorized" something,

[2:22:32] then you're immunized.

[2:22:34] What we're saying -- In the context like this,

[2:22:36] where there is this incredibly intensive regulatory regime

[2:22:40] on the here's, you know how,

[2:22:43] why and when you should engage in this public safety mechanism,

[2:22:48] then that is preempted because, that's kind of exactly

[2:22:52] what was happening in Covalt and Hartwell, right.

[2:22:54] There were these complex public safety issues,

[2:22:57] and the court said, look where the commission has,

[2:23:00] in that case it was permitted you not to do something,

[2:23:03] you can't be subject to liability for not doing it.

[2:23:05] Here's the inverse, right, where the commission

[2:23:07] as part of a broad and continuing program

[2:23:10] has permitted this activity,

[2:23:13] and the plaintiff wants to sue for it nonetheless.

[2:23:24] I just briefly wanted to touch

[2:23:25] on the issue of deference to the PUC.

[2:23:29] In their briefs, our friends have made the point

[2:23:33] that this court is not bound to give deference to the PUC.

[2:23:36] We agree as a legal matter in construing 1759,

[2:23:39] there isn't legal difference that needs to be given.

[2:23:42] We do think as a prudential matter,

[2:23:44] the regulator's view on the third Covalt factor,

[2:23:48] given that it is discussing whether or not

[2:23:51] there is interference with the commission's work.

[2:23:54] In situations like this

[2:23:56] where we have a complex public policy safety tool,

[2:24:00] it, prudential reasons counsel that deference should be given

[2:24:04] or at least serious consideration

[2:24:06] to the PUC's views.

[2:24:08] And I think that's exactly why in the Orloff case this court

[2:24:11] suggested to lower courts

[2:24:13] that specifically when dealing with this issue,

[2:24:15] the third factor of Covalt,

[2:24:17] that courts solicit the PUC's opinion.

[2:24:20] Because I think that's a recognition

[2:24:22] that the PUC is in the best position

[2:24:24] to judge whether or not there will be interference.

[2:24:27] Justice Liu: Can I ask you counsel

[2:24:29] about the separability of the plaintiff's claim

[2:24:37] from the propriety of the power shutoffs?

[2:24:41] I think their argument is that

[2:24:44] while they've featured it prominently,

[2:24:46] that they take no issue actually with the shutoffs themselves,

[2:24:52] and they make no claim about whether the shutoffs

[2:24:56] were in any sense wrongful,

[2:25:00] vis-?-vis the relevant framework.

[2:25:04] And so all they want to litigate

[2:25:06] is the kind of antecedent issue of grid maintenance.

[2:25:11] Is that a tenable separation?

[2:25:15] Omid Nasab: I don't think so, Your Honor.

[2:25:16] Justice Liu: And why is that?

[2:25:18] Omid Nasab: A couple reasons for that.

[2:25:19] First of all, I do think that this court in Covalt

[2:25:22] was right to suggest

[2:25:24] that the focus be on what is the relief sought.

[2:25:27] And here the relief sought is damages for directly

[2:25:31] and exclusively the power shutoffs, right.

[2:25:34] Turning off the power

[2:25:36] when the weather is hot, dry, and windy,

[2:25:38] and it's dangerous to keep it on.

[2:25:40] There's no dispute in this case that the weather at the times

[2:25:43] this happened was hot, dry and windy and dangerous.

[2:25:47] And So what they want, the precise damages they want,

[2:25:50] they can say it's about this antecedent conduct,

[2:25:52] but all of the damages flow directly

[2:25:55] from that interruption of service,

[2:25:56] which is exactly what the commission --

[2:25:58] Justice Liu: Well, presumably, their claim

[2:26:00] is that that's just kind of a -- as counsel put it,

[2:26:03] that's the last link in a longer chain of causation, right?

[2:26:07] I mean, in some sense, I think their claim is

[2:26:09] that that's just the vessel

[2:26:11] through which this negligence expressed itself, right.

[2:26:15] And of course it'd be their burden

[2:26:16] to prove this causation at trial

[2:26:19] if they continued with this claim.

[2:26:21] But the point is they're not really litigating

[2:26:24] the wrongness of the shutoff.

[2:26:26] They're just saying that's the, just the physical mechanism

[2:26:29] through which these damages got expressed.

[2:26:32] Omid Nasab: But at its core, it has to be

[2:26:33] that the shutoff, that their power should not

[2:26:35] have been shut off, right. They can't get away from that

[2:26:37] because that's where the damages --

[2:26:39] Justice Liu: Well, their claim is that the grid

[2:26:40] should have been appropriately maintained

[2:26:42] such that the power shutoff would have been unnecessary.

[2:26:45] Omid Nasab: Right. And so a couple --

[2:26:47] Justice Liu: That may be hard to prove,

[2:26:49] but I'm just saying that seems to me what they're trying to do.

[2:26:51] Omid Nasab: So a couple responses to that.

[2:26:52] One, it doesn't change the fact, right?

[2:26:55] In essence what that's saying is

[2:26:56] we can make a claim out under 2106.

[2:26:58] Well, that gets you through the door in terms of the analysis.

[2:27:01] But you still -- the court still questions,

[2:27:05] will that somehow, making out that claim under 2106,

[2:27:09] interfere with the commission's regulation?

[2:27:11] And if it does, this court has been crystal clear

[2:27:13] that 1759 has primacy,

[2:27:15] and 2106 has whatever, it's not primacy.

[2:27:19] And so I think that counsels that in this situation

[2:27:23] where the damages are coming directly

[2:27:26] from the authorized activity

[2:27:27] that's shutting off of the power that is interference.

[2:27:31] I would also note, Your Honor,

[2:27:32] that this premise that the shutoffs

[2:27:38] are keyed off of bad maintenance.

[2:27:40] I don't think that's a valid premise in the sense

[2:27:42] that the commission is really keying the shutoffs

[2:27:46] off of dangerous weather.

[2:27:47] And when it approved shutoffs for SDG&E,

[2:27:50] one of the specific things that it discussed, right,

[2:27:54] was that even if equipment met standards,

[2:27:58] it could still pose dangers

[2:28:00] when it's submitted to, subject to high winds.

[2:28:02] And I would point the court to SER 269 in the record,

[2:28:07] where that is issued in the application from SDG&E.

[2:28:11] And I think that also what, it is true that the trees,

[2:28:15] even healthy trees when they're subjected to high winds

[2:28:18] can fail and fall on power lines

[2:28:20] and cause these disasters that we have seen.

[2:28:23] So I also think there's this bad premise.

[2:28:25] And effectively what it's asking judges and juries to do

[2:28:30] is second guess why the commission has given

[2:28:33] the utilities this authority.

[2:28:35] And in a way that's really inconsistent

[2:28:37] with what the commission itself has said about why it's doing.

[2:28:39] Chief Justice Guerrero: When you focused earlier

[2:28:41] on the relief sought,

[2:28:42] how does that analysis play out for the injunctive relief?

[2:28:47] Omid Nasab: Well, I think the injunctive relief

[2:28:48] is just absolutely preempted, Your Honor,

[2:28:52] because the, if you look at paragraph four of the complaint,

[2:28:55] it says the injunctive relief

[2:28:57] is we want to define the obligations

[2:29:02] of PG&E under these statutes they cited such as 451.

[2:29:07] Which is, by the way, the exact same statutes

[2:29:09] that the commission cites

[2:29:10] in saying that "We should turn off the power."

[2:29:12] So I think it's a totally, total misreading

[2:29:15] of what the commission has said those statutes stand for.

[2:29:18] But it wants the court to define those statutes so that,

[2:29:22] and this is paragraph four of the complaint,

[2:29:24] so that the shutoffs are no longer necessary.

[2:29:27] That is absolutely not the commission's position, right?

[2:29:31] The commission's position is that there will be times

[2:29:34] when safety requires shutting off the power.

[2:29:38] And that includes if the lines are well maintained.

[2:29:41] Now, of course, the commission is engaged in this broad effort

[2:29:45] through the wildfire mitigation plans

[2:29:46] where it's authorizing the utilities to spend,

[2:29:49] you know, serious sums of money on wildfire mitigation,

[2:29:52] right, such as under-grounding lines.

[2:29:56] But I think the injunctive relief is --

[2:29:58] I mean, it's directly into the province of the commission,

[2:30:01] and it is totally infirm under section 1759.

[2:30:06] And I'm happy to address any other questions

[2:30:08] from the court on section 1759.

[2:30:10] I was going to turn very briefly to Tariff Rule 14.

[2:30:14] So on Tariff Rule 14,

[2:30:15] we raised that issue on a motion to dismiss

[2:30:18] because we felt the language of that tariff was unambiguous

[2:30:21] and could be applied without resort to extrinsic evidence.

[2:30:25] Then, frankly, the Ninth Circuit

[2:30:27] disagreed with us on that, right, and said that

[2:30:29] there are multiple reasonable interpretations.

[2:30:31] I think if the court were to view the statute

[2:30:35] as not being plain on its face,

[2:30:37] the appropriate step at that juncture

[2:30:39] is to defer to the commission

[2:30:42] to render an opinion on it in the first instance.

[2:30:45] And the reason for that, I think,

[2:30:47] is really what this court said in Waters,

[2:30:49] which is that tariffs that limit a utilities liability

[2:30:53] have long been the proper supervision

[2:30:55] and province of the of the PUC, number one.

[2:30:59] And number two, that courts should not engage

[2:31:01] in independent judicial construction of tariffs.

[2:31:06] Which would obviously, if we find that

[2:31:07] the tariff is ambiguous, would be what would be required.

[2:31:10] And it strikes me that most of the evidence

[2:31:13] cited by my friend to argue

[2:31:15] for why our reading is not right,

[2:31:17] is resorting to extrinsic evidence

[2:31:19] about what the commission meant

[2:31:22] or how the commission would interpret it.

[2:31:24] And there's a, I think, really obvious answer

[2:31:28] to addressing those questions,

[2:31:30] which would be to let the commission decide that issue

[2:31:33] if the cork were to find it necessary to reach that issue.

[2:31:37] Of Your Honors have no other questions,

[2:31:43] I'm happy to seed my time to the PUC.

[2:31:45] Chief Justice Guerrero: Thank you very much.

[2:31:47] Omid Nasab: Thank you, Your Honors.

[2:31:55] Candace Morey: Good afternoon, Your Honors.

[2:31:56] I'm Candace Morey

[2:31:58] for the California Public Utilities Commission.

[2:32:00] And it is the job of the Public Utilities Commission

[2:32:03] to make the tough policy choices on how to balance public safety,

[2:32:08] electric reliability, and maintain affordable rates.

[2:32:13] But the gist of the plaintiff's complaint here

[2:32:16] is really not that PG&E failed to operate the grid safely,

[2:32:21] but that PG&E failed to operate the grid

[2:32:23] reliably all of the time and under all conditions.

[2:32:27] That's the duty of care that they're going to have to prove

[2:32:30] in order to get the damages

[2:32:31] stemming only from these power safety shutoffs.

[2:32:35] And that's in stark conflict

[2:32:37] with what the commission has interpreted the statutes

[2:32:41] and our own rules to require here.

[2:32:43] And that's why their substantial tort claims

[2:32:45] are going to actually interfere with

[2:32:47] and not aid the commission in our jurisdiction

[2:32:50] over safety and rate making.

[2:32:52] And I think it's really safe to say

[2:32:54] that there's no area of utility operations and rates

[2:33:00] that we've been regulating more comprehensively and more closely

[2:33:03] and with frequent oversight from the California legislature

[2:33:07] then when it comes to power safety, shutoffs

[2:33:10] and the tens of billions of dollars in rate authorizations

[2:33:14] we've made over the past six years

[2:33:16] to deal with the wildfire situation in California.

[2:33:20] Now as a first order matter, the commission's been very clear

[2:33:25] in our direction to the utilities.

[2:33:27] When there's a conflict between maintaining safety

[2:33:31] and reliability,

[2:33:32] then you have to put safety first, period,

[2:33:35] in that real time decision when you're making that decision.

[2:33:38] So that's an obvious conflict here,

[2:33:41] and it stems from the difference

[2:33:43] between plaintiff's interpretation of Section 451

[2:33:46] of the Public Utilities Code

[2:33:48] and the commission's interpretation of Section 451.

[2:33:53] And our interpretation there, to be clear,

[2:33:55] is that the utilities have a duty

[2:33:57] to operate their system safely always.

[2:34:01] But they do not have a duty to operate the system

[2:34:03] continuously at all times and under all circumstances.

[2:34:07] Sometimes they have to shut the power off.

[2:34:10] And we've been very clear about that since 2009

[2:34:12] and in every decision since then.

[2:34:15] But to help the utilities

[2:34:16] navigate these twin aims of safety and reliability,

[2:34:19] because they are sometimes in conflict,

[2:34:22] we've issued extensive guidance

[2:34:24] that we want the utilities to rely on

[2:34:26] when they're making these decisions.

[2:34:28] And again, the first being,

[2:34:29] weigh the public safety risks only.

[2:34:32] Now, the plaintiffs say, well --

[2:34:33] Justice Evans: So can I ask you a question?

[2:34:35] The PUC does reasonableness reviews, correct?

[2:34:39] And in those reviews,

[2:34:41] does the PUC consider what happened in past years?

[2:34:47] Candace Morey: Your Honor, to be clear and to be frank,

[2:34:50] the PUC has not yet undertaken a reasonableness review

[2:34:54] of any specific power safety shutoff.

[2:34:57] We have reviewed though extensively the shutoffs

[2:34:59] that were conducted in 2019,

[2:35:01] made a number of findings based on them.

[2:35:03] We imposed penalties on PG&E,

[2:35:05] and we created a rate making remedy.

[2:35:08] But to answer your question, we've articulated factors

[2:35:11] that are relevant to that reasonableness review.

[2:35:14] Justice Evans: Do you intend to do reasonableness reviews

[2:35:17] for prior years?

[2:35:19] Candace Morey: We can -- The commission's orders --

[2:35:22] We've stated that we may undertake

[2:35:24] a reasonableness review at any time in our discretion

[2:35:28] when we feel that it's necessary to render a decision

[2:35:31] on whether the utility was reasonable

[2:35:34] in calling one of these power safety shutoffs.

[2:35:37] We've articulated a number of factors.

[2:35:39] Justice Evans: Maybe or maybe --

[2:35:40] So maybe, maybe not?

[2:35:42] So it seems like it's not a certainty that you will.

[2:35:47] And given that, I want to know how this lawsuit interferes

[2:35:53] with the PUC's after-the-fact review,

[2:35:56] since those reviews may not be done at all.

[2:36:00] Candace Morey: Yeah, it's a good question, Your Honor.

[2:36:02] And I think it goes to really the heart of the whole construct

[2:36:06] that we've created with this PSPS framework.

[2:36:10] We've provided a framework we want the utilities to rely on.

[2:36:13] And we've said that if you follow the commission's mandates

[2:36:16] to use the power safety shutoffs reasonably,

[2:36:19] and that means only as a tool of last resort,

[2:36:21] then those decisions will qualify for an exemption

[2:36:24] from liability under your Tariff Rule 14.

[2:36:27] And that's paragraph one that's common to all the utilities.

[2:36:31] It's not the specific paragraph four that

[2:36:33] PG&E has relied on in its motion to dismiss.

[2:36:36] And we've also reserved to ourselves

[2:36:38] the sole discretion to make these determinations.

[2:36:41] And that's our chosen policy choice

[2:36:44] to ensure that the utilities are not using power shutoffs

[2:36:47] to dodge investments in grid maintenance or compliance.

[2:36:52] But importantly, the plaintiffs have not asserted

[2:36:54] that PG&E acted unreasonably in calling a safety shutoff.

[2:36:58] They've never asked the commission to make

[2:36:59] that determination. They've never participated

[2:37:02] in any of the commission's numerous ongoing proceedings

[2:37:07] where we're addressing the power safety shut offs.

[2:37:09] So that question isn't really before the court today,

[2:37:12] I would submit. But there's also interference

[2:37:15] by letting these claims move forward,

[2:37:17] even if they're framed as claims for past damages.

[2:37:22] And that's because the plaintiffs are alleging

[2:37:25] both historic and ongoing negligent grid maintenance.

[2:37:28] It's not just limited to 2019.

[2:37:30] Their claims in 2019 were for the shutoffs

[2:37:33] that had occurred as of then and every shut off into the future.

[2:37:37] And so I just want to put this in perspective here

[2:37:39] because there's really no limiting principle

[2:37:43] to class action lawsuits if that's the case.

[2:37:46] If the plaintiffs are right here.

[2:37:48] PG&E operates nearly 25,000 miles

[2:37:51] of overhead distribution lines in high fire threat districts

[2:37:55] that traverse about five million trees.

[2:37:58] So under their theory, a class action could proceed

[2:38:02] if a plaintiff alleges one tree

[2:38:04] was not trimmed to a required clearance,

[2:38:06] or that one pole was missed in PG&E's last inspection.

[2:38:11] And it might not please the court to hear this,

[2:38:14] but there's never a perfect compliance day.

[2:38:18] That's understood and it's baked into our regulatory approaches.

[2:38:23] So what that means is that every single time there's a shutoff,

[2:38:26] if one plaintiff makes that allegation,

[2:38:28] it's going to move forward in a class action lawsuit.

[2:38:32] And that is going to affect rates,

[2:38:34] and it's also going to directly interfere

[2:38:36] with the commission's regulations

[2:38:38] of the wildfire safety plans.

[2:38:40] We've been really comprehensively directing

[2:38:44] and approving the utility strategies for how

[2:38:47] they're going to mitigate wildfire risk in the state.

[2:38:50] And it's not prioritizing,

[2:38:52] hey let's get everything into 100% compliance first today.

[2:38:56] That's actually not the strategy.

[2:38:58] We're looking at under-grounding.

[2:38:59] We're looking at tens of billions of dollars

[2:39:01] in investments. And that's because the rules

[2:39:04] that plaintiffs are alleging are violated,

[2:39:07] the general orders 95 and 165, you know, namely, those rules,

[2:39:13] they set out specifications for poles and wires

[2:39:18] for vegetation management clearances,

[2:39:21] inspection and maintenance schedules.

[2:39:24] And they're really intended to provide for a grid

[2:39:27] that's safe to operate under normally --

[2:39:30] you know, normally foreseeable conditions.

[2:39:33] Chief Justice Guerrero: Well, what would prevent ongoing,

[2:39:37] as alleged at least, negligent maintenance of the power grid?

[2:39:43] Candace Morey: Your Honor,

[2:39:44] there's several things that present that.

[2:39:46] One, the commission does have enforcement authority,

[2:39:48] and we're always conducting investigation.

[2:39:49] You know, we can at any time conduct an investigation,

[2:39:53] issue citations and penalties.

[2:39:56] And then also as part of that reasonableness review

[2:39:59] that you were asking about earlier, Your Honor,

[2:40:01] we have said that the factors we can look at to decide

[2:40:05] if the utility was acting reasonably,

[2:40:07] and that means are they using the power shutoffs

[2:40:10] only as a tool of last resort?

[2:40:12] We can look at what they what they could have done otherwise.

[2:40:14] And in fact, we have to look at whether there are alternatives

[2:40:18] that they could have undertaken to avoid the shutoffs.

[2:40:21] So for example, if an -- and PG&E has put this in their post,

[2:40:26] PSPS public safety power shutoff filings,

[2:40:30] we require the utilities after every single one of these events

[2:40:33] within ten days to tell us

[2:40:35] why they made that decision to shut the power off.

[2:40:38] And if the utility says, oh, you know, we had 25,000

[2:40:43] outstanding maintenance tags there.

[2:40:45] Or, you know, we forgot to do that inspection last year.

[2:40:48] So we thought we had to shut the power off

[2:40:51] even though the winds were only, you know, 20 miles an hour.

[2:40:54] The commission can come in and make a determination

[2:40:57] that that's not reasonable. And that then could implicate

[2:41:00] whether lawsuits could move forward for tort damages.

[2:41:04] And I just want to touch very briefly on, you know,

[2:41:08] why there is going to be interference here

[2:41:10] if these claims,

[2:41:12] even if they're really narrowly focused

[2:41:14] on the violations of the general orders, they're going to,

[2:41:19] this $2 1/2 billion of tort liability

[2:41:22] is going to affect the utility's conduct.

[2:41:24] I mean that's kind of the premise of tort liability,

[2:41:27] and that's really what plaintiffs want.

[2:41:29] Plaintiffs want to get to a grid.

[2:41:31] Really, the gist of their complaint is to get to a grid

[2:41:34] where there's never going to be a need

[2:41:36] for public power safety shutoff ever.

[2:41:39] And that's just not realistic.

[2:41:41] But the commission is managing the money

[2:41:44] and the strategies that we're taking

[2:41:45] to get as close there as we can.

[2:41:48] And if this tort liability is imposed that's focused

[2:41:51] on violations of the general orders,

[2:41:53] utility, a reasonable utility,

[2:41:55] is going to try to mitigate that risk.

[2:41:57] So they might shift their work from areas of the state

[2:41:59] that have the highest wildfire risk,

[2:42:02] but they might not be as populated.

[2:42:04] They might not be as wealthy.

[2:42:06] And they're going to try to redirect that work

[2:42:08] to getting 100% into compliance

[2:42:11] with the general orders in the areas of the state

[2:42:13] that pose the highest economic liability risk.

[2:42:17] And that might be in conflict with what the commission thinks

[2:42:20] should be the highest priorities.

[2:42:21] And it's just really not the role of plaintiffs,

[2:42:24] the judges and juries in the state

[2:42:26] to second guess the commission's authorizations in those area.

[2:42:30] They're at the very core of our mission.

[2:42:32] And as I've said, we've got a lot of oversight here

[2:42:34] in this area from the California legislature.

[2:42:37] And one other thing I just want to touch on

[2:42:39] is plaintiffs have also said,

[2:42:41] well, you can't take this liability

[2:42:44] into consideration in real time, right.

[2:42:46] So it's not going to factor in.

[2:42:48] And, you know, frankly, the commission is here today

[2:42:52] because we disagree.

[2:42:54] We are very concerned that plaintiff's assumption

[2:42:58] is not just wrong, it's dangerous.

[2:43:01] Significant tort liability is going to create a disincentive

[2:43:04] for utilities to not use these power safety shutoffs

[2:43:08] even when it's appropriate and even when it's reasonable.

[2:43:12] Putting billions of dollars of class action tort liability

[2:43:16] in play here is at least going to put a thumb on the scales

[2:43:19] that we don't want to be there.

[2:43:21] And the commission itself has already recognized

[2:43:24] and used financial incentives to adjust the PSPS framework.

[2:43:29] Following our investigation

[2:43:31] into the power safety shutoffs in 2019,

[2:43:33] we imposed a rate making remedy to prevent the utilities

[2:43:38] from collecting revenues lost during the shutoffs.

[2:43:41] And we did it to create an ongoing incentive

[2:43:44] for the utilities to improve their conduct

[2:43:47] in their decision making.

[2:43:48] And that's in decision 2106014 at page 59.

[2:43:54] But that's the commission's choice.

[2:43:55] And it basically puts several millions of dollars in play,

[2:44:00] not several billion.

[2:44:03] And, you know, we expect the utilities to follow the law,

[2:44:06] but the underlying economics --

[2:44:08] you know, one common regulatory tool

[2:44:10] is to structure those underlying economics

[2:44:13] to give them the right incentives.

[2:44:15] And then, again, even if we do give the plaintiffs

[2:44:17] and the utilities the benefit of the doubt

[2:44:20] that this won't affect the decision making in real time,

[2:44:23] these damages claims are going to interfere

[2:44:26] with how we're managing the wildfire situation overall.

[2:44:30] How we're prioritizing the work with the resources that we have.

[2:44:37] And Your Honor, I just want to, sorry,

[2:44:42] I think I really touched on all of my points here

[2:44:45] except that perhaps to just make one final observation

[2:44:49] is that plaintiffs do have remedies available to them.

[2:44:53] You know, rather than seeking the relief

[2:44:55] that they want tort liability in superior courts,

[2:44:59] they can potentially obtain remedies from the commission.

[2:45:02] And instead they're just trying to do an end run

[2:45:05] around this PSPS framework altogether.

[2:45:09] And so we would invite these plaintiffs

[2:45:11] and all potential plaintiffs to participate in our public forums

[2:45:15] to get the relief that they want.

[2:45:16] They can raise their particular concerns

[2:45:20] in a reasonableness review.

[2:45:21] They can ask for a reasonableness review

[2:45:23] or in public comments that they can submit

[2:45:26] after every single event. They can raise their concerns

[2:45:29] that the utility is not undertaking required maintenance

[2:45:32] and is not in compliance.

[2:45:34] And there are other forums available as well.

[2:45:39] So unless there are any further questions,

[2:45:41] I think I'll conclude. Thank you.

[2:45:43] Chief Justice Guerrero: Thank you, Ms. Morey.

[2:45:45] Mr. Carlin.

[2:45:49] Nicholas Carlin: Thank you, Justice Guerrero.

[2:45:52] First of all, there is no remedy for damages from the PUC.

[2:45:56] The PUC has acknowledged that.

[2:45:58] They don't have the power or jurisdiction to award damages.

[2:46:02] So without this lawsuit, my client

[2:46:05] and the hundreds of thousands of other people

[2:46:08] who were harmed for days and weeks at a time

[2:46:12] without having electricity, communications,

[2:46:16] heat, loss of refrigerated items,

[2:46:21] dissipate disabled persons who couldn't get,

[2:46:25] couldn't get the electricity they needed

[2:46:28] to power their devices.

[2:46:29] All of those people will have no recourse.

[2:46:32] And the purpose of tort liability

[2:46:35] is both to provide compensation and deterrence.

[2:46:39] And we talked about deterrence.

[2:46:41] I haven't talked much about compensation,

[2:46:43] but I think that's a very important factor here.

[2:46:46] This is the only forum for these people

[2:46:48] to get some compensation for PG&E's gross,

[2:46:53] and I'll repeat, criminal negligence,

[2:46:54] which has been found time and time again by Judge Alsup.

[2:47:07] The reasonable -- PUC first talks about the reasonable --

[2:47:14] reasonability -- reasonableness

[2:47:16] of the PSPS's reasonableness review.

[2:47:18] What they're talking about

[2:47:20] is whether it was reasonable to implement the PSPS's.

[2:47:25] And again, that is not an issue for us.

[2:47:28] We can see that they were reasonable to do so.

[2:47:32] The issue is were they negligent?

[2:47:34] Was it their negligence what caused them to do it.

[2:47:38] And PUC says, well, they should only do them

[2:47:46] if the weather conditions are such that

[2:47:49] we need to implement them for safety.

[2:47:51] Again, we don't disagree with that.

[2:47:53] But the problem here is that

[2:47:55] because of the negligent maintenance,

[2:47:57] and this is something that Judge Alsup also

[2:47:59] is talked about in the materials we provided.

[2:48:02] Because of their negligent maintenance,

[2:48:04] they had to do more PSPS's

[2:48:07] because they had to shut down the grid

[2:48:09] when the winds were like only 40 or 50 miles an hour

[2:48:12] rather than 90 or whatever the maximum

[2:48:16] was under the regulations.

[2:48:18] They were violating these regulations.

[2:48:20] They were violating 451.

[2:48:23] They were violating their obligations

[2:48:25] to maintain a safe grid.

[2:48:26] And because of that they created the danger

[2:48:30] which required them to do these blackouts.

[2:48:35] Now counsel says that PG&E does not have to maintain

[2:48:43] a continuous supply of electric energy,

[2:48:47] but under Tariff Rule 14, it says

[2:48:50] PG&E will exercise reasonable diligence and care to furnish

[2:48:54] and deliver a continuous and sufficient supply

[2:48:56] of electrical energy to the customer.

[2:48:59] Does not guarantee continuity.

[2:49:01] But it says PG&E will not be liable for any loss or damage

[2:49:05] except that arising from its failure

[2:49:08] to exercise reasonable diligence.

[2:49:10] That's exactly what we're saying here.

[2:49:12] They did not exercise reasonable diligence.

[2:49:14] They should be liable for the damages caused by that.

[2:49:20] As far as deference to the PUC, and you know,

[2:49:26] with all deference to my colleague over here,

[2:49:29] under Yamaha, there is no deference accorded.

[2:49:35] This is not a quasi-legislative rule or proceeding.

[2:49:43] We're talking about -- There was an amicus brief

[2:49:45] from PUC's general counsel's office here.

[2:49:49] So there's no deference entitlement under Yamaha.

[2:49:53] And PUC -- Actually, if we look at the history

[2:49:57] for the past ten years,

[2:49:59] PUC seems to have a knee-jerk reaction

[2:50:02] to come in as an amicus

[2:50:03] in every case where 1759 preemption has been alleged.

[2:50:09] I found there's been four or five cases.

[2:50:13] Each time, they came in arguing for 1759 preemption.

[2:50:18] Each time, the court rejected it,

[2:50:20] except the first one, which was the Cooney case,

[2:50:23] which was the somewhat unusual in pro per lady

[2:50:27] who thought she was getting irradiated from her --

[2:50:32] from one of her devices and had to move to West Virginia.

[2:50:35] So that's the only case in which the court agreed

[2:50:38] with the PUC on 1759 preemption.

[2:50:41] So this court -- And by the way, we have submitted amicus briefs

[2:50:46] from the former executive director of the PUC,

[2:50:48] Alice Stebbins, former president and commissioner of the PUC,

[2:50:53] Loretta Lynch,

[2:50:55] and a former attorney for the PUC.

[2:50:58] All of them say this does not interfere --

[2:51:01] this case would not interfere

[2:51:03] with the PUC's regulatory authority.

[2:51:07] As far as past damages, this court, in Hartwell,

[2:51:14] said redressing injuries for past wrongs

[2:51:17] does not interfere with the PUC

[2:51:19] in implementing its supervisory and regulatory policies

[2:51:22] to prevent future harm. Now there's been a suggesting

[2:51:29] that the injunctive relief claimed is over-broad.

[2:51:32] If so, that's something that can be worked out

[2:51:35] at the trial court level.

[2:51:37] But essentially, we've alleged in the complaint

[2:51:41] is for injunctive relief is that

[2:51:43] PG&E comply with the statutes and with PG&E's regulations.

[2:51:48] That's it. We're not asking to go one inch beyond that.

[2:51:57] There was discussion about, well, if

[2:52:00] PG&E is forced to pay for damages here,

[2:52:05] and sure we've alleged a big number,

[2:52:07] but there's many a slip between the cup and the lip.

[2:52:10] Who knows how this case ends up in terms

[2:52:12] of what the damages would be.

[2:52:14] At that point, there would have to be a decision made as to

[2:52:16] whether PG&E corporation and invest around utility

[2:52:23] should pay for the damages or whether there is going to be --

[2:52:29] it's going to be passed to the ratepayers.

[2:52:31] But that's a decision for the future for the PUC to deal with.

[2:52:36] It's not necessarily going to come out

[2:52:39] of their maintenance budget.

[2:52:41] It could certainly come out of the excess bonuses

[2:52:45] and dividends that they've paid to their shareholders

[2:52:49] and executives over the years as discussed

[2:52:53] and found by Judge Alsup and in his criminal proceedings.

[2:52:57] So that's really just a another, I think, another scare tactic

[2:53:06] that they're trying to inflict on us, Your Honors.

[2:53:12] This is a simple run-of-the-mill negligence case.

[2:53:15] It's a class action.

[2:53:16] If we're to say that simply the amount of damages

[2:53:20] sought in a class action against a utility

[2:53:25] is automatically going to result in preemption,

[2:53:31] then they'll never be allowed another class action

[2:53:35] against a utility.

[2:53:38] Simply the amount of money sought cannot be,

[2:53:41] cannot be the basis for preemption.

[2:53:43] There has to be actual interference under section 1759

[2:53:48] and under this court's jurisprudence.

[2:53:52] Chief Justice Guerrero: Thank you, counsel.

[2:53:53] Nicholas Carlin: If there's any further questions,

[2:53:54] I'm happy to answer them.

[2:53:57] Justice Guerrero: There don't appear to be any.

[2:53:58] Thank you to all of the counsel here

[2:53:59] for your helpful arguments on this interesting case.

[2:54:02] And the matter is submitted. Court is adjourned.

[2:54:04] Nicholas Carlin: Thank you.

Supreme Court Oral Argument 2023-09-06

Agenda

Transcript