Appeal and Habeas

As has been extensively discussed in the media (LA Times coverage here), the California Supreme Court held Monday that California’s laws on medical marijuana do not bar local communities from prohibiting the creation of marijuana dispensaries.  The case is Riverside v. Inland Empire Patients Health and Wellness Center.

A small but interesting point, to my eye, is the discussion of the limited value of the Legislature’s assertion of its “aims” in enacting the Medical Marijuana Program (MMP) in interpreting the substantive provisions of the statute.  Dispensary proponents had emphasized that the Legislature described fairly broad goals of ensuring that medical marijuana patients have access to marijuana, and argued that this aim implied preemption of local authority to regulate dispensaries.  Not so fast, says the California Supreme Court: “We cannot employ the Legislature‘s expansive declaration of aims to stretch the MMP‘s effect beyond a reasonable construction of its substantive provisions.”  In other words, the expression of Legislative intent only goes so far, and a statute doesn’t necessarily accomplish a goal merely because it describes that goal.

This decision in the CSC comes on the heels of, and reinforces, the pair of cases from the Courts of Appeal that were mentioned in the previous post.

California has adopted fairly robust laws permitting individuals to use marijuana for medical purposes, but many municipalities are not fond of medical marijuana dispensaries.  And the municipalities are frequently getting the final word on the subject.  Two different districts of the California Court of Appeal recently published cases involving losses for dispensary proponents — City of Tulare v. Nunes (F063555), from the Fifth District Court of Appeal, and City of Monterey v. Carrnshimba (H036475), from the Sixth District Court of Appeal — with each case turning on the interplay between the protections for medical marijuana users on the one hand and the municipality’s power to set zoning regulations on the other hand.  The implications of the cases go beyond the realm of medical marijuana because they contain language strongly affirming municipal regulatory power.

Carrnshimba, which was originally issued on March 27 and has now been published, is also interesting from a procedural perspective because of the arc of analysis.  The basic issue in the case had to do with whether the city of Monterey could retroactively apply a dispensary moratorium to a dispensary that had been created prior to the enactment of the moratorium.  But the Court of Appeal resolves the case by noting that the dispensary violated the City Code even before the moratorium was enacted — a point that was not the basis for granting summary judgment below.  The Court of Appeal includes this footnote discussing the procedural issue:

Code of Civil Procedure section 437c, subdivision (m)(2) provides in part: ―Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs.‖ In this case, our affirmance of the trial court‘s grant of summary judgment is in part on a ground not relied upon by the trial court, i.e., that the operation of a Dispensary was not a permitted use under the pre-moratorium City Code. Both parties in fact fully briefed this issue on appeal, and appellants, in doing so, specifically requested that we decide the question. It is therefore debatable whether a supplemental briefing notice is required. (See Bains v. Moores (2009) 172 Cal.App.4th 445, 471, fn. 39; Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1147.) But we nonetheless notified the parties that they could elect to submit supplemental briefing on this issue. Monterey submitted a supplemental brief, which we have considered.

Suppose trial counsel screws up, with the result that the plaintiff obtains a default judgment: what does that lawyer need to say in a motion for relief under Code of Civil Procedure section 473 in order to make sure that the defendant’s goose is not completely cooked?  And how many chances does the lawyer get to say it the right way?  Those questions are teed up in the intriguing case of Even Zohar Construction v. Bellaire Townhouses (B239928), published last week by Division Four of the California Second District Court of Appeal.

This won’t hurt a bit: Lawyers who blame their own errors in seeking relief from default must be careful about the manner in which they describe the errors.

The lawyer in Even Zohar filed a pair of motions for relief, both citing section 473.  Each motion was accompanied by a declaration stating various reasons why trial counsel failed to respond to the initial complaint.   But there were problems each time.

The first motion, which could have provided for mandatory relief from default if it had been appropriately accompanied by an affidavit describing the lawyer’s “mistake, inadvertence, surprise, or neglect,” was backed up only by notably generic claims by trial counsel.  The affidavit actually did cite the lawyer’s “mistake” and “neglect,” but the court of appeal agrees that trial court properly found these allegations to be “far too conclusory,” such that it was appropriate to deny the motion.

The second motion, which was interpreted as an attempt to renew the first motion, then failed to comply with the requirement, under section 1008, of providing both “new or different facts” and, more critically, “a satisfactory explanation for the failure to produce the evidence at an earlier time.”  (The latter part of this requirement being a creation of the caselaw, not explicitly stated in the code.)  So while the affidavit attached to the second motion had more facts and arguably better facts, it nevertheless failed to adequately explain why the lawyer hadn’t brought this stuff up in the first place.   The explanation given by the lawyer was that he had been too embarrassed to explain the full situation in the first affidavit — a claim that the trial court did not swallow. However, the trial court concluded that under Standard Microsystems v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, the failure to comply with the requirements of section 1008 did not bar relief under section 473.

The Court of Appeal disagrees, splitting from the holding of Standard Microsystems.  The holding here is that if trial counsel fails proffers a lame, conclusory affidavit, loses a section 473 motion, and then tries to renew the motion with better facts but without explaining the prior failure to include those facts in the original affidavit, they are simply going to be out of luck.  So fall on your sword in the same way you do everything else: meticulously!

It was harmless for a jury to be instructed that the plaintiff in a bicycle-versus-car accident case was negligent in the way he rode his bike because the special verdict showed that the jury never reached the question of the plaintiff’s negligence.  That is the conclusion of Spriesterbach v. Holland, B240348, published today by Division 2 of California’s Fourth District Court of Appeal.

Are you biking the wrong way, or is that just what the jury was told? And what difference does it make?

The case is factually simple: a driver pulling out of a parking lot hits Spriesterbach, who is riding his bike down the sidewalk going against the normal flow of traffic.  The jury is told that, by riding his bike in that fashion, Spriesterbach violated the Vehicle Code and consequently was negligent per se.  Which, the Court of Appeal notes, is legally incorrect.  The Vehicle Code did not require Spriesterbach to ride with the flow of traffic while on the sidewalk, and there was nothing negligent about his actions.

The error is harmless, the Court of Appeal concludes, because it can be inferred from the structure of the special verdict form that the jury never got to the question of whether Spriesterbach was himself negligent.  The verdict form looked like this, and only required the jury to move onto the next question if it answer “yes” to the previous question:

1. Was Janice Holland negligent?
2. Was Janice Holland’s negligence a substantial factor in causing harm to Micheal Spriesterbach?
3. What are Micheal Spriesterbach’s total damages?
4. Was Micheal Spriesterbach negligent?
5. Was Micheal Spriesterbach’s negligence a substantial factor in causing him harm?
6. What percentage of responsibility for Micheal Spriesterbach’s harm do you assign to: Defendant Janice Holland? Plaintiff Micheal Spriesterbach?

Emphasis added.  Since the jury decided the defendant was not negligent, the Court of Appeal concludes, it necessarily stopped at question one and never got to question four, where the instruction about Spriesterbach’s negligence might have come into play.  Sounds okay on one level.  But wouldn’t most lay jurors have been looking at the “big picture” of the case even when they answered question one, such that their opinion of Holland’s negligence would have taken into account the fact that they had been told that Spriesterbach was himself negligent?  Tough to know for sure, but anyway that’s not what this case concluded.

One of the basic arrows in the quiver of the trial-level defense attorney is the identity defense, which is simply the argument that the police arrested the wrong person.  Given the well-documented foibles of eyewitness identification, the potential for police bungling of an investigation, and the sheer difficulty of turning sprawling, real-world evidence into a coherent narrative, identity defenses often make sense.  They present a simple and emotionally compelling story to the jury, one that can provide a pathway to acquittal even if the elements of the offense are well established.

Going “all in” on an identity defense creates serious problems on appeal when the jury does not agree with the argument.

An identity defense case often makes for a lousy appeal, however.  That’s because, in many identity cases, defense counsel has bet the entire case on the question of identity, which is for the jury to decide.  The court of appeal will not revisit that evidentiary call once the jury has made it.  The hooks for a good legal argument on appeal from such a case are consequently going to be few and far between.  It will also be very hard to show prejudice, even if an error can be identified, because almost all legal disputes will appear, in retrospect, to have been tangential to the essential question of the case: whodunnit.

One way of setting up a stronger appeal in an identity case would be to present alternative arguments to the jury: “My client didn’t do it.  But even you think he did it, the elements of the crime aren’t satisfied.”  Sounds great in theory.  But trial lawyers know that most jurors are fairly concrete people.  Jurors want to know what “really” happened, not just what might have happened.  They might well be turned off or even offended by the type of academic hair-splitting that comes along with presenting alternative legal claims.

A more practical approach, which I would love to see adopted more widely at the trial level, is for defense counsel in identity cases to do a more vigorous job of litigating those aspects of the case that can be handled out of the presence of the jury.  The arguments in limine and the discussion of jury instructions, in particular, can and should set up good appellate issues even in a case where the only claim that will be made directly to the jury has to do with identity.  Because prejudice has to be shown on appeal, defense counsel also shouldn’t shy away from attacking prosecution witnesses in vulnerable areas, even if those vulnerabilities don’t go directly to the defense theory of mistaken identity.

In other words, even if the jury needs to be told a simple story to keep the defense theory coherent, defense counsel must also keep the big picture in mind.  Some identity defenses fail.  That potential for failure means that the trial strategy should not be completely monolithic or oversimplified, even when identity is the core of the defense argument.

Babb v. Lozowsky, No. 11-16784, a habeas case published by a Ninth Circuit panel on Friday, is a reversal for the petitioner, but it also contains some useful language about the scope of “clearly established federal law” for purposes of applying the AEDPA to state court opinions.  In particular, Babb deals with whether a legal principle may be “clearly established federal law” even if it’s not the explicit holding of a SCOTUS case.   The panel writes:

The State argues that Bunkley [v. Florida, 538 U.S.  835 (2003), a case relied on by the petitioner] is merely persuasive authority, because the Supreme Court in that case did not actually hold that due process requires that changes in state law be applied to convictions that are not yet final, but only certified a question to the Florida Supreme Court. Although the Supreme Court stopped short of holding that changes in state law must be applied to convictions that are not yet final, Bunkley confirmed that failing to apply such changes would have the same effect as failing to give retroactive application to a clarification; it would permit the state to convict individuals who are not guilty of a crime under the applicable law. Thus, after the Supreme Court’s decision in Bunkley, it was an unreasonable application of established federal law and a violation of Babb’s due process rights for the Nevada court not to apply the change in Byford, which narrowed the category conduct that can be considered criminal, to her case. While it does not constitute an express holding, Bunkley made clear that Griffith’s holding, requiring new rules to apply to convictions that are not yet final, extends to changes in state law that narrow the category of conduct that can be considered criminal. See Williams v. Taylor, 529 U.S. 362, 407 (2000) (noting that “a state-court decision also involves an unreasonable application of [the Supreme Court’s] precedent if the state court . . . unreasonably refuses to extend that principle to a new context where it should apply”).

The case of Ortiz v. Yates (11-56383), published this week by the Ninth Circuit, is a victory for the habeas petitioner, but language in the case can also be used against future habeas litigants.  The court notes that the error that was at stake in that case, which had to do with the restriction of cross-examination, was assessed by the state appellate court as a question purely of state law.  There is some precedent holding that, under such circumstances, AEDPA deference does not apply to the federal review of the state court decision.  See, e.g., Rompilla v. Beard, 545 U.S. 374, 390 (2005).  Ortiz v. Yates rejects that perspective, however, stating:

Ortiz’s petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. Although the California Court of Appeal did not explicitly address the trial court’s curtailment of cross-examination in constitutional terms, we agree with the District Court that the Court of Appeal implicitly decided the merits of Ortiz’s Confrontation Clause claim. The Court of Appeal acknowledged that Ortiz raised this claim in his direct appeal by asserting that the trial court “violated his due process and Sixth Amendment rights by restricting his counsel’s cross-examination of the victim,” but, by citing Cudjo, indicated that in its view the trial court’s error did not reach constitutional magnitude. AEDPA therefore properly applies.

This analysis arguably might come out differently if the state court left out the explicit acknowledgment of the appellant’s claim that the error implicated the federal Constitution.

The New York Times this week returned to an issue that got shelved during Obama’s first term: his pledge to close Guantanamo.  In an editorial, the NYT argues that Obama “needs to become more engaged this time around and be willing to spend political capital” if he actually wants to get Guantanamo closed.

That question of political capital does indeed seem to be the sticking point.  Like a number of other issues — the war on drugs and the need for better environmental regulation come to mind — Guantanamo and civil liberties problems all too quickly take second place to whatever seems to be the critical question of the day.  So while Congress frets about “fiscal cliffs” that will be forgotten two weeks after they are avoided, Guantanamo continues to be a national disgrace, one that will go down in history next to America’s WWII internment of the Japanese as an egregious moral failure.

I have to stop italicizing the expression “sua sponte.”  Not to mention “per se,” “pro se,” and a bunch of other expressions that kind of look funny in regular roman type.

That’s because California Style Manual section 4.36[B] has a surprisingly long list of such Latin terms that don’t get italicized.  There’s also a list of terms that do get italicized.  Which should be helpful the next time I refer to a functus officio or suggest that something has succeeded ex proprio vigore.