1 00:00:03,400 --> 00:00:04,760 Bailiff: The Honorable Chief Justice 2 00:00:04,760 --> 00:00:07,800 and the Associate Justices of the Supreme Court of California. 3 00:00:07,800 --> 00:00:09,960 Hear ye, hear ye, hear ye. 4 00:00:09,960 --> 00:00:12,120 The Honorable Supreme Court, sitting en banc, 5 00:00:12,120 --> 00:00:14,520 is now in session. 6 00:00:21,920 --> 00:00:23,560 Chief Justice Guerrero: Good afternoon, and welcome 7 00:00:23,560 --> 00:00:27,240 to the oral argument for the California Supreme Court. 8 00:00:27,240 --> 00:00:30,960 Before we begin, I understand that we have several students, 9 00:00:30,960 --> 00:00:33,480 I believe 15 from Berkeley Law 10 00:00:33,480 --> 00:00:35,880 who are here present with their professor. 11 00:00:35,880 --> 00:00:37,240 So welcome to all of you 12 00:00:37,240 --> 00:00:39,400 and welcome to especially the students. 13 00:00:39,400 --> 00:00:41,840 The clerk may call the calendar, please. 14 00:00:41,840 --> 00:00:44,800 Clerk: Good afternoon. The Supreme Court of California 15 00:00:44,800 --> 00:00:46,160 hearing oral arguments in San Francisco 16 00:00:46,160 --> 00:00:49,760 on Wednesday, September 6, 2023, at 1:30 p.m. 17 00:00:49,920 --> 00:00:54,400 Case number S275788, the People, plaintiff and respondent, 18 00:00:54,400 --> 00:00:57,240 versus Norman Thomas Salazar, defendant and appellant. 19 00:00:57,240 --> 00:00:59,520 For appellant, Ms. Arielle Bases, 20 00:00:59,520 --> 00:01:01,920 appearing by video conference. 21 00:01:02,200 --> 00:01:03,720 Arielle Bases: Ready. 22 00:01:03,720 --> 00:01:07,760 Clerk: And for respondent, Mr. David F. Glassman. 23 00:01:07,760 --> 00:01:11,600 Case Number S272238, the People, plaintiff and respondent, 24 00:01:11,600 --> 00:01:15,200 versus Freddy Alfredo Curiel, defendant appellant. 25 00:01:15,400 --> 00:01:18,400 Respondent, Ms. Lynne G. McGinnis. 26 00:01:19,360 --> 00:01:23,560 And for appellant is Michelle May Peterson. 27 00:01:23,680 --> 00:01:25,680 Case Number S273340, 28 00:01:26,960 --> 00:01:30,960 Anthony Gantner, appellant, versus PG&E Corporation, 29 00:01:30,960 --> 00:01:33,720 Pacific Gas and Electric Company, respondents. 30 00:01:33,720 --> 00:01:37,000 For appellant, Mr. Nicholas A. Carlin. 31 00:01:37,000 --> 00:01:40,600 For respondent, Mr. Omid H. Nasab. 32 00:01:40,760 --> 00:01:43,720 And for amicus curiae California Public Utilities Commission, 33 00:01:43,720 --> 00:01:46,120 Ms. Candace J. Morey. 34 00:01:47,960 --> 00:01:49,560 Chief Justice Guerrero: Thank you. 35 00:01:49,560 --> 00:01:54,600 Calling the first matter, the People versus Mr. Salazar. 36 00:01:54,600 --> 00:01:57,800 Ms. Bases, you've asked for 20 minutes, 37 00:01:57,800 --> 00:02:00,800 and you're reserving ten. Whenever you're ready. 38 00:02:00,800 --> 00:02:02,560 Arielle Bases: Thank you, Your Honor. 39 00:02:02,560 --> 00:02:05,000 May it please the court, Arielle Bases 40 00:02:05,000 --> 00:02:07,560 for the appellant, Norman Salazar. 41 00:02:07,560 --> 00:02:10,760 I'm going to be talking about three points. 42 00:02:10,760 --> 00:02:14,960 First, the significant changes in the statute. 43 00:02:15,600 --> 00:02:20,400 Second, why remand is required here under Gutierrez. 44 00:02:21,440 --> 00:02:26,800 And third, the proper role of the reviewing court. 45 00:02:26,800 --> 00:02:29,200 1170(b)(6) created significant changes 46 00:02:31,800 --> 00:02:33,120 to the court's discretion. 47 00:02:33,120 --> 00:02:37,440 It created a new presumption in favor of the lower term 48 00:02:37,440 --> 00:02:39,480 if there is evidence of trauma 49 00:02:39,480 --> 00:02:42,600 that was a contributing factor to the offense. 50 00:02:42,600 --> 00:02:45,320 And it created a new incentive 51 00:02:45,320 --> 00:02:47,800 to present evidence of that trauma 52 00:02:47,800 --> 00:02:52,600 and the nexus between that trauma and the offense. 53 00:02:52,600 --> 00:02:58,800 So there is no way to determine on this record 54 00:02:58,800 --> 00:02:59,480 that the sentencing court, 55 00:02:59,480 --> 00:03:03,800 which operated under the old law, 56 00:03:03,200 --> 00:03:04,880 had all of the relevant factors, 57 00:03:04,880 --> 00:03:07,960 was presented with all of the evidence of trauma 58 00:03:07,960 --> 00:03:12,320 and the nexus between that trauma and the offense. 59 00:03:12,320 --> 00:03:17,720 Further, the presumption in favor of the lower term 60 00:03:18,280 --> 00:03:20,360 is a big deal, matters. 61 00:03:20,360 --> 00:03:23,680 And I submitted some supplemental authority Falcon 62 00:03:23,680 --> 00:03:27,600 which also talks about that as well as Gutierrez. 63 00:03:27,600 --> 00:03:31,200 Basically, the presumption informs the court 64 00:03:31,280 --> 00:03:33,880 how to weigh the evidence or gives the court, 65 00:03:33,880 --> 00:03:38,680 the sentencing court, a new framework for determining, 66 00:03:42,200 --> 00:03:44,480 for exercising its discretion. 67 00:03:44,480 --> 00:03:50,240 And there is no way to determine what the court would have done 68 00:03:50,240 --> 00:03:54,440 had it had this proper, this presumption, 69 00:03:54,600 --> 00:03:56,480 have been aware of this presumption. 70 00:03:56,480 --> 00:04:01,240 In fact, as Gutierrez says, a court that is not aware 71 00:04:01,240 --> 00:04:04,800 of the proper scope of its discretion 72 00:04:04,800 --> 00:04:07,800 cannot properly exercise its discretion. 73 00:04:07,120 --> 00:04:08,640 And the defendant has a right 74 00:04:08,640 --> 00:04:13,240 to a sentence imposed in accordance with the law 75 00:04:13,240 --> 00:04:16,760 and imposed with the proper exercise of discretion. 76 00:04:16,760 --> 00:04:19,760 So given these significant changes, 77 00:04:19,800 --> 00:04:23,320 there is no way that anyone, including a reviewing court, 78 00:04:23,320 --> 00:04:26,680 can get inside of the sentencing court's head 79 00:04:26,680 --> 00:04:30,600 and figure out what that court would have, 80 00:04:30,600 --> 00:04:33,960 how that court would have exercised its discretion 81 00:04:33,960 --> 00:04:35,440 under the new law. 82 00:04:35,440 --> 00:04:37,760 I mean, it's a brand new analysis. 83 00:04:37,760 --> 00:04:39,280 You have to figure out -- 84 00:04:39,280 --> 00:04:40,400 Chief Justice Guerrero: Ms. Bases. 85 00:04:40,400 --> 00:04:41,840 Arielle Bases: Yes, Your Honor. 86 00:04:41,840 --> 00:04:42,920 Chief Justice Guerrero: Are you arguing that 87 00:04:42,920 --> 00:04:44,400 there would be no scenario 88 00:04:44,400 --> 00:04:47,680 under which we could state with the clear certainty 89 00:04:47,680 --> 00:04:51,280 how the court would have ruled? 90 00:04:51,880 --> 00:04:55,800 Arielle Bases: I'm saying it's very rare. 91 00:04:55,800 --> 00:04:57,200 You can't in a case like this 92 00:04:57,200 --> 00:05:01,200 where the discretion has changed so much, 93 00:05:01,200 --> 00:05:02,760 where there's a new presumption, 94 00:05:02,760 --> 00:05:06,200 so you can't determine what the court would have, 95 00:05:06,200 --> 00:05:09,200 would have found under the new presumption. 96 00:05:09,200 --> 00:05:12,840 I suppose that in a case where there was -- 97 00:05:12,840 --> 00:05:14,960 where the court had no choice, for example, 98 00:05:14,960 --> 00:05:18,120 if there's a sentence for first degree murder, 99 00:05:18,120 --> 00:05:20,880 25 years to life, yes, you can. 100 00:05:20,880 --> 00:05:24,360 You can determine that that there's no -- 101 00:05:24,360 --> 00:05:26,600 you don't have to remand it for that. 102 00:05:26,600 --> 00:05:28,800 Or if there's a situation, 103 00:05:28,800 --> 00:05:31,120 and I think it would be very rare, 104 00:05:31,120 --> 00:05:36,200 on the triad, the statute we're talking about here, 105 00:05:36,200 --> 00:05:39,320 where it's crystal clear, there's a clear indication, 106 00:05:39,320 --> 00:05:42,200 there's no qualifying aggravating factors. 107 00:05:42,200 --> 00:05:45,440 The court imposed the middle term, 108 00:05:45,440 --> 00:05:49,280 and it's crystal clear there are no mitigating factors. 109 00:05:49,280 --> 00:05:52,200 And that, and I don't know how -- 110 00:05:52,200 --> 00:05:54,240 this would be very rare circumstances -- 111 00:05:54,240 --> 00:05:56,800 where it's crystal clear also that no additional 112 00:05:56,800 --> 00:05:59,000 mitigating circumstances under the new law 113 00:05:59,000 --> 00:06:02,200 regarding the new trauma requirement would be presented, 114 00:06:02,200 --> 00:06:03,760 other than those circumstances. 115 00:06:03,760 --> 00:06:05,720 Justice Jenkins: So, counsel, let me ask you -- 116 00:06:05,720 --> 00:06:08,120 Sounds like your argument, 117 00:06:09,520 --> 00:06:11,280 which language drew my colleague's question, 118 00:06:11,280 --> 00:06:14,960 seems like an absolute argument that there are no circumstances. 119 00:06:14,960 --> 00:06:19,760 What do you envision a record would have to reveal 120 00:06:19,760 --> 00:06:22,520 before we can make the determination 121 00:06:22,520 --> 00:06:25,720 as to how the court might have exercised discretion. 122 00:06:25,720 --> 00:06:28,000 For instance, the heinousness of a crime, 123 00:06:28,000 --> 00:06:31,880 the depravity of the crime, articulation of those facts. 124 00:06:31,880 --> 00:06:33,880 Would those suffice? 125 00:06:35,800 --> 00:06:37,880 Arielle Bases: It's not enough, because it is 126 00:06:37,880 --> 00:06:41,320 up to the sentencing court to exercise proper discretion. 127 00:06:41,320 --> 00:06:43,760 And for example, in Gutierrez, 128 00:06:43,760 --> 00:06:47,360 where the sentencing courts actually said 129 00:06:47,560 --> 00:06:50,480 that the aggravated term was the only appropriate term 130 00:06:50,480 --> 00:06:53,880 given the circumstances of the crimes. 131 00:06:53,880 --> 00:06:59,280 This court remanded the case because it couldn't determine 132 00:06:59,920 --> 00:07:04,880 what the sentencing court's analysis would have been under, 133 00:07:04,880 --> 00:07:08,520 under the, with the proper scope of discretion. 134 00:07:08,520 --> 00:07:09,800 Justice Jenkins: But didn't we also -- 135 00:07:09,800 --> 00:07:11,320 didn't we also include in that case 136 00:07:11,320 --> 00:07:13,600 that there was a presumption at foot. 137 00:07:13,600 --> 00:07:15,640 And I think we even say in the opinion 138 00:07:15,640 --> 00:07:18,240 that we presume the court relies on the law 139 00:07:18,240 --> 00:07:21,000 as it is at the time of the sentence. 140 00:07:21,000 --> 00:07:26,920 So that that played a distinct role in the remand, did it not? 141 00:07:26,920 --> 00:07:30,720 Arielle Bases: It did, yes. And it would apply here also. 142 00:07:30,720 --> 00:07:34,440 There's a presumption that the court applied 143 00:07:34,440 --> 00:07:36,640 the law as it applied at that time, 144 00:07:36,640 --> 00:07:39,800 which meant that it had broad discretion/ 145 00:07:39,800 --> 00:07:42,800 Didn't consider the new presumption 146 00:07:42,120 --> 00:07:43,800 under the new statute, 147 00:07:43,800 --> 00:07:46,520 and therefore its analysis would be completely different 148 00:07:46,520 --> 00:07:48,200 if it followed the new statute. 149 00:07:48,200 --> 00:07:50,520 Justice Evans: Counsel, what, if anything, 150 00:07:50,520 --> 00:07:55,920 can we discern from the court's denial of the Romero motion? 151 00:07:55,920 --> 00:07:59,520 Arielle Bases: So the Romero motion 152 00:08:01,800 --> 00:08:04,800 requires an entirely different analysis 153 00:08:04,480 --> 00:08:08,400 than weighing aggravating and mitigating circumstances. 154 00:08:08,400 --> 00:08:11,600 It talks -- It really is an exception. 155 00:08:11,600 --> 00:08:13,680 The court has to find 156 00:08:13,680 --> 00:08:17,400 that the defendant is outside of the three strikes, 157 00:08:17,400 --> 00:08:19,800 the spirit of the three strikes law. 158 00:08:19,800 --> 00:08:20,760 It's an exception. 159 00:08:20,760 --> 00:08:25,520 While, here, the exception would be not to impose the lower term. 160 00:08:25,520 --> 00:08:29,800 And also, Romero does not do the weighing. 161 00:08:29,800 --> 00:08:33,000 It doesn't weigh aggravating versus mitigating circumstances 162 00:08:33,000 --> 00:08:39,600 in the same way that it's required in the triad situation. 163 00:08:40,800 --> 00:08:44,400 And I would also like to point out that this court, 164 00:08:44,400 --> 00:08:50,640 this sentencing court, did not, did not indicate in any way 165 00:08:51,520 --> 00:08:53,920 that the aggravating circumstances 166 00:08:54,200 --> 00:08:56,440 outweigh the mitigating circumstances. 167 00:08:56,440 --> 00:08:59,880 All the language about aggravating circumstances 168 00:08:59,880 --> 00:09:03,400 outweigh the mitigating circumstances matter of law. 169 00:09:03,400 --> 00:09:08,600 The crime was horrendous. That is all the majority opinion 170 00:09:08,600 --> 00:09:12,600 making its own analysis of the facts, 171 00:09:12,600 --> 00:09:15,480 not based on anything that the lower court said. 172 00:09:15,480 --> 00:09:18,600 The lower court did not specifically talk 173 00:09:18,600 --> 00:09:20,400 about weighing, 174 00:09:20,400 --> 00:09:22,800 about finding that the aggravating circumstances 175 00:09:22,800 --> 00:09:24,840 outweigh the mitigating circumstances. 176 00:09:24,840 --> 00:09:26,480 And in fact, the lower court 177 00:09:26,480 --> 00:09:31,200 did not give the maximum term that it could have. 178 00:09:31,200 --> 00:09:33,000 In the weighing that it did, 179 00:09:33,000 --> 00:09:36,760 it didn't find that the maximum term was the appropriate term. 180 00:09:36,760 --> 00:09:39,960 So there's really not an indication on the record 181 00:09:39,960 --> 00:09:44,920 that the lower court found that the aggravating circumstances 182 00:09:44,920 --> 00:09:47,920 so outweigh the mitigating circumstances. 183 00:09:48,800 --> 00:09:51,200 And that's another reason why a remand 184 00:09:51,200 --> 00:09:53,000 would be required in this case. 185 00:09:53,000 --> 00:09:54,560 Justice Groban: I'm still considering 186 00:09:54,560 --> 00:09:57,000 your responses to the questions from my colleagues 187 00:09:57,000 --> 00:10:00,640 about what kind of record would clearly indicate 188 00:10:00,640 --> 00:10:03,640 that remand would be unnecessary. 189 00:10:04,920 --> 00:10:07,400 And by the time you were done with your answer, 190 00:10:07,400 --> 00:10:11,840 including wanting assurances that if given another chance 191 00:10:12,400 --> 00:10:15,400 at sentencing the defendant might, 192 00:10:16,000 --> 00:10:18,520 we'd want to rule out that they couldn't come forward 193 00:10:18,520 --> 00:10:20,720 with new mitigating evidence 194 00:10:20,720 --> 00:10:23,120 that wasn't presented previously. 195 00:10:23,200 --> 00:10:25,600 I worry that you've created a nil 196 00:10:25,600 --> 00:10:28,600 set that really there's no situation 197 00:10:28,600 --> 00:10:30,360 in which remand would be inappropriate. 198 00:10:30,360 --> 00:10:33,640 But that doesn't seem to be what Gutierrez says. 199 00:10:33,640 --> 00:10:36,000 There's clearly some space, right -- 200 00:10:36,000 --> 00:10:39,840 If the record clearly indicates, no need to remand. 201 00:10:39,840 --> 00:10:43,360 So I may be repeating the questions of my colleagues, 202 00:10:43,360 --> 00:10:48,360 but in part to give you another chance, tell me more -- 203 00:10:48,360 --> 00:10:51,560 try to give me an example of a case where -- 204 00:10:51,560 --> 00:10:56,000 or a kind of record where the record would clearly indicate 205 00:10:56,000 --> 00:10:58,400 that remand was unnecessary. 206 00:11:00,520 --> 00:11:01,880 Arielle Bases: Okay, thank you. 207 00:11:01,880 --> 00:11:06,800 I appreciate you asking me the question. 208 00:11:06,720 --> 00:11:11,240 It would be a case where the record shows -- 209 00:11:11,240 --> 00:11:16,400 clearly indicates that the court could not have 210 00:11:18,160 --> 00:11:23,800 given any other sentence besides the sentence that it gave. 211 00:11:23,800 --> 00:11:26,800 If there is discretion involved, 212 00:11:26,480 --> 00:11:28,960 and the framework for the discretion 213 00:11:28,960 --> 00:11:31,520 has been changed by a presumption, 214 00:11:31,520 --> 00:11:33,440 then the court, the reviewing court, 215 00:11:33,440 --> 00:11:36,440 can't speculate what discretionary decision 216 00:11:37,240 --> 00:11:39,480 the lower court would have made. 217 00:11:39,480 --> 00:11:43,800 So you're asking me for a scenario. 218 00:11:43,800 --> 00:11:46,640 I gave an example if there's only one sentence 219 00:11:46,640 --> 00:11:49,600 that can be imposed, and that's clear 220 00:11:49,600 --> 00:11:55,600 For example, if the lower court gave the middle term 221 00:11:56,000 --> 00:12:01,200 and there is no evidence of any aggravating circumstances 222 00:12:01,200 --> 00:12:04,200 that qualify, and there's no evidence 223 00:12:04,200 --> 00:12:07,800 of any mitigating circumstances that qualify. 224 00:12:08,640 --> 00:12:12,240 And so the term has to be the middle term. 225 00:12:12,240 --> 00:12:13,840 Justice Liu: Counsel, it probably shouldn't be 226 00:12:13,840 --> 00:12:15,400 that surprising, 227 00:12:15,400 --> 00:12:18,280 given the inherent nature of this problem 228 00:12:18,280 --> 00:12:20,800 that it's hard to come up with scenarios. 229 00:12:20,800 --> 00:12:21,800 Isn't that true? 230 00:12:21,800 --> 00:12:25,760 I mean, the whole point is that the discretion is being -- 231 00:12:25,760 --> 00:12:27,600 the framework within which discretion 232 00:12:27,600 --> 00:12:29,800 is exercised is being changed. 233 00:12:29,800 --> 00:12:32,480 And so one wouldn't really expect the trial court 234 00:12:32,480 --> 00:12:34,600 operating under prior law 235 00:12:34,600 --> 00:12:37,920 to have known that's exactly the problem in these cases, 236 00:12:37,920 --> 00:12:40,840 to have known what the range of its discretion was. 237 00:12:40,840 --> 00:12:42,600 And thus, there would have been no reason 238 00:12:42,600 --> 00:12:46,280 to put on the record these kinds of things in an ordinary case. 239 00:12:46,280 --> 00:12:47,840 Maybe there are some extraordinary cases, 240 00:12:47,840 --> 00:12:51,720 but it seems that the inherent construct of the problem 241 00:12:51,720 --> 00:12:55,920 makes this question very difficult to answer. 242 00:12:55,920 --> 00:12:58,240 Arielle Bases: That's correct, Your Honor. 243 00:12:58,240 --> 00:13:01,200 And I also believe there are very few instances 244 00:13:01,200 --> 00:13:04,200 where remand would not be required. 245 00:13:04,200 --> 00:13:05,520 And I suppose it's the same, 246 00:13:05,520 --> 00:13:07,520 it's similar to what you're saying. 247 00:13:07,520 --> 00:13:10,440 Very few instances where remand wouldn't be required 248 00:13:10,440 --> 00:13:13,360 or where the discretion has changed. 249 00:13:13,360 --> 00:13:14,640 Justice Groban: Let me give you one example 250 00:13:14,640 --> 00:13:16,680 on the absolute outer perimeter. 251 00:13:16,680 --> 00:13:20,240 It's an example we can see in the unpublished cases. 252 00:13:20,240 --> 00:13:26,600 It's sentencing courts aware that this bill or laws like it 253 00:13:26,600 --> 00:13:31,000 are about to be enacted, and the sentencing court says, 254 00:13:31,000 --> 00:13:35,240 "I am aware that this bill is about to be enacted. 255 00:13:35,240 --> 00:13:40,640 Even if I was operating under the new law, 256 00:13:40,800 --> 00:13:43,800 I would not impose the low term." 257 00:13:43,800 --> 00:13:47,760 I take it you'd say there no remand would be necessary? 258 00:13:47,760 --> 00:13:49,880 The record would clearly indicate? 259 00:13:49,880 --> 00:13:51,880 Arielle Bases: I think that's a different situation. 260 00:13:51,880 --> 00:13:56,560 I think -- I think that the court was aware 261 00:13:56,560 --> 00:14:01,680 of its discretion in that case and acted within its discretion. 262 00:14:01,680 --> 00:14:04,800 I think the problem is when the court 263 00:14:04,800 --> 00:14:05,840 is unaware of its discretion. 264 00:14:05,840 --> 00:14:08,680 Justice Groban: Just to be -- Just to be clear, 265 00:14:08,680 --> 00:14:11,400 and maybe I could have stated it more precisely, 266 00:14:11,400 --> 00:14:12,840 the law hasn't taken effect yet. 267 00:14:12,840 --> 00:14:17,760 Let's say it's passed, but the effective date is January 2023, 268 00:14:17,760 --> 00:14:22,640 and it's December 2022. And so they know what's coming. 269 00:14:22,640 --> 00:14:26,400 And they say, "I'm not operating under the new law, 270 00:14:26,400 --> 00:14:27,800 but I know it's coming. 271 00:14:27,800 --> 00:14:30,560 And if I were operating under the new law, 272 00:14:30,560 --> 00:14:34,120 I still would not impose the lower term." 273 00:14:34,120 --> 00:14:36,480 That's the hypo I'm giving you. 274 00:14:36,480 --> 00:14:38,400 Arielle Bases: So... 275 00:14:38,400 --> 00:14:39,440 Justice Groban: So they don't have the discretion 276 00:14:39,440 --> 00:14:40,680 at the moment. They don't actually 277 00:14:40,680 --> 00:14:42,320 have the discretion at the moment. 278 00:14:42,320 --> 00:14:43,880 Arielle Bases: Yes, I think that's different 279 00:14:43,880 --> 00:14:46,960 because I think it's easier for -- in that case, 280 00:14:46,960 --> 00:14:50,800 the reviewing court can say there's a clear indication 281 00:14:50,800 --> 00:14:55,000 what the lower court would have done 282 00:14:56,440 --> 00:14:58,160 if it had been aware of its discretion 283 00:14:58,160 --> 00:15:00,280 because it stated it on the record. 284 00:15:00,280 --> 00:15:03,200 Instead of trying to speculate and get inside the court's head 285 00:15:03,200 --> 00:15:04,920 and figure out what they would have done. 286 00:15:04,920 --> 00:15:07,440 Justice Corrigan: So if I understand your response, 287 00:15:07,440 --> 00:15:10,880 you are harkening back to the way you framed the issue, 288 00:15:10,880 --> 00:15:12,280 which is a reviewing court 289 00:15:12,280 --> 00:15:14,520 can't get into the trial court's head. 290 00:15:14,520 --> 00:15:17,760 The exception to that might be when the trial court says, 291 00:15:17,760 --> 00:15:19,680 here's what's going on in my head. 292 00:15:19,680 --> 00:15:21,400 I know that -- Arielle Bases: That's right. 293 00:15:21,400 --> 00:15:22,960 Justice Corrigan: I get it. Thank you. 294 00:15:22,960 --> 00:15:26,560 Arielle Bases: That's right. That's right. 295 00:15:26,600 --> 00:15:32,320 Now, with regards to the proper role of the reviewing court, 296 00:15:32,320 --> 00:15:34,000 it cannot substitute its judgment 297 00:15:34,000 --> 00:15:37,760 for the sentencing court. The sentencing court, 298 00:15:37,760 --> 00:15:42,600 its job is to exercise proper discretion and sentencing. 299 00:15:42,600 --> 00:15:45,800 And the reviewing court's job is to make sure 300 00:15:45,800 --> 00:15:48,640 that the lower court exercised proper discretion. 301 00:15:48,640 --> 00:15:50,440 Justice Kruger: So the Court of Appeal... 302 00:15:50,440 --> 00:15:52,000 May I ask, so the Court of Appeal in this case, 303 00:15:52,000 --> 00:15:56,400 in addition to a discussion of how the trial court 304 00:15:56,400 --> 00:15:59,000 would have exercised its discretion, 305 00:15:59,000 --> 00:16:01,320 had this law been in effect at the time, 306 00:16:01,320 --> 00:16:03,400 also says that as a matter of law, 307 00:16:03,400 --> 00:16:05,200 it would have been an abuse of discretion 308 00:16:05,200 --> 00:16:07,800 under these circumstances 309 00:16:07,800 --> 00:16:09,760 to have given a lower term sentence. 310 00:16:09,760 --> 00:16:14,200 I understand that you disagree with that conclusion, 311 00:16:14,200 --> 00:16:16,520 but wonder if you agree with the premise 312 00:16:16,520 --> 00:16:18,440 that there are some situations 313 00:16:18,440 --> 00:16:21,800 in which a reviewing court can say, 314 00:16:21,800 --> 00:16:24,000 based on the facts presented to the court, 315 00:16:24,000 --> 00:16:25,880 that it would be an abuse of discretion 316 00:16:25,880 --> 00:16:30,800 to exercise discretion in a particular manner. 317 00:16:31,800 --> 00:16:33,520 Arielle Bases: I think that is substituting 318 00:16:33,520 --> 00:16:35,520 its judgment for the lower court. 319 00:16:35,520 --> 00:16:40,960 I think that if the lower court had exercised proper discretion, 320 00:16:40,960 --> 00:16:46,280 was aware of the law, I'm sorry, exercise discretion, 321 00:16:46,280 --> 00:16:49,520 aware of the law, and then made a mistake, 322 00:16:49,520 --> 00:16:53,200 then the reviewing court can go in and correct that mistake 323 00:16:53,200 --> 00:16:55,440 and say it's an abuse of discretion. 324 00:16:55,440 --> 00:16:59,800 But to actually step in and determine 325 00:16:59,800 --> 00:17:01,560 what would be an abuse of discretion 326 00:17:01,560 --> 00:17:03,280 before the sentencing court 327 00:17:03,280 --> 00:17:08,440 has actually had the opportunity to exercise proper discretion, 328 00:17:08,440 --> 00:17:13,120 I think that is an improper role for the reviewing court. 329 00:17:13,120 --> 00:17:15,880 And I think it precludes the lower court 330 00:17:15,880 --> 00:17:18,320 from the opportunity to actually sentence 331 00:17:18,320 --> 00:17:20,920 someone in accordance with the law. 332 00:17:20,920 --> 00:17:24,600 And I think it precludes the defendant from his right 333 00:17:24,600 --> 00:17:27,600 to be sentenced in accordance with the law 334 00:17:27,600 --> 00:17:30,600 and with the proper exercise of discretion. 335 00:17:30,600 --> 00:17:34,720 And I also think there are many factors that go into sentencing 336 00:17:34,720 --> 00:17:38,320 that the sentencing court itself is privy to, 337 00:17:38,320 --> 00:17:41,920 and that's why, that's why the sentencing court 338 00:17:41,920 --> 00:17:43,360 makes the decision. 339 00:17:43,360 --> 00:17:44,760 While the reviewing court 340 00:17:44,760 --> 00:17:49,800 may not have all of that information such as, 341 00:17:49,800 --> 00:17:52,560 you know, the demeanor of the of the defendant 342 00:17:52,560 --> 00:17:54,960 or different things that have happened 343 00:17:54,960 --> 00:17:59,360 that the sentencing court is aware of the defendant. 344 00:17:59,360 --> 00:18:01,160 And I would also like to point out 345 00:18:01,160 --> 00:18:05,840 that the sentencing court here was very aware of the defendant 346 00:18:05,840 --> 00:18:10,000 and spoke to him about a lot of different factors, 347 00:18:10,000 --> 00:18:14,600 including trauma and his relationship with his family. 348 00:18:14,600 --> 00:18:17,800 And that it wished that he, when this was done, 349 00:18:17,800 --> 00:18:20,600 he could be the best version of himself. 350 00:18:20,600 --> 00:18:24,760 But it operated, it didn't operate under the proper law. 351 00:18:24,760 --> 00:18:27,520 It didn't have the opportunity to do that. 352 00:18:27,520 --> 00:18:31,120 And so it should be -- 353 00:18:31,640 --> 00:18:34,400 the sentencing court should have the opportunity 354 00:18:34,400 --> 00:18:36,920 to make a careful and considerate decision 355 00:18:36,920 --> 00:18:39,520 based on all of the factors in front of it 356 00:18:39,520 --> 00:18:42,760 instead of the reviewing court jumping in 357 00:18:42,760 --> 00:18:47,440 and making the decision for the sentencing court. 358 00:18:47,440 --> 00:18:50,600 Did I answer your question, Your Honor? 359 00:18:50,600 --> 00:18:54,600 Justice Kruger: You did. I mean, I guess I wonder 360 00:18:54,600 --> 00:18:57,520 whether the sort of the theoretical question 361 00:18:57,520 --> 00:18:59,680 of whether there's any set of circumstances 362 00:18:59,680 --> 00:19:02,800 in which it would be possible to say as a matter of law, 363 00:19:02,800 --> 00:19:05,600 this would be a sentencing decision 364 00:19:05,600 --> 00:19:07,800 that is an abuse of discretion, 365 00:19:07,800 --> 00:19:11,560 is something that we have to answer in this case. 366 00:19:11,560 --> 00:19:15,160 Because typically the, as you say, 367 00:19:16,400 --> 00:19:21,280 the sentencing decisions are going to involve a very careful 368 00:19:21,280 --> 00:19:23,960 and sensitive weighing of multiple considerations 369 00:19:23,960 --> 00:19:27,400 that make it very difficult for a reviewing court 370 00:19:27,400 --> 00:19:32,160 to reach that sort of across the board 371 00:19:32,160 --> 00:19:35,280 as a matter of law sort of conclusion 372 00:19:35,280 --> 00:19:37,600 about what an appropriate sentence 373 00:19:37,600 --> 00:19:39,800 might be under the circumstances. 374 00:19:39,800 --> 00:19:43,120 So if there were ever a case in which that were appropriate, 375 00:19:43,120 --> 00:19:45,600 maybe that's not something that we need to decide 376 00:19:45,600 --> 00:19:49,800 definitively for purposes of resolving this case. 377 00:19:50,600 --> 00:19:52,240 Arielle Bases: I would also like to point out 378 00:19:52,240 --> 00:19:57,400 that the new statute asked the sentencing courts 379 00:19:58,000 --> 00:19:59,640 to consider additional factors, 380 00:19:59,640 --> 00:20:03,600 including trauma and why people acted the way they did 381 00:20:03,600 --> 00:20:07,760 and to look at a more holistic approach to sentencing. 382 00:20:07,760 --> 00:20:12,400 Which actually wasn't in front of the same court 383 00:20:12,400 --> 00:20:16,240 at the time it made a decision. 384 00:20:19,760 --> 00:20:23,680 So if there are no further questions, 385 00:20:23,680 --> 00:20:27,600 I would ask for the rest of the time be reserved for rebuttal. 386 00:20:27,600 --> 00:20:30,000 Are there further questions? 387 00:20:30,160 --> 00:20:31,600 Chief Justice Guerrero: You'll have the rest of your time 388 00:20:31,600 --> 00:20:32,920 for rebuttal. Thank you for your arguments. 389 00:20:32,920 --> 00:20:34,640 Arielle Bases: Thank you. 390 00:20:34,640 --> 00:20:37,560 Chief Justice Guerrero: We'll now hear from Mr. Glassman. 391 00:20:37,560 --> 00:20:39,120 David Glassman: Thank you, Chief Justice Guerrero, 392 00:20:39,120 --> 00:20:40,800 and may it please the court. 393 00:20:40,800 --> 00:20:43,800 We ask that the court affirm 394 00:20:43,800 --> 00:20:46,320 the judgment of the Court of Appeal on this case. 395 00:20:46,320 --> 00:20:49,440 Because this record clearly indicates that 396 00:20:49,440 --> 00:20:52,720 if this trial judge, not some hypothetical judge, 397 00:20:52,720 --> 00:20:56,400 but looking at this record, if this judge was aware 398 00:20:56,400 --> 00:20:59,880 of the amended provisions of Section 1170(b)(6), 399 00:20:59,880 --> 00:21:03,360 the judge would have imposed at a minimum the middle term. 400 00:21:03,360 --> 00:21:05,360 Chief Justice Guerrero: Where do you get that from? 401 00:21:05,360 --> 00:21:07,840 If you look at the Court of Appeal's opinion, 402 00:21:07,840 --> 00:21:10,800 there is language in there talking about 403 00:21:10,800 --> 00:21:15,600 the crime being sadistic, akin to torture, aggravated. 404 00:21:16,200 --> 00:21:19,320 But when you look at the actual transcript, 405 00:21:19,320 --> 00:21:21,600 it doesn't read that way. Those words aren't in there. 406 00:21:21,600 --> 00:21:23,360 What is in there that's sufficient? 407 00:21:23,360 --> 00:21:24,600 David Glassman: What is in there 408 00:21:24,600 --> 00:21:27,720 is what Gutierrez asks us to look at. 409 00:21:27,720 --> 00:21:31,880 Namely, Gutierrez asks that we look at the record 410 00:21:31,880 --> 00:21:33,560 in this case of sentencing 411 00:21:33,560 --> 00:21:35,680 and whether or not there was a clear indication 412 00:21:35,680 --> 00:21:37,440 of what the sentence would have been. 413 00:21:37,440 --> 00:21:39,200 So I'm not addressing myself 414 00:21:39,200 --> 00:21:41,800 to the observations of the Court of Appeal, 415 00:21:41,800 --> 00:21:42,440 for better or worse. 416 00:21:42,440 --> 00:21:45,400 I'm focusing on what the judge said 417 00:21:45,400 --> 00:21:47,400 and how the judge evaluated this case. 418 00:21:47,400 --> 00:21:52,280 And Gutierrez, I think I can speak with some background 419 00:21:52,280 --> 00:21:54,360 on that case since I lost it in this court, 420 00:21:54,360 --> 00:21:57,360 Gutierrez is a sea change 421 00:21:57,720 --> 00:22:00,800 in terms of the evaluation of the responsibility 422 00:22:00,800 --> 00:22:04,480 or the culpability of a youthful killer. 423 00:22:04,480 --> 00:22:07,560 Of a of a young adult sentenced to life imprisonment. 424 00:22:07,560 --> 00:22:10,200 This is a significant change. It's not Gutierrez. 425 00:22:10,200 --> 00:22:12,400 It doesn't involve interpretation 426 00:22:12,400 --> 00:22:15,800 in Miller versus Alabama and all sorts of things that, 427 00:22:15,800 --> 00:22:16,640 as Justice Jenkins indicated, 428 00:22:16,640 --> 00:22:19,960 led the court to acknowledge or observe 429 00:22:19,960 --> 00:22:23,720 that Gutierrez represented, that is, the prior law 430 00:22:23,720 --> 00:22:25,400 represented a virtual presumption 431 00:22:25,400 --> 00:22:27,800 in favor of a life sentence. We don't have that. 432 00:22:27,800 --> 00:22:30,760 We have a holistic sentencing determination that is made 433 00:22:30,760 --> 00:22:34,680 by a trial judge in the exercise of discretion already here. 434 00:22:34,680 --> 00:22:38,840 And in doing that, I would point to various observations 435 00:22:38,840 --> 00:22:40,560 and rulings this judge made, 436 00:22:40,560 --> 00:22:42,720 all of which point in one direction 437 00:22:42,720 --> 00:22:45,600 and none of which were addressed by counsel. 438 00:22:45,600 --> 00:22:49,400 So the first is the Romero motion. 439 00:22:49,400 --> 00:22:50,920 That was touched upon. 440 00:22:50,920 --> 00:22:53,200 The Romero motion, as the court is well aware, 441 00:22:53,200 --> 00:22:54,960 asks whether or not it is appropriate 442 00:22:54,960 --> 00:22:57,840 under the circumstances of a given case to relieve 443 00:22:57,840 --> 00:23:01,800 the defendant of the burden of a prior strike offense 444 00:23:01,800 --> 00:23:06,600 which will substantially increase his or her sentence. 445 00:23:06,640 --> 00:23:11,760 And the judge in this case, aware of the allegations, 446 00:23:11,760 --> 00:23:15,120 all sorts of allegations that one might group 447 00:23:15,120 --> 00:23:17,360 under the general rubric of trauma here, 448 00:23:17,360 --> 00:23:18,600 although I think that's also 449 00:23:18,600 --> 00:23:21,360 a very debatable terminology in this case. 450 00:23:21,360 --> 00:23:26,120 Nevertheless, the judge said, I'm going to decline 451 00:23:26,120 --> 00:23:29,720 to disallow the Romero application here, 452 00:23:30,560 --> 00:23:33,640 although I am aware, for example, of the drug use. 453 00:23:33,640 --> 00:23:35,800 So that is -- 454 00:23:35,800 --> 00:23:36,800 Justice Groban: Isn't Romero very different? 455 00:23:36,800 --> 00:23:40,800 I mean, it seems like in many ways Romero is the opposite. 456 00:23:40,800 --> 00:23:43,520 Romero, even as you describe it, 457 00:23:43,520 --> 00:23:46,560 it's a presumption in favor of the harsher sentence. 458 00:23:46,560 --> 00:23:49,800 The judge wants to deviate from the harsher sentence. 459 00:23:49,800 --> 00:23:53,200 She has to explain why she's deviated from that sentence. 460 00:23:53,200 --> 00:23:54,920 This is just the opposite, isn't it? 461 00:23:54,920 --> 00:23:57,200 It's a presumption in favor of the more lenient sentence. 462 00:23:57,200 --> 00:24:00,200 So how much can we rely on the Romero decision? 463 00:24:00,200 --> 00:24:02,200 David Glassman: We note it as one factor 464 00:24:02,200 --> 00:24:05,400 in a series of observations the judge makes. 465 00:24:05,400 --> 00:24:08,600 It is not an apples to apples analogy. 466 00:24:08,600 --> 00:24:11,520 It is a related determination made by a judge 467 00:24:11,520 --> 00:24:15,520 when asked to depart from a sentence presumption. 468 00:24:15,520 --> 00:24:18,400 And the judge says in this case, I won't do it. 469 00:24:18,400 --> 00:24:20,800 So that's one indication. 470 00:24:20,800 --> 00:24:24,280 And, vis-?-vis, by the way, the showing that's made 471 00:24:24,280 --> 00:24:25,840 and the argument that's made here today 472 00:24:25,840 --> 00:24:28,800 that somehow we have a different version of information 473 00:24:28,800 --> 00:24:30,400 that will go to the judge. 474 00:24:30,400 --> 00:24:34,800 This judge looks at a 50-page sentencing memorandum 475 00:24:34,800 --> 00:24:37,560 presented on the defendant's behalf 476 00:24:37,560 --> 00:24:39,600 with eight or nine exhibits 477 00:24:39,600 --> 00:24:42,120 and an extremely elaborate documentation 478 00:24:42,120 --> 00:24:44,120 of this defendant's background. 479 00:24:44,120 --> 00:24:45,600 And the judge compliments it 480 00:24:45,600 --> 00:24:48,440 at least three times on the record 481 00:24:48,440 --> 00:24:51,680 and describes what a thorough job 482 00:24:51,680 --> 00:24:56,320 has been done to explain the background of this defendant. 483 00:24:56,320 --> 00:24:58,600 What the judge doesn't do, it's true, 484 00:24:58,600 --> 00:25:02,640 is explicitly articulated in the language of the Court of Appeal, 485 00:25:02,640 --> 00:25:05,560 how extraordinarily aggravated this crime is. 486 00:25:05,560 --> 00:25:08,000 This is not a routine false imprisonment, 487 00:25:08,000 --> 00:25:09,840 which is not a routine offense. 488 00:25:09,840 --> 00:25:13,360 This is a 20-hour ordeal visited on a woman 489 00:25:13,360 --> 00:25:16,400 who gets pulled into a motel room by this defendant. 490 00:25:16,400 --> 00:25:18,800 Justice Jenkins: In some ways, that means we'd be 491 00:25:18,800 --> 00:25:23,480 substituting our subjective weight to those facts for -- 492 00:25:23,880 --> 00:25:28,680 in the absence of the judge having any opportunity to do so. 493 00:25:28,680 --> 00:25:30,960 David Glassman: Your Honor, if my interpretation 494 00:25:30,960 --> 00:25:32,680 is reasonable, 495 00:25:32,680 --> 00:25:34,800 what I'm saying is we are doing the opposite. 496 00:25:34,800 --> 00:25:37,280 So we are looking first at the Romero motion 497 00:25:37,280 --> 00:25:38,880 in which the judge says no. 498 00:25:38,880 --> 00:25:42,400 Then we're looking at a second intermediate decision 499 00:25:42,400 --> 00:25:43,640 the judge is making with respect 500 00:25:43,640 --> 00:25:46,720 to whether or not to apply concurrent sentences. 501 00:25:46,720 --> 00:25:50,000 And the judge observes that over 20 hours, 502 00:25:50,000 --> 00:25:52,320 when she's repeatedly beaten, 503 00:25:52,320 --> 00:25:55,320 bitten, sprayed with pepper spray, 504 00:25:55,400 --> 00:25:59,400 dragged out of that motel to steal her money from her bank, 505 00:25:59,400 --> 00:26:02,400 dragged to a drug deal, 506 00:26:02,480 --> 00:26:03,920 and eventually end up in that bank. 507 00:26:03,920 --> 00:26:06,800 And she lowers sunglasses to show the black eye 508 00:26:06,800 --> 00:26:10,600 she sustained over the broken bone in her face 509 00:26:10,600 --> 00:26:13,800 and says to the teller, call the police. 510 00:26:13,800 --> 00:26:16,480 The judge says, I'm not imposing concurrent sentences 511 00:26:16,480 --> 00:26:20,800 because there are different objectives here, 512 00:26:20,800 --> 00:26:23,600 acts committed at different times with different purposes. 513 00:26:23,600 --> 00:26:26,680 Is that language as dramatic as the Court of Appeal's? 514 00:26:26,680 --> 00:26:28,800 No. But it's an indication 515 00:26:28,800 --> 00:26:32,400 of the extraordinarily brutal nature of this case. 516 00:26:32,400 --> 00:26:34,480 Chief Justice Guerrero: Isn't that -- I'm sorry. 517 00:26:34,480 --> 00:26:36,400 Justice Groban: It's not that it's not as dramatic. 518 00:26:36,400 --> 00:26:39,760 It's totally devoid from the record 519 00:26:39,760 --> 00:26:41,680 of the sentencing transcript. 520 00:26:41,680 --> 00:26:45,280 On the issue of consecutive sentences, 521 00:26:45,280 --> 00:26:47,600 the grand total of what the judge said, 522 00:26:47,600 --> 00:26:52,280 near as I can tell, is, "Based on everything I've said, 523 00:26:52,280 --> 00:26:53,880 I'm imposing consecutive." 524 00:26:53,880 --> 00:26:56,920 And just as you say, that inquiry is about 525 00:26:56,920 --> 00:26:59,200 whether it's a continuous course of conduct 526 00:26:59,200 --> 00:27:00,920 or a break in the conduct. 527 00:27:00,920 --> 00:27:04,400 I mean, that seems very, very different from a deterrent, 528 00:27:04,400 --> 00:27:07,440 from a weighing of aggravating and mitigating factors. 529 00:27:07,440 --> 00:27:11,400 As you know, it's a pretty -- actual technical determination. 530 00:27:11,400 --> 00:27:14,600 Was there a break, or was it continuous contact? 531 00:27:14,600 --> 00:27:16,560 David Glassman: I think a reasonable interpretation 532 00:27:16,560 --> 00:27:18,680 in terms of the judge's amenability 533 00:27:18,680 --> 00:27:21,880 to a mitigated sentence of the lowest term. 534 00:27:21,880 --> 00:27:23,440 It is reasonable to infer 535 00:27:23,440 --> 00:27:26,800 that when the judge describes multiple objectives, 536 00:27:26,800 --> 00:27:28,320 over multiple -- over different times. 537 00:27:28,320 --> 00:27:29,800 Just as, for example it is -- 538 00:27:29,800 --> 00:27:31,640 Chief Justice Guerrero: Isn't that required? 539 00:27:31,640 --> 00:27:34,640 I mean it's not as though the judge made a deliberate choice 540 00:27:34,640 --> 00:27:38,840 to emphasize certain things in that respect. 541 00:27:38,840 --> 00:27:43,120 It was required to order or to do that analysis 542 00:27:43,120 --> 00:27:46,800 to determine whether it should be concurrent or consecutive. 543 00:27:46,800 --> 00:27:47,280 David Glassman: Yes, Your Honor. 544 00:27:47,280 --> 00:27:49,400 But I think that the question, again, 545 00:27:49,400 --> 00:27:52,840 under Gutierrez is, is there a clear indication, 546 00:27:52,840 --> 00:27:57,960 we take as a given that we don't know definitively know 547 00:27:57,960 --> 00:28:00,600 what a ruling would be under an amended statute. 548 00:28:00,600 --> 00:28:03,440 But if counsel is correct with the defense position 549 00:28:03,440 --> 00:28:05,800 in this case is correct, 550 00:28:05,800 --> 00:28:09,000 I think counsel said it effectively, if not literally. 551 00:28:09,000 --> 00:28:12,960 They are arguing for a per se rule of reversible error, 552 00:28:12,960 --> 00:28:16,800 subject to that rare case where a judge says, for example, 553 00:28:16,800 --> 00:28:19,440 if the law were different, my sentence would be different. 554 00:28:19,440 --> 00:28:23,520 Hopefully, I don't think we encourage judges to opine 555 00:28:23,520 --> 00:28:25,800 about how they would sentence under other circumstances. 556 00:28:25,800 --> 00:28:28,240 They apply the law as it is that day, 557 00:28:28,240 --> 00:28:30,640 on this day, under these circumstances, 558 00:28:30,640 --> 00:28:32,520 getting back to what this judge said. 559 00:28:32,520 --> 00:28:35,280 When the judge refers to the Romero motion, 560 00:28:35,280 --> 00:28:37,360 getting back to the Romero motion, 561 00:28:37,360 --> 00:28:41,160 the judge says this is a 30-year-long 562 00:28:41,160 --> 00:28:43,400 and continuous criminal history. 563 00:28:43,400 --> 00:28:47,320 And it involves constant assault of conduct, 564 00:28:47,320 --> 00:28:50,200 often against women who are in a relationship 565 00:28:50,200 --> 00:28:51,800 with this defendant. 566 00:28:51,800 --> 00:28:55,200 It also involves carjackings. It involves other things. 567 00:28:55,200 --> 00:28:57,480 It involves a whole variety of offenses 568 00:28:57,480 --> 00:29:01,000 stretching over this person's adult lifetime. 569 00:29:01,000 --> 00:29:04,320 Now, I realize we're not here to argue per se, 570 00:29:04,320 --> 00:29:06,120 the application of this trauma, 571 00:29:06,120 --> 00:29:07,880 but I want to point something out about 572 00:29:07,880 --> 00:29:11,600 how the claim of trauma operates in this case. 573 00:29:11,600 --> 00:29:13,000 Because again, that is something 574 00:29:13,000 --> 00:29:16,520 that is not specified by this legislation. 575 00:29:16,520 --> 00:29:19,000 When the judge looks at all of this and compliments 576 00:29:19,000 --> 00:29:21,200 to showing that has been made, 577 00:29:21,200 --> 00:29:24,240 no one is talking about, for example, 578 00:29:24,240 --> 00:29:26,560 an allegation of childhood abuse. 579 00:29:26,560 --> 00:29:30,000 And that, I think it is fair to say, is the, 580 00:29:30,000 --> 00:29:32,720 to the extent that trauma is identified in this appeal 581 00:29:32,720 --> 00:29:35,480 as triggering the statute, that's the claim. 582 00:29:35,480 --> 00:29:38,400 The allegation of childhood abuse 583 00:29:38,400 --> 00:29:43,400 is found in two lines of the criminal history 584 00:29:43,400 --> 00:29:45,520 of this defendant from remote, 585 00:29:45,520 --> 00:29:48,200 that is remote in time evaluations of him. 586 00:29:48,200 --> 00:29:52,400 What he tells the sentencing mitigation expert 587 00:29:52,480 --> 00:29:57,560 whose report is in the clerk's transcript at page 503, 588 00:29:57,560 --> 00:29:59,960 remember, this is again as to the alleged trauma 589 00:29:59,960 --> 00:30:02,160 coming from his father. 590 00:30:02,160 --> 00:30:05,360 He says my father was my best friend 591 00:30:05,360 --> 00:30:07,280 and my relationship with him, 592 00:30:07,280 --> 00:30:11,280 although he was strict on me as a child, 593 00:30:11,280 --> 00:30:13,960 was the greatest thing that ever happened to me. 594 00:30:13,960 --> 00:30:17,640 So again, to be fair to what happened in this case, 595 00:30:17,640 --> 00:30:20,400 there was an extensive mitigation history offered. 596 00:30:20,400 --> 00:30:22,440 The judge did offer the defense the opportunity 597 00:30:22,440 --> 00:30:25,480 to present more evidence at the hearing. They declined. 598 00:30:25,480 --> 00:30:29,480 No one alleged this type of trauma in the trial court. 599 00:30:29,480 --> 00:30:33,480 No one did. Can you go back and comb 600 00:30:33,480 --> 00:30:35,360 through a 30-year criminal history 601 00:30:35,360 --> 00:30:38,000 and find a line about it? Yes. 602 00:30:38,000 --> 00:30:40,200 And is it -- can you further say -- 603 00:30:40,200 --> 00:30:41,880 although no one attempted to say it, 604 00:30:41,880 --> 00:30:45,800 the statute didn't exist then -- it's not just trauma. 605 00:30:45,800 --> 00:30:46,720 If there is a line that suggests 606 00:30:46,720 --> 00:30:49,680 that someone has identified trauma 607 00:30:49,680 --> 00:30:52,480 in someone's upbringing, for example, 608 00:30:52,480 --> 00:30:55,600 it has to have a connection to the crime. 609 00:30:55,600 --> 00:30:57,000 Justice Corrigan: Mr. Glassman, can I ask, 610 00:30:57,000 --> 00:30:59,560 and I'm going to take a little left turn here. 611 00:30:59,560 --> 00:31:03,920 So I apologize if I take you off your game. 612 00:31:03,920 --> 00:31:07,720 David Glassman: As soon as I'm on it, but go ahead. 613 00:31:07,720 --> 00:31:09,360 Justice Corrigan: We have a circumstance 614 00:31:09,360 --> 00:31:12,720 in which the legislature has articulated a new standard 615 00:31:12,720 --> 00:31:16,800 under the circumstances that it articulates. 616 00:31:16,800 --> 00:31:20,800 And we all agree that the change applies 617 00:31:20,800 --> 00:31:25,280 retroactively to this defendant. I'm trying to get a sense 618 00:31:25,280 --> 00:31:29,480 of exactly what we're fighting over here. 619 00:31:29,760 --> 00:31:33,960 Where is the downside under these circumstances? 620 00:31:34,800 --> 00:31:38,400 In the absence of a definitive statement by the trial court, 621 00:31:38,400 --> 00:31:41,480 even if I had the discretion, I wouldn't do it. 622 00:31:41,480 --> 00:31:47,800 Where is the big injury to the body of jurisprudence if we say, 623 00:31:47,800 --> 00:31:49,480 let's give the trial court another opportunity 624 00:31:49,480 --> 00:31:52,800 to exercise the discretion that it now has? 625 00:31:52,800 --> 00:31:56,400 David Glassman: Well, to use a court's term, 626 00:31:56,400 --> 00:31:58,240 the injury or the consequence 627 00:31:58,240 --> 00:32:01,800 is there is agreement in this case 628 00:32:01,800 --> 00:32:02,920 that Gutierrez sets the standard. 629 00:32:02,920 --> 00:32:05,560 And the standard under Gutierrez is whether or not 630 00:32:05,560 --> 00:32:08,240 there is a clear indication on the record. 631 00:32:08,240 --> 00:32:10,440 There was a discussion earlier about whether that would apply 632 00:32:10,440 --> 00:32:12,560 in most cases or in some cases. 633 00:32:12,560 --> 00:32:15,160 It might be rare, but there are cases 634 00:32:15,160 --> 00:32:17,200 where there is a clear indication 635 00:32:17,200 --> 00:32:18,800 of what a sentence would be. 636 00:32:18,800 --> 00:32:23,520 And as far as the value or the danger of making 637 00:32:23,520 --> 00:32:27,720 that sort of assessment in other contexts, 638 00:32:28,000 --> 00:32:30,400 for example, for better or worse, 639 00:32:30,400 --> 00:32:34,560 this court routinely engages in harmless error evaluations. 640 00:32:34,560 --> 00:32:37,720 This court decides in most of the cases it hears, 641 00:32:37,720 --> 00:32:39,880 certainly most of the capital cases, 642 00:32:39,880 --> 00:32:42,480 whether or not an error made a difference 643 00:32:42,480 --> 00:32:44,560 by one standard or another standard. 644 00:32:44,560 --> 00:32:48,000 Well, do we know definitively that it did? 645 00:32:48,000 --> 00:32:50,960 We don't, but that is an established role 646 00:32:50,960 --> 00:32:52,400 that the courts play. 647 00:32:52,400 --> 00:32:54,280 But here, the standard that I'm describing, 648 00:32:54,280 --> 00:32:56,760 which comes from Justice Lewis' opinion, 649 00:32:56,760 --> 00:32:58,600 is a more concrete one, 650 00:32:58,600 --> 00:33:02,480 namely, either the record shows it or it doesn't. 651 00:33:02,480 --> 00:33:06,760 And our argument is that where every intermediate decision 652 00:33:06,760 --> 00:33:09,720 made by a judge goes in one direction, 653 00:33:09,720 --> 00:33:14,120 declining to lower the sentence below the lower term -- 654 00:33:14,120 --> 00:33:16,400 I'm sorry, below the middle term -- 655 00:33:16,400 --> 00:33:18,320 that is an indication of where this judge 656 00:33:18,320 --> 00:33:19,720 comes out on this case. 657 00:33:19,720 --> 00:33:23,720 Justice Kruger: Is it irrelevant in that framework 658 00:33:23,720 --> 00:33:25,960 what questions the judge had to ask 659 00:33:25,960 --> 00:33:27,640 in order to answer those questions 660 00:33:27,640 --> 00:33:30,840 about whether to lower the sentence or not? 661 00:33:30,840 --> 00:33:34,400 In other words, do those questions have to relate 662 00:33:34,400 --> 00:33:39,800 in some way in large part to the kinds of questions 663 00:33:39,800 --> 00:33:44,280 that trial courts are now instructed to ask and answer 664 00:33:44,280 --> 00:33:46,640 under this newly applicable statute? 665 00:33:46,640 --> 00:33:48,160 David Glassman: Justice Kruger, 666 00:33:48,160 --> 00:33:51,400 although there is certainly a significant change 667 00:33:51,400 --> 00:33:55,840 that the new legislation creates, the judge -- 668 00:33:56,600 --> 00:34:01,480 the questions and the statements that the judge asked before 669 00:34:01,480 --> 00:34:04,320 had to do with assessments that are relevant 670 00:34:04,320 --> 00:34:07,400 in a related predictive context. 671 00:34:07,400 --> 00:34:11,120 That is why, for example, all the arguments that are made 672 00:34:11,120 --> 00:34:14,400 are based on record-based showings 673 00:34:14,400 --> 00:34:15,680 or alleged showings of mitigation. 674 00:34:15,680 --> 00:34:18,720 It was all put into the record. The defendant's lawyer 675 00:34:18,720 --> 00:34:21,640 was obviously incentivized to do that. 676 00:34:21,640 --> 00:34:27,400 It is true that now 1170(b) specifically says trauma. 677 00:34:27,880 --> 00:34:31,800 But it's also true that there's nothing new about a judge 678 00:34:31,800 --> 00:34:35,200 considering all sorts of background factors. 679 00:34:35,200 --> 00:34:37,120 The rules of court that guide 680 00:34:37,120 --> 00:34:38,560 whether or not a sentence is mitigated 681 00:34:38,560 --> 00:34:42,560 or aggravated explicitly speak of any condition 682 00:34:42,560 --> 00:34:46,720 that could minimize or reduce culpability, and -- 683 00:34:46,720 --> 00:34:48,440 Justice Liu: As a set up or as presumption 684 00:34:48,440 --> 00:34:52,280 you go low term. Does it -- David Glassman: There is no -- 685 00:34:52,280 --> 00:34:54,280 Justice Liu: Under 1170(b) -- 686 00:34:54,280 --> 00:34:56,160 David Glassman: Right. There is no presumption, 687 00:34:56,160 --> 00:34:58,880 but I think that there is an ability 688 00:34:58,880 --> 00:35:02,720 to nevertheless to look at the circumstances of a case. 689 00:35:02,720 --> 00:35:05,120 Now did the judge, again, did the judge opine 690 00:35:05,120 --> 00:35:07,400 about what a hypothetical sentence 691 00:35:07,400 --> 00:35:08,760 under other conditions would have been? 692 00:35:08,760 --> 00:35:12,800 No. And did the judge sort of regale us with a reiteration 693 00:35:12,800 --> 00:35:17,000 of how extraordinarily diabolical this case was? 694 00:35:19,000 --> 00:35:21,640 No. And is it necessary to estimate 695 00:35:21,640 --> 00:35:23,800 whether or not an abuse of discretion would be involved 696 00:35:23,800 --> 00:35:25,480 in the lower term? No. 697 00:35:25,480 --> 00:35:29,400 But I think it is fair to say as a predictive matter in this case 698 00:35:29,400 --> 00:35:32,960 and in other cases that if you have, for example, 699 00:35:32,960 --> 00:35:37,800 in the assessment of this case no mitigating factors were noted 700 00:35:37,800 --> 00:35:39,640 when this case was analyzed. 701 00:35:39,640 --> 00:35:43,800 Not in the probation report, not anywhere else, none were. 702 00:35:43,800 --> 00:35:46,760 Multiple aggravating factors were noted. 703 00:35:46,760 --> 00:35:49,200 Chief Justice Guerrero: Can we go back to the -- 704 00:35:49,200 --> 00:35:51,680 compare Gutierrez and the situation here? 705 00:35:51,680 --> 00:35:53,160 David Glassman: Yes, Your Honor. 706 00:35:53,160 --> 00:35:54,440 Chief Justice Guerrero: Gutierrez establishes 707 00:35:54,440 --> 00:35:55,720 that we have to have a confidence 708 00:35:55,720 --> 00:35:58,400 in what the trial court would have done. 709 00:35:58,400 --> 00:36:00,640 And in that case, we were presented with statements 710 00:36:00,640 --> 00:36:05,240 by the trial court stating it was absolutely convinced 711 00:36:05,240 --> 00:36:08,600 that the certain sentence should be imposed. 712 00:36:08,600 --> 00:36:13,800 And how does that language compare to what we have here? 713 00:36:13,800 --> 00:36:16,800 It seems in this case we have even less of an indication 714 00:36:16,800 --> 00:36:18,720 of what the trial court was convinced 715 00:36:18,720 --> 00:36:20,280 was the correct sentence. 716 00:36:20,280 --> 00:36:24,400 David Glassman: Well, I think the appropriate way 717 00:36:24,400 --> 00:36:27,320 to view the trial court statements in that case 718 00:36:27,320 --> 00:36:30,280 were that regardless of how convinced 719 00:36:30,280 --> 00:36:34,480 the judge indicated in the prior sentencing, 720 00:36:34,800 --> 00:36:36,200 that ruling was made 721 00:36:36,200 --> 00:36:38,680 without the benefit of this court's decision. 722 00:36:38,680 --> 00:36:41,720 And this court's decision makes very clear 723 00:36:41,720 --> 00:36:45,320 exactly how different a post-Gutierrez sentencing 724 00:36:45,480 --> 00:36:48,480 is for a youthful killer. 725 00:36:48,880 --> 00:36:52,320 And so in that, I don't want to speak for the court, 726 00:36:52,320 --> 00:36:54,760 but I think it's fair to say that it really 727 00:36:54,760 --> 00:36:58,320 was not dispositive how convinced the judge was 728 00:36:58,320 --> 00:37:00,640 of an LWOP sentence being appropriate 729 00:37:00,640 --> 00:37:04,800 under a sentencing scheme that was on its way out. 730 00:37:04,800 --> 00:37:08,560 As a practical matter, does it matter in an individual case 731 00:37:08,560 --> 00:37:10,440 when Gutierrez went back, 732 00:37:10,440 --> 00:37:14,640 he got LWOP under the new decision. 733 00:37:14,680 --> 00:37:18,320 But the point is that, as I said, 734 00:37:18,320 --> 00:37:20,280 the Gutierrez affected a much 735 00:37:20,280 --> 00:37:23,280 more comprehensive reevaluation of juvenile 736 00:37:23,320 --> 00:37:27,400 or of sentences that apply in those circumstances. 737 00:37:27,400 --> 00:37:30,440 This is a change, but it is not akin to Gutierrez. 738 00:37:30,440 --> 00:37:34,400 And the Gutierrez standard, whether it applies rarely, 739 00:37:34,400 --> 00:37:36,120 frequently or somewhere in the middle, 740 00:37:36,120 --> 00:37:39,800 is what does the record indicate? 741 00:37:39,800 --> 00:37:40,400 We don't want to see -- 742 00:37:40,400 --> 00:37:41,960 Justice Liu: Counsel, I think that -- 743 00:37:41,960 --> 00:37:45,960 I mean, if we could focus on the nature of the change. 744 00:37:45,960 --> 00:37:48,440 I mean, I think Justice Jenkins kind of put his finger on it, 745 00:37:48,440 --> 00:37:52,440 which is that the language of the statute, 746 00:37:52,440 --> 00:37:58,480 I think is very clear. Which is to say -- Here it is. 747 00:37:58,480 --> 00:38:01,200 It says "Unless the court finds the aggravating circumstances 748 00:38:01,200 --> 00:38:03,200 outweigh the mitigating, 749 00:38:03,200 --> 00:38:04,600 that imposition of the lower term 750 00:38:04,600 --> 00:38:06,200 would be contrary to the interest of justice, 751 00:38:06,200 --> 00:38:09,800 the court shall -- shall -- 752 00:38:10,000 --> 00:38:12,480 order imposition of the lower term, 753 00:38:12,480 --> 00:38:15,160 right, if any of the qualifying factors are present." 754 00:38:15,160 --> 00:38:18,600 So I think that's -- I mean, 755 00:38:18,600 --> 00:38:22,200 these words carry a kind of normative force, don't they? 756 00:38:22,200 --> 00:38:26,800 I mean, the legislature spoke here in a mandate, 757 00:38:26,800 --> 00:38:29,800 and it's the trial court's burden really to make 758 00:38:29,800 --> 00:38:33,720 the requisite finding to dislodge that mandate. 759 00:38:33,720 --> 00:38:38,560 Now I don't -- I mean, this is, of course, a -- 760 00:38:38,560 --> 00:38:40,400 still requires some sort of exercise 761 00:38:40,400 --> 00:38:41,960 of judgment by the trial court. 762 00:38:41,960 --> 00:38:46,400 But I think the legislature is being very clear that, 763 00:38:46,400 --> 00:38:51,120 you know, we expect, you know, the lower term to be imposed 764 00:38:51,120 --> 00:38:53,600 unless there is some clear finding here 765 00:38:53,600 --> 00:38:56,600 within the relevant framework specified in the statute. 766 00:38:56,600 --> 00:38:58,800 Now, I don't question that, you know, 767 00:38:58,800 --> 00:39:02,600 many of the points you raise about this particular record 768 00:39:02,600 --> 00:39:05,240 and what the trial court said are suggestive. 769 00:39:05,240 --> 00:39:08,400 For sure they are. The nature of the crime, 770 00:39:08,400 --> 00:39:11,600 the fact of the denial of the Romero, 771 00:39:11,600 --> 00:39:14,120 the imposition of the consecutive sentencings. 772 00:39:14,120 --> 00:39:16,800 All these things are suggestive. 773 00:39:16,800 --> 00:39:18,360 But I think it's a different question 774 00:39:18,360 --> 00:39:21,280 when the legislature has focused your attention 775 00:39:21,280 --> 00:39:23,840 with clear language on what is required 776 00:39:23,840 --> 00:39:26,480 for a particular determination and has said, 777 00:39:26,480 --> 00:39:31,560 you know, absent that, it shall be the lower term. 778 00:39:31,560 --> 00:39:33,560 So I think that's kind of part of the, 779 00:39:33,560 --> 00:39:35,480 it's not just the clearly indicates language 780 00:39:35,480 --> 00:39:37,320 from the Gutierrez which, of course, 781 00:39:37,320 --> 00:39:39,200 I mean we can debate all the days long 782 00:39:39,200 --> 00:39:41,000 what clearly, what is clearly indicated. 783 00:39:41,000 --> 00:39:43,400 But it's also the nature, I think, 784 00:39:43,400 --> 00:39:45,400 of this particular injunction 785 00:39:45,400 --> 00:39:49,600 that the legislature has decided to enact 786 00:39:50,520 --> 00:39:52,240 that makes it particularly necessary 787 00:39:52,240 --> 00:39:54,520 I think to arrive at a conclusion 788 00:39:54,520 --> 00:39:57,640 that the correct framework has been applied. 789 00:39:57,640 --> 00:40:00,400 David Glassman: Two points in response, Justice Liu. 790 00:40:00,400 --> 00:40:06,400 The first is I think there is some ambiguity relevant 791 00:40:06,440 --> 00:40:11,480 to this case in terms of whether or not a recognition of trauma 792 00:40:11,480 --> 00:40:13,200 that the legislature, 793 00:40:13,200 --> 00:40:15,880 to the extent that we have insight into that -- 794 00:40:15,880 --> 00:40:20,560 From the history that was included in our brief, 795 00:40:20,560 --> 00:40:24,760 the motivation appeared to be a recognition of people 796 00:40:24,760 --> 00:40:27,760 who have been traditionally disserved 797 00:40:28,400 --> 00:40:32,360 by the legal system, marginalized, typically for -- 798 00:40:32,360 --> 00:40:35,640 the examples they give are gender based -- 799 00:40:35,640 --> 00:40:37,440 and that there should be a recognition 800 00:40:37,440 --> 00:40:40,880 that when trauma plays a role in the offense, 801 00:40:40,880 --> 00:40:42,400 that presumption applies. 802 00:40:42,400 --> 00:40:46,840 Now, I'm simply saying that, on the first point, 803 00:40:46,840 --> 00:40:51,440 that one can still question whether or not 804 00:40:51,440 --> 00:40:53,840 a line about trauma 805 00:40:53,920 --> 00:40:59,320 in a 500-page clerk's transcript triggers all of this, 806 00:40:59,680 --> 00:41:03,880 and what the possible rationale or attempt 807 00:41:04,200 --> 00:41:07,800 to equate a completely undeveloped statement 808 00:41:07,960 --> 00:41:11,280 about trauma with the commission of these crimes would be. 809 00:41:11,280 --> 00:41:13,560 Nevertheless, the last thing -- 810 00:41:13,560 --> 00:41:15,560 Justice Liu: Can I just pause and ask -- Can I ask, just on that very point -- 811 00:41:15,560 --> 00:41:18,800 That's a good point. Was that addressed in the CA opinion, 812 00:41:18,800 --> 00:41:21,120 the connection between the trauma and the crime? 813 00:41:21,120 --> 00:41:22,400 David Glassman: No. 814 00:41:22,400 --> 00:41:23,680 Justice Liu: Has it been addressed -- 815 00:41:23,680 --> 00:41:25,720 I mean, it hasn't really been addressed. 816 00:41:25,720 --> 00:41:29,280 David Glassman: Well, but I think to the point, 817 00:41:29,280 --> 00:41:30,840 no one in the trial court -- 818 00:41:30,840 --> 00:41:33,600 Forget about legislation that wasn't here yet. 819 00:41:33,600 --> 00:41:36,800 No one in the trial court attempted to explain how. 820 00:41:36,800 --> 00:41:39,440 I mean the, for example, the alternative trauma, 821 00:41:39,440 --> 00:41:41,560 the death of a parent as an adult, 822 00:41:41,560 --> 00:41:44,800 when that trauma occurred, assuming that it was traumatic 823 00:41:44,800 --> 00:41:46,920 and I don't deny that it was, 824 00:41:46,920 --> 00:41:49,120 this is a career criminal who's incarcerated 825 00:41:49,120 --> 00:41:55,120 and is 38 and 40 years old. So these terms can become, 826 00:41:55,600 --> 00:41:57,800 can sort of be bandied about, I think unfortunately. 827 00:41:57,800 --> 00:42:00,880 The last thing I will say with respect to your observation 828 00:42:00,880 --> 00:42:06,640 about the command of 1170 is, it may be that in many cases 829 00:42:06,640 --> 00:42:09,480 it can't be deciphered or determined. 830 00:42:09,480 --> 00:42:14,880 But I'm very mindful of your holding in Gutierrez. 831 00:42:15,000 --> 00:42:17,400 Does the record clearly indicate, 832 00:42:17,400 --> 00:42:20,400 so that contemplates that a record can, 833 00:42:20,400 --> 00:42:22,480 and this record did. 834 00:42:22,480 --> 00:42:25,320 Unless the court has any questions, I'll submit. 835 00:42:25,320 --> 00:42:28,000 Chief Justice Guerrero: Thank you, Mr. Glassman. 836 00:42:28,000 --> 00:42:30,000 Ms. Bases. 837 00:42:32,400 --> 00:42:35,880 Arielle Bases: First of all, the lower court 838 00:42:35,880 --> 00:42:39,480 did not give the maximum sentence it could have given. 839 00:42:39,480 --> 00:42:42,000 So under the framework that it had, 840 00:42:42,000 --> 00:42:44,720 the weighing that it did, it did not determine 841 00:42:44,720 --> 00:42:49,120 that the highest sentence it could give was appropriate. 842 00:42:49,120 --> 00:42:52,120 With regard to the trauma, 843 00:42:52,200 --> 00:42:55,560 there is evidence of childhood trauma. 844 00:42:55,560 --> 00:42:59,400 There is also evidence of mental health issues. 845 00:42:59,400 --> 00:43:03,480 And to the extent the respondent has argued 846 00:43:03,480 --> 00:43:08,200 that mental health issues may not be the kind of trauma 847 00:43:08,200 --> 00:43:10,320 that the legislature intended, 848 00:43:10,320 --> 00:43:13,640 they did, they did say psychological trauma. 849 00:43:13,640 --> 00:43:18,800 And the banner court noted it is very difficult 850 00:43:18,800 --> 00:43:23,320 to separate mental health issues from the trauma 851 00:43:23,320 --> 00:43:25,160 that comes from mental health issues. 852 00:43:25,160 --> 00:43:27,840 And there is evidence on this record 853 00:43:27,840 --> 00:43:33,400 that Mr. Salazar suffered trauma from his mental health issues. 854 00:43:33,400 --> 00:43:35,120 Justice Liu: Could I ask you, counsel, 855 00:43:35,120 --> 00:43:37,600 if this case is sent back, 856 00:43:37,600 --> 00:43:41,240 and the attorney general, I think, has signaled 857 00:43:41,240 --> 00:43:44,600 pretty clearly that they take a different view 858 00:43:44,600 --> 00:43:46,400 than you do on that particular issue. 859 00:43:46,400 --> 00:43:49,320 How will that be litigated if this is sent back? 860 00:43:49,320 --> 00:43:53,800 Is that a litigation about what the record, 861 00:43:53,800 --> 00:43:55,000 the trial record, already showed -- 862 00:43:55,000 --> 00:43:57,120 or the sentencing record already showed? 863 00:43:57,120 --> 00:44:02,520 Or will the parties be arguing about different things 864 00:44:02,800 --> 00:44:05,800 that go beyond the record? 865 00:44:06,680 --> 00:44:08,600 I think -- So, I think, just to put a fine point, 866 00:44:08,600 --> 00:44:11,160 and I think the attorney general's making the argument 867 00:44:11,160 --> 00:44:12,800 that no one raised this 868 00:44:12,800 --> 00:44:15,400 or no one made a big deal about this 869 00:44:15,400 --> 00:44:20,200 in the actual proceedings in the trial court. 870 00:44:21,000 --> 00:44:23,760 Maybe you disagree, but I'm just trying to understand 871 00:44:23,760 --> 00:44:26,480 the scope of what will be considered 872 00:44:26,480 --> 00:44:29,400 if this case is sent back. 873 00:44:29,400 --> 00:44:32,000 Arielle Bases: So there wasn't an incentive 874 00:44:32,000 --> 00:44:33,520 to show at the time 875 00:44:33,520 --> 00:44:38,160 the nexus between the trauma and the offenses. 876 00:44:38,160 --> 00:44:40,640 So if it did go back, 877 00:44:40,640 --> 00:44:44,400 then I believe that the trial court, 878 00:44:44,400 --> 00:44:48,160 that the trial counsel would show evidence of that. 879 00:44:48,160 --> 00:44:49,640 Justice Liu: There's not an incentive, 880 00:44:49,640 --> 00:44:52,200 there's not an incentive to generally 881 00:44:52,200 --> 00:44:54,520 try to mitigate the crime? 882 00:44:54,520 --> 00:44:56,600 Arielle Bases: To show the connection 883 00:44:56,600 --> 00:45:00,400 between the trauma and the offense. 884 00:45:00,400 --> 00:45:03,640 Because under the under the statute, 885 00:45:03,760 --> 00:45:06,160 under the amended statute, 886 00:45:06,320 --> 00:45:09,320 trauma which is a contributing factor to the offense 887 00:45:09,320 --> 00:45:10,920 is what qualifies. 888 00:45:10,920 --> 00:45:15,000 And so the respondent argued there wasn't evidence 889 00:45:15,000 --> 00:45:17,280 that it contributed to the offense. 890 00:45:17,280 --> 00:45:20,520 But there was an incentive to present 891 00:45:20,520 --> 00:45:24,400 that evidence under the prior law. 892 00:45:24,400 --> 00:45:26,480 Now, under the new statute, there would be. 893 00:45:26,480 --> 00:45:31,880 And so, the trial counsel would present more evidence 894 00:45:32,400 --> 00:45:36,840 of the connection between the trauma and the offense. 895 00:45:36,840 --> 00:45:42,240 And if there is any discussion or any problem 896 00:45:43,480 --> 00:45:47,800 with the trauma that appellant suffered 897 00:45:49,120 --> 00:45:51,560 because of his mental health issues, 898 00:45:51,560 --> 00:45:55,680 that too would be developed on remand. 899 00:45:55,680 --> 00:45:59,160 Because if there is a new requirement 900 00:45:59,160 --> 00:46:01,240 that not only must he show evidence 901 00:46:01,240 --> 00:46:03,200 of his mental health issues, 902 00:46:03,200 --> 00:46:06,320 but also evidence that he suffered trauma 903 00:46:06,320 --> 00:46:08,400 because of those mental health issues, 904 00:46:08,400 --> 00:46:10,360 which I think he showed on the record. 905 00:46:10,360 --> 00:46:12,800 But if there's this new requirement, 906 00:46:12,800 --> 00:46:13,920 then the case should be remanded 907 00:46:13,920 --> 00:46:18,800 so that he can show that evidence of that trauma. 908 00:46:18,800 --> 00:46:20,200 And I would also say, you know, 909 00:46:20,200 --> 00:46:22,600 there is evidence of childhood abuse. 910 00:46:22,600 --> 00:46:25,360 And there's evidence of substance abuse 911 00:46:25,360 --> 00:46:28,200 which began when he was 13 years old. 912 00:46:28,200 --> 00:46:31,120 So I don't know how you separate, you know, 913 00:46:31,120 --> 00:46:37,720 taking acid and other hard drugs when you're 13 from child abuse. 914 00:46:38,480 --> 00:46:44,280 So I think that all of that is on the record, 915 00:46:44,280 --> 00:46:46,880 is a reason why he would qualify under the statute. 916 00:46:46,880 --> 00:46:50,120 But I think that it hasn't been developed to its fullest, 917 00:46:50,120 --> 00:46:55,000 especially if the government is going to require or suggesting 918 00:46:55,000 --> 00:47:00,520 that there be a requirement that there's a showing of the nexus 919 00:47:00,520 --> 00:47:03,680 between the trauma and the offense. 920 00:47:03,680 --> 00:47:08,240 And there is a specific showing of trauma 921 00:47:08,240 --> 00:47:11,560 because of his, of mental health issues 922 00:47:11,560 --> 00:47:16,400 as opposed to just the evidence of the mental health issues. 923 00:47:16,400 --> 00:47:18,520 Did I answer your question, Your Honor? 924 00:47:18,520 --> 00:47:19,880 Justice Liu: You did, thank you. 925 00:47:19,880 --> 00:47:21,880 Arielle Bases: Okay. 926 00:47:24,800 --> 00:47:28,280 I also wanted to mention that, again, 927 00:47:29,800 --> 00:47:34,480 sentencing is nuanced and that even when the court 928 00:47:35,160 --> 00:47:37,920 made a decision about the Romero motion 929 00:47:37,920 --> 00:47:41,520 and talked about appellant's criminal background. 930 00:47:43,600 --> 00:47:46,240 But the sentencing court also specifically 931 00:47:46,240 --> 00:47:48,800 talked about his substance abuse issues 932 00:47:48,800 --> 00:47:51,400 and how that, he factored that in. 933 00:47:51,400 --> 00:47:54,440 And how that had a lot to do with his criminal history. 934 00:47:54,440 --> 00:47:56,680 So it wasn't just his criminal history, 935 00:47:56,680 --> 00:48:00,680 and he considered, the court, the sentencing court, 936 00:48:00,680 --> 00:48:02,680 considered the nuance. 937 00:48:02,800 --> 00:48:07,000 So anyway, bottom line, the reviewing court 938 00:48:08,800 --> 00:48:12,440 cannot get into the sentencing court's head 939 00:48:12,440 --> 00:48:16,800 and determine what that court would have found 940 00:48:16,800 --> 00:48:20,200 under the significant changes in the statute. 941 00:48:20,200 --> 00:48:21,960 And I disagree with respondent. 942 00:48:21,960 --> 00:48:25,360 I do believe these are very significant changes. 943 00:48:25,360 --> 00:48:29,400 They changed from a court having blanket discretion 944 00:48:29,400 --> 00:48:30,320 to just broad discretion 945 00:48:30,320 --> 00:48:33,360 to decide whatever of the three terms 946 00:48:33,360 --> 00:48:37,120 to the legislature actually telling the court 947 00:48:37,120 --> 00:48:39,200 you should be imposing the lower term 948 00:48:39,200 --> 00:48:41,240 if there are these mitigating factors. 949 00:48:41,240 --> 00:48:45,200 Unless, unless, and that makes a huge difference. 950 00:48:45,200 --> 00:48:47,760 So we can't determine what the court, 951 00:48:47,760 --> 00:48:49,560 the sentencing court, would have done. 952 00:48:49,560 --> 00:48:52,320 And the only appropriate remedy here 953 00:48:52,320 --> 00:48:55,400 is to remand the case so that the lower court, 954 00:48:55,400 --> 00:48:58,800 the sentencing court, can make a proper decision 955 00:48:58,800 --> 00:49:00,800 with the exercise of proper discretion 956 00:49:00,800 --> 00:49:03,800 and considering all relevant factors 957 00:49:05,800 --> 00:49:07,480 under the new statute. 958 00:49:08,400 --> 00:49:10,800 Chief Justice Guerrero: Thank you, counsel. 959 00:49:10,800 --> 00:49:13,360 Did you have anything further? I didn't want to cut you off. 960 00:49:13,360 --> 00:49:14,560 Arielle Bases: No, you didn't cut me off. 961 00:49:14,560 --> 00:49:16,320 Chief Justice Guerrero: Okay. 962 00:49:16,320 --> 00:49:18,000 Arielle Bases: If there are no questions, then I'll submit. 963 00:49:18,000 --> 00:49:19,880 Chief Justice Guerrero: Okay, thank you to both counsel 964 00:49:19,880 --> 00:49:21,560 for your arguments. We appreciate them. 965 00:49:21,560 --> 00:49:24,360 And the matter is submitted. 966 00:49:24,360 --> 00:49:26,760 Arielle Bases: Thank you. 967 00:49:26,760 --> 00:49:28,600 Chief Justice Guerrero: Calling the next matter, 968 00:49:28,600 --> 00:49:31,600 the People versus Mr. Curiel. 969 00:49:34,400 --> 00:49:38,640 Ms. McGinnis, you've asked for 23 minutes for your opening. 970 00:49:38,640 --> 00:49:40,680 Lynne McGinnis: May it please the court. 971 00:49:40,680 --> 00:49:43,960 An undisturbed true finding on a special circumstance 972 00:49:43,960 --> 00:49:45,920 requiring an intent to kill, 973 00:49:45,920 --> 00:49:49,680 such as the gang murder special circumstance here, 974 00:49:49,680 --> 00:49:52,280 precludes A defendant from obtaining relief 975 00:49:52,280 --> 00:49:57,680 under Penal Code Section 1172.6 as a matter of law. 976 00:49:57,960 --> 00:50:01,360 The remedial legislation is limited to persons 977 00:50:01,360 --> 00:50:03,720 who could have been convicted under the natural 978 00:50:03,720 --> 00:50:06,120 and probable consequences doctrine 979 00:50:06,320 --> 00:50:08,720 or a theory of felony murder. 980 00:50:08,720 --> 00:50:13,280 Relief is not available to defendants such as Curiel, 981 00:50:13,280 --> 00:50:17,480 who acted with murderous intent, namely malice. 982 00:50:17,760 --> 00:50:22,560 The Court of Appeals' conclusion that Section 1172.6 required 983 00:50:23,280 --> 00:50:25,680 is showing that Curiel committed, 984 00:50:25,680 --> 00:50:28,640 also committed the acts necessary to subject him 985 00:50:28,640 --> 00:50:33,480 to murder liability as well as a necessary mental state 986 00:50:33,480 --> 00:50:37,400 is contrary to the statutory language and purpose. 987 00:50:37,400 --> 00:50:39,920 As we pointed out in our briefing, 988 00:50:39,920 --> 00:50:44,760 the legislature had a singular focus in amending Section 188, 989 00:50:44,760 --> 00:50:47,760 namely to ensure that the defendants were, 990 00:50:47,760 --> 00:50:50,600 that only defendants who had malice 991 00:50:50,600 --> 00:50:53,120 were convicted of murder under the new law. 992 00:50:53,120 --> 00:50:54,680 Justice Liu: Can I ask you, counsel, 993 00:50:54,680 --> 00:51:00,520 so on that position, under what theory in this case 994 00:51:00,520 --> 00:51:04,280 is Mr. Curiel validly convicted of murder? 995 00:51:04,280 --> 00:51:06,640 Lynne McGinnis: Mr. Curiel is validly convicted 996 00:51:06,640 --> 00:51:08,880 under a direct aiding and abetting theory. 997 00:51:08,880 --> 00:51:09,960 Justice Liu: And what are the elements 998 00:51:09,960 --> 00:51:12,000 of direct aiding and abetting? 999 00:51:12,000 --> 00:51:14,720 Lynne McGinnis: The elements of direct aiding and abetting 1000 00:51:14,720 --> 00:51:19,400 are with knowledge of the purpose of the perpetrator, 1001 00:51:19,400 --> 00:51:22,240 the person had intent to facilitate 1002 00:51:22,240 --> 00:51:24,400 the commission of the crime. 1003 00:51:24,400 --> 00:51:27,440 Now, our brief discussed the McCoy decision 1004 00:51:27,440 --> 00:51:29,880 and the actus reus requirement. 1005 00:51:29,880 --> 00:51:33,120 And I want to discuss that a little bit because 1006 00:51:33,120 --> 00:51:36,320 when the Court of Appeal said you need an actus reus, 1007 00:51:36,320 --> 00:51:39,840 it didn't explain what actus reus you need. 1008 00:51:39,840 --> 00:51:43,280 But if you -- The reason Mr. Curiel was convicted 1009 00:51:43,280 --> 00:51:46,400 under a direct aiding and abetting theory 1010 00:51:46,400 --> 00:51:51,440 is because, under McCoy, the acts of the perpetrator 1011 00:51:51,560 --> 00:51:55,600 and the acts of the aider and abetter merge. 1012 00:51:55,600 --> 00:51:57,600 Justice Liu: Okay, let me pause you there. 1013 00:51:57,600 --> 00:52:00,600 I don't want to get quite to the actus reus just yet, 1014 00:52:00,600 --> 00:52:03,400 but you, I think, nicely summarized 1015 00:52:03,400 --> 00:52:05,440 the mental state required, 1016 00:52:05,440 --> 00:52:10,800 which is not just the intent of the aider and abetter 1017 00:52:10,800 --> 00:52:12,920 but also the knowledge of the aider 1018 00:52:12,920 --> 00:52:16,520 and abetter of the perpetrator's intent. 1019 00:52:16,880 --> 00:52:22,880 And that's the part that I'm kind of curious about. 1020 00:52:23,400 --> 00:52:25,760 Was there a jury finding with respect 1021 00:52:25,760 --> 00:52:31,160 to what Mr. Curiel knew about the perpetrator's intent? 1022 00:52:32,600 --> 00:52:34,360 Lynne McGinnis: Well, thank you, Your Honor. 1023 00:52:34,360 --> 00:52:37,240 That element has stated that, but it's a little misleading. 1024 00:52:37,240 --> 00:52:40,240 Because if you look at the Mendoza decision, 1025 00:52:40,240 --> 00:52:44,640 which was cited in my friend's reply brief, 1026 00:52:44,640 --> 00:52:48,800 it states that you can't have knowledge of something 1027 00:52:48,800 --> 00:52:49,800 or you can't intend to do something 1028 00:52:49,800 --> 00:52:52,360 without also have knowledge of what they, 1029 00:52:52,360 --> 00:52:54,000 or you can't aid and abet something 1030 00:52:54,000 --> 00:52:57,000 without having knowledge of what they intended to do. 1031 00:52:57,000 --> 00:53:00,520 Now the knowledge language is a little misleading. 1032 00:53:00,520 --> 00:53:04,840 And the reason is that, and again, I return to McCoy, 1033 00:53:04,840 --> 00:53:09,360 you don't even have to, the perpetrator, for example, 1034 00:53:09,360 --> 00:53:12,880 doesn't even need to intend to commit murder. 1035 00:53:12,880 --> 00:53:16,200 For example, if you're the aider and abetter 1036 00:53:16,200 --> 00:53:19,600 and you encourage someone to kill somebody, 1037 00:53:19,600 --> 00:53:21,760 or you have the intent to kill 1038 00:53:21,760 --> 00:53:23,920 and you tell them to do something 1039 00:53:23,920 --> 00:53:27,960 and that person ends up acting in self-defense, 1040 00:53:27,960 --> 00:53:30,880 you're still liable as an aider and abetter. 1041 00:53:30,880 --> 00:53:33,600 So in that case, you wouldn't necessarily, 1042 00:53:33,600 --> 00:53:35,520 there wouldn't even be an intent to kill 1043 00:53:35,520 --> 00:53:37,840 on the part of the direct perpetrator. 1044 00:53:37,840 --> 00:53:41,120 So the knowledge language is a little misleading in that sense. 1045 00:53:41,120 --> 00:53:43,360 Justice Kruger: So I understood McCoy's treatment 1046 00:53:43,360 --> 00:53:45,000 of the knowledge component here 1047 00:53:45,000 --> 00:53:50,400 as sort of exceeding kind of the typical formulation 1048 00:53:50,400 --> 00:53:51,760 of aiding and abetting liability. 1049 00:53:51,760 --> 00:53:54,400 But there has to be shared intent 1050 00:53:54,400 --> 00:53:56,360 between the perpetrator and the aider and abetter. 1051 00:53:56,360 --> 00:53:58,920 But still having sort of separate content, 1052 00:53:58,920 --> 00:54:02,320 meaning the aider and abetter still has to have knowledge 1053 00:54:02,320 --> 00:54:06,400 that the actual perpetrator is going to engage in the act 1054 00:54:06,400 --> 00:54:09,400 that causes the prescribed harm. 1055 00:54:09,600 --> 00:54:11,600 So, for example, 1056 00:54:11,680 --> 00:54:15,880 if the actual perpetrator negligently kills somebody, 1057 00:54:15,920 --> 00:54:17,920 the aider and abetter still has to have knowledge 1058 00:54:17,920 --> 00:54:20,760 that a person is going to undertake that act. 1059 00:54:20,760 --> 00:54:24,360 Then maybe just negligent on the part of the perpetrator 1060 00:54:24,360 --> 00:54:26,440 rather than intentional. But nevertheless, 1061 00:54:26,440 --> 00:54:28,920 there has to be some sort of -- some sort of knowledge. 1062 00:54:28,920 --> 00:54:32,120 And I guess I'm -- to get to Justice Liu's question -- 1063 00:54:32,120 --> 00:54:34,200 assuming that I'm correct about that, 1064 00:54:34,200 --> 00:54:37,000 what part of the jury verdict here 1065 00:54:37,000 --> 00:54:39,400 speaks to that component of knowledge 1066 00:54:39,400 --> 00:54:41,800 of what the actual perpetrator was going to do 1067 00:54:41,800 --> 00:54:43,560 that caused the lethal harm? 1068 00:54:43,560 --> 00:54:47,160 Arielle Bases: Well, the jury verdict 1069 00:54:48,440 --> 00:54:51,640 found that he acted with the intent to kill. 1070 00:54:51,640 --> 00:54:55,280 And the case law says that when you have the intent, 1071 00:54:55,280 --> 00:54:58,800 you necessarily have the knowledge that's inferred 1072 00:54:58,800 --> 00:55:01,240 by the intent to kill. 1073 00:55:01,240 --> 00:55:04,480 So the jury was instructed that -- 1074 00:55:04,480 --> 00:55:06,000 Chief Justice Guerrero: What knowledge are you talking about 1075 00:55:06,000 --> 00:55:07,120 when you just made that statement? 1076 00:55:07,120 --> 00:55:08,560 Whose knowledge? 1077 00:55:08,560 --> 00:55:09,920 Lynne McGinnis: You have to have knowledge 1078 00:55:09,920 --> 00:55:14,120 that the perpetrator intends to do something. 1079 00:55:14,840 --> 00:55:19,200 You don't have to know that they're going to kill somebody. 1080 00:55:19,200 --> 00:55:21,800 Your mental state under McCoy is that 1081 00:55:21,800 --> 00:55:26,840 you have to intend to kill or intent that someone be killed 1082 00:55:26,840 --> 00:55:30,240 and that you have to encourage the perpetrator to do that. 1083 00:55:30,240 --> 00:55:32,200 You don't have to know in your mind 1084 00:55:32,200 --> 00:55:35,240 that the perpetrator is going to be doing that. 1085 00:55:35,240 --> 00:55:36,960 You can hope that they don't do that. 1086 00:55:36,960 --> 00:55:41,240 But for example, if there are two gang members 1087 00:55:41,240 --> 00:55:43,240 and you hope 1088 00:55:43,280 --> 00:55:45,440 that the perpetrator is going to kill somebody, 1089 00:55:45,440 --> 00:55:47,120 or even if you just have knowledge 1090 00:55:47,120 --> 00:55:49,400 that they're a dangerous gang member, 1091 00:55:49,400 --> 00:55:53,760 you can encourage them to kill by engaging in some act, 1092 00:55:53,760 --> 00:55:58,360 and then they can kill. You don't have to have knowledge 1093 00:55:58,360 --> 00:56:01,600 that they're actually going to kill. 1094 00:56:01,600 --> 00:56:04,600 Justice Corrigan: I'm troubled by one 1095 00:56:04,600 --> 00:56:08,480 kind of unusual aspect of this case. 1096 00:56:08,480 --> 00:56:11,840 We often think of the felony [inaudible] rule 1097 00:56:11,840 --> 00:56:15,000 applying when there is an intent to do a robbery, 1098 00:56:15,000 --> 00:56:16,800 and everybody knows they're going to do a robbery. 1099 00:56:16,800 --> 00:56:20,600 And they go in to do the robbery and sadly someone is killed. 1100 00:56:20,600 --> 00:56:24,600 This, it seems to me, if I'm understanding the record here, 1101 00:56:24,600 --> 00:56:28,960 that the crimes that you're suggesting Mr. Curiel 1102 00:56:28,960 --> 00:56:33,160 aided and abetted were disturbing the peace 1103 00:56:33,200 --> 00:56:36,480 and gang gun possession. Is that correct? 1104 00:56:36,480 --> 00:56:38,000 Lynne McGinnis: Yes, Your Honor. 1105 00:56:38,000 --> 00:56:39,800 Justice Corrigan: It seems to me there's a big leap 1106 00:56:39,800 --> 00:56:43,680 between aiding and abetting and disturbing the peace 1107 00:56:43,680 --> 00:56:46,800 and a murder conviction. 1108 00:56:46,840 --> 00:56:48,280 Lynne McGinnis: Well, under -- 1109 00:56:48,280 --> 00:56:49,640 Justice Corrigan: Help me out there. 1110 00:56:49,640 --> 00:56:51,360 Lynne McGinnis: Thank you, Your Honor. 1111 00:56:51,360 --> 00:56:54,000 Under McCoy, it's not just a disturbing the peace, 1112 00:56:54,000 --> 00:56:55,680 because your acts -- 1113 00:56:55,680 --> 00:56:59,000 the acts of the perpetrator become your acts. 1114 00:56:59,000 --> 00:57:00,800 So it's a course of conduct, 1115 00:57:00,800 --> 00:57:03,920 whereas where you have the intent to kill, 1116 00:57:03,920 --> 00:57:06,680 and you share that, and you have that intent 1117 00:57:06,680 --> 00:57:09,200 and you encourage the perpetrator, 1118 00:57:09,200 --> 00:57:12,400 then you become liable not only for your acts 1119 00:57:12,400 --> 00:57:14,400 but the acts of the perpetrator. 1120 00:57:14,400 --> 00:57:16,400 Justice Corrigan: But the acts the perpetrator 1121 00:57:16,400 --> 00:57:19,920 do still have to be reasonably foreseeable, don't they? 1122 00:57:19,920 --> 00:57:21,480 Lynne McGinnis: Yes, Your Honor, and the jury -- 1123 00:57:21,480 --> 00:57:22,400 Justice Corrigan: Isn't that a big leap 1124 00:57:22,400 --> 00:57:23,680 from disturbing the peace 1125 00:57:23,680 --> 00:57:26,800 to reasonably foreseeable homicide. 1126 00:57:26,840 --> 00:57:28,640 Lynne McGinnis: It might be, Your Honor, 1127 00:57:28,640 --> 00:57:31,000 but that would be an argument that would be made to the jury. 1128 00:57:31,000 --> 00:57:34,600 And when the jury convicted Curiel of murder 1129 00:57:34,600 --> 00:57:37,880 under the natural improbable consequences doctrine, 1130 00:57:37,880 --> 00:57:42,200 the jury found that the murder was reasonably foreseeable. 1131 00:57:42,200 --> 00:57:44,880 And so when you add the intent to kill, 1132 00:57:44,880 --> 00:57:47,600 the murder was not only reasonably foreseeable, 1133 00:57:47,600 --> 00:57:49,360 it was intended. 1134 00:57:49,360 --> 00:57:51,800 And that's how we get to direct aider and abetter liability. 1135 00:57:51,800 --> 00:57:53,800 Justice Jenkins: That seems like the problem. 1136 00:57:53,800 --> 00:57:57,960 The knowledge element is drawn to the target offenses. 1137 00:57:57,960 --> 00:58:01,560 As my colleague says, disturbing the peace and concealed, 1138 00:58:01,560 --> 00:58:05,760 carrying a concealed firearm or having concealed firearm, 1139 00:58:05,760 --> 00:58:09,800 not to the mens rea that's required for murder. 1140 00:58:09,800 --> 00:58:12,480 Which is, includes intent to kill, 1141 00:58:12,480 --> 00:58:15,400 but it also has to be knowledge of the unlawful purpose, 1142 00:58:15,400 --> 00:58:17,000 the murderous intent. 1143 00:58:17,000 --> 00:58:19,680 What on the record, even in the instructions, 1144 00:58:19,680 --> 00:58:24,560 indicates to the jury may, necessarily made such a finding? 1145 00:58:24,560 --> 00:58:25,840 Lynne McGinnis: Well, Your Honor, first of all, 1146 00:58:25,840 --> 00:58:27,600 as far as the instructions, 1147 00:58:27,600 --> 00:58:30,720 the jury was instructed with CALCRIM number 252. 1148 00:58:30,720 --> 00:58:34,800 Every crime, every special circumstance in this case 1149 00:58:34,800 --> 00:58:38,800 requires proof of the union or joint operation of act 1150 00:58:38,800 --> 00:58:40,360 and wrongful intent. 1151 00:58:40,360 --> 00:58:43,400 And then it said, for the special circumstance to be true, 1152 00:58:43,400 --> 00:58:46,120 a person must not only intentionally commit 1153 00:58:46,120 --> 00:58:47,680 the prohibited act, 1154 00:58:47,680 --> 00:58:50,480 but must do so with a specific intent or mental -- 1155 00:58:50,480 --> 00:58:53,280 Justice Jenkins: It doesn't focus on knowledge at all. 1156 00:58:53,280 --> 00:58:56,400 It says has the intent to kill, 1157 00:58:56,400 --> 00:58:59,320 but it doesn't focus on these sub elements 1158 00:58:59,320 --> 00:59:01,720 that we're discussing here. 1159 00:59:02,800 --> 00:59:05,480 Lynne McGinnis: Well, Your Honor, the problem 1160 00:59:05,480 --> 00:59:09,200 with the language and knowledge of the murderous intent, 1161 00:59:09,200 --> 00:59:12,800 because the direct perpetrator does not even 1162 00:59:12,800 --> 00:59:15,840 need to have murderous intent under McCoy. 1163 00:59:15,840 --> 00:59:19,320 For example, we talk about disturbing the peace 1164 00:59:19,320 --> 00:59:21,760 and carrying a concealed weapon, 1165 00:59:21,760 --> 00:59:25,160 and that that seems like de minimis conduct 1166 00:59:25,160 --> 00:59:30,160 as opposed to intent to murder. The conduct of the aider, 1167 00:59:30,160 --> 00:59:32,560 the conduct can be entirely innocent 1168 00:59:32,560 --> 00:59:36,240 on the part of the aider and abetter 1169 00:59:36,240 --> 00:59:38,320 if it's done with murderous intent 1170 00:59:38,320 --> 00:59:40,320 on the part of the aider and abetter. 1171 00:59:40,320 --> 00:59:43,720 For example, the aider and abetter can sit at home 1172 00:59:43,720 --> 00:59:47,280 and give the direct perpetrator the address of somebody 1173 00:59:47,280 --> 00:59:52,000 and hope the direct perpetrator will kill that person. 1174 00:59:52,000 --> 00:59:55,920 And if the direct perpetrator goes to that person's house 1175 00:59:55,920 --> 00:59:59,480 and a fight ensues and the direct perpetrator kills 1176 00:59:59,480 --> 01:00:01,800 that person in self-defense, 1177 01:00:01,800 --> 01:00:05,960 then the aider and abetter can still be liable for murder 1178 01:00:05,960 --> 01:00:07,600 even if the direct perpetrator 1179 01:00:07,600 --> 01:00:10,680 had a defense personal to himself. 1180 01:00:10,680 --> 01:00:13,680 And in McCoy, they used the example of -- 1181 01:00:13,680 --> 01:00:16,400 the Shakespearean example of "Othello," 1182 01:00:16,400 --> 01:00:21,680 where all the person did was tell the direct perpetrator, 1183 01:00:21,680 --> 01:00:23,800 "Your wife's having an affair." 1184 01:00:23,800 --> 01:00:27,320 That doesn't even rise to the level of disturbing the peace. 1185 01:00:27,320 --> 01:00:30,560 That's just innocent conduct. And if the help -- 1186 01:00:30,560 --> 01:00:32,200 Justice Corrigan: Well, it's not innocent conduct, 1187 01:00:32,200 --> 01:00:36,400 if it's done with the intent that a murder will ensue. 1188 01:00:36,400 --> 01:00:37,800 I think you can make an argument 1189 01:00:37,800 --> 01:00:41,400 that Iago in the Shakespearean play 1190 01:00:41,680 --> 01:00:45,240 truly was an aider and abetter in the sense 1191 01:00:45,240 --> 01:00:49,440 that he encouraged Othello to kill Desdemona. 1192 01:00:49,480 --> 01:00:52,840 But none of those players are in play here, 1193 01:00:52,840 --> 01:00:56,920 and it seems to me that I'm still struggling 1194 01:00:56,920 --> 01:01:02,480 with what exactly you think Mr. Curiel did that aided 1195 01:01:02,480 --> 01:01:07,120 and abetted the crime of murder. Yelling, it's my neighborhood. 1196 01:01:07,120 --> 01:01:08,680 Lynne McGinnis: Yelling, "It's my neighborhood," 1197 01:01:08,680 --> 01:01:14,800 pushing the person and yelling out a gang name. 1198 01:01:14,520 --> 01:01:16,400 Now the problem I'm having, Your Honor, 1199 01:01:16,400 --> 01:01:19,400 is that the jury found that murder 1200 01:01:19,400 --> 01:01:24,120 was a reasonably foreseeable consequence of this conduct. 1201 01:01:24,120 --> 01:01:27,360 The jury also found that Mr. Curiel 1202 01:01:27,360 --> 01:01:29,280 had the intent to kill, 1203 01:01:29,280 --> 01:01:33,000 because it found the special circumstance true. 1204 01:01:33,000 --> 01:01:35,960 That was a finding made by the jury. 1205 01:01:35,960 --> 01:01:40,160 So the only question for purposes of 1172.6 1206 01:01:40,400 --> 01:01:43,400 is whether that jury finding is binding 1207 01:01:43,400 --> 01:01:46,640 for purposes of the prima facie case. 1208 01:01:46,640 --> 01:01:49,000 Another, reasonable minds might differ 1209 01:01:49,000 --> 01:01:55,240 about whether yelling out a gang name is enough to be, 1210 01:01:55,240 --> 01:01:57,360 foreseeably lead to a murder, 1211 01:01:57,360 --> 01:01:59,600 but that issue was decided by the jury. 1212 01:01:59,600 --> 01:02:01,600 Justice Liu: Well, I think -- I think, in some ways, right, 1213 01:02:01,600 --> 01:02:04,720 that kind of illustrates the problem 1214 01:02:04,720 --> 01:02:11,320 that the legislature sought to address by passing the law here. 1215 01:02:12,400 --> 01:02:17,800 Which is that it's perhaps a pretty low bar, 1216 01:02:18,160 --> 01:02:21,800 let's say, for the jury to find reasonable foreseeability, 1217 01:02:21,800 --> 01:02:23,920 especially after the fact. 1218 01:02:23,920 --> 01:02:26,800 Everything looks foreseeable after the fact, right. 1219 01:02:26,800 --> 01:02:29,640 So maybe that's part of the issue 1220 01:02:29,640 --> 01:02:33,000 that the legislature is trying to remedy. 1221 01:02:33,000 --> 01:02:37,800 And what's missing is then what are the more stringent elements 1222 01:02:37,800 --> 01:02:40,680 that are required under, let's call it, 1223 01:02:40,680 --> 01:02:44,200 you know, more conventional murder theories, 1224 01:02:44,200 --> 01:02:45,920 theories of murder liability. 1225 01:02:45,920 --> 01:02:49,680 And I guess the questions from the bench are directing you 1226 01:02:49,680 --> 01:02:52,680 towards this one particular element, 1227 01:02:52,880 --> 01:02:57,360 not the act, but rather the state of mind of Mr. Curiel 1228 01:02:57,360 --> 01:03:01,720 with respect to what the perpetrator did, right. 1229 01:03:01,720 --> 01:03:05,680 And I thought we had just addressed this very point 1230 01:03:05,680 --> 01:03:08,720 in People versus Reyes just a few months ago. 1231 01:03:08,720 --> 01:03:11,840 You remember that was a case about a bunch 1232 01:03:11,840 --> 01:03:14,400 of young people riding bicycles. 1233 01:03:14,400 --> 01:03:17,880 And one of the problems in that case, 1234 01:03:17,880 --> 01:03:20,480 in fact one of the key problems in that case 1235 01:03:20,480 --> 01:03:22,560 was that although, right, 1236 01:03:22,560 --> 01:03:26,280 the defendant went up to the point 1237 01:03:26,280 --> 01:03:29,400 of where the shooting actually happened, 1238 01:03:29,400 --> 01:03:33,400 there was no finding, right, that the that the defendant 1239 01:03:33,400 --> 01:03:37,440 knew the state of mind of the shooter. 1240 01:03:37,440 --> 01:03:41,360 And that was I think quite expressly featured in our, 1241 01:03:41,360 --> 01:03:45,360 in our opinion as an essential element, 1242 01:03:45,360 --> 01:03:47,600 right, necessary to establish direct 1243 01:03:47,600 --> 01:03:51,200 aiding and abetting liability for murder. 1244 01:03:51,800 --> 01:03:53,760 And I think that's the part I just don't, 1245 01:03:53,760 --> 01:03:55,800 I don't hear you responding to. 1246 01:03:55,800 --> 01:03:58,400 You're either saying it doesn't exist as an element, 1247 01:03:58,400 --> 01:04:01,400 which I'm not sure I understand that argument, 1248 01:04:01,400 --> 01:04:04,280 because I think we have said it does exist. 1249 01:04:04,280 --> 01:04:06,160 Or that there's something in this record 1250 01:04:06,160 --> 01:04:08,600 that establishes it, which I don't see. 1251 01:04:08,600 --> 01:04:10,000 Lynne McGinnis: I understand, Your Honor. 1252 01:04:10,000 --> 01:04:11,560 I think the central question 1253 01:04:11,560 --> 01:04:14,560 is whether that's an element that needs to be found 1254 01:04:14,560 --> 01:04:17,240 for purposes of the prima facie case. 1255 01:04:17,240 --> 01:04:21,160 And the element that's in question here 1256 01:04:21,160 --> 01:04:27,320 is intent to kill and whether Mr. Curiel acted or meant -- 1257 01:04:27,320 --> 01:04:30,320 whether Mr. Curiel had malice, 1258 01:04:30,560 --> 01:04:35,360 that when the jury found that Mr. Curiel 1259 01:04:35,760 --> 01:04:37,400 encouraged the perpetrator 1260 01:04:37,400 --> 01:04:39,920 or did these acts with the intent to kill, 1261 01:04:39,920 --> 01:04:43,520 that necessarily subsumes the knowledge requirement 1262 01:04:43,600 --> 01:04:45,600 because the two could not be separated 1263 01:04:45,600 --> 01:04:50,400 for purposes of what they mean. The jury made that finding. 1264 01:04:50,400 --> 01:04:54,440 So under Mendoza, you can't separate -- you know, 1265 01:04:54,440 --> 01:04:56,400 if you encourage someone to do something 1266 01:04:56,400 --> 01:04:58,680 or have the intent that someone do something, 1267 01:04:58,680 --> 01:05:02,200 the case law says that that subsumes knowledge 1268 01:05:02,200 --> 01:05:03,720 on the part of the person. 1269 01:05:03,720 --> 01:05:05,800 So that was a finding made by the jury. 1270 01:05:05,800 --> 01:05:07,240 Justice Liu: Well, I guess I'm -- 1271 01:05:07,240 --> 01:05:08,520 So, can I just unpack that just a little? 1272 01:05:08,520 --> 01:05:11,160 So intent to kill, as I understand it 1273 01:05:11,160 --> 01:05:15,760 with respect to the mens rea of the aider and abetter, 1274 01:05:15,760 --> 01:05:19,360 simply describes the aider and abetter's, 1275 01:05:19,480 --> 01:05:23,600 let's say desire for what should happen, right. 1276 01:05:23,600 --> 01:05:27,400 The aider and abetter desires that the victim be killed. 1277 01:05:27,400 --> 01:05:30,000 But it says nothing about the means, right, 1278 01:05:30,000 --> 01:05:32,200 by which that is to occur. 1279 01:05:32,200 --> 01:05:33,920 And that's where aiding abetting comes in, 1280 01:05:33,920 --> 01:05:35,200 because it's a particular theory 1281 01:05:35,200 --> 01:05:38,280 of the means by which murder happens. 1282 01:05:38,280 --> 01:05:40,280 And so this additional element, 1283 01:05:40,280 --> 01:05:43,280 knowledge of the perpetrator's intent 1284 01:05:44,720 --> 01:05:46,920 is what essentially connects, right, 1285 01:05:46,920 --> 01:05:50,360 the aider and abetter to the act of the perpetrator. 1286 01:05:50,360 --> 01:05:52,920 It isn't just the aider abetter's intent. 1287 01:05:52,920 --> 01:05:55,160 I mean the aider and abetter, can wish all the day 1288 01:05:55,160 --> 01:05:57,680 is long that someone be killed. 1289 01:05:57,680 --> 01:05:59,440 But unless it's connected somehow 1290 01:05:59,440 --> 01:06:03,920 to what the perpetrator did, that intent isn't enough. 1291 01:06:03,920 --> 01:06:05,360 Lynne McGinnis: Well, the question, Your Honor, 1292 01:06:05,360 --> 01:06:06,920 is whether it's enough for purposes 1293 01:06:06,920 --> 01:06:08,200 of the prima facie case. 1294 01:06:08,200 --> 01:06:10,800 There are plenty, there are other elements 1295 01:06:10,800 --> 01:06:11,600 of aiding and abetting liabilities, 1296 01:06:11,600 --> 01:06:14,640 such as the Court of Appeal found the actus reus 1297 01:06:14,640 --> 01:06:17,880 that may be important for aiding and abetting liability. 1298 01:06:17,880 --> 01:06:20,880 But the question is what did the legislature intend 1299 01:06:20,880 --> 01:06:23,280 when it amended section 188 1300 01:06:23,560 --> 01:06:27,760 to require that the person shall act with malice aforethought. 1301 01:06:27,760 --> 01:06:30,000 And malice aforethought is the equivalent 1302 01:06:30,000 --> 01:06:31,400 of the intent to kill. 1303 01:06:31,400 --> 01:06:32,520 Justice Liu: But do you agree, counsel, 1304 01:06:32,520 --> 01:06:33,960 that at the very end of the day, 1305 01:06:33,960 --> 01:06:35,800 there has to be some valid theory of murder 1306 01:06:35,800 --> 01:06:38,480 in order for the conviction to be sustained? 1307 01:06:38,480 --> 01:06:40,600 I mean, I know you're focused on the language, 1308 01:06:40,600 --> 01:06:42,400 and you have a point. 1309 01:06:42,400 --> 01:06:44,600 The legislature spoke about malice aforethought 1310 01:06:44,600 --> 01:06:48,520 and was specifically concerned about the intent. 1311 01:06:48,520 --> 01:06:51,240 But to the extent that natural 1312 01:06:51,240 --> 01:06:54,640 and probable consequences liability is removed now, 1313 01:06:54,640 --> 01:06:57,800 there has to be some valid theory, right, of murder. 1314 01:06:57,800 --> 01:06:59,640 And there has to be some satisfaction 1315 01:06:59,640 --> 01:07:03,680 of the elements of that valid theory. 1316 01:07:03,680 --> 01:07:07,400 Isn't that -- I mean, am I wrong about that? 1317 01:07:07,400 --> 01:07:08,880 Lynne McGinnis: Well, Your Honor, 1318 01:07:08,880 --> 01:07:12,400 our position is that the jury made that finding 1319 01:07:12,400 --> 01:07:15,000 because they found that he intended to kill 1320 01:07:15,000 --> 01:07:17,800 and he encouraged Mr. Hernandez 1321 01:07:17,800 --> 01:07:20,200 in the conduct that led to the murder. 1322 01:07:20,200 --> 01:07:23,160 And that was a finding made by the jury 1323 01:07:23,160 --> 01:07:26,680 and that the knowledge element has been found. 1324 01:07:26,680 --> 01:07:33,280 And that that is not a finding open to re-litigation in 1172.6. 1325 01:07:33,560 --> 01:07:36,400 Justice Kruger: May I ask you, so you've said several times 1326 01:07:36,400 --> 01:07:40,800 that the intent findings subsumes the necessary knowledge 1327 01:07:40,800 --> 01:07:43,160 finding with respect to a direct 1328 01:07:43,160 --> 01:07:45,560 aiding abetting liability theory. 1329 01:07:46,320 --> 01:07:49,160 And I guess I'm wondering what your, 1330 01:07:49,160 --> 01:07:52,640 what authority you're looking to for that proposition, 1331 01:07:52,640 --> 01:07:56,320 that finding of intent to kill in connection 1332 01:07:56,320 --> 01:07:57,640 with a murder conviction 1333 01:07:57,640 --> 01:08:01,240 based on a natural improbable consequences. 1334 01:08:01,840 --> 01:08:05,440 Liability theory necessarily satisfies the knowledge 1335 01:08:06,560 --> 01:08:09,400 requirement with respect to the perpetrator's intent 1336 01:08:09,400 --> 01:08:12,400 under a direct theory of aiding and abetting liability. 1337 01:08:12,400 --> 01:08:13,800 Is there such a case? 1338 01:08:13,800 --> 01:08:15,520 Lynne McGinnis: Well, Your Honor, 1339 01:08:15,520 --> 01:08:16,840 People versus Mendoza, 1340 01:08:16,840 --> 01:08:19,680 which is cited in appellant's brief states 1341 01:08:19,680 --> 01:08:22,160 we cannot mechanically divide the defendant's mental state 1342 01:08:22,160 --> 01:08:23,560 into knowledge and intent. 1343 01:08:23,560 --> 01:08:25,880 One cannot intend to help someone do something 1344 01:08:25,880 --> 01:08:30,120 without knowing what that person meant to do. And -- 1345 01:08:30,120 --> 01:08:33,240 Justice Kruger: But here we're talking about -- 1346 01:08:33,240 --> 01:08:36,360 So the intent that the jury actually found under, 1347 01:08:36,360 --> 01:08:38,000 you know, sort of an assumed natural 1348 01:08:38,000 --> 01:08:42,160 and probable consequences theory concerns a different act 1349 01:08:42,160 --> 01:08:43,400 of the perpetrator, right? 1350 01:08:43,400 --> 01:08:45,600 It concerns the disturbing the peace 1351 01:08:45,600 --> 01:08:47,400 and unlawful possession of a weapon. 1352 01:08:47,400 --> 01:08:51,440 It wasn't necessarily specific to the murder, 1353 01:08:51,440 --> 01:08:53,960 which we're now concerned with. Correct? 1354 01:08:53,960 --> 01:08:56,800 Lynne McGinnis: Well, I would disagree, Your Honor, 1355 01:08:56,800 --> 01:08:59,520 because we have two findings that are combined. 1356 01:08:59,520 --> 01:09:02,480 There's the natural and probable consequences doctrine, 1357 01:09:02,480 --> 01:09:05,720 which requires not only disturbing the peace, 1358 01:09:05,720 --> 01:09:10,200 but also that that foreseeably led to a murder. 1359 01:09:10,200 --> 01:09:11,440 So there has to be something 1360 01:09:11,440 --> 01:09:13,400 that foreseeably led to the murder, 1361 01:09:13,400 --> 01:09:15,680 which is something that the jury found under the natural 1362 01:09:15,680 --> 01:09:18,800 and probable consequences doctrine. 1363 01:09:18,600 --> 01:09:21,640 But when they find the intent to kill 1364 01:09:21,640 --> 01:09:24,440 by finding the special circumstance true, 1365 01:09:24,440 --> 01:09:26,920 they not only find it was foreseeable, 1366 01:09:26,920 --> 01:09:32,680 they find it was an intended consequence of the actions. 1367 01:09:32,680 --> 01:09:36,800 So that brings him within the statute 1368 01:09:36,800 --> 01:09:39,400 which precludes him from obtaining relief 1369 01:09:39,400 --> 01:09:41,000 under section 180 1172. 1370 01:09:41,000 --> 01:09:42,600 Justice Corrigan: If I understand the analysis 1371 01:09:42,600 --> 01:09:46,920 of the Court of Appeal, it is that simply finding 1372 01:09:46,920 --> 01:09:51,480 that somebody intends for somebody to be killed, 1373 01:09:51,480 --> 01:09:56,280 which sadly is not unknown in our society. 1374 01:09:57,680 --> 01:10:01,240 You have to have more than that to impose criminal liability. 1375 01:10:01,240 --> 01:10:05,440 The defendant has to actually do something. 1376 01:10:07,480 --> 01:10:09,240 And here... Lynne McGinnis: Precisely. 1377 01:10:09,240 --> 01:10:10,720 Justice Corrigan: ...the jury found 1378 01:10:10,720 --> 01:10:15,520 that the defendant intended the victim to die. 1379 01:10:15,600 --> 01:10:22,640 But what did the defendant do to aid and abet the conduct 1380 01:10:22,640 --> 01:10:26,400 that directly led to the decedent's death? 1381 01:10:26,400 --> 01:10:28,400 Lynne McGinnis: Well, Your Honor, 1382 01:10:28,400 --> 01:10:31,640 with all due respect, that assumes that the defendant 1383 01:10:31,640 --> 01:10:34,800 had to do something to aid and abet the conduct in order -- 1384 01:10:34,800 --> 01:10:36,240 Justice Corrigan: You do have to do something 1385 01:10:36,240 --> 01:10:37,840 to aid and about the conduct. 1386 01:10:37,840 --> 01:10:41,320 You can't just have bad thoughts and hope someone will die 1387 01:10:41,320 --> 01:10:43,440 and then wait and see if they do. 1388 01:10:43,440 --> 01:10:44,960 Lynne McGinnis: No, I understand, Your Honor. 1389 01:10:44,960 --> 01:10:49,400 I apologize. If, to use my example from before, 1390 01:10:49,400 --> 01:10:52,480 the defendant had just given the perpetrator 1391 01:10:52,480 --> 01:10:54,480 the victim's address, 1392 01:10:54,600 --> 01:10:57,400 that would be aiding and abetting the conduct. 1393 01:10:57,400 --> 01:11:01,680 Here the aiding and abetting consisted of pushing, 1394 01:11:01,680 --> 01:11:04,800 shoving, making gang references 1395 01:11:04,200 --> 01:11:06,800 which the gang expert put into context. 1396 01:11:06,800 --> 01:11:09,800 Now we can debate whether that testimony 1397 01:11:09,800 --> 01:11:11,480 would be admissible or enough today. 1398 01:11:11,480 --> 01:11:13,160 But those were the acts that were done, 1399 01:11:13,160 --> 01:11:15,840 in the context of the gang expert testimony, 1400 01:11:15,840 --> 01:11:18,400 that aided and abetted in the murder 1401 01:11:18,400 --> 01:11:21,360 and, under the natural and probable consequences doctrine, 1402 01:11:21,360 --> 01:11:23,560 foreseeably led to the murder. 1403 01:11:23,560 --> 01:11:28,200 The defendant doesn't have to hand Mr. Hernandez a weapon 1404 01:11:28,200 --> 01:11:30,000 and say, "Shoot." 1405 01:11:30,000 --> 01:11:33,400 He just has to do something that leads to the murder, 1406 01:11:33,400 --> 01:11:35,640 such as giving an address, 1407 01:11:35,640 --> 01:11:39,360 telling, telling the perpetrator your wife's having an affair, 1408 01:11:39,360 --> 01:11:43,800 or in this case pushing, shoving, yelling out gang names, 1409 01:11:43,800 --> 01:11:45,200 which the gang expert testified 1410 01:11:45,200 --> 01:11:47,320 was not just pushing, shoving and yelling. 1411 01:11:47,320 --> 01:11:51,520 But in the gang context meant something. 1412 01:11:51,520 --> 01:11:53,200 Justice Corrigan: I may have misread the record, 1413 01:11:53,200 --> 01:11:55,640 but are you suggesting that the record shows 1414 01:11:55,640 --> 01:12:00,880 that the defendant, Mr. Curiel engaged in pushing and shoving? 1415 01:12:00,880 --> 01:12:03,840 Or was it the co-defendant who engaged in pushing and shoving? 1416 01:12:03,840 --> 01:12:06,480 Lynne McGinnis: Mr. Curiel argued 1417 01:12:06,480 --> 01:12:08,360 there's some debate in the testimony 1418 01:12:08,360 --> 01:12:10,320 about whether he was pushing and shoving. 1419 01:12:10,320 --> 01:12:12,600 Different witnesses gave different testimony, 1420 01:12:12,600 --> 01:12:16,280 but I believe one witness testified he pushed and shoved. 1421 01:12:16,280 --> 01:12:20,400 He confronted the people and said, "This is OTH. 1422 01:12:20,400 --> 01:12:22,560 This is my neighborhood." 1423 01:12:22,560 --> 01:12:28,400 And at the trial at the time, a gang expert could testify, 1424 01:12:28,400 --> 01:12:29,880 and may still be able to, 1425 01:12:29,880 --> 01:12:34,520 that this kind of conduct can lead to violent behavior, 1426 01:12:34,520 --> 01:12:37,800 even including a shooting or a killing. 1427 01:12:37,800 --> 01:12:40,800 So Mr. Curiel didn't just stand by. 1428 01:12:40,800 --> 01:12:43,920 He actually was involved in the confrontation 1429 01:12:43,920 --> 01:12:46,920 that led to the shooting 1430 01:12:47,640 --> 01:12:52,360 that resulted in the death of Mr. Tejada. 1431 01:12:52,360 --> 01:12:53,760 Chief Justice Guerrero: Ms. McGinnis, 1432 01:12:53,760 --> 01:12:55,240 if you'd like to reserve your seven minutes, 1433 01:12:55,240 --> 01:12:57,000 you can conclude here or you can continue. 1434 01:12:57,000 --> 01:12:58,440 Lynne McGinnis: No, I will reserve my time. 1435 01:12:58,440 --> 01:13:01,440 Chief Justice Guerrero: Thank you. 1436 01:13:01,560 --> 01:13:04,560 Ms. Peterson, whenever you're ready. 1437 01:13:17,560 --> 01:13:19,280 Michelle Peterson: Thank you, Chief Justice Guerrero. 1438 01:13:19,280 --> 01:13:21,240 And may it please the court. 1439 01:13:21,240 --> 01:13:24,240 To briefly answer that question, 1440 01:13:24,520 --> 01:13:27,640 we have found no evidence that Freddy Curiel was involved 1441 01:13:27,640 --> 01:13:29,680 in pushing or shoving anybody. 1442 01:13:29,680 --> 01:13:32,600 The Court of Appeal opinion says that, 1443 01:13:32,600 --> 01:13:38,000 but I canvassed the record on explicitly that topic, 1444 01:13:38,400 --> 01:13:42,200 and in footnote 2 on page 20 of our brief, 1445 01:13:42,200 --> 01:13:43,880 we put the places in the record 1446 01:13:43,880 --> 01:13:45,920 where we found evidence of pushing and shoving. 1447 01:13:45,920 --> 01:13:50,960 And we saw no evidence that Freddy was involved in that. 1448 01:13:50,960 --> 01:13:54,120 On the current record, if an evidentiary hearing 1449 01:13:54,120 --> 01:13:57,720 were held tomorrow under Section 1172.6, Subdivision 3, 1450 01:13:59,560 --> 01:14:01,360 Freddy Curiel would win. 1451 01:14:01,360 --> 01:14:05,440 Not just a prima facie case, he would win. 1452 01:14:05,440 --> 01:14:09,400 The gang expert testimony about gang culture 1453 01:14:09,400 --> 01:14:14,280 and violent Hispanic gangs that, with no effort to link 1454 01:14:14,280 --> 01:14:17,400 any of that to Mr. Curiel, would be excluded. 1455 01:14:17,400 --> 01:14:20,680 The attorney general has made no argument to the contrary. 1456 01:14:20,680 --> 01:14:23,560 The fact witness evidence provided no evidence 1457 01:14:23,560 --> 01:14:26,560 that Mr. Curiel harbored malice 1458 01:14:26,560 --> 01:14:29,200 or that he did anything to aid or abet, 1459 01:14:29,200 --> 01:14:33,280 and thus there's no evidence of murder under current law. 1460 01:14:33,280 --> 01:14:37,480 On this record, Mr. Curiel's LWOP conviction 1461 01:14:37,800 --> 01:14:41,600 for special circumstance murder would be redesignated 1462 01:14:41,600 --> 01:14:44,560 to aiding and abetting disturbing the peace. 1463 01:14:44,560 --> 01:14:49,840 His sentence would be dropped from LWOP to two years, 1464 01:14:49,840 --> 01:14:52,320 because the misdemeanor would have a gang felony. 1465 01:14:52,320 --> 01:14:54,720 He's been incarcerated for 21. 1466 01:14:55,320 --> 01:14:58,360 That's the kind of case that the legislature had in mind 1467 01:14:58,360 --> 01:15:02,560 in enacting SB1437 to eliminate these kinds 1468 01:15:02,640 --> 01:15:06,240 of imputed malice liabilities for murder. 1469 01:15:06,720 --> 01:15:11,280 And we've never heard of any case in which a party 1470 01:15:11,280 --> 01:15:15,000 has been issue precluded from making a prima facie case 1471 01:15:15,000 --> 01:15:18,920 when the only admissible evidence after the judgment 1472 01:15:18,920 --> 01:15:21,840 and after massive changes in the law subsequent 1473 01:15:21,840 --> 01:15:23,400 to the judgment 1474 01:15:23,400 --> 01:15:27,560 which would require that that party would win. 1475 01:15:27,560 --> 01:15:30,400 Now the attorney general has made no case 1476 01:15:30,400 --> 01:15:33,920 against anything I just said. The attorney general just claims 1477 01:15:33,920 --> 01:15:36,400 this court can't consider any of it, 1478 01:15:36,400 --> 01:15:39,800 because the jury received another instruction 1479 01:15:39,800 --> 01:15:40,400 that intent to kill 1480 01:15:40,400 --> 01:15:42,360 was an element of the gang circumstance. 1481 01:15:42,360 --> 01:15:43,920 And the gang found, 1482 01:15:43,920 --> 01:15:46,200 the jury found the gang special circumstance true. 1483 01:15:46,200 --> 01:15:49,000 So the attorney general claims that by itself 1484 01:15:49,000 --> 01:15:54,800 is issue preclusive of the whole section set 1132.6 petition, 1485 01:15:54,800 --> 01:15:56,480 full stop, no exceptions. 1486 01:15:57,600 --> 01:16:00,800 Never mind whether this record has admissible evidence 1487 01:16:00,800 --> 01:16:02,720 of intent to kill under current law. 1488 01:16:02,720 --> 01:16:05,120 Never mind all of the new statutes in case law 1489 01:16:05,120 --> 01:16:07,440 that have come into effect that are directly relevant 1490 01:16:07,440 --> 01:16:09,800 to this case, SB1437. 1491 01:16:09,800 --> 01:16:12,800 This court's Sanchez opinion, this court's Valencia opinion, 1492 01:16:12,800 --> 01:16:15,800 this court's Sargon opinion, as amicus points out. 1493 01:16:15,800 --> 01:16:20,680 Or that if counsel in 2006 had argued for first degree murder 1494 01:16:20,680 --> 01:16:23,520 without a gang special circumstance, 1495 01:16:23,520 --> 01:16:25,800 instead of solely seeking acquittal, 1496 01:16:25,800 --> 01:16:29,000 he would have been arguing for a sentence of 50 years to life. 1497 01:16:29,000 --> 01:16:31,360 The functional equivalent of LWOP as this court 1498 01:16:31,360 --> 01:16:35,480 has called it for a crime of disturbing the peace. 1499 01:16:35,480 --> 01:16:36,960 Well, the attorney general says 1500 01:16:36,960 --> 01:16:40,680 this court can't consider any of that either. 1501 01:16:40,680 --> 01:16:42,280 The attorney general has cited -- 1502 01:16:42,280 --> 01:16:43,280 Justice Corrigan: I want to make sure 1503 01:16:43,280 --> 01:16:45,000 that I understand your argument. 1504 01:16:45,000 --> 01:16:48,680 Are you arguing today, in light of the jury's finding, 1505 01:16:48,680 --> 01:16:51,720 that the defendant did act with intent to kill, 1506 01:16:51,720 --> 01:16:53,760 or are you arguing that the admissible evidence 1507 01:16:53,760 --> 01:16:57,000 is insufficient to support that finding? 1508 01:16:57,000 --> 01:16:58,680 Michelle Peterson: We are arguing that, Your Honor. 1509 01:16:58,680 --> 01:17:01,640 However, our argument does not turn on that. 1510 01:17:01,640 --> 01:17:04,960 What the argument turns on is the question 1511 01:17:04,960 --> 01:17:08,520 of whether the elements or of issue preclusion 1512 01:17:08,520 --> 01:17:12,400 apply to this case, or there are any applicable exceptions. 1513 01:17:12,400 --> 01:17:14,240 It's an issue preclusion argument. 1514 01:17:14,240 --> 01:17:16,800 Issue preclusion does not depend 1515 01:17:16,800 --> 01:17:17,800 on its insufficiency of evidence. 1516 01:17:17,800 --> 01:17:20,560 I merely highlighted that to highlight 1517 01:17:20,560 --> 01:17:25,000 how dramatic what the attorney general is arguing 1518 01:17:25,000 --> 01:17:26,800 and how unfair it would be. 1519 01:17:26,800 --> 01:17:30,560 And after all, issue preclusion is an equitable doctrine. 1520 01:17:30,560 --> 01:17:33,400 And equitable doctrines are based in fairness, 1521 01:17:33,400 --> 01:17:35,440 and this court in people versus Strong 1522 01:17:35,440 --> 01:17:37,800 reiterated that issue preclusion 1523 01:17:37,800 --> 01:17:41,160 is an equitable doctrine based in fairness. 1524 01:17:41,160 --> 01:17:42,600 Justice Kruger: Can I ask you, 1525 01:17:42,600 --> 01:17:44,120 before you get to questions of exceptions... 1526 01:17:44,120 --> 01:17:45,720 Michelle Peterson: Yes, Justice Kruger. 1527 01:17:45,720 --> 01:17:47,760 Justice Kruger: ...to the issue preclusion doctrine. 1528 01:17:47,760 --> 01:17:49,600 You've heard the questioning from the bench 1529 01:17:49,600 --> 01:17:51,280 which really concerns whether or not, 1530 01:17:51,280 --> 01:17:54,600 even if we were to give preclusive effect 1531 01:17:54,600 --> 01:17:56,560 to all of the findings that are embodied 1532 01:17:56,560 --> 01:17:59,160 in the jury's verdict in this case, 1533 01:17:59,160 --> 01:18:02,840 does that necessarily establish that Mr. Curiel 1534 01:18:02,840 --> 01:18:07,560 would still be liable for murder under current law, 1535 01:18:07,560 --> 01:18:12,360 under 1457, under a direct aiding and abetting liability? 1536 01:18:12,760 --> 01:18:14,640 [Inaudible] probable consequences theory. 1537 01:18:14,640 --> 01:18:17,600 And you've heard questions that sort of go to this question 1538 01:18:17,600 --> 01:18:20,840 of the sort of the degree to which those findings 1539 01:18:20,840 --> 01:18:24,000 cover the necessary elements of direct aiding and abetting. 1540 01:18:24,000 --> 01:18:26,120 Can you address that issue for us? 1541 01:18:26,120 --> 01:18:27,920 Michelle Peterson: Yes, thank you, Justice Kruger. 1542 01:18:27,920 --> 01:18:29,720 And that issue is covered in 1543 01:18:29,720 --> 01:18:32,200 arguments 4 and 5 of our brief, but I will elaborate on things 1544 01:18:32,200 --> 01:18:35,120 that I've heard of the questioning. 1545 01:18:35,120 --> 01:18:40,880 I begin by stating that contrary to my colleague's position, 1546 01:18:40,880 --> 01:18:42,360 we have found no evidence 1547 01:18:42,360 --> 01:18:45,560 that Mr. Curiel pushed anybody in this record. 1548 01:18:45,560 --> 01:18:48,320 And I would again refer the court back 1549 01:18:48,320 --> 01:18:51,800 to page 20, footnote 2 of our brief, 1550 01:18:51,800 --> 01:18:55,640 where we cited testimony from Raul, testimony from Lupe. 1551 01:18:55,640 --> 01:18:57,680 There were one or two other witnesses 1552 01:18:57,680 --> 01:18:59,800 where they talked about the pushing. 1553 01:18:59,800 --> 01:19:02,400 They all referred to it as Hernandez. 1554 01:19:02,400 --> 01:19:03,920 So that's the first thing. 1555 01:19:03,920 --> 01:19:08,800 As far as yelling out gang names are concerned, 1556 01:19:08,800 --> 01:19:10,440 there's no -- well, first of all, 1557 01:19:10,440 --> 01:19:13,440 there's no jury finding that 1558 01:19:13,480 --> 01:19:17,800 Mr. Curiel knew that Mr. Hernandez 1559 01:19:18,720 --> 01:19:21,800 was going to pull out a gun and shoot Cesar Tejada. 1560 01:19:21,800 --> 01:19:24,400 And there's a very good reason for that, 1561 01:19:24,400 --> 01:19:26,880 because it doesn't even make any sense. 1562 01:19:26,880 --> 01:19:30,120 All of the evidence points to that incident having happened 1563 01:19:30,120 --> 01:19:34,920 spontaneously as a result of Cesar pushing Hernandez. 1564 01:19:35,880 --> 01:19:39,200 Now it may be some of the witnesses said 1565 01:19:39,200 --> 01:19:43,320 Cesar pushed Hernandez over a shopping cart or a bicycle. 1566 01:19:43,320 --> 01:19:46,200 Raul Ramirez said no, he pushed him 1567 01:19:46,200 --> 01:19:48,240 and then Hernandez chased him. 1568 01:19:48,240 --> 01:19:52,200 But nobody said that, after the push, 1569 01:19:52,200 --> 01:19:55,800 Freddy Curiel said, "Shoot the guy, shoot the guy," 1570 01:19:55,800 --> 01:19:58,720 or that he knew that Hernandez was going to do it. 1571 01:19:58,720 --> 01:20:01,720 And apart from the inadmissible gang expert testimony, 1572 01:20:01,720 --> 01:20:03,560 there isn't even evidence that that he knew 1573 01:20:03,560 --> 01:20:05,240 Hernandez had a gun. 1574 01:20:05,240 --> 01:20:07,120 Justice Kruger: You've heard the arguments on the other side, 1575 01:20:07,120 --> 01:20:09,800 which is that you can sort of put two things together 1576 01:20:09,800 --> 01:20:11,760 that we know the jury must have concluded 1577 01:20:11,760 --> 01:20:15,120 in order to return the verdict that it did. 1578 01:20:15,120 --> 01:20:19,440 One is that Mr. Curiel, in sort of the role 1579 01:20:19,440 --> 01:20:21,920 that he played in instigating this confrontation, 1580 01:20:21,920 --> 01:20:24,800 did so with an intent to kill. 1581 01:20:24,800 --> 01:20:28,360 And the jury thought that it was reasonably foreseeable 1582 01:20:28,360 --> 01:20:31,440 that the consequence of instigating this confrontation 1583 01:20:31,440 --> 01:20:34,200 was going to be that somebody who was going to get killed. 1584 01:20:34,200 --> 01:20:37,200 I take the argument is if you put those things together, 1585 01:20:37,200 --> 01:20:42,440 that's sufficient to conclude that the jury must have thought 1586 01:20:42,440 --> 01:20:46,200 and essentially found that Mr. Curiel aided 1587 01:20:46,200 --> 01:20:48,120 and abetted the murder itself. 1588 01:20:48,120 --> 01:20:49,280 Michelle Peterson: Well, that may be 1589 01:20:49,280 --> 01:20:50,800 my esteemed colleague's argument, 1590 01:20:50,800 --> 01:20:52,480 but there isn't any evidence of it. 1591 01:20:52,480 --> 01:20:54,800 First of all, there's no evidence 1592 01:20:54,800 --> 01:20:57,640 that Freddy Curiel said anything at all 1593 01:20:57,640 --> 01:20:59,600 with the intent of provoking a murder. 1594 01:20:59,600 --> 01:21:01,200 There's just none. 1595 01:21:01,200 --> 01:21:02,760 Chief Justice Guerrero: You answered the question -- 1596 01:21:02,760 --> 01:21:05,400 Setting aside the sufficiency argument of the evidence 1597 01:21:05,400 --> 01:21:07,280 and just address as a legal matter 1598 01:21:07,280 --> 01:21:09,160 the question that was asked? 1599 01:21:09,160 --> 01:21:10,160 Michelle Peterson: Certainly. 1600 01:21:10,160 --> 01:21:12,400 Thank you, Justice Guerrero. 1601 01:21:12,400 --> 01:21:13,800 But the second thing is 1602 01:21:13,800 --> 01:21:16,920 that there's no evidence to link the two. 1603 01:21:16,920 --> 01:21:22,920 And I do need to adhere to Your Honor's request. 1604 01:21:23,600 --> 01:21:27,120 But the lack of evidence is part of why, 1605 01:21:27,120 --> 01:21:30,120 with no instruction on knowledge, 1606 01:21:30,360 --> 01:21:34,240 no instruction of any sort of need for linkage, 1607 01:21:34,240 --> 01:21:37,160 that if the jury's not instructed on it 1608 01:21:37,160 --> 01:21:38,640 and there's no evidence of it, 1609 01:21:38,640 --> 01:21:41,800 then how can the jury have made that finding? 1610 01:21:41,800 --> 01:21:42,480 What we're talking about here 1611 01:21:42,480 --> 01:21:45,840 is for purposes of a prima facie case, 1612 01:21:45,840 --> 01:21:49,360 what findings the jury did or did not necessarily make. 1613 01:21:49,360 --> 01:21:52,720 And as Justice Chin wrote in People versus Garcia, 1614 01:21:52,720 --> 01:21:55,360 certainty is the element of all estoppels. 1615 01:21:55,360 --> 01:21:59,200 So unless it is certain that the jury found 1616 01:21:59,200 --> 01:22:02,200 that Mr. Curiel had knowledge 1617 01:22:02,600 --> 01:22:05,200 that Mr. Hernandez intended to kill 1618 01:22:05,200 --> 01:22:10,800 or intended to ask Mr. Hernandez to kill based on this record, 1619 01:22:10,800 --> 01:22:13,320 then there's no issue preclusion, 1620 01:22:13,320 --> 01:22:15,200 and there's a prima facie case. 1621 01:22:15,200 --> 01:22:17,960 And with no instruction and no evidence, 1622 01:22:17,960 --> 01:22:19,800 I don't see how there can be any certainty. 1623 01:22:19,800 --> 01:22:21,320 I don't see anything at all. 1624 01:22:21,320 --> 01:22:23,400 Chief Justice Guerrero: I guess the combination 1625 01:22:23,400 --> 01:22:25,880 that's being presented here is the intent to kill, 1626 01:22:25,880 --> 01:22:28,680 which you acknowledge was a finding by the court, 1627 01:22:28,680 --> 01:22:31,680 right, for the special circumstance. 1628 01:22:32,400 --> 01:22:33,640 Michelle Peterson: Yes, Your Honor. 1629 01:22:33,640 --> 01:22:35,200 There was a jury instruction on that. Yes. 1630 01:22:35,200 --> 01:22:36,880 Chief Justice Guerrero: Finding by the jury 1631 01:22:36,880 --> 01:22:38,600 on the court's instruction for the special circumstance. 1632 01:22:38,600 --> 01:22:43,120 That combined with, I think the argument is the natural 1633 01:22:43,120 --> 01:22:45,120 and probable consequences doctrine, 1634 01:22:45,120 --> 01:22:48,400 the portion of it where the jury was asked 1635 01:22:48,400 --> 01:22:49,240 to make a determination 1636 01:22:49,240 --> 01:22:52,200 as to whether the murder was foreseeable. 1637 01:22:52,200 --> 01:22:55,400 You combine those two, I understand it, 1638 01:22:55,400 --> 01:23:00,400 the argument is that there's sufficient showing of direct 1639 01:23:00,400 --> 01:23:02,560 aiding and abetting liabilities with those two. 1640 01:23:02,560 --> 01:23:03,760 Michelle Peterson: Well, of course, 1641 01:23:03,760 --> 01:23:05,400 natural and probable consequences 1642 01:23:05,400 --> 01:23:07,760 is no longer in play after SB1437. 1643 01:23:07,760 --> 01:23:12,200 So we, in our view, we shouldn't even be talking about that. 1644 01:23:12,200 --> 01:23:16,400 But what Your Honor is asking about, 1645 01:23:16,400 --> 01:23:20,600 and let me rephrase for a moment, 1646 01:23:20,920 --> 01:23:24,720 the Court of Appeal talked about the possibility 1647 01:23:24,720 --> 01:23:29,600 that the jury may have found the mindset of a murderer. 1648 01:23:29,600 --> 01:23:33,120 First of all, that only came from the gang evidence, 1649 01:23:33,120 --> 01:23:35,640 the gang expert evidence. And the gang expert evidence 1650 01:23:35,640 --> 01:23:38,640 didn't even talk about the mindset of a murderer, 1651 01:23:38,640 --> 01:23:44,680 let alone try to link acts of shouting out gang names 1652 01:23:44,680 --> 01:23:47,360 with yes this murder was going to happen. 1653 01:23:47,360 --> 01:23:49,600 Or that a person who shouts out a gang name 1654 01:23:49,600 --> 01:23:52,520 necessarily believes that a murder is going to happen. 1655 01:23:52,520 --> 01:23:55,840 The gang expert said violence can result 1656 01:23:55,840 --> 01:23:57,600 from shouting out a gang name. 1657 01:23:57,600 --> 01:24:02,160 sometimes does result from shouting out a gang name. 1658 01:24:02,160 --> 01:24:04,720 But he never said it does result. 1659 01:24:04,720 --> 01:24:07,160 So again, you've got a combination 1660 01:24:07,160 --> 01:24:09,560 of no instruction on knowledge, 1661 01:24:09,560 --> 01:24:12,800 nothing to link a natural and probable consequences 1662 01:24:12,800 --> 01:24:15,320 finding to intent to kill other 1663 01:24:15,320 --> 01:24:19,760 than the gang expert suggesting that people in gangs 1664 01:24:19,760 --> 01:24:24,200 and Hispanic violent gangs have intent to kill. 1665 01:24:24,200 --> 01:24:26,800 But intent to kill Cesar Tejada? 1666 01:24:26,800 --> 01:24:27,960 There's no finding of that either. 1667 01:24:27,960 --> 01:24:32,160 There there's no finding whatsoever that links 1668 01:24:32,240 --> 01:24:34,960 whatever it is that Freddy Curiel did 1669 01:24:34,960 --> 01:24:39,240 to a purported intent to kill Cesar Tejada. 1670 01:24:39,240 --> 01:24:41,560 And the intent to kill Cesar Tejada 1671 01:24:41,560 --> 01:24:45,240 is the only thing that is that issue 1672 01:24:45,240 --> 01:24:47,640 in this Section 1172.6 petition. 1673 01:24:48,680 --> 01:24:50,840 I'd also go back to the supplemental brief 1674 01:24:50,840 --> 01:24:55,800 that we filed on this court's Ware and Lopez opinions 1675 01:24:55,800 --> 01:24:58,240 because I believe it was in Ware -- 1676 01:24:58,240 --> 01:24:59,800 the court knows better than I do, 1677 01:24:59,800 --> 01:25:03,360 so I could be wrong -- that the court was talking about 1678 01:25:03,360 --> 01:25:07,880 how merely having a mindset of a gang member 1679 01:25:07,880 --> 01:25:11,480 doesn't necessarily constitute evidence of intent 1680 01:25:12,480 --> 01:25:14,600 on a particular occasion. 1681 01:25:14,600 --> 01:25:17,120 And that also came from the Ninth Circuit's Garcia opinion, 1682 01:25:17,120 --> 01:25:18,480 which we did cite, 1683 01:25:18,480 --> 01:25:20,640 and this court's Ware opinion cited it also. 1684 01:25:20,640 --> 01:25:23,760 So you've got this gang expert kind of talking about, 1685 01:25:23,760 --> 01:25:25,840 well, these violent Hispanic gang members 1686 01:25:25,840 --> 01:25:30,440 all have this violent intent and they're willing to kill. 1687 01:25:30,440 --> 01:25:34,880 But willingness to kill and actual intent to kill 1688 01:25:34,880 --> 01:25:37,200 on this occasion, in this case, 1689 01:25:37,200 --> 01:25:39,000 are two completely separate things. 1690 01:25:39,000 --> 01:25:42,520 And there's no jury instruction to link the two. 1691 01:25:42,520 --> 01:25:43,840 And there's no evidence to link the two. 1692 01:25:43,840 --> 01:25:45,640 So no, Your Honor, we respectfully disagree 1693 01:25:45,640 --> 01:25:48,000 that just because the jury found 1694 01:25:48,000 --> 01:25:50,840 that our client had intent to kill 1695 01:25:50,840 --> 01:25:53,440 based on the gang expert testimony, 1696 01:25:53,440 --> 01:25:56,600 that meant that he had knowledge that Hernandez could 1697 01:25:56,600 --> 01:26:00,560 or would kill Cesar Tejada in this particular case 1698 01:26:00,560 --> 01:26:02,480 or that he intended to do so. 1699 01:26:02,480 --> 01:26:04,120 Justice Jenkins: What is your response 1700 01:26:04,120 --> 01:26:09,520 to counsel's argument that the intent to kill finding 1701 01:26:10,120 --> 01:26:12,760 really subsumes the knowledge element? 1702 01:26:12,760 --> 01:26:15,640 And she relies on Mendoza for that proposition, 1703 01:26:15,640 --> 01:26:18,200 citing to us some general language from that case. 1704 01:26:18,200 --> 01:26:21,000 Do you have a rejoinder to that? 1705 01:26:21,000 --> 01:26:23,200 Michelle Peterson: Well, Your Honor, of course, 1706 01:26:23,200 --> 01:26:25,480 the jury didn't read Mendoza, 1707 01:26:25,480 --> 01:26:29,680 and nor did the jury receive instructions 1708 01:26:29,680 --> 01:26:32,680 that contain that particular principle. 1709 01:26:33,000 --> 01:26:36,800 As a matter of common sense, 1710 01:26:36,800 --> 01:26:38,520 again, we're talking about two completely separate things. 1711 01:26:38,520 --> 01:26:41,320 We're talking about gang expert testimony 1712 01:26:41,320 --> 01:26:42,800 that says that yes, 1713 01:26:42,800 --> 01:26:44,960 these are violent Hispanic gang members, 1714 01:26:44,960 --> 01:26:49,480 and they have all these violent thoughts and violent intents, 1715 01:26:49,480 --> 01:26:52,400 much like defendant Hoskins in Ware. 1716 01:26:52,400 --> 01:26:54,640 But that's not evidence 1717 01:26:54,640 --> 01:26:56,520 of intent to kill on this particular occasion. 1718 01:26:56,520 --> 01:27:00,200 And Mendoza wasn't addressing that particular situation. 1719 01:27:00,200 --> 01:27:05,600 But indeed, if the jury found intent to kill 1720 01:27:05,800 --> 01:27:08,200 in the abstract based on the gang expert testimony, 1721 01:27:08,200 --> 01:27:11,880 or as the Court of Appeal called it the mindset of a murderer, 1722 01:27:11,880 --> 01:27:16,400 and but there's nothing to link it to this particular case, 1723 01:27:16,400 --> 01:27:19,960 then the Mendoza language can be reframed 1724 01:27:19,960 --> 01:27:23,800 to match this particular case as saying that 1725 01:27:23,800 --> 01:27:29,680 one can't have intent to kill Cesar Tejada without knowledge 1726 01:27:29,680 --> 01:27:33,400 that there's going to be a homicide of Cesar Tejada. 1727 01:27:33,400 --> 01:27:37,800 Well, there's no evidence of any such knowledge. 1728 01:27:37,800 --> 01:27:39,440 There's no evidence that Mr. Curiel did anything 1729 01:27:39,440 --> 01:27:43,000 with any such knowledge, and there's no intent. 1730 01:27:43,000 --> 01:27:44,280 And the jury made no such finding 1731 01:27:44,280 --> 01:27:46,600 because it was never asked to do so. 1732 01:27:46,600 --> 01:27:49,560 And the gang officer didn't tell them 1733 01:27:49,560 --> 01:27:51,320 that they could make such a finding. 1734 01:27:51,320 --> 01:27:53,640 And if the gang officer had told them that, 1735 01:27:53,640 --> 01:27:58,000 that would, in our view, be profile evidence 1736 01:27:58,000 --> 01:28:02,440 that just because this guy's a violent Hispanic gang member, 1737 01:28:02,440 --> 01:28:05,280 that must mean that every time he shouts out a gang challenge, 1738 01:28:05,280 --> 01:28:07,360 he intends to kill people. 1739 01:28:07,360 --> 01:28:09,240 Even the gang expert didn't go there. 1740 01:28:09,240 --> 01:28:12,440 And if it did go there, it would be inadmissible today. 1741 01:28:12,440 --> 01:28:16,640 And we respectfully disagree with any theory 1742 01:28:17,640 --> 01:28:19,640 that admissibility today 1743 01:28:19,720 --> 01:28:23,000 is irrelevant to this court's determination. 1744 01:28:23,000 --> 01:28:25,400 Because after all, the question that we're talking about 1745 01:28:25,400 --> 01:28:27,800 is what is a prima facie case? 1746 01:28:27,800 --> 01:28:30,760 And historically, throughout the ages 1747 01:28:30,760 --> 01:28:36,440 and nowadays, a prima facie case is the quantum of evidence 1748 01:28:36,440 --> 01:28:40,160 that a party must show or to be able to demonstrate 1749 01:28:40,160 --> 01:28:43,400 that there is a fact worth litigating, 1750 01:28:43,400 --> 01:28:45,240 That they're entitled to a full trial 1751 01:28:45,240 --> 01:28:47,240 or a full evidentiary hearing. 1752 01:28:47,240 --> 01:28:49,160 The classic prima facie case in civil law 1753 01:28:49,160 --> 01:28:51,880 is a motion for summary judgment. 1754 01:28:51,880 --> 01:28:54,000 That's a prima facie case issue also. 1755 01:28:54,000 --> 01:29:00,000 So when we are talking about an SB1437 1172.6 petition now, 1756 01:29:00,720 --> 01:29:02,560 we're talking about evidence 1757 01:29:02,560 --> 01:29:07,720 of what the trier of fact under 1172.6 could consider nowadays. 1758 01:29:07,720 --> 01:29:10,920 Well, the trier of fact can't consider 1759 01:29:10,920 --> 01:29:12,400 inadmissible evidence. 1760 01:29:12,400 --> 01:29:16,600 And when the legislature enacted SB1437 in 2018, 1761 01:29:19,440 --> 01:29:25,600 it is presumed to have knowledge of the decisions of this Court 1762 01:29:25,600 --> 01:29:29,400 that are relevant to the legislation it was enacting. 1763 01:29:29,400 --> 01:29:33,000 Well, that includes this Court's 2016 Sanchez opinion 1764 01:29:33,000 --> 01:29:36,960 and this 2000, and this Court's 2012 Sargon opinion. 1765 01:29:36,960 --> 01:29:41,160 So in that respect, SB1437 and therefore 1172.6, 1766 01:29:42,000 --> 01:29:44,320 can be determined to subsude -- 1767 01:29:44,320 --> 01:29:46,560 I'm sorry, subsume, the principles -- 1768 01:29:46,560 --> 01:29:48,200 Justice Liu: Counsel, can I take you back? 1769 01:29:48,200 --> 01:29:49,800 Just a couple steps. 1770 01:29:49,800 --> 01:29:55,200 So to the other part of Justice Kruger's question, 1771 01:29:55,600 --> 01:29:58,560 you've made your point about why intent to kill 1772 01:29:58,560 --> 01:30:03,360 does not subsume knowledge of the perpetrator's intent. 1773 01:30:03,800 --> 01:30:07,400 What about the reasonably foreseeable part? 1774 01:30:08,600 --> 01:30:12,800 I take it that part of the opposing argument here 1775 01:30:12,800 --> 01:30:14,480 is that reasonable foreseeability 1776 01:30:15,240 --> 01:30:19,440 encompasses some notion that the target crime, 1777 01:30:19,640 --> 01:30:22,400 though definitionally somewhat minor, 1778 01:30:26,800 --> 01:30:31,320 was thought -- was found by the jury 1779 01:30:31,320 --> 01:30:35,520 to reasonably foreseeably lead to a killing. 1780 01:30:36,240 --> 01:30:39,600 And the mechanism by which that occurred 1781 01:30:39,600 --> 01:30:43,200 traveled through the direct perpetrator's acts. 1782 01:30:43,440 --> 01:30:46,000 And I take it that the argument is that this is, 1783 01:30:46,000 --> 01:30:48,320 this is part of the reasonable foreseeable element 1784 01:30:48,320 --> 01:30:51,320 which helps the opposing arguments. 1785 01:30:52,400 --> 01:30:56,840 This is the claim, the opposing arguments claim about knowledge. 1786 01:30:56,840 --> 01:30:58,200 Michelle Peterson: Well, Your Honor, 1787 01:30:58,200 --> 01:31:00,200 reasonable foreseeability, 1788 01:31:00,280 --> 01:31:02,720 that's natural and probable consequences. 1789 01:31:02,720 --> 01:31:05,200 That's just rehashing a doctrine of murder 1790 01:31:05,200 --> 01:31:07,440 that no longer exists. Certainly we agree -- 1791 01:31:07,440 --> 01:31:08,840 Justice Liu: No, no longer exists. 1792 01:31:08,840 --> 01:31:10,600 I'm just saying that it's a jury finding. 1793 01:31:10,600 --> 01:31:12,760 Michelle Peterson: And we have no doubt 1794 01:31:12,760 --> 01:31:16,880 that the jury -- that's what it took for the jury 1795 01:31:16,880 --> 01:31:19,440 to get to a finding of first degree murder. 1796 01:31:19,440 --> 01:31:21,840 That somebody, another gang member 1797 01:31:21,840 --> 01:31:23,760 pulling out a gun and blowing somebody away 1798 01:31:23,760 --> 01:31:26,760 as a reasonably foreseeable consequence 1799 01:31:26,800 --> 01:31:30,920 of being involved in shouting out gang challenges. 1800 01:31:30,920 --> 01:31:32,960 But that's not your improbable consequences. 1801 01:31:32,960 --> 01:31:35,720 If the jury -- And that's the whole point. 1802 01:31:35,720 --> 01:31:39,640 An 1172.6 petition nowadays, we can't consider that. 1803 01:31:39,640 --> 01:31:42,960 So we can't consider what was reasonably foreseeable. 1804 01:31:42,960 --> 01:31:44,800 There's a huge difference 1805 01:31:44,800 --> 01:31:47,800 between what is reasonably foreseeable 1806 01:31:48,400 --> 01:31:52,840 and what the evidence actually shows Mr. Curiel 1807 01:31:53,120 --> 01:31:55,520 to have subjectively foreseen. 1808 01:31:56,640 --> 01:32:00,240 Yes, if he subjectively foresaw that, 1809 01:32:00,680 --> 01:32:04,760 if he uttered a gang, you know, if he said OTH, 1810 01:32:04,760 --> 01:32:08,960 then Cesar Tejada would push Abraham Hernandez, 1811 01:32:09,680 --> 01:32:12,560 and Hernandez would then take out a gun and blow him away. 1812 01:32:12,560 --> 01:32:15,160 Sure, If he subjectively foresaw that, 1813 01:32:15,160 --> 01:32:17,480 then that would be evidence toward aiding. 1814 01:32:17,480 --> 01:32:18,880 But there's no evidence of that. 1815 01:32:18,880 --> 01:32:22,760 That is such a farfetched speculative theory. 1816 01:32:22,760 --> 01:32:25,880 And speculative theories simply don't rise 1817 01:32:25,880 --> 01:32:29,720 to the level of evidence. So we can't use that as a basis 1818 01:32:29,720 --> 01:32:32,560 for precluding Mr. Curiel from his current petition. 1819 01:32:32,560 --> 01:32:34,800 Chief Justice Guerrero: Assume that you could use 1820 01:32:34,800 --> 01:32:36,720 that finding, or a jury finding, 1821 01:32:36,720 --> 01:32:39,720 what would your argument be? 1822 01:32:41,400 --> 01:32:44,760 Michelle Peterson: If you could use a jury finding 1823 01:32:44,760 --> 01:32:49,000 that is based on no evidence, what would the argument be? 1824 01:32:49,000 --> 01:32:50,680 Chief Justice Guerrero: Yes. Michelle Peterson: Okay. 1825 01:32:50,680 --> 01:32:52,400 Chief Justice Guerrero: Assume with me, 1826 01:32:52,400 --> 01:32:53,440 even though you clearly disagree. 1827 01:32:53,440 --> 01:32:55,360 But I'm not talking about the sufficiency. 1828 01:32:55,360 --> 01:32:57,640 I want you to be able to respond 1829 01:32:57,640 --> 01:33:00,760 to counsel's argument on that point. 1830 01:33:00,760 --> 01:33:04,200 Michelle Peterson: Thank you, Justice Guerrero. 1831 01:33:04,200 --> 01:33:05,840 I'd say two things along those lines. 1832 01:33:05,840 --> 01:33:10,720 First of all, in many respects, that harkens me back 1833 01:33:10,720 --> 01:33:14,320 to the Court of Appeal opinions 1834 01:33:14,840 --> 01:33:18,200 that preceded this court's opinion in People v. Strong. 1835 01:33:18,200 --> 01:33:20,680 There was the Secrease opinion, the Pineda opinion. 1836 01:33:20,680 --> 01:33:23,320 There were two others. I can't remember the names of them. 1837 01:33:23,320 --> 01:33:25,360 They're already published now. 1838 01:33:25,360 --> 01:33:27,600 And this court rejected them in Strong. 1839 01:33:27,600 --> 01:33:33,800 But the premise of those opinions was that in order to -- 1840 01:33:33,800 --> 01:33:34,960 in the Strong type situation, 1841 01:33:34,960 --> 01:33:37,840 in order to be able to make a prima facie case, 1842 01:33:37,840 --> 01:33:40,200 you had to show there was no substantial evidence 1843 01:33:40,200 --> 01:33:42,000 under current law. 1844 01:33:42,000 --> 01:33:44,240 Now we don't agree that that is the only way 1845 01:33:44,240 --> 01:33:45,560 to make a prima facie case, 1846 01:33:45,560 --> 01:33:47,240 and this court rejected that in Strong. 1847 01:33:47,240 --> 01:33:51,560 But we would agree that is a way to make a prima facie case. 1848 01:33:51,560 --> 01:33:55,400 And in that respect, this court never rejected that and Strong. 1849 01:33:55,400 --> 01:33:56,680 And it makes perfect sense, 1850 01:33:56,680 --> 01:34:01,400 because if there's no evidence to support a conclusion 1851 01:34:01,400 --> 01:34:05,800 that a person is liable for malice murder under current law, 1852 01:34:05,800 --> 01:34:07,880 how can that not be a prima facie case 1853 01:34:07,880 --> 01:34:10,800 that there's enough evidence to go to an evidentiary hearing? 1854 01:34:10,800 --> 01:34:12,280 Justice Liu: If I may, Ms. Peterson, 1855 01:34:12,280 --> 01:34:14,800 I think you made a crucial point a second ago, 1856 01:34:14,800 --> 01:34:16,400 which I don't think we focused on enough, 1857 01:34:16,400 --> 01:34:18,440 which is that the reasonable foreseeable -- 1858 01:34:18,440 --> 01:34:20,840 reasonable foreseeability finding, right, 1859 01:34:21,560 --> 01:34:23,320 is an objective finding by the jury. 1860 01:34:23,320 --> 01:34:26,920 It is not a finding about a state of mind. Yeah. 1861 01:34:26,920 --> 01:34:28,800 Michelle Peterson: Yes, I absolutely agree with that. 1862 01:34:28,800 --> 01:34:32,360 And that's the linkage that my esteemed colleague 1863 01:34:32,360 --> 01:34:35,360 has failed to make here. 1864 01:34:35,720 --> 01:34:38,720 She talks about what's foreseeable, 1865 01:34:39,160 --> 01:34:42,360 what's objectively foreseeable, what's objectively foreseeable. 1866 01:34:42,360 --> 01:34:43,920 And I guess that's part of the reason 1867 01:34:43,920 --> 01:34:46,200 that I have kind of gotten stuck on that's natural 1868 01:34:46,200 --> 01:34:47,920 and probable consequences. 1869 01:34:47,920 --> 01:34:52,720 Because to get to aiding and abetting murder 1870 01:34:52,800 --> 01:34:55,960 with malice nowadays, that's not enough. 1871 01:34:55,960 --> 01:34:59,560 You need subjective intent, subjective knowledge, 1872 01:35:00,200 --> 01:35:02,640 to kill this particular victim. 1873 01:35:02,640 --> 01:35:05,440 And that is not embodied in a finding of natural 1874 01:35:05,440 --> 01:35:07,440 and probable consequences. 1875 01:35:10,240 --> 01:35:11,520 Does the court have any more questions 1876 01:35:11,520 --> 01:35:13,200 on that particular point? 1877 01:35:13,200 --> 01:35:16,640 Of these points relevant to the Court that Appeal's opinion? 1878 01:35:16,640 --> 01:35:19,320 I just have a couple of other things 1879 01:35:19,320 --> 01:35:23,760 that I want to say along those lines. 1880 01:35:23,760 --> 01:35:25,800 Justice Liu: Could you address -- 1881 01:35:25,800 --> 01:35:27,400 We haven't spent much time on this, 1882 01:35:27,400 --> 01:35:30,800 but it has come up. On the issue preclusion point, 1883 01:35:30,800 --> 01:35:37,400 why is this finding of intent to kill not preclusive under, 1884 01:35:38,680 --> 01:35:40,800 well, I must say, issue of preclusion 1885 01:35:40,800 --> 01:35:44,280 is not the easiest doctrine to understand. 1886 01:35:44,280 --> 01:35:48,360 But in in common sense sort of equitable fairness 1887 01:35:48,360 --> 01:35:51,360 kind of terms, what is missing here? 1888 01:35:51,360 --> 01:35:53,600 Was there a lack of incentive to litigate this? 1889 01:35:53,600 --> 01:35:55,600 Was there a lack of opportunity to litigate this? 1890 01:35:55,600 --> 01:35:59,920 Was there something different about the finding made 1891 01:35:59,920 --> 01:36:02,800 then with regard to the special circumstance 1892 01:36:02,800 --> 01:36:05,600 versus what an intent to kill looks like 1893 01:36:05,600 --> 01:36:07,800 for regular murder liability? 1894 01:36:07,800 --> 01:36:12,600 What would be the hang up for issue preclusion? 1895 01:36:12,600 --> 01:36:15,920 Michelle Peterson: The hang-ups are many, Justice Liu. 1896 01:36:15,920 --> 01:36:21,000 The three primary hang ups are lack of foreseeability. 1897 01:36:21,000 --> 01:36:24,600 Lack of foreseeability is divided into two subcategories. 1898 01:36:24,600 --> 01:36:26,840 The whole reason that we're here, in a sense, 1899 01:36:26,840 --> 01:36:32,240 is because trial counsel in 2006 chose not to argue, 1900 01:36:32,560 --> 01:36:35,760 "But if you find my client guilty of murder, 1901 01:36:35,760 --> 01:36:37,000 then you should at least find 1902 01:36:37,000 --> 01:36:38,640 the special circumstance not true." 1903 01:36:38,640 --> 01:36:41,200 And that wouldn't have made any sense to do so, 1904 01:36:41,200 --> 01:36:43,440 because then he'd be telling the jury, "Yeah, 1905 01:36:43,440 --> 01:36:46,160 you can find my client guilty, 1906 01:36:46,160 --> 01:36:48,640 and we'll just take the sentence of 50 years to life," 1907 01:36:48,640 --> 01:36:51,400 which this court knows is the functional equivalent of LWOP. 1908 01:36:51,400 --> 01:36:53,720 Of course he didn't argue that. 1909 01:36:53,720 --> 01:36:55,560 And so that's problem number one. 1910 01:36:55,560 --> 01:37:01,560 Now, since he didn't argue it and certainly lacked incentive 1911 01:37:01,800 --> 01:37:05,960 to make that argument, let alone vigorously and forcefully, 1912 01:37:05,960 --> 01:37:08,800 the attorney general is saying, "Well, that that's enough. 1913 01:37:08,800 --> 01:37:10,800 Too bad, so sad." 1914 01:37:10,800 --> 01:37:11,960 Justice Liu: Well, that -- Well, let me just pause there. 1915 01:37:11,960 --> 01:37:13,440 I mean, that's a problem 1916 01:37:13,440 --> 01:37:14,960 that inheres in lots of cases, though. 1917 01:37:14,960 --> 01:37:18,800 I mean, defense counsel makes tactical choices. 1918 01:37:18,800 --> 01:37:23,320 They face numerous charges. Sometimes you try to make 1919 01:37:23,320 --> 01:37:24,760 all the arguments in the alternative, 1920 01:37:24,760 --> 01:37:26,280 even though that may erode your credibility. 1921 01:37:26,280 --> 01:37:28,520 But these are, but these are choices 1922 01:37:28,520 --> 01:37:30,280 that the defendants have to make. 1923 01:37:30,280 --> 01:37:31,280 Michelle Peterson: First, Your Honor, 1924 01:37:31,280 --> 01:37:32,880 I agree totally with that. 1925 01:37:32,880 --> 01:37:36,240 The problem is that when we talk about tactical choices, 1926 01:37:36,240 --> 01:37:37,760 where we tend to be using the language 1927 01:37:37,760 --> 01:37:39,680 of ineffective assistance of counsel. 1928 01:37:39,680 --> 01:37:42,800 This is not an ineffective assistance of counsel argument. 1929 01:37:42,800 --> 01:37:45,400 It wasn't that counsel lacked competence. 1930 01:37:45,400 --> 01:37:48,400 What counsel lacked was a crystal ball. 1931 01:37:48,400 --> 01:37:52,200 He couldn't possibly foresee that 12 years later, 1932 01:37:52,200 --> 01:37:55,720 suddenly I'd be standing here, well 17 years later, 1933 01:37:55,720 --> 01:37:59,920 and we'd be arguing over the preclusive effect of legislation 1934 01:37:59,920 --> 01:38:02,120 that didn't even exist in 2006. And that nobody -- 1935 01:38:02,120 --> 01:38:04,880 Chief Justice Guerrero: But looking at the intent to kill component of it... 1936 01:38:04,880 --> 01:38:06,880 Michelle Peterson: Correct. 1937 01:38:06,920 --> 01:38:09,240 Chief Justice Guerrero: ...and that was an element of the offense? 1938 01:38:09,240 --> 01:38:10,800 Michelle Peterson: It's an element of the special. 1939 01:38:10,800 --> 01:38:12,320 Chief Justice Guerrero: Why wasn't there 1940 01:38:12,320 --> 01:38:15,160 an adequate opportunity to litigate that issue? 1941 01:38:15,160 --> 01:38:16,880 Michelle Peterson: Because the issue preclusion 1942 01:38:16,880 --> 01:38:19,640 exceptions that are recognized by the second restatement, 1943 01:38:19,640 --> 01:38:20,920 as Justice Liu said, 1944 01:38:20,920 --> 01:38:23,560 it's a little bit of an abstruse topic. 1945 01:38:23,560 --> 01:38:27,000 Include lack of foreseeability of preclusive consequences, 1946 01:38:27,000 --> 01:38:29,240 in fact, I would turn back to this court's decision 1947 01:38:29,240 --> 01:38:31,760 in Murray versus Alaska Airlines 1948 01:38:31,760 --> 01:38:35,600 as a really good illustration of that particular point. 1949 01:38:35,600 --> 01:38:39,440 In Murray, which we talked about in our answer 1950 01:38:39,440 --> 01:38:45,760 to the OSPD's amicus brief, the court divided four to three. 1951 01:38:45,760 --> 01:38:47,640 But they didn't divide four to three -- 1952 01:38:47,640 --> 01:38:50,280 it didn't divide four to three on the importance 1953 01:38:50,280 --> 01:38:53,280 of foreseeability of preclusive consequences. 1954 01:38:53,560 --> 01:38:55,200 What it divided four to three on 1955 01:38:55,200 --> 01:38:57,920 was whether the particular action 1956 01:38:57,920 --> 01:39:02,120 taken by Murray in that case, which was not -- 1957 01:39:02,120 --> 01:39:04,360 which was to abandon as administrative remedy 1958 01:39:04,360 --> 01:39:08,120 and not to request an ALJ hearing, 1959 01:39:08,120 --> 01:39:10,200 would have issued preclusive consequences. 1960 01:39:10,200 --> 01:39:15,360 The majority said yes because he had noticed foreseeability, 1961 01:39:15,360 --> 01:39:18,560 that it would have issue preclusive consequences. 1962 01:39:18,560 --> 01:39:22,160 Justice Werdegar's three-justice dissent said no. 1963 01:39:22,920 --> 01:39:26,200 There was no notice of the foreseeability 1964 01:39:26,200 --> 01:39:28,800 of preclusive consequences. 1965 01:39:28,800 --> 01:39:30,840 And here's all the reasons why foreseeability 1966 01:39:30,840 --> 01:39:32,480 of preclusive consequences 1967 01:39:32,480 --> 01:39:36,600 is extremely important to any form of issue preclusion. 1968 01:39:36,600 --> 01:39:39,200 So all seven members of the court 1969 01:39:39,200 --> 01:39:41,600 focused on foreseeability, notice, 1970 01:39:42,480 --> 01:39:45,520 if you will, of preclusive consequences 1971 01:39:45,520 --> 01:39:48,840 as crucial to the doctrine issue preclusion. 1972 01:39:48,840 --> 01:39:51,400 You have none of that here. 1973 01:39:51,400 --> 01:39:55,600 So that's problem number one, that nobody in 2006 could have 1974 01:39:55,600 --> 01:40:00,400 foreseen the issue of preclusive consequences of SB1437 1975 01:40:00,400 --> 01:40:03,000 because nobody could have foreseen SB1437. 1976 01:40:03,000 --> 01:40:04,560 Justice Corrigan: But that's slightly different 1977 01:40:04,560 --> 01:40:08,760 from an incentive to raise the issue. 1978 01:40:09,520 --> 01:40:14,800 And it is certainly not unheard of in death penalty cases 1979 01:40:14,800 --> 01:40:20,480 for most of the dispute to be about the specials. 1980 01:40:20,480 --> 01:40:24,480 And I think it's a little too blithe to say, 1981 01:40:24,480 --> 01:40:26,800 well, he was going to get a long sentence anyway, 1982 01:40:26,800 --> 01:40:28,600 so there was no incentive 1983 01:40:28,600 --> 01:40:31,240 to try to take the death penalty off the table. 1984 01:40:31,240 --> 01:40:36,400 That seems like a difficult argument to make. 1985 01:40:37,800 --> 01:40:39,120 Michelle Peterson: This wasn't a capital case. 1986 01:40:39,120 --> 01:40:40,640 Does that matter, Your Honor? 1987 01:40:40,640 --> 01:40:42,560 Justice Corrigan: Well, it matters whether or not 1988 01:40:42,560 --> 01:40:48,560 it's going to be a life without full stop or life with. 1989 01:40:48,560 --> 01:40:50,200 Michelle Peterson: In 50 years. 1990 01:40:50,200 --> 01:40:52,560 Justice Corrigan: Well, depending on how the court -- 1991 01:40:52,560 --> 01:40:54,640 whether the court makes 1992 01:40:54,640 --> 01:40:57,800 other sentences consecutive and all the rest. 1993 01:40:57,800 --> 01:41:05,600 But to avoid a life without full stop sentence seems to be -- 1994 01:41:05,600 --> 01:41:09,800 if you can do it, seems to be a pretty fair incentive. 1995 01:41:09,800 --> 01:41:10,560 Michelle Peterson: Well, actually, it wouldn't 1996 01:41:10,560 --> 01:41:12,120 have been consecutive sentences, Your Honor, 1997 01:41:12,120 --> 01:41:15,520 because it would be an automatic 25 to life for the murder 1998 01:41:15,520 --> 01:41:19,600 and an extra 25 to life for the gun under 1202 2253(e). 1999 01:41:19,600 --> 01:41:22,120 It was an automatic sentence of 50 years to life. 2000 01:41:22,120 --> 01:41:23,400 But I think, Justice Corrigan, 2001 01:41:23,400 --> 01:41:25,920 your question is really well addressed 2002 01:41:25,920 --> 01:41:29,000 kind of in the broader questions that this court has to face, 2003 01:41:29,000 --> 01:41:31,400 which is, well, let's say it's 35 years to life, 2004 01:41:31,400 --> 01:41:33,720 or let's say it's 25 years to life. 2005 01:41:33,720 --> 01:41:36,760 And so I don't want to be on record 2006 01:41:36,760 --> 01:41:40,680 as having said that there was no incentive there. 2007 01:41:40,680 --> 01:41:42,760 There's always some incentive. 2008 01:41:42,760 --> 01:41:48,760 But the case law that talks about this particular exception, 2009 01:41:49,560 --> 01:41:52,320 and we cited the Sokol case, which is one of the reasons 2010 01:41:52,320 --> 01:41:55,280 that we focused on incentive. 2011 01:41:55,280 --> 01:41:57,200 It kind of goes in two different directions, 2012 01:41:57,200 --> 01:41:59,320 and they all lead back to the same place. 2013 01:41:59,320 --> 01:42:01,960 One is let's take a hypothetical that 2014 01:42:01,960 --> 01:42:04,920 in a civil case a person who's out of state is sued 2015 01:42:04,920 --> 01:42:09,560 for $1.00 in small claims court, and they default. 2016 01:42:09,560 --> 01:42:13,360 The attorney general's position is that's it. 2017 01:42:13,360 --> 01:42:14,800 Their issue precluded, 2018 01:42:14,800 --> 01:42:17,320 so that later there's a case for $1,000,000, 2019 01:42:17,320 --> 01:42:19,600 they can't litigate anything because their issue precluded 2020 01:42:19,600 --> 01:42:22,400 on everything. That's not the law. 2021 01:42:22,400 --> 01:42:23,840 The restatement doesn't support that. 2022 01:42:23,840 --> 01:42:25,600 It's contrary to the restatement. 2023 01:42:25,600 --> 01:42:27,720 It's contrary to all of the case law in this area. 2024 01:42:27,720 --> 01:42:30,400 So it's not just that, well, yes, 2025 01:42:30,400 --> 01:42:32,880 they could have submitted evidence, but they didn't. 2026 01:42:32,880 --> 01:42:35,240 And they can argue but they didn't do so. 2027 01:42:35,240 --> 01:42:37,480 That's not the law of issue preclusion. 2028 01:42:37,480 --> 01:42:39,400 And the other thing we would point out 2029 01:42:39,400 --> 01:42:43,640 and it kind of goes along those lines is that in the cases 2030 01:42:43,640 --> 01:42:49,360 that we signed an argument 1(d) of our responsive brief, 2031 01:42:49,360 --> 01:42:51,800 a lot of those cases, 2032 01:42:51,800 --> 01:42:53,720 one or two of which were cited in the US Supreme 2033 01:42:53,720 --> 01:42:58,400 Court's opinion of Park Lane Hosiery versus Shore. 2034 01:42:58,400 --> 01:43:01,400 Where cases where there's litigation 2035 01:43:02,960 --> 01:43:04,960 for some relatively small amount 2036 01:43:04,960 --> 01:43:07,880 and nobody's anticipating the later litigation. 2037 01:43:07,880 --> 01:43:11,400 And so they don't contest the small amount litigation much 2038 01:43:11,400 --> 01:43:12,720 or they default or whatever. 2039 01:43:12,720 --> 01:43:16,800 And suddenly later there's a litigation for $200 million 2040 01:43:16,800 --> 01:43:17,640 that they didn't foresee. 2041 01:43:17,640 --> 01:43:21,840 So there's also an interplay between foreseeability 2042 01:43:22,480 --> 01:43:24,120 of issue preclusive consequences, 2043 01:43:24,120 --> 01:43:28,120 which I just talked about, and incentive to litigate. 2044 01:43:28,120 --> 01:43:31,120 If because of the un-foreseeability 2045 01:43:31,160 --> 01:43:33,160 of the future litigation 2046 01:43:33,160 --> 01:43:35,320 at the time of the original case, 2047 01:43:35,320 --> 01:43:40,120 there are some impairments of incentive to litigate, 2048 01:43:41,800 --> 01:43:43,600 and it's not any incentive to litigate. 2049 01:43:43,600 --> 01:43:46,720 The case law says incentive to litigate vigorously 2050 01:43:46,720 --> 01:43:50,000 or to the hilt and as in Herring versus Precise. 2051 01:43:50,000 --> 01:43:54,200 When you've got that combination of un-foreseeability 2052 01:43:55,600 --> 01:43:58,280 and low incentive in the first case, 2053 01:43:58,280 --> 01:44:00,000 you have no issue preclusion. 2054 01:44:00,000 --> 01:44:03,800 And I would further, Justice Corrigan and the court, 2055 01:44:03,800 --> 01:44:09,440 to argument 1(d) of our brief where we talked about that. 2056 01:44:09,440 --> 01:44:13,560 We did talk about incentives separately in argument 1(c), 2057 01:44:13,560 --> 01:44:16,640 simply because Sokol from the Second Circuit 2058 01:44:16,640 --> 01:44:21,000 was an interesting case where there was foreseeability, 2059 01:44:21,000 --> 01:44:25,800 but the defendant's position, it was a doctor, 2060 01:44:26,280 --> 01:44:27,880 and he didn't want to be convicted 2061 01:44:27,880 --> 01:44:29,800 because if he gets convicted, he'd lose his license. 2062 01:44:29,800 --> 01:44:32,880 So he and his counsel focused everything 2063 01:44:32,880 --> 01:44:35,440 on trying to get acquitted. 2064 01:44:35,440 --> 01:44:38,720 And this local court held that despite the foreseeability 2065 01:44:38,720 --> 01:44:41,120 of issue preclusive consequences, 2066 01:44:41,200 --> 01:44:42,880 the incentive was not there. 2067 01:44:42,880 --> 01:44:46,240 And that too, even apart from foreseeability, 2068 01:44:46,240 --> 01:44:50,680 is the position that we saw Bill Kelly in 2006, 2069 01:44:50,680 --> 01:44:52,640 that he's trying to get a client acquitted. 2070 01:44:52,640 --> 01:44:55,480 He doesn't want 50 years to life. 2071 01:44:55,480 --> 01:44:59,400 So he's in the same position as Dr. Sokol. 2072 01:44:59,400 --> 01:45:04,440 But when you combine that with the foreseeability question, 2073 01:45:04,440 --> 01:45:06,920 the restatement, second restatement of judgments 2074 01:45:06,920 --> 01:45:10,440 is very firm and say no issue preclusion. 2075 01:45:10,440 --> 01:45:12,320 Chief Justice Guerrero: We've taken you over your time. 2076 01:45:12,320 --> 01:45:13,560 Michelle Peterson: Thank you, Chief Justice. 2077 01:45:13,560 --> 01:45:14,520 Chief Justice Guerrero: Thank you. 2078 01:45:14,520 --> 01:45:15,960 We appreciate your argument. 2079 01:45:15,960 --> 01:45:20,400 Michelle May Peterson: I appreciate the time. 2080 01:45:20,400 --> 01:45:21,440 Chief Justice Guerrero: Ms. McGinnis, 2081 01:45:21,440 --> 01:45:22,800 you have seven minutes. 2082 01:45:22,800 --> 01:45:24,360 Lynne McGinnis: Thank you, Your Honor. 2083 01:45:24,360 --> 01:45:26,840 I just want to point out first of all that counsel 2084 01:45:26,840 --> 01:45:29,400 isn't entirely correct about the instructions, 2085 01:45:29,400 --> 01:45:31,000 because they were given direct 2086 01:45:31,000 --> 01:45:32,520 aiding and abetting instructions. 2087 01:45:32,520 --> 01:45:34,680 They were not just instructed on the natural 2088 01:45:34,680 --> 01:45:37,400 and probable consequences doctrine. 2089 01:45:37,400 --> 01:45:39,640 They were given CALCRIM 400 and 401 2090 01:45:39,640 --> 01:45:42,640 regarding the requirements for direct aiding and abetting, 2091 01:45:42,640 --> 01:45:45,560 which did include a knowledge requirement. 2092 01:45:45,560 --> 01:45:49,560 And it's our position that once they found an intent to kill, 2093 01:45:49,560 --> 01:45:51,960 rather than just foreseeability, 2094 01:45:52,800 --> 01:45:54,320 he became a direct aider and abetter. 2095 01:45:54,320 --> 01:45:56,000 And they would have turned to 2096 01:45:56,000 --> 01:45:59,960 the direct aiding and abetting instructions for guidance. 2097 01:45:59,960 --> 01:46:03,600 I want to talk a little about this issue preclusion idea 2098 01:46:03,600 --> 01:46:06,560 and the question of incentive to litigate. 2099 01:46:06,560 --> 01:46:09,360 And as I understand counsel's argument, 2100 01:46:09,360 --> 01:46:14,000 the argument is that 1172.6 is a change in law, 2101 01:46:14,000 --> 01:46:15,960 and it was unforeseeable 2102 01:46:15,960 --> 01:46:18,960 and that there was no incentive to litigate. 2103 01:46:18,960 --> 01:46:21,840 The problem I'm having with that argument 2104 01:46:21,840 --> 01:46:25,360 is that no one can make a prima facie case 2105 01:46:25,360 --> 01:46:28,960 if that's what the collateral estoppel 2106 01:46:29,480 --> 01:46:31,480 unforeseeability requirement meant. 2107 01:46:32,480 --> 01:46:36,840 But the legislature indeed built a prima facie case requirement 2108 01:46:36,840 --> 01:46:38,840 into the statute. 2109 01:46:39,640 --> 01:46:42,520 And this court stated in Strong, for example, 2110 01:46:42,520 --> 01:46:46,880 that post Banks and Clark findings would preclude 2111 01:46:46,880 --> 01:46:51,160 a defendant from making a prima facie case for relief. 2112 01:46:51,160 --> 01:46:53,800 But the same thing, no incentive to litigate 2113 01:46:53,800 --> 01:46:57,920 or unforeseeability could be said about a defendant 2114 01:46:57,920 --> 01:47:00,840 who had a felony murder charge 2115 01:47:00,840 --> 01:47:04,920 or felony murder theory and special circumstance. 2116 01:47:04,920 --> 01:47:07,840 That's -- While felony murder was easy, 2117 01:47:07,840 --> 01:47:11,400 so we're not going to contest the special circumstance. 2118 01:47:11,400 --> 01:47:14,920 Now collateral estoppel can certainly be used as a guide 2119 01:47:14,920 --> 01:47:18,760 and was used in Strong. But it's an equitable doctrine 2120 01:47:18,760 --> 01:47:22,280 and has to be considered along with the principle 2121 01:47:22,280 --> 01:47:24,400 that the legislature did not want 2122 01:47:24,400 --> 01:47:28,800 to have all murder defendants go to a resentencing hearing. 2123 01:47:28,800 --> 01:47:32,360 And the arguments made by counsel, for example, 2124 01:47:32,360 --> 01:47:36,680 Sanchez, Sargon, Valencia being changes in the law, 2125 01:47:36,680 --> 01:47:39,600 if we apply those as changes in the law, 2126 01:47:39,600 --> 01:47:43,240 then even defendants who were not convicted 2127 01:47:43,240 --> 01:47:45,800 on faulty theories, 2128 01:47:45,800 --> 01:47:47,120 if they were only given, for example, 2129 01:47:47,120 --> 01:47:48,920 direct aiding and abetting instructions, 2130 01:47:48,920 --> 01:47:51,800 they could say, well, Sanchez or Valencia 2131 01:47:51,800 --> 01:47:56,520 or AB 333 or Sargon constitutes a change in the law. 2132 01:47:56,520 --> 01:47:58,600 And so I want my murder conviction 2133 01:47:58,600 --> 01:48:01,640 to be relitigated in an evidentiary hearing. 2134 01:48:01,640 --> 01:48:06,480 But that's clearly not what the legislature intended. Now. 2135 01:48:06,480 --> 01:48:08,200 Chief Justice Guerrero: Could you also address 2136 01:48:08,200 --> 01:48:09,880 the argument that 2137 01:48:09,880 --> 01:48:13,320 they actually litigated incentive to litigate component 2138 01:48:13,320 --> 01:48:16,600 as an exception to issue preclusion? 2139 01:48:16,600 --> 01:48:20,600 Specifically the Contreras case and the argument being that 2140 01:48:20,600 --> 01:48:23,480 there was a finding there that LWOP and 50 years 2141 01:48:23,480 --> 01:48:25,320 are functionally equivalent. 2142 01:48:25,320 --> 01:48:26,920 Lynne McGinnis: Certainly, Your Honor. 2143 01:48:26,920 --> 01:48:31,200 Again, we have to look -- That that goes to the problem 2144 01:48:31,200 --> 01:48:35,400 with, number one, rendering all murder convictions 2145 01:48:36,400 --> 01:48:37,800 where there were no faulty theories 2146 01:48:37,800 --> 01:48:40,600 and a person didn't have incentive to litigate. 2147 01:48:40,600 --> 01:48:43,600 If you superimpose that collateral estoppel requirement 2148 01:48:43,600 --> 01:48:45,400 and you have a murder conviction 2149 01:48:45,400 --> 01:48:47,600 where just direct aiding and abetting theories, 2150 01:48:47,600 --> 01:48:49,360 the defendant could say, under principles 2151 01:48:49,360 --> 01:48:50,600 of collateral estoppel, 2152 01:48:50,600 --> 01:48:52,680 "I didn't have incentive to litigate, 2153 01:48:52,680 --> 01:48:55,880 therefore I'm entitled to an evidentiary hearing." 2154 01:48:55,880 --> 01:49:01,880 The other problem we have is that it's unfair because, 2155 01:49:02,600 --> 01:49:06,320 and it involves looking beyond the record of conviction 2156 01:49:06,320 --> 01:49:09,440 to see whether the defendant is entitled to relief. 2157 01:49:09,440 --> 01:49:13,640 For example, in some cases, this was a 50 to life case, 2158 01:49:13,640 --> 01:49:17,800 but there could be a case where there was no gun enhancement 2159 01:49:17,800 --> 01:49:18,960 and it's 25 to life. 2160 01:49:18,960 --> 01:49:23,200 So in those cases they would not get an evidentiary hearing. 2161 01:49:23,200 --> 01:49:27,600 And that goes beyond looking at the record of conviction. 2162 01:49:27,600 --> 01:49:29,440 The other problem with incentive 2163 01:49:29,440 --> 01:49:32,480 that goes beyond looking to the record of conviction 2164 01:49:32,480 --> 01:49:35,560 is we would have to look at the record to see 2165 01:49:35,560 --> 01:49:38,480 if something was litigated or was not litigated. 2166 01:49:38,480 --> 01:49:40,800 And that involves precisely the kind of fact 2167 01:49:40,800 --> 01:49:43,880 finding that the legislature did not want to do 2168 01:49:43,880 --> 01:49:47,480 in the prima facie case stage. 2169 01:49:47,600 --> 01:49:49,400 The other thing I wanted to point out 2170 01:49:49,400 --> 01:49:51,440 is, certainly, we have come a long way 2171 01:49:51,440 --> 01:49:53,400 in our understanding of gang cases 2172 01:49:53,400 --> 01:49:56,960 since this case was tried in 2006. 2173 01:49:56,960 --> 01:50:01,240 And there have been a lot of developments in the gang laws. 2174 01:50:01,240 --> 01:50:03,800 And the arguments, you know, about insufficiency 2175 01:50:03,800 --> 01:50:08,720 of the evidence in Sanchez and Sargon are understandable. 2176 01:50:08,720 --> 01:50:12,320 But the question is whether 1170.2.6 is 2177 01:50:13,160 --> 01:50:16,760 the remedy for rectifying these problems. 2178 01:50:17,360 --> 01:50:19,680 There are a lot of special circumstances 2179 01:50:19,680 --> 01:50:22,400 that require an intent to kill, 2180 01:50:22,400 --> 01:50:25,880 and in Strong this court pointed out a number of them. 2181 01:50:25,880 --> 01:50:30,800 There's the witness killing, the juror killing, 2182 01:50:30,720 --> 01:50:34,320 the judge killing, the torture killing. 2183 01:50:35,160 --> 01:50:38,760 And a requirement that goes beyond 2184 01:50:39,280 --> 01:50:41,400 looking to the record of conviction 2185 01:50:41,400 --> 01:50:43,800 and the malice murder requirement 2186 01:50:43,800 --> 01:50:49,200 of what the legislature intended to do with section 1170.2.6 2187 01:50:49,720 --> 01:50:53,600 would affect a large number of these cases. 2188 01:50:53,600 --> 01:50:55,400 Now there may indeed, 2189 01:50:55,400 --> 01:50:59,200 may or may not be other remedies for gang cases. 2190 01:50:59,200 --> 01:51:03,640 The other difficulty I'm having is what I alluded to earlier 2191 01:51:03,640 --> 01:51:06,400 is that there are gang cases out there 2192 01:51:06,400 --> 01:51:08,960 where there were no instructions on natural 2193 01:51:08,960 --> 01:51:10,640 and probable consequences. 2194 01:51:10,640 --> 01:51:13,400 And they're based on the same evidence, 2195 01:51:13,400 --> 01:51:16,760 type evidence that we had in this case. 2196 01:51:16,760 --> 01:51:21,520 And the defendant doesn't get to petition for resentencing 2197 01:51:21,520 --> 01:51:25,640 because that evidence is no longer admissible today. 2198 01:51:25,640 --> 01:51:29,400 The remedy, if any, lies with other -- 2199 01:51:29,400 --> 01:51:32,680 If there is a remedy, it lies with other means, 2200 01:51:32,680 --> 01:51:36,520 such as determining whether Sanchez, Sargon, or AB 333 2201 01:51:36,520 --> 01:51:39,520 are retroactive to final judgment. 2202 01:51:41,400 --> 01:51:44,480 And so I would encourage this court, 2203 01:51:44,480 --> 01:51:48,400 and the last thing I would point out is that, again -- 2204 01:51:48,400 --> 01:51:49,880 Justice Evans: Counsel, say more about that. 2205 01:51:49,880 --> 01:51:52,160 What is your -- What is your problem or question? 2206 01:51:52,160 --> 01:51:55,320 What is the -- You have a problem or question 2207 01:51:55,320 --> 01:51:58,760 with the disparity between those two classes of cases? 2208 01:51:58,760 --> 01:52:01,000 What is -- What's the point you're making there? 2209 01:52:01,000 --> 01:52:02,720 Lynne McGinnis: I'm sorry. The point I'm making, 2210 01:52:02,720 --> 01:52:05,280 Your Honor, is that clearly, if there were only direct 2211 01:52:05,280 --> 01:52:08,520 aiding and abetting theories instructed on, 2212 01:52:08,520 --> 01:52:11,800 then the person would not pass 2213 01:52:11,800 --> 01:52:13,640 the prima facie case requirement. 2214 01:52:13,640 --> 01:52:16,000 They would not get an evidentiary hearing. 2215 01:52:16,000 --> 01:52:17,880 We couldn't say, for example, 2216 01:52:17,880 --> 01:52:22,800 that under 1172.6 this gang evidence was skimpy 2217 01:52:22,760 --> 01:52:25,280 and is no longer admissible today. 2218 01:52:25,280 --> 01:52:27,480 So we're going to go to an evidentiary 2219 01:52:27,480 --> 01:52:29,480 hearing under 1172.6. 2220 01:52:30,400 --> 01:52:33,360 But under my friend, on the other side's theory, 2221 01:52:33,360 --> 01:52:35,560 we could say because there was a natural 2222 01:52:35,560 --> 01:52:37,600 and probable consequences instruction, 2223 01:52:37,600 --> 01:52:40,280 even though it didn't factor into the jury's decision 2224 01:52:40,280 --> 01:52:42,560 because they found an intent to kill, 2225 01:52:42,560 --> 01:52:45,400 we could go to an evidentiary hearing on this 2226 01:52:45,400 --> 01:52:48,800 now what we consider to be skimpy gang evidence. 2227 01:52:48,800 --> 01:52:51,680 And that's not what the, the legislature did create 2228 01:52:51,680 --> 01:52:54,680 this private fascia case requirement. 2229 01:52:56,760 --> 01:53:00,600 I would just urge the court to look at this record 2230 01:53:00,600 --> 01:53:02,640 and how the jury was instructed 2231 01:53:02,640 --> 01:53:06,760 and the fact that we talk about foreseeability. 2232 01:53:06,760 --> 01:53:10,200 But once they found an intent to kill, 2233 01:53:10,200 --> 01:53:15,480 they didn't find foreseeability. They found intent to kill. 2234 01:53:15,480 --> 01:53:19,120 They were instructed to connect the actus reus 2235 01:53:19,120 --> 01:53:21,200 with the intent to kill. 2236 01:53:21,200 --> 01:53:24,200 Under McCoy, the acts merge 2237 01:53:24,880 --> 01:53:29,800 and become the acts of the perpetrator. 2238 01:53:29,320 --> 01:53:32,160 The knowledge requirement was a requirement 2239 01:53:32,160 --> 01:53:33,680 that the jury understood 2240 01:53:33,680 --> 01:53:36,400 from the direct aiding and abetting instructions. 2241 01:53:36,400 --> 01:53:40,800 The jury made that finding, and that finding is not open 2242 01:53:40,800 --> 01:53:44,400 to re-litigation in the section 1172.6 context. 2243 01:53:45,800 --> 01:53:49,880 Therefore, in the gang context, like in any other finding 2244 01:53:49,880 --> 01:53:52,320 where there is an intent to kill which equates 2245 01:53:52,320 --> 01:53:57,120 with actual malice, the defendant is for -- 2246 01:53:57,240 --> 01:53:59,960 if that finding is undisturbed, 2247 01:53:59,960 --> 01:54:02,600 the defendant is precluded from resentencing relief 2248 01:54:02,600 --> 01:54:04,120 as a matter of law. 2249 01:54:04,120 --> 01:54:07,000 The matter does not go to an evidentiary hearing. 2250 01:54:07,000 --> 01:54:08,560 Thank you, Your Honor. 2251 01:54:08,560 --> 01:54:10,800 Chief Justice Guerrero: Thank you to both counsel. 2252 01:54:10,800 --> 01:54:14,280 We appreciate your helpful arguments here today. 2253 01:54:16,720 --> 01:54:20,320 We'll now call the next matter. 2254 01:54:21,840 --> 01:54:27,240 The next matter is Mr. Gantner versus PG&E. 2255 01:54:36,840 --> 01:54:40,800 We're joined here and welcome Justice O'Rourke 2256 01:54:40,800 --> 01:54:46,200 from the Fourth District Court of Appeal, Division One. 2257 01:54:47,520 --> 01:54:49,400 Mr. Carlin, whenever you're ready. 2258 01:54:49,400 --> 01:54:52,640 You've asked for 20 minutes for opening. 2259 01:54:53,400 --> 01:54:54,560 Nicholas Carlin: Thank you. 2260 01:54:54,560 --> 01:54:56,800 Thank you, Your Honor. Thanks. 2261 01:54:56,800 --> 01:54:58,160 Thank you, Justice Guerrero. May it please the court. 2262 01:54:58,160 --> 01:55:02,880 Nicholas Carlin on behalf of the plaintiff and petitioner, 2263 01:55:02,880 --> 01:55:04,880 Anthony Gantner. 2264 01:55:06,400 --> 01:55:09,400 We are here today on two certified questions 2265 01:55:09,400 --> 01:55:10,760 from the Ninth Circuit -- 2266 01:55:10,760 --> 01:55:15,560 Whether Public Utilities Code Section 1759 preempts this case, 2267 01:55:16,480 --> 01:55:20,680 and whether Tariff Rule 14 immunizes PG&E 2268 01:55:20,680 --> 01:55:22,840 from its own negligence. 2269 01:55:22,840 --> 01:55:26,560 The answer to both questions is no. 2270 01:55:26,560 --> 01:55:28,400 This case arose from PG&E's 2271 01:55:28,400 --> 01:55:32,400 criminally negligent maintenance of its electric grid, 2272 01:55:32,400 --> 01:55:35,400 which resulted in devastating wildfires. 2273 01:55:35,800 --> 01:55:40,440 In the fall of 2019, in an effort to mitigate the damage, 2274 01:55:40,440 --> 01:55:44,600 PG&E blacked out huge swaths of Northern California. 2275 01:55:44,600 --> 01:55:48,600 People were without power for up to ten days at a time. 2276 01:55:48,600 --> 01:55:52,880 As usual, the hardest hit were the most vulnerable. 2277 01:55:52,880 --> 01:55:55,280 The fundamental question before this court today 2278 01:55:55,280 --> 01:55:57,880 is whether PG&E will be held responsible 2279 01:55:57,880 --> 01:56:02,400 for both types of harm caused by its negligence, 2280 01:56:02,400 --> 01:56:04,400 wildfires and blackouts? 2281 01:56:05,560 --> 01:56:07,880 Or will it be immunized from one? 2282 01:56:07,880 --> 01:56:11,440 But to immunize PG&E from blackout damages 2283 01:56:11,440 --> 01:56:13,800 would be terrible public policy, 2284 01:56:13,800 --> 01:56:15,840 as it would create a disincentive for it 2285 01:56:15,840 --> 01:56:18,160 to comply with its legal obligations 2286 01:56:18,160 --> 01:56:21,800 to maintain a safe grid. 2287 01:56:21,800 --> 01:56:24,120 All it would have to do would be to shut off the power 2288 01:56:24,120 --> 01:56:26,760 whenever the winds got to a moderate level 2289 01:56:26,760 --> 01:56:28,760 without any consequence. 2290 01:56:29,440 --> 01:56:34,840 Justice Liu: Counsel, this is a very complicated issue. 2291 01:56:36,600 --> 01:56:39,120 Wildfires are a big problem in this state, 2292 01:56:39,120 --> 01:56:42,720 and no doubt the utility companies 2293 01:56:43,600 --> 01:56:47,800 have some responsibilities with regard to it. 2294 01:56:48,800 --> 01:56:49,720 But like a lot of complicated issues, 2295 01:56:49,720 --> 01:56:53,640 there are multiple ways to address them. 2296 01:56:53,640 --> 01:57:00,840 And so, I guess I just begin by questioning your basic claim 2297 01:57:01,920 --> 01:57:05,800 that if your client's lawsuit does not proceed 2298 01:57:05,800 --> 01:57:10,480 that the utility is somehow immunized from liability 2299 01:57:10,480 --> 01:57:15,400 or that they -- that there's no other mechanism, right, 2300 01:57:15,400 --> 01:57:16,960 to get them to, in your view, 2301 01:57:16,960 --> 01:57:22,000 do the right thing by maintaining their grid properly. 2302 01:57:22,000 --> 01:57:26,520 There are lots of spheres in which regulatory agencies 2303 01:57:26,520 --> 01:57:28,920 create quite significant schemes 2304 01:57:30,400 --> 01:57:34,600 that preclude litigation as an alternative precisely 2305 01:57:34,800 --> 01:57:37,800 because litigation doesn't in the, 2306 01:57:39,920 --> 01:57:43,320 in the lawmakers' point of view, legislators' point of view, 2307 01:57:43,320 --> 01:57:45,800 appropriately balance all the equities 2308 01:57:45,800 --> 01:57:48,760 that need to be balanced in a given situation. 2309 01:57:48,760 --> 01:57:52,000 And the lawsuits are, you know, X versus Y, 2310 01:57:52,000 --> 01:57:54,680 and that's the framing, right. 2311 01:57:54,680 --> 01:57:58,800 But this is a big public policy issue for the state. 2312 01:57:58,800 --> 01:58:00,720 And so I guess I just wonder, 2313 01:58:00,720 --> 01:58:04,000 I just question your premise, you know, from the beginning, 2314 01:58:04,000 --> 01:58:08,240 why, how does this fit, I guess, within the overall scheme. 2315 01:58:08,240 --> 01:58:10,800 Because there is a big scheme here, 2316 01:58:10,800 --> 01:58:14,200 and it would seem that this is riding, 2317 01:58:14,200 --> 01:58:15,400 well, I mean the other side is going to say 2318 01:58:15,400 --> 01:58:17,320 it's riding contrary to it. 2319 01:58:17,320 --> 01:58:19,160 But at least it's riding on top of it somewhere. 2320 01:58:19,160 --> 01:58:20,800 And I'm just trying to understand 2321 01:58:20,800 --> 01:58:23,520 from your point of view how it's all supposed to work. 2322 01:58:23,520 --> 01:58:27,720 Nicholas Carlin: Well, the scheme is that 2323 01:58:31,200 --> 01:58:36,000 when a company or a party is negligent, 2324 01:58:36,360 --> 01:58:38,600 just as a basic principle of tort law, 2325 01:58:38,600 --> 01:58:41,280 they should be responsible for all the damage 2326 01:58:41,280 --> 01:58:43,560 caused by that negligence. 2327 01:58:43,560 --> 01:58:48,360 If there has been, Justice Luis you suggested, 2328 01:58:48,520 --> 01:58:51,520 some determination by the legislature 2329 01:58:52,920 --> 01:58:55,320 or by regulatory agency 2330 01:58:57,600 --> 01:59:01,920 that the utility in this case should be exempt from liability 2331 01:59:01,920 --> 01:59:05,400 for a particular type of harm it causes, 2332 01:59:05,400 --> 01:59:09,440 then fine, it would make that determination. 2333 01:59:09,440 --> 01:59:10,680 But that's just not the case here. 2334 01:59:10,680 --> 01:59:12,320 Justice Liu: Well, we don't have an -- 2335 01:59:12,320 --> 01:59:14,400 we don't have an exemption or an immunity revision. 2336 01:59:14,400 --> 01:59:17,720 But what we do have is a very carefully articulated scheme 2337 01:59:17,720 --> 01:59:20,480 for these power shutoffs, right. 2338 01:59:20,480 --> 01:59:24,600 And your client is claiming that there are damages 2339 01:59:24,600 --> 01:59:29,400 that resulted from a set of 2019 power shutoffs 2340 01:59:29,880 --> 01:59:34,800 that resulted in $2 1/2 billion of damage, right. 2341 01:59:35,360 --> 01:59:39,000 Now, if you were to succeed, I would wager to say 2342 01:59:39,000 --> 01:59:42,600 that utility companies would take note. 2343 01:59:42,960 --> 01:59:46,760 No utility company wants to pay $2 1/2 billion of damages. 2344 01:59:46,760 --> 01:59:49,440 And it would alter their behavior. 2345 01:59:49,440 --> 01:59:51,120 It would alter their behavior in ways 2346 01:59:51,120 --> 01:59:54,840 that wouldn't necessarily accord with the regulator's view 2347 01:59:54,840 --> 01:59:57,840 of what public safety requires. 2348 01:59:58,000 --> 01:59:59,560 And that's the rub. 2349 01:59:59,560 --> 02:00:04,000 I think that's the difficulty here, is that, yes, 2350 02:00:04,000 --> 02:00:06,720 there are losses that you might say, 2351 02:00:06,720 --> 02:00:08,280 in a kind of baseline presumption, 2352 02:00:08,280 --> 02:00:10,120 ought to be compensable. 2353 02:00:10,120 --> 02:00:14,240 But the law actually makes lots of tort losses not compensable, 2354 02:00:14,240 --> 02:00:18,000 for other reasons -- for public policy reasons 2355 02:00:18,000 --> 02:00:22,360 that the parties to a lawsuit cannot account for. 2356 02:00:22,360 --> 02:00:24,760 Nicholas Carlin: Right, well... 2357 02:00:26,400 --> 02:00:28,400 What you're getting at, Justice Liu, 2358 02:00:28,400 --> 02:00:32,200 is sort of their central defense here or argument. 2359 02:00:32,200 --> 02:00:33,760 Justice Liu: Right. 2360 02:00:33,760 --> 02:00:35,240 Nicholas Carlin: And I call it the money argument. 2361 02:00:35,240 --> 02:00:38,280 That, well, if we have to pay damages here -- 2362 02:00:38,280 --> 02:00:39,800 And there's really two sides to it, by the way. 2363 02:00:39,800 --> 02:00:44,560 One is the PG&E aspect of it where they say 2364 02:00:44,560 --> 02:00:48,800 if we have to pay money to, 2365 02:00:48,800 --> 02:00:52,280 in this lawsuit, for damages, it will affect our behavior. 2366 02:00:52,280 --> 02:00:55,200 And the other side of it is the PC argument 2367 02:00:55,200 --> 02:00:58,680 that, well, we would have taken this into account 2368 02:00:58,680 --> 02:01:02,880 in developing our procedures for the PSPS's. 2369 02:01:05,000 --> 02:01:09,240 So if we take first the argument about it's too much money, 2370 02:01:09,240 --> 02:01:10,720 we'll change our behavior. 2371 02:01:10,720 --> 02:01:15,000 Frankly, I believe that is a really cynical 2372 02:01:15,000 --> 02:01:20,680 and shocking kind of argument for PG&E to make. 2373 02:01:20,680 --> 02:01:23,720 Because what they're saying essentially is that 2374 02:01:23,720 --> 02:01:26,880 if we have to pay damages for our own negligence, 2375 02:01:26,880 --> 02:01:32,280 for the problem we created and very significant harm 2376 02:01:33,960 --> 02:01:35,520 that was caused to all these people 2377 02:01:35,520 --> 02:01:39,200 who were blacked out for days and weeks at a time, 2378 02:01:39,200 --> 02:01:43,400 well, we're not going to follow the rules anymore 2379 02:01:43,400 --> 02:01:46,200 that have been laid down to us by the PUC. 2380 02:01:46,200 --> 02:01:48,320 The rules laid down by the PUC 2381 02:01:48,320 --> 02:01:51,960 are you have to balance the risk of wildfire 2382 02:01:51,960 --> 02:01:54,880 versus the potential harm to the community, 2383 02:01:54,880 --> 02:01:57,720 not the cost to the company. 2384 02:01:57,720 --> 02:02:02,360 So to say that they would change their behavior 2385 02:02:02,360 --> 02:02:05,320 if they knew they had to pay some damages here 2386 02:02:05,320 --> 02:02:07,720 is essentially to say 2387 02:02:08,360 --> 02:02:11,760 they're going to make it more likely to start a fire. 2388 02:02:11,760 --> 02:02:14,800 And that is, you know, a kind of threat 2389 02:02:14,800 --> 02:02:17,400 really to the people of the state of California 2390 02:02:17,400 --> 02:02:20,720 that I don't think we should be cottoning to frankly. 2391 02:02:20,720 --> 02:02:26,720 So now as far as the PUC side of it 2392 02:02:27,400 --> 02:02:32,640 that they claim that well we would have taken these factors 2393 02:02:32,640 --> 02:02:36,840 in into account in regulating and determining 2394 02:02:37,400 --> 02:02:42,200 what the criteria are for implementing a PSPS. 2395 02:02:43,800 --> 02:02:46,840 Well, the fact of the matter is that the notion of damages 2396 02:02:46,840 --> 02:02:50,560 for negligently caused outages is not new. 2397 02:02:50,560 --> 02:02:52,000 It's been out there for years, 2398 02:02:52,000 --> 02:02:55,600 since this court's Langley decision in 1950. 2399 02:02:56,560 --> 02:03:01,360 There's the 2008 San Diego Gas and Electric decision 2400 02:03:04,800 --> 02:03:07,160 that we've discussed in our briefs, 2401 02:03:07,160 --> 02:03:08,920 where San Diego Gas and Electric 2402 02:03:08,920 --> 02:03:13,120 wanted to specifically get immunity from damages 2403 02:03:14,640 --> 02:03:18,960 caused by power -- public safety power outages. 2404 02:03:18,960 --> 02:03:24,960 And the PUC told them, no, you can't get that. 2405 02:03:25,200 --> 02:03:29,520 And so what are we to assume at that point? 2406 02:03:29,520 --> 02:03:34,360 What we must assume is that it's implicit already 2407 02:03:34,360 --> 02:03:38,640 that the risk of damages for negligently caused outages 2408 02:03:38,640 --> 02:03:44,520 was out there and is already part of the calculus 2409 02:03:44,520 --> 02:03:48,720 for determining what to do a PSPS. 2410 02:03:50,520 --> 02:03:57,120 Now, if we're to get to the Ninth Circuit specific question, 2411 02:03:57,280 --> 02:03:59,280 Your Honor, 2412 02:03:59,480 --> 02:04:03,120 their first question asked whether, as a legal matter. 2413 02:04:03,120 --> 02:04:07,920 whether Section 1759 preempts a case where that 1759 claim 2414 02:04:10,400 --> 02:04:14,720 is not based on the conduct challenged by the lawsuit. 2415 02:04:14,720 --> 02:04:18,800 And here, the challenged conduct in this lawsuit 2416 02:04:18,800 --> 02:04:20,840 is PG&E's negligent maintenance. 2417 02:04:20,840 --> 02:04:25,560 We do not contend that PG&E did anything wrong in connection 2418 02:04:25,560 --> 02:04:29,160 with the implementation of the PSPS's, 2419 02:04:29,240 --> 02:04:33,400 the decision to do them, or any other aspect 2420 02:04:33,400 --> 02:04:38,200 of the PUC regulated portion of these PSPS's. 2421 02:04:38,440 --> 02:04:40,200 Chief Justice Guerrero: Don't all of the damages 2422 02:04:40,200 --> 02:04:43,800 that are being alleged stem from the shut offs themselves? 2423 02:04:43,800 --> 02:04:46,120 Nicholas Carlin: Sure, but it's simply the final link 2424 02:04:46,120 --> 02:04:47,960 in the chain of causation. 2425 02:04:47,960 --> 02:04:49,720 It just happens to be that, 2426 02:04:49,720 --> 02:04:53,120 because of their negligence they had to shut off the power. 2427 02:04:53,120 --> 02:04:59,120 And they had the ability, they were given that tool 2428 02:04:59,360 --> 02:05:02,120 by the Public Utilities Commission 2429 02:05:02,120 --> 02:05:06,280 that you can shut off the power under certain circumstances. 2430 02:05:06,280 --> 02:05:09,280 And they used that tool. 2431 02:05:09,800 --> 02:05:13,560 But in order for it to be under this court's jurisprudence, 2432 02:05:13,560 --> 02:05:16,600 under Covalt and Hartwell and Orloff, 2433 02:05:16,600 --> 02:05:21,960 in order for the case actually to be preempted, 2434 02:05:21,960 --> 02:05:27,800 you have to look at the factors, the Covalt factors. 2435 02:05:27,800 --> 02:05:29,920 And the third factor that we've all focused on 2436 02:05:29,920 --> 02:05:32,920 is actual interference. So -- 2437 02:05:33,280 --> 02:05:35,920 Justice Jenkins: But the hinder or interfere 2438 02:05:35,920 --> 02:05:37,440 aspect of that third factor 2439 02:05:37,440 --> 02:05:42,240 seems broader than just a direct conflict, right. 2440 02:05:43,920 --> 02:05:45,240 Nicholas Carlin: Well -- 2441 02:05:45,240 --> 02:05:46,840 Justice Jenkins: I mean, Hartwell itself 2442 02:05:46,840 --> 02:05:52,600 is a case where the court looked at the record before it 2443 02:05:52,600 --> 02:05:56,800 and with respect to the adequacy of the action 2444 02:05:56,800 --> 02:06:00,600 that was taken to prevent contamination of the water, 2445 02:06:00,600 --> 02:06:04,800 the court looked at the overarching supervision 2446 02:06:05,560 --> 02:06:10,360 that was given by the regulated entity there 2447 02:06:11,240 --> 02:06:14,840 and said that aspect is preemptive 2448 02:06:15,480 --> 02:06:19,360 because it would interfere with those adequacy determinations. 2449 02:06:19,360 --> 02:06:24,400 And it seems to me that your damages remedy here 2450 02:06:24,400 --> 02:06:28,600 arguably impacts the PUC's efforts to confine 2451 02:06:32,440 --> 02:06:35,440 when these PSPS's are appropriate. 2452 02:06:36,600 --> 02:06:40,920 And there's some public policy concerns that go both ways. 2453 02:06:40,920 --> 02:06:43,400 You're not shutting down consumers necessarily, 2454 02:06:43,400 --> 02:06:49,600 unless the factors that the PUC has looked at have been met. 2455 02:06:49,600 --> 02:06:52,640 That's nowhere an issue with respect 2456 02:06:52,640 --> 02:06:57,960 to the straight tort claim that you make here. 2457 02:06:57,960 --> 02:07:00,800 Nicholas Carlin: Well, Justice Jenkins, 2458 02:07:00,800 --> 02:07:01,800 you're right about Hartwell. 2459 02:07:01,800 --> 02:07:04,600 The distinction that was made in Hartwell, though, 2460 02:07:04,600 --> 02:07:08,400 was between the parts portions of the claim 2461 02:07:08,400 --> 02:07:12,000 that alleged that the PUC's determination 2462 02:07:15,920 --> 02:07:20,400 of what the appropriate level of contamination was, 2463 02:07:20,400 --> 02:07:22,400 was itself unsafe. 2464 02:07:23,000 --> 02:07:25,920 Which the court held is preempted 2465 02:07:25,920 --> 02:07:28,360 because the PUC has already spoken to that. 2466 02:07:28,360 --> 02:07:30,000 So that's an actual interference. 2467 02:07:30,000 --> 02:07:36,160 But the portion of the claim that said that the water, 2468 02:07:36,160 --> 02:07:38,560 the contamination was unsafe 2469 02:07:41,720 --> 02:07:45,400 because it was above the limits allowed by the PUC, 2470 02:07:45,400 --> 02:07:46,800 that was allowed to proceed 2471 02:07:46,800 --> 02:07:49,800 despite the water company's argument 2472 02:07:52,000 --> 02:07:56,640 that this whole area was being regulated by the PUC. 2473 02:07:56,640 --> 02:07:58,400 And in fact, I think in that case 2474 02:07:58,400 --> 02:08:02,800 there was even the injunctive portion of it was preempted, 2475 02:08:02,800 --> 02:08:05,280 but the damages portion was allowed to go forward 2476 02:08:05,280 --> 02:08:08,200 because it didn't actually interfere 2477 02:08:08,200 --> 02:08:09,960 with the PUC regulations. 2478 02:08:09,960 --> 02:08:14,400 I think that's the same situation we have in Orloff. 2479 02:08:14,400 --> 02:08:15,920 And in Orloff, 2480 02:08:15,920 --> 02:08:21,000 this court said the mere possibility of or potential 2481 02:08:21,000 --> 02:08:25,920 for conflict with the PUC is insufficient for preemption. 2482 02:08:25,920 --> 02:08:28,960 And that's really what they're talking about here. 2483 02:08:28,960 --> 02:08:31,600 Justice Groban: Let's think of it this way. 2484 02:08:31,600 --> 02:08:35,440 As part of the PUC's reasonableness review, 2485 02:08:35,440 --> 02:08:37,560 would the utility's grid maintenance 2486 02:08:37,560 --> 02:08:40,280 be an appropriate consideration for the PUC 2487 02:08:40,280 --> 02:08:43,280 as part of that review? 2488 02:08:43,720 --> 02:08:46,680 Nicholas Carlin: Would the PUC's grid maintenance -- 2489 02:08:46,680 --> 02:08:48,480 Justice Groban: Would the utility's grid maintenance 2490 02:08:48,480 --> 02:08:51,400 be appropriate for the PUC 2491 02:08:51,400 --> 02:08:53,400 to consider as part of a reasonableness review 2492 02:08:53,400 --> 02:08:56,400 conducted after a power shutoff? 2493 02:08:56,600 --> 02:08:59,400 Nicholas Carlin: It could be, but it hasn't. 2494 02:08:59,400 --> 02:09:02,400 I think the record shows they've never actually done that. 2495 02:09:02,400 --> 02:09:07,800 And I think consistent with Hartwell and with Orloff, 2496 02:09:07,920 --> 02:09:14,400 if they were at some point to do, that doesn't interfere, 2497 02:09:14,400 --> 02:09:16,160 or this case doesn't interfere with that. 2498 02:09:16,160 --> 02:09:19,320 They can do that at some point in the future. 2499 02:09:19,320 --> 02:09:22,520 Justice Groban: Why were they to do it, 2500 02:09:22,520 --> 02:09:27,800 unless the -- unless the trial that you want to have happen 2501 02:09:27,800 --> 02:09:33,200 has exactly the same view of grid maintenance as the PUC? 2502 02:09:33,200 --> 02:09:34,800 That seems like it has great potential 2503 02:09:34,800 --> 02:09:38,920 to hinder or frustrate the PUC's province, right. 2504 02:09:38,920 --> 02:09:42,400 Nicholas Carlin: No, to the contrary, Your Honor. 2505 02:09:42,400 --> 02:09:45,640 As this court said in Hartwell, 2506 02:09:46,520 --> 02:09:50,400 the case is not preempted if it's in aid of 2507 02:09:50,400 --> 02:09:55,200 and not in derogation of the PUC's policies. 2508 02:09:55,760 --> 02:10:00,560 And here when we're talking about looking into 2509 02:10:01,400 --> 02:10:03,800 whether they were negligent in their grid maintenance, 2510 02:10:03,800 --> 02:10:05,320 that goes directly to that. 2511 02:10:05,320 --> 02:10:08,280 We are only contending in this case 2512 02:10:08,280 --> 02:10:12,360 that PG&E violated existing PUC regulations 2513 02:10:12,360 --> 02:10:15,360 and statutes regarding grid maintenance. 2514 02:10:15,680 --> 02:10:17,800 Justice Liu: I think that's -- I think that's true, 2515 02:10:17,800 --> 02:10:20,400 but the problem here is we're talking about 2516 02:10:20,400 --> 02:10:22,720 two different time frames, 2517 02:10:22,720 --> 02:10:24,640 and I think that's really important, right? 2518 02:10:24,640 --> 02:10:30,400 So the shutoff scheme is meant to govern decisions 2519 02:10:31,800 --> 02:10:34,800 that have to be made in the moment. 2520 02:10:34,800 --> 02:10:37,480 And these are crucial decisions, right? 2521 02:10:37,480 --> 02:10:41,680 I mean, you know, we've seen devastation, 2522 02:10:41,720 --> 02:10:44,120 you know, enough in this state to know 2523 02:10:44,120 --> 02:10:47,400 that these are very difficult decisions 2524 02:10:47,400 --> 02:10:50,880 that are happening in the moments on the ground. 2525 02:10:50,880 --> 02:10:55,240 And I don't think it's too much to say that here the PUC decided 2526 02:10:55,240 --> 02:10:58,200 that in the context of the crucible of this 2527 02:10:58,200 --> 02:11:01,960 in the moment decision making, they didn't want companies 2528 02:11:01,960 --> 02:11:06,640 to have to think about $2 1/2 billion of liability 2529 02:11:06,640 --> 02:11:10,240 resulting from a follow on lawsuit 2530 02:11:12,560 --> 02:11:14,400 resulting from a shutoff event. 2531 02:11:14,400 --> 02:11:16,600 Now you say that it's not the shut off event 2532 02:11:16,600 --> 02:11:18,640 that you're litigating, right. 2533 02:11:18,640 --> 02:11:20,840 But the fact is as the Chief Justice pointed out, 2534 02:11:20,840 --> 02:11:23,680 all the damage you're claiming are not directly 2535 02:11:23,680 --> 02:11:27,800 from the grid negligence, it's from the shutoff event. 2536 02:11:27,800 --> 02:11:31,280 And so, cynical or not, I think we live in the real world, 2537 02:11:31,280 --> 02:11:34,360 which is that a company faced with this situation 2538 02:11:34,360 --> 02:11:38,920 is going to think twice about its cost benefit analysis 2539 02:11:38,920 --> 02:11:43,680 in the moment when public safety demands a laser like focus 2540 02:11:43,680 --> 02:11:46,960 on what is good, right, in light of all the factors. 2541 02:11:46,960 --> 02:11:49,880 And you have this lurking massive liability 2542 02:11:49,880 --> 02:11:51,560 in the background. 2543 02:11:51,560 --> 02:11:56,800 I just think that that puts the decision makers 2544 02:11:56,800 --> 02:11:58,000 in a very, very difficult spot 2545 02:11:58,000 --> 02:12:01,440 that the PUC did not contemplate putting them in. 2546 02:12:01,440 --> 02:12:02,800 Nicholas Carlin: Well, Justice Liu, 2547 02:12:02,800 --> 02:12:04,520 I think there's two parts to that. 2548 02:12:04,520 --> 02:12:07,280 First, as to whether they never contemplated it, 2549 02:12:07,280 --> 02:12:09,800 as I've said, I think they must have. 2550 02:12:09,800 --> 02:12:10,880 I think we have to assume they did 2551 02:12:10,880 --> 02:12:15,400 after the 2008 San Diego Gas and Electric decision, 2552 02:12:15,400 --> 02:12:20,200 which clearly said that they could be liable, 2553 02:12:21,480 --> 02:12:26,400 utilities could be liable for public safety power shutoffs. 2554 02:12:26,400 --> 02:12:28,560 So there could be liability, and they knew it. 2555 02:12:28,560 --> 02:12:31,680 But in terms of what would PG&E think, 2556 02:12:31,680 --> 02:12:36,840 or are we really going to say, are they going to say, 2557 02:12:36,840 --> 02:12:41,640 that they would rather risk starting more fires 2558 02:12:42,680 --> 02:12:47,160 and potentially have to pay some damages for blackout liability. 2559 02:12:47,160 --> 02:12:51,400 I mean the risk to them is so much greater of starting a fire. 2560 02:12:51,400 --> 02:12:55,000 We're talking civil liability, criminal liability. 2561 02:12:58,840 --> 02:13:03,400 They, I think it's incongruous to imagine 2562 02:13:04,800 --> 02:13:09,000 that they would actually prefer to risk 2563 02:13:10,400 --> 02:13:12,200 starting a fire than to perhaps 2564 02:13:12,200 --> 02:13:15,000 risk paying some blackout damages here. 2565 02:13:15,000 --> 02:13:19,280 And keep in mind, Your Honor, we're only talking about damages 2566 02:13:19,280 --> 02:13:21,840 that are actually due to their negligence. 2567 02:13:21,840 --> 02:13:23,600 We're not seeking damages 2568 02:13:23,600 --> 02:13:26,800 for every public safety power shutoff, 2569 02:13:26,800 --> 02:13:31,520 only those that are caused by their negligence. And -- 2570 02:13:31,520 --> 02:13:35,880 Judge Groban: Are you arguing that no claims seeking damages 2571 02:13:35,880 --> 02:13:39,800 for past negligence could ever be preempted by 1759? 2572 02:13:39,800 --> 02:13:44,000 Are you arguing something less than that? 2573 02:13:48,400 --> 02:13:52,440 Nicholas Carlin: I think claims for past damages, 2574 02:13:52,440 --> 02:13:57,600 and I think this court's jurisprudence has said that... 2575 02:13:57,600 --> 02:14:02,400 when it's not implicating future regulation, is decoupled. 2576 02:14:05,480 --> 02:14:08,760 That you can you can proceed on the damage claims, 2577 02:14:08,760 --> 02:14:11,000 even if potentially the future, 2578 02:14:11,000 --> 02:14:13,280 there's going to be future regulation in the area. 2579 02:14:13,280 --> 02:14:16,880 I think that's Hartwell and Orloff. 2580 02:14:18,320 --> 02:14:21,840 I may have gone past my time, I'm not sure. 2581 02:14:21,840 --> 02:14:23,560 Chief Justice Guerrero: You have one minute left. 2582 02:14:23,560 --> 02:14:25,160 Nicholas Carlin: Okay. I'll keep going then. 2583 02:14:25,160 --> 02:14:26,240 Chief Justice Guerrero: But you don't need to use it 2584 02:14:26,240 --> 02:14:27,600 if you're ready to stop. 2585 02:14:27,600 --> 02:14:29,400 Nicholas Carlin: Answer any more. 2586 02:14:29,400 --> 02:14:33,960 One other thing I would say is that whatever future regulation 2587 02:14:33,960 --> 02:14:37,480 there may be wouldn't even be in the PUC. 2588 02:14:37,480 --> 02:14:41,000 Primarily the entire Wildfire Safety Division 2589 02:14:41,000 --> 02:14:44,840 has been moved to the Office of Energy Infrastructure. 2590 02:14:44,840 --> 02:14:46,360 Justice Jenkins: But it comes back 2591 02:14:46,360 --> 02:14:47,680 and gets ratified by the PUC, doesn't it? 2592 02:14:47,680 --> 02:14:49,360 Nicholas Carlin: It gets ratified, but -- 2593 02:14:49,360 --> 02:14:50,600 Justice Jenkins: So they're still involved in the game. 2594 02:14:50,600 --> 02:14:52,000 Nicholas Carlin: They're involved, 2595 02:14:52,000 --> 02:14:54,320 but it's much more attenuated, Your Honor. 2596 02:14:54,320 --> 02:14:55,800 Much more attenuated. 2597 02:14:55,800 --> 02:14:58,600 And if we're talking about degrees of interference, 2598 02:14:58,600 --> 02:15:01,640 it's a much lesser degree of interference. 2599 02:15:01,640 --> 02:15:03,000 I would just like -- 2600 02:15:03,000 --> 02:15:06,600 just to briefly discuss Tariff Rule 14. 2601 02:15:06,840 --> 02:15:10,600 Our position is, as suggested by the Ninth Circuit, 2602 02:15:10,600 --> 02:15:13,720 that this court, consistent with lower court cases 2603 02:15:13,720 --> 02:15:16,880 such as Pink Dot, adopt the rule the tariffs 2604 02:15:16,880 --> 02:15:21,800 should be strictly construed against the utilities. 2605 02:15:21,120 --> 02:15:22,760 And in this case, however, 2606 02:15:22,760 --> 02:15:25,600 whether or not the court adopts that rule, 2607 02:15:25,600 --> 02:15:29,240 the history and plain language of Tariff Rule 14 show 2608 02:15:29,240 --> 02:15:33,440 that it does not exempt PG&E from liability. 2609 02:15:33,440 --> 02:15:37,640 I think the San Diego decision supports 2610 02:15:37,720 --> 02:15:43,000 that where the PUC at that time made it clear that that tariff, 2611 02:15:43,000 --> 02:15:47,480 PG&E's Tariff Rule 14 was enacted in response 2612 02:15:47,480 --> 02:15:50,360 to the direct access program 2613 02:15:50,360 --> 02:15:52,560 and the deregulation of the electric grid 2614 02:15:52,560 --> 02:15:55,360 in the late 1990s had nothing to do 2615 02:15:55,360 --> 02:15:57,440 with public safety power shutoffs. 2616 02:15:57,440 --> 02:16:00,000 And so it was simply not contemplated at the time. 2617 02:16:00,000 --> 02:16:04,280 And just the plain language of Tariff Rule 14 itself 2618 02:16:04,280 --> 02:16:07,280 supports that the first paragraph, 2619 02:16:08,160 --> 02:16:11,760 which talks about it's liable for, 2620 02:16:13,400 --> 02:16:17,000 well, it's not liable for any shutoffs 2621 02:16:17,000 --> 02:16:19,800 that are caused by outside forces, 2622 02:16:19,800 --> 02:16:23,200 except for those due to its own lack of diligence. 2623 02:16:23,200 --> 02:16:24,440 And the fourth paragraph, I think, 2624 02:16:24,440 --> 02:16:26,800 needs to be read in context with that. 2625 02:16:26,800 --> 02:16:30,000 Happy to answer any questions about that as well. 2626 02:16:30,000 --> 02:16:31,600 Chief Justice Guerrero: Thank you, Mr. Carlin. 2627 02:16:31,600 --> 02:16:33,360 Nicholas Carlin: Let my esteemed colleague 2628 02:16:33,360 --> 02:16:34,840 take the podium now. 2629 02:16:34,840 --> 02:16:38,800 Chief Justice Guerrero: Thank you. Mr. Nasab. 2630 02:16:38,800 --> 02:16:40,800 Omid Nasab: Good afternoon, Your Honors, 2631 02:16:40,800 --> 02:16:42,400 and may it please the court. 2632 02:16:42,400 --> 02:16:45,960 The PUC has given the utilities in the state, 2633 02:16:45,960 --> 02:16:49,560 through regulations, guidelines, decisions and review 2634 02:16:50,200 --> 02:16:53,320 and approval of wildfire mitigation plans, 2635 02:16:53,320 --> 02:16:57,480 a very detailed road map for when, 2636 02:16:57,480 --> 02:17:01,800 how and why they are to use the public safety tool 2637 02:17:01,800 --> 02:17:03,840 of a power shutoff. 2638 02:17:03,840 --> 02:17:07,160 his lawsuit represents a sweeping attack 2639 02:17:07,160 --> 02:17:08,480 on that framework, 2640 02:17:08,480 --> 02:17:10,800 because it seeks to impose liability 2641 02:17:10,800 --> 02:17:12,560 for every single customer 2642 02:17:12,560 --> 02:17:16,880 and every single shutoff on the basis -- 2643 02:17:16,880 --> 02:17:21,400 or, I should say, without any regard whatsoever 2644 02:17:21,400 --> 02:17:23,680 for the utility's compliance 2645 02:17:23,680 --> 02:17:26,680 with that detailed regulatory framework. 2646 02:17:27,000 --> 02:17:31,680 And to punish compliance with a detailed regulatory framework 2647 02:17:31,680 --> 02:17:34,800 such as this is to interfere with that framework, 2648 02:17:34,800 --> 02:17:38,400 as this court held in Covalt and Hartwell. 2649 02:17:38,400 --> 02:17:40,680 Moreover, it would also interfere 2650 02:17:40,680 --> 02:17:43,800 with the commission's jurisdiction, 2651 02:17:43,800 --> 02:17:45,640 not only because the reality of the relief 2652 02:17:45,640 --> 02:17:48,680 sought would alter the utility's behavior, right. 2653 02:17:48,680 --> 02:17:52,120 We're talking about $2 1/2 billion of damages 2654 02:17:52,120 --> 02:17:55,400 for one utility, for one season, 2655 02:17:55,400 --> 02:17:56,440 and not even getting to the punitives 2656 02:17:56,440 --> 02:17:58,600 that have been requested. 2657 02:17:58,600 --> 02:18:03,120 That kind of relief would also force the regulator's hand 2658 02:18:03,120 --> 02:18:04,920 to change their framework. 2659 02:18:04,920 --> 02:18:08,880 Because the current framework, as my friend pointed out, 2660 02:18:08,880 --> 02:18:13,520 does not want the utilities focused on economic harms. 2661 02:18:13,520 --> 02:18:16,360 And not just the economic harm of the utility, 2662 02:18:16,360 --> 02:18:18,760 which is not to be looked at, 2663 02:18:18,760 --> 02:18:21,400 but the economic harms to customers 2664 02:18:21,400 --> 02:18:25,000 is de-emphasized in the commission's judgment. 2665 02:18:25,000 --> 02:18:26,640 And instead what is elevated 2666 02:18:26,640 --> 02:18:29,440 is the competing safety considerations 2667 02:18:29,440 --> 02:18:32,320 of keeping the power on or turning it off. 2668 02:18:32,320 --> 02:18:35,320 That's what the commission wants to focus on. 2669 02:18:35,320 --> 02:18:40,000 If this lawsuit were to prevail and these massive costs 2670 02:18:40,000 --> 02:18:43,320 would then have to be internalized at the utilities, 2671 02:18:43,320 --> 02:18:44,720 well, then something would have to give. 2672 02:18:44,720 --> 02:18:46,800 Either the guidelines would have to change 2673 02:18:46,800 --> 02:18:51,760 to elevate the economic harms at the expense of safety, 2674 02:18:51,760 --> 02:18:54,640 or there would have to be a way to pay for this. 2675 02:18:54,640 --> 02:18:57,800 And whether that's through rates or through diverting investments 2676 02:18:57,800 --> 02:19:00,600 that would otherwise be going to hardening the grid, 2677 02:19:00,600 --> 02:19:02,600 whatever the commission's response is, 2678 02:19:02,600 --> 02:19:06,680 to force the commission's hand in that way is interference. 2679 02:19:06,680 --> 02:19:07,720 And I do want to get to, 2680 02:19:07,720 --> 02:19:09,200 I think, an important point here, 2681 02:19:09,200 --> 02:19:11,880 which is that my friend started out by saying 2682 02:19:11,880 --> 02:19:16,800 that it would be terrible public policy to not punish 2683 02:19:16,800 --> 02:19:20,280 PG&E for engaging in these authorized shutoffs 2684 02:19:20,280 --> 02:19:22,760 because then PG&E would keep doing it. 2685 02:19:22,760 --> 02:19:26,640 The record since this case has been filed has been very clear. 2686 02:19:26,640 --> 02:19:28,400 Each and every year, 2687 02:19:28,400 --> 02:19:31,440 and this is because of the commission's very laser 2688 02:19:31,440 --> 02:19:35,000 like focus on this issue, each and every single year. 2689 02:19:35,000 --> 02:19:38,000 The number of customers impacted by PSPS 2690 02:19:38,000 --> 02:19:39,960 has gone down significantly. 2691 02:19:39,960 --> 02:19:42,840 Indeed, last year there were no PSPS events 2692 02:19:42,840 --> 02:19:46,560 because the commission is closely looking over 2693 02:19:46,560 --> 02:19:48,000 investments in the grid, 2694 02:19:48,000 --> 02:19:50,400 hardening investments like under-grounding, 2695 02:19:51,200 --> 02:19:54,440 investing in very cutting-edge weather models 2696 02:19:54,440 --> 02:19:56,120 that can more accurately predict 2697 02:19:56,120 --> 02:19:58,000 where this dangerous weather will be. 2698 02:19:58,000 --> 02:20:01,720 And that program is having demonstrable success 2699 02:20:01,720 --> 02:20:06,520 in reducing the need for PSPS over time. 2700 02:20:07,640 --> 02:20:11,720 Justice Groban: Do you contend that section 1759 2701 02:20:11,720 --> 02:20:13,400 would preclude someone 2702 02:20:13,400 --> 02:20:17,840 from seeking damages for a power shutoff that might, 2703 02:20:17,840 --> 02:20:22,440 you know, have directly failed to comply with PUC guidelines? 2704 02:20:22,440 --> 02:20:25,760 I'm essentially asking you kind of this Hartwell dividing line. 2705 02:20:25,760 --> 02:20:28,280 It says on this half you can't go forward, 2706 02:20:28,280 --> 02:20:29,960 but on this half you can. 2707 02:20:29,960 --> 02:20:34,600 So I'm, in that framework, I'm asking you is 2708 02:20:34,600 --> 02:20:38,720 there is there a world in the in the power shutoff scheme 2709 02:20:38,720 --> 02:20:41,720 or somebody actually can, despite 1759, 2710 02:20:42,200 --> 02:20:46,120 go forward even if it's not this complaint. 2711 02:20:46,120 --> 02:20:47,840 Omid Nasab: Absolutely, Your Honor, 2712 02:20:47,840 --> 02:20:49,840 because I do think compliance with the commission's guidelines 2713 02:20:49,840 --> 02:20:52,960 is a really important part of the analysis. 2714 02:20:52,960 --> 02:20:56,000 So just as an example, let's say that there is a -- 2715 02:20:56,000 --> 02:20:58,360 and there are -- commission requirements 2716 02:20:58,360 --> 02:21:01,200 that a particular customer or a class of customers 2717 02:21:01,200 --> 02:21:04,880 needs to have a certain amount of notification before shutoff. 2718 02:21:04,880 --> 02:21:06,160 And because of negligence, 2719 02:21:06,160 --> 02:21:08,200 that that notification is not given. 2720 02:21:08,200 --> 02:21:09,720 Then I do believe there would be a claim 2721 02:21:09,720 --> 02:21:12,840 for that kind of violation of the guidelines. 2722 02:21:12,840 --> 02:21:15,560 And you know, it depends really on what the claim is, right. 2723 02:21:15,560 --> 02:21:19,240 If somebody is saying a shutoff was unreasonable 2724 02:21:19,240 --> 02:21:20,600 and the framework is different 2725 02:21:20,600 --> 02:21:22,200 than the commission's framework, right, 2726 02:21:22,200 --> 02:21:26,200 we'd have to address the allegations on their own terms. 2727 02:21:26,200 --> 02:21:27,800 But if they're alleged violations, 2728 02:21:27,800 --> 02:21:30,800 that's a very different case than what we have here, 2729 02:21:30,800 --> 02:21:32,520 which is, as my friend said, 2730 02:21:32,520 --> 02:21:35,480 you know, we're not alleging there were any violations 2731 02:21:35,480 --> 02:21:38,800 of this very detailed road map at all. 2732 02:21:38,800 --> 02:21:40,520 Justice Groban: I guess the flip side of the question 2733 02:21:40,520 --> 02:21:44,720 is if the PUC is authorized it, 2734 02:21:44,720 --> 02:21:48,920 is your position then 1759 covers it preempted. 2735 02:21:50,880 --> 02:21:53,200 There is no circumstance, 2736 02:21:53,200 --> 02:21:56,960 if the conduct is authorized by the PUC, 2737 02:21:56,960 --> 02:22:00,800 a complaint saying something to the contrary 2738 02:22:00,800 --> 02:22:04,680 is immunized 100% of the time in those circumstances. 2739 02:22:04,680 --> 02:22:07,400 Omid Nasab: Well, Your Honor, and I think the PUC criticized 2740 02:22:07,400 --> 02:22:09,760 maybe our over reliance on the word "authorized," 2741 02:22:09,760 --> 02:22:11,560 and I thought had a fair point 2742 02:22:11,560 --> 02:22:14,400 when it said it's not just that it's been authorized. 2743 02:22:14,400 --> 02:22:16,600 But in the context of PSPS, 2744 02:22:16,600 --> 02:22:19,000 there's really this comprehensive, 2745 02:22:19,160 --> 02:22:22,440 detailed regulatory framework that is -- 2746 02:22:22,440 --> 02:22:25,240 I don't think the regulation could get any more intense, 2747 02:22:25,240 --> 02:22:27,720 right, than what it is on this particular issue. 2748 02:22:27,720 --> 02:22:31,360 And so we're not asking for some rule that, hey, 2749 02:22:31,360 --> 02:22:32,960 if the commission has "authorized" something, 2750 02:22:32,960 --> 02:22:34,360 then you're immunized. 2751 02:22:34,360 --> 02:22:36,680 What we're saying -- In the context like this, 2752 02:22:36,680 --> 02:22:40,160 where there is this incredibly intensive regulatory regime 2753 02:22:40,160 --> 02:22:43,480 on the here's, you know how, 2754 02:22:43,480 --> 02:22:48,360 why and when you should engage in this public safety mechanism, 2755 02:22:48,360 --> 02:22:52,240 then that is preempted because, that's kind of exactly 2756 02:22:52,240 --> 02:22:54,280 what was happening in Covalt and Hartwell, right. 2757 02:22:54,280 --> 02:22:57,560 There were these complex public safety issues, 2758 02:22:57,560 --> 02:23:00,640 and the court said, look where the commission has, 2759 02:23:00,640 --> 02:23:03,520 in that case it was permitted you not to do something, 2760 02:23:03,520 --> 02:23:05,800 you can't be subject to liability for not doing it. 2761 02:23:05,800 --> 02:23:07,840 Here's the inverse, right, where the commission 2762 02:23:07,840 --> 02:23:10,480 as part of a broad and continuing program 2763 02:23:10,480 --> 02:23:12,880 has permitted this activity, 2764 02:23:13,000 --> 02:23:18,400 and the plaintiff wants to sue for it nonetheless. 2765 02:23:24,800 --> 02:23:25,880 I just briefly wanted to touch 2766 02:23:25,880 --> 02:23:29,800 on the issue of deference to the PUC. 2767 02:23:29,800 --> 02:23:33,000 In their briefs, our friends have made the point 2768 02:23:33,000 --> 02:23:36,720 that this court is not bound to give deference to the PUC. 2769 02:23:36,720 --> 02:23:39,720 We agree as a legal matter in construing 1759, 2770 02:23:39,720 --> 02:23:42,440 there isn't legal difference that needs to be given. 2771 02:23:42,440 --> 02:23:44,640 We do think as a prudential matter, 2772 02:23:44,640 --> 02:23:48,800 the regulator's view on the third Covalt factor, 2773 02:23:48,800 --> 02:23:51,560 given that it is discussing whether or not 2774 02:23:51,560 --> 02:23:54,640 there is interference with the commission's work. 2775 02:23:54,640 --> 02:23:56,400 In situations like this 2776 02:23:56,400 --> 02:24:00,400 where we have a complex public policy safety tool, 2777 02:24:00,400 --> 02:24:04,200 it, prudential reasons counsel that deference should be given 2778 02:24:04,200 --> 02:24:06,240 or at least serious consideration 2779 02:24:06,240 --> 02:24:08,000 to the PUC's views. 2780 02:24:08,000 --> 02:24:11,840 And I think that's exactly why in the Orloff case this court 2781 02:24:11,840 --> 02:24:13,400 suggested to lower courts 2782 02:24:13,400 --> 02:24:15,800 that specifically when dealing with this issue, 2783 02:24:15,800 --> 02:24:17,600 the third factor of Covalt, 2784 02:24:17,600 --> 02:24:20,600 that courts solicit the PUC's opinion. 2785 02:24:20,600 --> 02:24:22,160 Because I think that's a recognition 2786 02:24:22,160 --> 02:24:24,640 that the PUC is in the best position 2787 02:24:24,640 --> 02:24:27,640 to judge whether or not there will be interference. 2788 02:24:27,640 --> 02:24:29,240 Justice Liu: Can I ask you counsel 2789 02:24:29,240 --> 02:24:33,440 about the separability of the plaintiff's claim 2790 02:24:37,200 --> 02:24:41,400 from the propriety of the power shutoffs? 2791 02:24:41,560 --> 02:24:44,400 I think their argument is that 2792 02:24:44,400 --> 02:24:46,400 while they've featured it prominently, 2793 02:24:46,400 --> 02:24:52,400 that they take no issue actually with the shutoffs themselves, 2794 02:24:52,600 --> 02:24:56,280 and they make no claim about whether the shutoffs 2795 02:24:56,280 --> 02:24:59,280 were in any sense wrongful, 2796 02:25:00,240 --> 02:25:03,240 vis-?-vis the relevant framework. 2797 02:25:04,280 --> 02:25:06,400 And so all they want to litigate 2798 02:25:06,400 --> 02:25:11,440 is the kind of antecedent issue of grid maintenance. 2799 02:25:11,960 --> 02:25:14,960 Is that a tenable separation? 2800 02:25:15,400 --> 02:25:16,800 Omid Nasab: I don't think so, Your Honor. 2801 02:25:16,800 --> 02:25:18,200 Justice Liu: And why is that? 2802 02:25:18,200 --> 02:25:19,600 Omid Nasab: A couple reasons for that. 2803 02:25:19,600 --> 02:25:22,680 First of all, I do think that this court in Covalt 2804 02:25:22,680 --> 02:25:24,160 was right to suggest 2805 02:25:24,160 --> 02:25:27,000 that the focus be on what is the relief sought. 2806 02:25:27,000 --> 02:25:31,840 And here the relief sought is damages for directly 2807 02:25:31,840 --> 02:25:34,960 and exclusively the power shutoffs, right. 2808 02:25:34,960 --> 02:25:36,520 Turning off the power 2809 02:25:36,520 --> 02:25:38,880 when the weather is hot, dry, and windy, 2810 02:25:38,880 --> 02:25:40,720 and it's dangerous to keep it on. 2811 02:25:40,720 --> 02:25:43,400 There's no dispute in this case that the weather at the times 2812 02:25:43,400 --> 02:25:47,400 this happened was hot, dry and windy and dangerous. 2813 02:25:47,400 --> 02:25:50,280 And So what they want, the precise damages they want, 2814 02:25:50,280 --> 02:25:52,400 they can say it's about this antecedent conduct, 2815 02:25:52,400 --> 02:25:55,200 but all of the damages flow directly 2816 02:25:55,200 --> 02:25:56,680 from that interruption of service, 2817 02:25:56,680 --> 02:25:58,440 which is exactly what the commission -- 2818 02:25:58,440 --> 02:26:00,360 Justice Liu: Well, presumably, their claim 2819 02:26:00,360 --> 02:26:03,800 is that that's just kind of a -- as counsel put it, 2820 02:26:03,800 --> 02:26:07,520 that's the last link in a longer chain of causation, right? 2821 02:26:07,520 --> 02:26:09,560 I mean, in some sense, I think their claim is 2822 02:26:09,560 --> 02:26:11,120 that that's just the vessel 2823 02:26:11,120 --> 02:26:15,320 through which this negligence expressed itself, right. 2824 02:26:15,400 --> 02:26:16,800 And of course it'd be their burden 2825 02:26:16,800 --> 02:26:19,320 to prove this causation at trial 2826 02:26:19,320 --> 02:26:21,880 if they continued with this claim. 2827 02:26:21,880 --> 02:26:24,200 But the point is they're not really litigating 2828 02:26:24,200 --> 02:26:26,000 the wrongness of the shutoff. 2829 02:26:26,000 --> 02:26:29,800 They're just saying that's the, just the physical mechanism 2830 02:26:29,800 --> 02:26:32,320 through which these damages got expressed. 2831 02:26:32,320 --> 02:26:33,840 Omid Nasab: But at its core, it has to be 2832 02:26:33,840 --> 02:26:35,720 that the shutoff, that their power should not 2833 02:26:35,720 --> 02:26:37,800 have been shut off, right. They can't get away from that 2834 02:26:37,800 --> 02:26:39,440 because that's where the damages -- 2835 02:26:39,440 --> 02:26:40,760 Justice Liu: Well, their claim is that the grid 2836 02:26:40,760 --> 02:26:42,960 should have been appropriately maintained 2837 02:26:42,960 --> 02:26:45,560 such that the power shutoff would have been unnecessary. 2838 02:26:45,560 --> 02:26:47,560 Omid Nasab: Right. And so a couple -- 2839 02:26:47,560 --> 02:26:49,280 Justice Liu: That may be hard to prove, 2840 02:26:49,280 --> 02:26:51,000 but I'm just saying that seems to me what they're trying to do. 2841 02:26:51,000 --> 02:26:52,800 Omid Nasab: So a couple responses to that. 2842 02:26:52,800 --> 02:26:55,000 One, it doesn't change the fact, right? 2843 02:26:55,000 --> 02:26:56,280 In essence what that's saying is 2844 02:26:56,280 --> 02:26:58,840 we can make a claim out under 2106. 2845 02:26:58,840 --> 02:27:01,800 Well, that gets you through the door in terms of the analysis. 2846 02:27:01,800 --> 02:27:05,160 But you still -- the court still questions, 2847 02:27:05,160 --> 02:27:09,360 will that somehow, making out that claim under 2106, 2848 02:27:09,360 --> 02:27:11,320 interfere with the commission's regulation? 2849 02:27:11,320 --> 02:27:13,800 And if it does, this court has been crystal clear 2850 02:27:13,800 --> 02:27:15,800 that 1759 has primacy, 2851 02:27:15,960 --> 02:27:19,560 and 2106 has whatever, it's not primacy. 2852 02:27:19,920 --> 02:27:23,840 And so I think that counsels that in this situation 2853 02:27:23,840 --> 02:27:26,400 where the damages are coming directly 2854 02:27:26,400 --> 02:27:27,960 from the authorized activity 2855 02:27:27,960 --> 02:27:31,200 that's shutting off of the power that is interference. 2856 02:27:31,200 --> 02:27:32,640 I would also note, Your Honor, 2857 02:27:32,640 --> 02:27:36,240 that this premise that the shutoffs 2858 02:27:38,120 --> 02:27:40,160 are keyed off of bad maintenance. 2859 02:27:40,160 --> 02:27:42,760 I don't think that's a valid premise in the sense 2860 02:27:42,760 --> 02:27:46,000 that the commission is really keying the shutoffs 2861 02:27:46,000 --> 02:27:47,600 off of dangerous weather. 2862 02:27:47,600 --> 02:27:50,800 And when it approved shutoffs for SDG&E, 2863 02:27:50,800 --> 02:27:54,200 one of the specific things that it discussed, right, 2864 02:27:54,200 --> 02:27:58,240 was that even if equipment met standards, 2865 02:27:58,240 --> 02:28:00,240 it could still pose dangers 2866 02:28:00,240 --> 02:28:02,560 when it's submitted to, subject to high winds. 2867 02:28:02,560 --> 02:28:07,360 And I would point the court to SER 269 in the record, 2868 02:28:07,360 --> 02:28:11,480 where that is issued in the application from SDG&E. 2869 02:28:11,480 --> 02:28:15,560 And I think that also what, it is true that the trees, 2870 02:28:15,560 --> 02:28:18,240 even healthy trees when they're subjected to high winds 2871 02:28:18,240 --> 02:28:20,240 can fail and fall on power lines 2872 02:28:20,240 --> 02:28:23,480 and cause these disasters that we have seen. 2873 02:28:23,480 --> 02:28:25,960 So I also think there's this bad premise. 2874 02:28:25,960 --> 02:28:30,200 And effectively what it's asking judges and juries to do 2875 02:28:30,200 --> 02:28:33,400 is second guess why the commission has given 2876 02:28:33,400 --> 02:28:35,360 the utilities this authority. 2877 02:28:35,360 --> 02:28:37,160 And in a way that's really inconsistent 2878 02:28:37,160 --> 02:28:39,880 with what the commission itself has said about why it's doing. 2879 02:28:39,880 --> 02:28:41,800 Chief Justice Guerrero: When you focused earlier 2880 02:28:41,800 --> 02:28:42,800 on the relief sought, 2881 02:28:42,800 --> 02:28:47,280 how does that analysis play out for the injunctive relief? 2882 02:28:47,280 --> 02:28:48,800 Omid Nasab: Well, I think the injunctive relief 2883 02:28:48,800 --> 02:28:52,400 is just absolutely preempted, Your Honor, 2884 02:28:52,880 --> 02:28:55,800 because the, if you look at paragraph four of the complaint, 2885 02:28:55,800 --> 02:28:57,200 it says the injunctive relief 2886 02:28:57,200 --> 02:29:01,400 is we want to define the obligations 2887 02:29:02,480 --> 02:29:07,480 of PG&E under these statutes they cited such as 451. 2888 02:29:07,480 --> 02:29:09,440 Which is, by the way, the exact same statutes 2889 02:29:09,440 --> 02:29:10,840 that the commission cites 2890 02:29:10,840 --> 02:29:12,800 in saying that "We should turn off the power." 2891 02:29:12,800 --> 02:29:15,160 So I think it's a totally, total misreading 2892 02:29:15,160 --> 02:29:18,920 of what the commission has said those statutes stand for. 2893 02:29:18,920 --> 02:29:22,880 But it wants the court to define those statutes so that, 2894 02:29:22,880 --> 02:29:24,520 and this is paragraph four of the complaint, 2895 02:29:24,520 --> 02:29:27,600 so that the shutoffs are no longer necessary. 2896 02:29:27,600 --> 02:29:31,800 That is absolutely not the commission's position, right? 2897 02:29:31,800 --> 02:29:34,200 The commission's position is that there will be times 2898 02:29:34,200 --> 02:29:38,400 when safety requires shutting off the power. 2899 02:29:38,480 --> 02:29:41,720 And that includes if the lines are well maintained. 2900 02:29:41,720 --> 02:29:45,240 Now, of course, the commission is engaged in this broad effort 2901 02:29:45,240 --> 02:29:46,880 through the wildfire mitigation plans 2902 02:29:46,880 --> 02:29:49,760 where it's authorizing the utilities to spend, 2903 02:29:49,760 --> 02:29:52,800 you know, serious sums of money on wildfire mitigation, 2904 02:29:52,800 --> 02:29:55,800 right, such as under-grounding lines. 2905 02:29:56,800 --> 02:29:58,000 But I think the injunctive relief is -- 2906 02:29:58,000 --> 02:30:01,520 I mean, it's directly into the province of the commission, 2907 02:30:01,520 --> 02:30:05,720 and it is totally infirm under section 1759. 2908 02:30:06,760 --> 02:30:08,520 And I'm happy to address any other questions 2909 02:30:08,520 --> 02:30:10,520 from the court on section 1759. 2910 02:30:10,520 --> 02:30:14,800 I was going to turn very briefly to Tariff Rule 14. 2911 02:30:14,800 --> 02:30:15,840 So on Tariff Rule 14, 2912 02:30:15,840 --> 02:30:18,160 we raised that issue on a motion to dismiss 2913 02:30:18,160 --> 02:30:21,440 because we felt the language of that tariff was unambiguous 2914 02:30:21,440 --> 02:30:25,800 and could be applied without resort to extrinsic evidence. 2915 02:30:25,800 --> 02:30:27,280 Then, frankly, the Ninth Circuit 2916 02:30:27,280 --> 02:30:29,800 disagreed with us on that, right, and said that 2917 02:30:29,800 --> 02:30:31,280 there are multiple reasonable interpretations. 2918 02:30:31,280 --> 02:30:35,000 I think if the court were to view the statute 2919 02:30:35,000 --> 02:30:37,400 as not being plain on its face, 2920 02:30:37,400 --> 02:30:39,520 the appropriate step at that juncture 2921 02:30:39,520 --> 02:30:42,480 is to defer to the commission 2922 02:30:42,480 --> 02:30:45,600 to render an opinion on it in the first instance. 2923 02:30:45,600 --> 02:30:47,480 And the reason for that, I think, 2924 02:30:47,480 --> 02:30:49,800 is really what this court said in Waters, 2925 02:30:49,800 --> 02:30:53,800 which is that tariffs that limit a utilities liability 2926 02:30:53,800 --> 02:30:55,960 have long been the proper supervision 2927 02:30:55,960 --> 02:30:59,600 and province of the of the PUC, number one. 2928 02:30:59,600 --> 02:31:01,760 And number two, that courts should not engage 2929 02:31:01,760 --> 02:31:05,360 in independent judicial construction of tariffs. 2930 02:31:06,000 --> 02:31:07,600 Which would obviously, if we find that 2931 02:31:07,600 --> 02:31:10,640 the tariff is ambiguous, would be what would be required. 2932 02:31:10,640 --> 02:31:13,280 And it strikes me that most of the evidence 2933 02:31:13,280 --> 02:31:15,520 cited by my friend to argue 2934 02:31:15,520 --> 02:31:17,560 for why our reading is not right, 2935 02:31:17,560 --> 02:31:19,920 is resorting to extrinsic evidence 2936 02:31:19,920 --> 02:31:22,760 about what the commission meant 2937 02:31:22,760 --> 02:31:24,720 or how the commission would interpret it. 2938 02:31:24,720 --> 02:31:28,640 And there's a, I think, really obvious answer 2939 02:31:28,640 --> 02:31:30,400 to addressing those questions, 2940 02:31:30,400 --> 02:31:33,160 which would be to let the commission decide that issue 2941 02:31:33,160 --> 02:31:37,160 if the cork were to find it necessary to reach that issue. 2942 02:31:37,160 --> 02:31:41,360 Of Your Honors have no other questions, 2943 02:31:43,400 --> 02:31:45,920 I'm happy to seed my time to the PUC. 2944 02:31:45,920 --> 02:31:47,360 Chief Justice Guerrero: Thank you very much. 2945 02:31:47,360 --> 02:31:50,960 Omid Nasab: Thank you, Your Honors. 2946 02:31:55,360 --> 02:31:56,520 Candace Morey: Good afternoon, Your Honors. 2947 02:31:56,520 --> 02:31:58,000 I'm Candace Morey 2948 02:31:58,000 --> 02:32:00,600 for the California Public Utilities Commission. 2949 02:32:00,600 --> 02:32:03,880 And it is the job of the Public Utilities Commission 2950 02:32:03,880 --> 02:32:08,720 to make the tough policy choices on how to balance public safety, 2951 02:32:08,720 --> 02:32:12,320 electric reliability, and maintain affordable rates. 2952 02:32:13,840 --> 02:32:16,480 But the gist of the plaintiff's complaint here 2953 02:32:16,480 --> 02:32:21,200 is really not that PG&E failed to operate the grid safely, 2954 02:32:21,200 --> 02:32:23,640 but that PG&E failed to operate the grid 2955 02:32:23,640 --> 02:32:27,880 reliably all of the time and under all conditions. 2956 02:32:27,880 --> 02:32:30,240 That's the duty of care that they're going to have to prove 2957 02:32:30,240 --> 02:32:31,720 in order to get the damages 2958 02:32:31,720 --> 02:32:35,120 stemming only from these power safety shutoffs. 2959 02:32:35,120 --> 02:32:37,520 And that's in stark conflict 2960 02:32:37,520 --> 02:32:41,240 with what the commission has interpreted the statutes 2961 02:32:41,240 --> 02:32:43,640 and our own rules to require here. 2962 02:32:43,640 --> 02:32:45,640 And that's why their substantial tort claims 2963 02:32:45,640 --> 02:32:47,600 are going to actually interfere with 2964 02:32:47,600 --> 02:32:50,520 and not aid the commission in our jurisdiction 2965 02:32:50,520 --> 02:32:52,720 over safety and rate making. 2966 02:32:52,720 --> 02:32:54,600 And I think it's really safe to say 2967 02:32:54,600 --> 02:33:00,000 that there's no area of utility operations and rates 2968 02:33:00,200 --> 02:33:03,720 that we've been regulating more comprehensively and more closely 2969 02:33:03,720 --> 02:33:07,320 and with frequent oversight from the California legislature 2970 02:33:07,320 --> 02:33:10,400 then when it comes to power safety, shutoffs 2971 02:33:10,400 --> 02:33:14,240 and the tens of billions of dollars in rate authorizations 2972 02:33:14,240 --> 02:33:16,600 we've made over the past six years 2973 02:33:16,600 --> 02:33:20,680 to deal with the wildfire situation in California. 2974 02:33:20,680 --> 02:33:25,360 Now as a first order matter, the commission's been very clear 2975 02:33:25,360 --> 02:33:27,400 in our direction to the utilities. 2976 02:33:27,400 --> 02:33:31,800 When there's a conflict between maintaining safety 2977 02:33:31,800 --> 02:33:32,880 and reliability, 2978 02:33:32,880 --> 02:33:35,800 then you have to put safety first, period, 2979 02:33:35,800 --> 02:33:38,680 in that real time decision when you're making that decision. 2980 02:33:38,680 --> 02:33:41,200 So that's an obvious conflict here, 2981 02:33:41,200 --> 02:33:43,120 and it stems from the difference 2982 02:33:43,120 --> 02:33:46,120 between plaintiff's interpretation of Section 451 2983 02:33:46,600 --> 02:33:48,600 of the Public Utilities Code 2984 02:33:48,600 --> 02:33:52,200 and the commission's interpretation of Section 451. 2985 02:33:53,200 --> 02:33:55,640 And our interpretation there, to be clear, 2986 02:33:55,640 --> 02:33:57,640 is that the utilities have a duty 2987 02:33:57,640 --> 02:34:01,400 to operate their system safely always. 2988 02:34:01,400 --> 02:34:03,440 But they do not have a duty to operate the system 2989 02:34:03,440 --> 02:34:07,640 continuously at all times and under all circumstances. 2990 02:34:07,640 --> 02:34:10,000 Sometimes they have to shut the power off. 2991 02:34:10,000 --> 02:34:12,680 And we've been very clear about that since 2009 2992 02:34:12,680 --> 02:34:15,320 and in every decision since then. 2993 02:34:15,320 --> 02:34:16,800 But to help the utilities 2994 02:34:16,800 --> 02:34:19,680 navigate these twin aims of safety and reliability, 2995 02:34:19,680 --> 02:34:22,160 because they are sometimes in conflict, 2996 02:34:22,160 --> 02:34:24,360 we've issued extensive guidance 2997 02:34:24,360 --> 02:34:26,520 that we want the utilities to rely on 2998 02:34:26,520 --> 02:34:28,360 when they're making these decisions. 2999 02:34:28,360 --> 02:34:29,640 And again, the first being, 3000 02:34:29,640 --> 02:34:32,400 weigh the public safety risks only. 3001 02:34:32,400 --> 02:34:33,560 Now, the plaintiffs say, well -- 3002 02:34:33,560 --> 02:34:35,800 Justice Evans: So can I ask you a question? 3003 02:34:35,800 --> 02:34:39,280 The PUC does reasonableness reviews, correct? 3004 02:34:39,280 --> 02:34:41,600 And in those reviews, 3005 02:34:41,600 --> 02:34:47,000 does the PUC consider what happened in past years? 3006 02:34:47,800 --> 02:34:50,520 Candace Morey: Your Honor, to be clear and to be frank, 3007 02:34:50,520 --> 02:34:54,440 the PUC has not yet undertaken a reasonableness review 3008 02:34:54,440 --> 02:34:57,200 of any specific power safety shutoff. 3009 02:34:57,200 --> 02:34:59,800 We have reviewed though extensively the shutoffs 3010 02:34:59,800 --> 02:35:01,400 that were conducted in 2019, 3011 02:35:01,400 --> 02:35:03,600 made a number of findings based on them. 3012 02:35:03,600 --> 02:35:05,800 We imposed penalties on PG&E, 3013 02:35:05,800 --> 02:35:08,200 and we created a rate making remedy. 3014 02:35:08,200 --> 02:35:11,600 But to answer your question, we've articulated factors 3015 02:35:11,600 --> 02:35:14,920 that are relevant to that reasonableness review. 3016 02:35:14,920 --> 02:35:17,600 Justice Evans: Do you intend to do reasonableness reviews 3017 02:35:17,600 --> 02:35:19,480 for prior years? 3018 02:35:19,480 --> 02:35:22,320 Candace Morey: We can -- The commission's orders -- 3019 02:35:22,320 --> 02:35:24,680 We've stated that we may undertake 3020 02:35:24,680 --> 02:35:28,640 a reasonableness review at any time in our discretion 3021 02:35:28,640 --> 02:35:31,520 when we feel that it's necessary to render a decision 3022 02:35:31,520 --> 02:35:34,640 on whether the utility was reasonable 3023 02:35:34,640 --> 02:35:37,320 in calling one of these power safety shutoffs. 3024 02:35:37,320 --> 02:35:39,600 We've articulated a number of factors. 3025 02:35:39,600 --> 02:35:40,800 Justice Evans: Maybe or maybe -- 3026 02:35:40,800 --> 02:35:42,320 So maybe, maybe not? 3027 02:35:42,320 --> 02:35:47,600 So it seems like it's not a certainty that you will. 3028 02:35:47,600 --> 02:35:53,400 And given that, I want to know how this lawsuit interferes 3029 02:35:53,400 --> 02:35:56,400 with the PUC's after-the-fact review, 3030 02:35:56,880 --> 02:36:00,880 since those reviews may not be done at all. 3031 02:36:00,880 --> 02:36:02,640 Candace Morey: Yeah, it's a good question, Your Honor. 3032 02:36:02,640 --> 02:36:06,320 And I think it goes to really the heart of the whole construct 3033 02:36:06,320 --> 02:36:10,520 that we've created with this PSPS framework. 3034 02:36:10,800 --> 02:36:13,520 We've provided a framework we want the utilities to rely on. 3035 02:36:13,520 --> 02:36:16,280 And we've said that if you follow the commission's mandates 3036 02:36:16,280 --> 02:36:19,360 to use the power safety shutoffs reasonably, 3037 02:36:19,360 --> 02:36:21,800 and that means only as a tool of last resort, 3038 02:36:21,800 --> 02:36:24,920 then those decisions will qualify for an exemption 3039 02:36:24,920 --> 02:36:27,920 from liability under your Tariff Rule 14. 3040 02:36:27,920 --> 02:36:31,400 And that's paragraph one that's common to all the utilities. 3041 02:36:31,400 --> 02:36:33,800 It's not the specific paragraph four that 3042 02:36:33,800 --> 02:36:36,800 PG&E has relied on in its motion to dismiss. 3043 02:36:36,800 --> 02:36:38,560 And we've also reserved to ourselves 3044 02:36:38,560 --> 02:36:41,280 the sole discretion to make these determinations. 3045 02:36:41,280 --> 02:36:44,000 And that's our chosen policy choice 3046 02:36:44,000 --> 02:36:47,880 to ensure that the utilities are not using power shutoffs 3047 02:36:47,880 --> 02:36:52,000 to dodge investments in grid maintenance or compliance. 3048 02:36:52,000 --> 02:36:54,800 But importantly, the plaintiffs have not asserted 3049 02:36:54,800 --> 02:36:58,400 that PG&E acted unreasonably in calling a safety shutoff. 3050 02:36:58,400 --> 02:36:59,960 They've never asked the commission to make 3051 02:36:59,960 --> 02:37:02,440 that determination. They've never participated 3052 02:37:02,440 --> 02:37:07,000 in any of the commission's numerous ongoing proceedings 3053 02:37:07,000 --> 02:37:09,480 where we're addressing the power safety shut offs. 3054 02:37:09,480 --> 02:37:12,240 So that question isn't really before the court today, 3055 02:37:12,240 --> 02:37:15,360 I would submit. But there's also interference 3056 02:37:15,360 --> 02:37:17,520 by letting these claims move forward, 3057 02:37:17,520 --> 02:37:22,520 even if they're framed as claims for past damages. 3058 02:37:22,520 --> 02:37:25,000 And that's because the plaintiffs are alleging 3059 02:37:25,000 --> 02:37:28,960 both historic and ongoing negligent grid maintenance. 3060 02:37:28,960 --> 02:37:30,960 It's not just limited to 2019. 3061 02:37:30,960 --> 02:37:33,400 Their claims in 2019 were for the shutoffs 3062 02:37:33,400 --> 02:37:37,280 that had occurred as of then and every shut off into the future. 3063 02:37:37,280 --> 02:37:39,920 And so I just want to put this in perspective here 3064 02:37:39,920 --> 02:37:43,200 because there's really no limiting principle 3065 02:37:43,200 --> 02:37:46,320 to class action lawsuits if that's the case. 3066 02:37:46,320 --> 02:37:48,600 If the plaintiffs are right here. 3067 02:37:48,600 --> 02:37:51,200 PG&E operates nearly 25,000 miles 3068 02:37:51,200 --> 02:37:55,320 of overhead distribution lines in high fire threat districts 3069 02:37:55,320 --> 02:37:58,400 that traverse about five million trees. 3070 02:37:58,400 --> 02:38:02,000 So under their theory, a class action could proceed 3071 02:38:02,000 --> 02:38:04,120 if a plaintiff alleges one tree 3072 02:38:04,120 --> 02:38:06,640 was not trimmed to a required clearance, 3073 02:38:06,640 --> 02:38:11,440 or that one pole was missed in PG&E's last inspection. 3074 02:38:11,440 --> 02:38:14,240 And it might not please the court to hear this, 3075 02:38:14,240 --> 02:38:18,440 but there's never a perfect compliance day. 3076 02:38:18,600 --> 02:38:23,200 That's understood and it's baked into our regulatory approaches. 3077 02:38:23,200 --> 02:38:26,280 So what that means is that every single time there's a shutoff, 3078 02:38:26,280 --> 02:38:28,480 if one plaintiff makes that allegation, 3079 02:38:28,480 --> 02:38:32,000 it's going to move forward in a class action lawsuit. 3080 02:38:32,000 --> 02:38:34,240 And that is going to affect rates, 3081 02:38:34,240 --> 02:38:36,200 and it's also going to directly interfere 3082 02:38:36,200 --> 02:38:38,160 with the commission's regulations 3083 02:38:38,160 --> 02:38:40,400 of the wildfire safety plans. 3084 02:38:40,400 --> 02:38:43,400 We've been really comprehensively directing 3085 02:38:44,520 --> 02:38:47,120 and approving the utility strategies for how 3086 02:38:47,120 --> 02:38:50,400 they're going to mitigate wildfire risk in the state. 3087 02:38:50,400 --> 02:38:52,120 And it's not prioritizing, 3088 02:38:52,120 --> 02:38:56,480 hey let's get everything into 100% compliance first today. 3089 02:38:56,480 --> 02:38:58,320 That's actually not the strategy. 3090 02:38:58,320 --> 02:38:59,760 We're looking at under-grounding. 3091 02:38:59,760 --> 02:39:01,360 We're looking at tens of billions of dollars 3092 02:39:01,360 --> 02:39:04,680 in investments. And that's because the rules 3093 02:39:04,680 --> 02:39:07,160 that plaintiffs are alleging are violated, 3094 02:39:07,160 --> 02:39:12,560 the general orders 95 and 165, you know, namely, those rules, 3095 02:39:13,320 --> 02:39:18,120 they set out specifications for poles and wires 3096 02:39:18,840 --> 02:39:21,240 for vegetation management clearances, 3097 02:39:21,640 --> 02:39:24,400 inspection and maintenance schedules. 3098 02:39:24,360 --> 02:39:27,200 And they're really intended to provide for a grid 3099 02:39:27,200 --> 02:39:30,320 that's safe to operate under normally -- 3100 02:39:30,320 --> 02:39:33,320 you know, normally foreseeable conditions. 3101 02:39:33,880 --> 02:39:37,200 Chief Justice Guerrero: Well, what would prevent ongoing, 3102 02:39:37,200 --> 02:39:43,200 as alleged at least, negligent maintenance of the power grid? 3103 02:39:43,200 --> 02:39:44,600 Candace Morey: Your Honor, 3104 02:39:44,600 --> 02:39:46,200 there's several things that present that. 3105 02:39:46,200 --> 02:39:48,240 One, the commission does have enforcement authority, 3106 02:39:48,240 --> 02:39:49,960 and we're always conducting investigation. 3107 02:39:49,960 --> 02:39:53,000 You know, we can at any time conduct an investigation, 3108 02:39:53,000 --> 02:39:55,400 issue citations and penalties. 3109 02:39:56,400 --> 02:39:59,280 And then also as part of that reasonableness review 3110 02:39:59,280 --> 02:40:01,440 that you were asking about earlier, Your Honor, 3111 02:40:01,440 --> 02:40:05,200 we have said that the factors we can look at to decide 3112 02:40:05,200 --> 02:40:07,600 if the utility was acting reasonably, 3113 02:40:07,600 --> 02:40:10,280 and that means are they using the power shutoffs 3114 02:40:10,280 --> 02:40:12,520 only as a tool of last resort? 3115 02:40:12,520 --> 02:40:14,960 We can look at what they what they could have done otherwise. 3116 02:40:14,960 --> 02:40:18,520 And in fact, we have to look at whether there are alternatives 3117 02:40:18,520 --> 02:40:21,760 that they could have undertaken to avoid the shutoffs. 3118 02:40:21,760 --> 02:40:26,320 So for example, if an -- and PG&E has put this in their post, 3119 02:40:26,320 --> 02:40:29,920 PSPS public safety power shutoff filings, 3120 02:40:30,000 --> 02:40:33,440 we require the utilities after every single one of these events 3121 02:40:33,440 --> 02:40:35,520 within ten days to tell us 3122 02:40:35,520 --> 02:40:38,800 why they made that decision to shut the power off. 3123 02:40:38,800 --> 02:40:43,400 And if the utility says, oh, you know, we had 25,000 3124 02:40:43,400 --> 02:40:45,800 outstanding maintenance tags there. 3125 02:40:45,800 --> 02:40:48,400 Or, you know, we forgot to do that inspection last year. 3126 02:40:48,400 --> 02:40:51,800 So we thought we had to shut the power off 3127 02:40:51,800 --> 02:40:54,560 even though the winds were only, you know, 20 miles an hour. 3128 02:40:54,560 --> 02:40:57,000 The commission can come in and make a determination 3129 02:40:57,000 --> 02:41:00,400 that that's not reasonable. And that then could implicate 3130 02:41:00,400 --> 02:41:04,720 whether lawsuits could move forward for tort damages. 3131 02:41:04,720 --> 02:41:08,400 And I just want to touch very briefly on, you know, 3132 02:41:08,400 --> 02:41:10,200 why there is going to be interference here 3133 02:41:10,200 --> 02:41:12,200 if these claims, 3134 02:41:12,400 --> 02:41:14,520 even if they're really narrowly focused 3135 02:41:14,520 --> 02:41:19,560 on the violations of the general orders, they're going to, 3136 02:41:19,560 --> 02:41:22,280 this $2 1/2 billion of tort liability 3137 02:41:22,280 --> 02:41:24,720 is going to affect the utility's conduct. 3138 02:41:24,720 --> 02:41:27,200 I mean that's kind of the premise of tort liability, 3139 02:41:27,200 --> 02:41:29,280 and that's really what plaintiffs want. 3140 02:41:29,280 --> 02:41:31,800 Plaintiffs want to get to a grid. 3141 02:41:31,800 --> 02:41:34,240 Really, the gist of their complaint is to get to a grid 3142 02:41:34,240 --> 02:41:36,400 where there's never going to be a need 3143 02:41:36,400 --> 02:41:39,480 for public power safety shutoff ever. 3144 02:41:39,480 --> 02:41:41,400 And that's just not realistic. 3145 02:41:41,400 --> 02:41:44,160 But the commission is managing the money 3146 02:41:44,160 --> 02:41:45,920 and the strategies that we're taking 3147 02:41:45,920 --> 02:41:48,000 to get as close there as we can. 3148 02:41:48,000 --> 02:41:51,200 And if this tort liability is imposed that's focused 3149 02:41:51,200 --> 02:41:53,400 on violations of the general orders, 3150 02:41:53,400 --> 02:41:55,200 utility, a reasonable utility, 3151 02:41:55,200 --> 02:41:57,000 is going to try to mitigate that risk. 3152 02:41:57,000 --> 02:41:59,400 So they might shift their work from areas of the state 3153 02:41:59,400 --> 02:42:02,240 that have the highest wildfire risk, 3154 02:42:02,240 --> 02:42:04,600 but they might not be as populated. 3155 02:42:04,600 --> 02:42:06,400 They might not be as wealthy. 3156 02:42:06,400 --> 02:42:08,520 And they're going to try to redirect that work 3157 02:42:08,520 --> 02:42:10,920 to getting 100% into compliance 3158 02:42:11,000 --> 02:42:13,800 with the general orders in the areas of the state 3159 02:42:13,800 --> 02:42:17,000 that pose the highest economic liability risk. 3160 02:42:17,000 --> 02:42:20,480 And that might be in conflict with what the commission thinks 3161 02:42:20,480 --> 02:42:21,920 should be the highest priorities. 3162 02:42:21,920 --> 02:42:24,720 And it's just really not the role of plaintiffs, 3163 02:42:24,720 --> 02:42:26,600 the judges and juries in the state 3164 02:42:26,600 --> 02:42:30,200 to second guess the commission's authorizations in those area. 3165 02:42:30,200 --> 02:42:32,160 They're at the very core of our mission. 3166 02:42:32,160 --> 02:42:34,600 And as I've said, we've got a lot of oversight here 3167 02:42:34,600 --> 02:42:37,440 in this area from the California legislature. 3168 02:42:37,440 --> 02:42:39,600 And one other thing I just want to touch on 3169 02:42:39,600 --> 02:42:41,480 is plaintiffs have also said, 3170 02:42:41,480 --> 02:42:44,800 well, you can't take this liability 3171 02:42:44,800 --> 02:42:46,840 into consideration in real time, right. 3172 02:42:46,840 --> 02:42:48,640 So it's not going to factor in. 3173 02:42:48,640 --> 02:42:52,800 And, you know, frankly, the commission is here today 3174 02:42:52,800 --> 02:42:54,400 because we disagree. 3175 02:42:54,400 --> 02:42:58,200 We are very concerned that plaintiff's assumption 3176 02:42:58,200 --> 02:43:01,200 is not just wrong, it's dangerous. 3177 02:43:01,200 --> 02:43:04,600 Significant tort liability is going to create a disincentive 3178 02:43:04,600 --> 02:43:08,840 for utilities to not use these power safety shutoffs 3179 02:43:08,840 --> 02:43:12,560 even when it's appropriate and even when it's reasonable. 3180 02:43:12,560 --> 02:43:16,480 Putting billions of dollars of class action tort liability 3181 02:43:16,480 --> 02:43:19,320 in play here is at least going to put a thumb on the scales 3182 02:43:19,320 --> 02:43:21,000 that we don't want to be there. 3183 02:43:21,000 --> 02:43:24,800 And the commission itself has already recognized 3184 02:43:24,800 --> 02:43:29,280 and used financial incentives to adjust the PSPS framework. 3185 02:43:29,280 --> 02:43:31,400 Following our investigation 3186 02:43:31,400 --> 02:43:33,960 into the power safety shutoffs in 2019, 3187 02:43:33,960 --> 02:43:38,440 we imposed a rate making remedy to prevent the utilities 3188 02:43:38,440 --> 02:43:41,880 from collecting revenues lost during the shutoffs. 3189 02:43:41,880 --> 02:43:44,640 And we did it to create an ongoing incentive 3190 02:43:44,640 --> 02:43:47,200 for the utilities to improve their conduct 3191 02:43:47,200 --> 02:43:48,680 in their decision making. 3192 02:43:48,680 --> 02:43:52,280 And that's in decision 2106014 at page 59. 3193 02:43:54,160 --> 02:43:55,920 But that's the commission's choice. 3194 02:43:55,920 --> 02:44:00,200 And it basically puts several millions of dollars in play, 3195 02:44:00,200 --> 02:44:02,200 not several billion. 3196 02:44:03,360 --> 02:44:06,800 And, you know, we expect the utilities to follow the law, 3197 02:44:06,800 --> 02:44:08,480 but the underlying economics -- 3198 02:44:08,480 --> 02:44:10,640 you know, one common regulatory tool 3199 02:44:10,640 --> 02:44:13,400 is to structure those underlying economics 3200 02:44:13,400 --> 02:44:15,240 to give them the right incentives. 3201 02:44:15,240 --> 02:44:17,400 And then, again, even if we do give the plaintiffs 3202 02:44:17,400 --> 02:44:20,200 and the utilities the benefit of the doubt 3203 02:44:20,200 --> 02:44:23,800 that this won't affect the decision making in real time, 3204 02:44:23,800 --> 02:44:26,720 these damages claims are going to interfere 3205 02:44:26,720 --> 02:44:30,480 with how we're managing the wildfire situation overall. 3206 02:44:30,480 --> 02:44:37,800 How we're prioritizing the work with the resources that we have. 3207 02:44:37,680 --> 02:44:42,000 And Your Honor, I just want to, sorry, 3208 02:44:42,000 --> 02:44:45,320 I think I really touched on all of my points here 3209 02:44:45,320 --> 02:44:49,560 except that perhaps to just make one final observation 3210 02:44:49,560 --> 02:44:53,240 is that plaintiffs do have remedies available to them. 3211 02:44:53,240 --> 02:44:55,640 You know, rather than seeking the relief 3212 02:44:55,640 --> 02:44:59,440 that they want tort liability in superior courts, 3213 02:44:59,440 --> 02:45:02,840 they can potentially obtain remedies from the commission. 3214 02:45:02,840 --> 02:45:05,600 And instead they're just trying to do an end run 3215 02:45:05,600 --> 02:45:08,600 around this PSPS framework altogether. 3216 02:45:09,240 --> 02:45:11,000 And so we would invite these plaintiffs 3217 02:45:11,000 --> 02:45:15,320 and all potential plaintiffs to participate in our public forums 3218 02:45:15,320 --> 02:45:16,640 to get the relief that they want. 3219 02:45:16,640 --> 02:45:20,000 They can raise their particular concerns 3220 02:45:20,000 --> 02:45:21,280 in a reasonableness review. 3221 02:45:21,280 --> 02:45:23,200 They can ask for a reasonableness review 3222 02:45:23,200 --> 02:45:26,000 or in public comments that they can submit 3223 02:45:26,000 --> 02:45:29,600 after every single event. They can raise their concerns 3224 02:45:29,600 --> 02:45:32,800 that the utility is not undertaking required maintenance 3225 02:45:32,800 --> 02:45:34,320 and is not in compliance. 3226 02:45:34,320 --> 02:45:39,120 And there are other forums available as well. 3227 02:45:39,800 --> 02:45:41,760 So unless there are any further questions, 3228 02:45:41,760 --> 02:45:43,800 I think I'll conclude. Thank you. 3229 02:45:43,800 --> 02:45:45,200 Chief Justice Guerrero: Thank you, Ms. Morey. 3230 02:45:45,200 --> 02:45:47,200 Mr. Carlin. 3231 02:45:49,400 --> 02:45:52,120 Nicholas Carlin: Thank you, Justice Guerrero. 3232 02:45:52,120 --> 02:45:56,400 First of all, there is no remedy for damages from the PUC. 3233 02:45:56,400 --> 02:45:58,120 The PUC has acknowledged that. 3234 02:45:58,120 --> 02:46:02,200 They don't have the power or jurisdiction to award damages. 3235 02:46:02,200 --> 02:46:05,600 So without this lawsuit, my client 3236 02:46:05,600 --> 02:46:08,200 and the hundreds of thousands of other people 3237 02:46:08,200 --> 02:46:12,240 who were harmed for days and weeks at a time 3238 02:46:12,240 --> 02:46:14,640 without having electricity, communications, 3239 02:46:16,400 --> 02:46:19,400 heat, loss of refrigerated items, 3240 02:46:21,800 --> 02:46:25,400 dissipate disabled persons who couldn't get, 3241 02:46:25,600 --> 02:46:28,000 couldn't get the electricity they needed 3242 02:46:28,000 --> 02:46:29,560 to power their devices. 3243 02:46:29,560 --> 02:46:32,520 All of those people will have no recourse. 3244 02:46:32,520 --> 02:46:35,520 And the purpose of tort liability 3245 02:46:35,520 --> 02:46:39,720 is both to provide compensation and deterrence. 3246 02:46:39,800 --> 02:46:41,360 And we talked about deterrence. 3247 02:46:41,360 --> 02:46:43,520 I haven't talked much about compensation, 3248 02:46:43,520 --> 02:46:46,360 but I think that's a very important factor here. 3249 02:46:46,360 --> 02:46:48,680 This is the only forum for these people 3250 02:46:48,680 --> 02:46:53,160 to get some compensation for PG&E's gross, 3251 02:46:53,160 --> 02:46:54,920 and I'll repeat, criminal negligence, 3252 02:46:54,920 --> 02:47:01,520 which has been found time and time again by Judge Alsup. 3253 02:47:07,360 --> 02:47:13,360 The reasonable -- PUC first talks about the reasonable -- 3254 02:47:14,160 --> 02:47:16,160 reasonability -- reasonableness 3255 02:47:16,480 --> 02:47:18,800 of the PSPS's reasonableness review. 3256 02:47:18,800 --> 02:47:20,320 What they're talking about 3257 02:47:20,320 --> 02:47:25,160 is whether it was reasonable to implement the PSPS's. 3258 02:47:25,160 --> 02:47:28,400 And again, that is not an issue for us. 3259 02:47:28,400 --> 02:47:32,200 We can see that they were reasonable to do so. 3260 02:47:32,200 --> 02:47:34,200 The issue is were they negligent? 3261 02:47:34,200 --> 02:47:38,480 Was it their negligence what caused them to do it. 3262 02:47:38,480 --> 02:47:43,880 And PUC says, well, they should only do them 3263 02:47:46,240 --> 02:47:49,400 if the weather conditions are such that 3264 02:47:49,400 --> 02:47:51,760 we need to implement them for safety. 3265 02:47:51,760 --> 02:47:53,440 Again, we don't disagree with that. 3266 02:47:53,440 --> 02:47:55,520 But the problem here is that 3267 02:47:55,520 --> 02:47:57,280 because of the negligent maintenance, 3268 02:47:57,280 --> 02:47:59,760 and this is something that Judge Alsup also 3269 02:47:59,760 --> 02:48:02,560 is talked about in the materials we provided. 3270 02:48:02,560 --> 02:48:04,480 Because of their negligent maintenance, 3271 02:48:04,480 --> 02:48:07,720 they had to do more PSPS's 3272 02:48:07,720 --> 02:48:09,400 because they had to shut down the grid 3273 02:48:09,400 --> 02:48:12,560 when the winds were like only 40 or 50 miles an hour 3274 02:48:12,560 --> 02:48:16,160 rather than 90 or whatever the maximum 3275 02:48:16,400 --> 02:48:18,680 was under the regulations. 3276 02:48:18,680 --> 02:48:20,920 They were violating these regulations. 3277 02:48:20,920 --> 02:48:22,920 They were violating 451. 3278 02:48:23,400 --> 02:48:25,280 They were violating their obligations 3279 02:48:25,280 --> 02:48:26,800 to maintain a safe grid. 3280 02:48:26,800 --> 02:48:30,880 And because of that they created the danger 3281 02:48:30,880 --> 02:48:35,800 which required them to do these blackouts. 3282 02:48:35,120 --> 02:48:41,720 Now counsel says that PG&E does not have to maintain 3283 02:48:43,240 --> 02:48:46,840 a continuous supply of electric energy, 3284 02:48:47,200 --> 02:48:50,000 but under Tariff Rule 14, it says 3285 02:48:50,000 --> 02:48:54,320 PG&E will exercise reasonable diligence and care to furnish 3286 02:48:54,320 --> 02:48:56,680 and deliver a continuous and sufficient supply 3287 02:48:56,680 --> 02:48:59,400 of electrical energy to the customer. 3288 02:48:59,400 --> 02:49:01,680 Does not guarantee continuity. 3289 02:49:01,680 --> 02:49:05,640 But it says PG&E will not be liable for any loss or damage 3290 02:49:05,640 --> 02:49:08,400 except that arising from its failure 3291 02:49:08,400 --> 02:49:10,280 to exercise reasonable diligence. 3292 02:49:10,280 --> 02:49:12,000 That's exactly what we're saying here. 3293 02:49:12,000 --> 02:49:14,600 They did not exercise reasonable diligence. 3294 02:49:14,600 --> 02:49:20,480 They should be liable for the damages caused by that. 3295 02:49:20,480 --> 02:49:26,240 As far as deference to the PUC, and you know, 3296 02:49:26,240 --> 02:49:29,840 with all deference to my colleague over here, 3297 02:49:29,840 --> 02:49:34,400 under Yamaha, there is no deference accorded. 3298 02:49:35,360 --> 02:49:40,160 This is not a quasi-legislative rule or proceeding. 3299 02:49:43,480 --> 02:49:45,480 We're talking about -- There was an amicus brief 3300 02:49:45,480 --> 02:49:49,800 from PUC's general counsel's office here. 3301 02:49:49,360 --> 02:49:53,480 So there's no deference entitlement under Yamaha. 3302 02:49:53,480 --> 02:49:57,400 And PUC -- Actually, if we look at the history 3303 02:49:57,400 --> 02:49:59,320 for the past ten years, 3304 02:49:59,320 --> 02:50:02,200 PUC seems to have a knee-jerk reaction 3305 02:50:02,200 --> 02:50:03,840 to come in as an amicus 3306 02:50:03,840 --> 02:50:08,640 in every case where 1759 preemption has been alleged. 3307 02:50:09,440 --> 02:50:13,600 I found there's been four or five cases. 3308 02:50:13,600 --> 02:50:18,240 Each time, they came in arguing for 1759 preemption. 3309 02:50:18,240 --> 02:50:20,400 Each time, the court rejected it, 3310 02:50:20,400 --> 02:50:23,240 except the first one, which was the Cooney case, 3311 02:50:23,240 --> 02:50:27,480 which was the somewhat unusual in pro per lady 3312 02:50:27,480 --> 02:50:32,640 who thought she was getting irradiated from her -- 3313 02:50:32,640 --> 02:50:35,560 from one of her devices and had to move to West Virginia. 3314 02:50:35,560 --> 02:50:38,280 So that's the only case in which the court agreed 3315 02:50:38,280 --> 02:50:41,160 with the PUC on 1759 preemption. 3316 02:50:41,160 --> 02:50:46,400 So this court -- And by the way, we have submitted amicus briefs 3317 02:50:46,400 --> 02:50:48,640 from the former executive director of the PUC, 3318 02:50:48,640 --> 02:50:53,560 Alice Stebbins, former president and commissioner of the PUC, 3319 02:50:53,560 --> 02:50:55,200 Loretta Lynch, 3320 02:50:55,200 --> 02:50:58,320 and a former attorney for the PUC. 3321 02:50:58,320 --> 02:51:01,200 All of them say this does not interfere -- 3322 02:51:01,200 --> 02:51:03,440 this case would not interfere 3323 02:51:03,440 --> 02:51:06,440 with the PUC's regulatory authority. 3324 02:51:07,640 --> 02:51:13,400 As far as past damages, this court, in Hartwell, 3325 02:51:14,520 --> 02:51:17,280 said redressing injuries for past wrongs 3326 02:51:17,280 --> 02:51:19,680 does not interfere with the PUC 3327 02:51:19,680 --> 02:51:22,800 in implementing its supervisory and regulatory policies 3328 02:51:22,800 --> 02:51:28,200 to prevent future harm. Now there's been a suggesting 3329 02:51:29,320 --> 02:51:32,400 that the injunctive relief claimed is over-broad. 3330 02:51:32,400 --> 02:51:35,560 If so, that's something that can be worked out 3331 02:51:35,560 --> 02:51:37,000 at the trial court level. 3332 02:51:37,000 --> 02:51:41,200 But essentially, we've alleged in the complaint 3333 02:51:41,200 --> 02:51:43,000 is for injunctive relief is that 3334 02:51:43,000 --> 02:51:48,000 PG&E comply with the statutes and with PG&E's regulations. 3335 02:51:48,000 --> 02:51:54,600 That's it. We're not asking to go one inch beyond that. 3336 02:51:57,600 --> 02:52:00,800 There was discussion about, well, if 3337 02:52:00,800 --> 02:52:05,320 PG&E is forced to pay for damages here, 3338 02:52:05,320 --> 02:52:07,400 and sure we've alleged a big number, 3339 02:52:07,400 --> 02:52:10,400 but there's many a slip between the cup and the lip. 3340 02:52:10,400 --> 02:52:12,760 Who knows how this case ends up in terms 3341 02:52:12,760 --> 02:52:14,520 of what the damages would be. 3342 02:52:14,520 --> 02:52:16,760 At that point, there would have to be a decision made as to 3343 02:52:16,760 --> 02:52:21,560 whether PG&E corporation and invest around utility 3344 02:52:23,000 --> 02:52:29,640 should pay for the damages or whether there is going to be -- 3345 02:52:29,640 --> 02:52:31,480 it's going to be passed to the ratepayers. 3346 02:52:31,480 --> 02:52:36,720 But that's a decision for the future for the PUC to deal with. 3347 02:52:36,720 --> 02:52:39,000 It's not necessarily going to come out 3348 02:52:39,000 --> 02:52:41,400 of their maintenance budget. 3349 02:52:41,880 --> 02:52:45,840 It could certainly come out of the excess bonuses 3350 02:52:45,840 --> 02:52:49,560 and dividends that they've paid to their shareholders 3351 02:52:49,560 --> 02:52:53,000 and executives over the years as discussed 3352 02:52:53,000 --> 02:52:57,680 and found by Judge Alsup and in his criminal proceedings. 3353 02:52:57,680 --> 02:53:04,280 So that's really just a another, I think, another scare tactic 3354 02:53:06,000 --> 02:53:11,400 that they're trying to inflict on us, Your Honors. 3355 02:53:12,680 --> 02:53:15,400 This is a simple run-of-the-mill negligence case. 3356 02:53:15,400 --> 02:53:16,960 It's a class action. 3357 02:53:16,960 --> 02:53:20,280 If we're to say that simply the amount of damages 3358 02:53:20,280 --> 02:53:25,800 sought in a class action against a utility 3359 02:53:25,400 --> 02:53:29,600 is automatically going to result in preemption, 3360 02:53:31,520 --> 02:53:35,880 then they'll never be allowed another class action 3361 02:53:35,880 --> 02:53:37,880 against a utility. 3362 02:53:38,360 --> 02:53:41,360 Simply the amount of money sought cannot be, 3363 02:53:41,360 --> 02:53:43,600 cannot be the basis for preemption. 3364 02:53:43,600 --> 02:53:48,240 There has to be actual interference under section 1759 3365 02:53:48,240 --> 02:53:51,240 and under this court's jurisprudence. 3366 02:53:52,200 --> 02:53:53,800 Chief Justice Guerrero: Thank you, counsel. 3367 02:53:53,800 --> 02:53:54,880 Nicholas Carlin: If there's any further questions, 3368 02:53:54,880 --> 02:53:57,000 I'm happy to answer them. 3369 02:53:57,000 --> 02:53:58,360 Justice Guerrero: There don't appear to be any. 3370 02:53:58,360 --> 02:53:59,880 Thank you to all of the counsel here 3371 02:53:59,880 --> 02:54:02,400 for your helpful arguments on this interesting case. 3372 02:54:02,400 --> 02:54:04,720 And the matter is submitted. Court is adjourned. 3373 02:54:04,720 --> 02:54:07,120 Nicholas Carlin: Thank you.