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California Appellate Law Podcast - Jeff Lewis

Getting It Good and Hard: Courts Enforce 3 Strikes & Prop 57

Tim Kowal     June 21, 2022

H.L. Mencken had it that “democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

In two recent opinions, California courts gave the people what they voted for by enforcing two California voter initiatives: one that is tough on criminal defendants, and another that is favorable to criminal defendants.

  • Enforcing the tough-on-crime Three Strikes law, the Los Angeles appellate court handed DA George Gascon a loss on his assertion of prosecutorial discretion to refuse to enforce Three Strikes.
  • But the court also enforced the softer-edged Prop 57, the law that requires all criminal charges against minors be tried in juvenile courts. The Supreme Court held Prop 57 was retroactive, with the rather unsettling result that a now-40-year-old who murdered his mother at 16 (he stabbed her 45 times) may soon be released.

Then we turn to some anti-SLAPP news: Another dissent in the 9th circuit arguing that Anti-SLAPP denials should not be immediately appealable.

Then on the expert witness front: A state appellate court holds exclusion of expert opinion is structural error on appeal requiring automatic reversal.

Then some news and tidbits, including oral argument “focus letters” coming to the 1st District.


Tim Kowal  0:03
finality becomes something of a term of legal art. And so is only the sentencing part. Non final is the entire thing non final is there. Can you be halfway pregnant?

Announcer  0:14
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:30 
And I'm Tim Kowal California Department of podcasting licensed pending references check. On the California appellate law podcast. We talk about appellate things and trial court things. Both Jeff and I work about half and half in the trial courts and appellate courts, we try to give our listeners some actionable insights and both of those venues.

Jeff Lewis  0:47
Welcome to Episode 38 of the podcast and a quick thank you to our podcast sponsor casetext. Casetext is a legal research tool that harnesses AI, and a lightning fast interface to help lawyers find key security facets of the subscribers since 2019 and highly endorsed the service and our listeners can receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's casetext.com/calp

Tim Kowal  1:17
Okay, so Jeff, we were gonna cover some some recent cases In news this week. We haven't. We haven't made it to any in the last couple of episodes. So we're gonna cover with our audience. Today's one high court case holding that the California prop 57 voter initiative which required all criminal charges against minors be tried in juvenile courts was is retroactive. And as a result, a now 40 year old criminal convict who had murdered his mother at age 16 may soon be released. We'll also cover the Los Angeles appellate court holding that handed District Attorney George guest Gascogne a loss on his assertion of prosecutorial discretion in refusing to enforce the three strikes law and moving on to anti slap procedure. There was another dissent recently in the Ninth Circuit, arguing that anti slap denials should be should not be immediately appealable. And on the expert witness procedure front, a state Appellate Court recently held that the exclusion of expert opinions is structural error on appeal and it requires automatic reversal. And after that, we'll turn to some recent court news. So the first case that we're going to talk about is out of the California Supreme Court, it is people versus pedia. The Supreme Court held that California's Prop 57 is retroactive in all non final cases. So all minors must be charged in juvenile court under Prop 57. But here the defendant Podio, who murdered his mother by stabbing her 45 times was convicted way back in 1999. So that seemed pretty final. But the the United States Supreme Court held back in 2012 and Miller versus Alabama, that mandatory sentencing of juveniles is cruel and unusual violation of the Eighth Amendment. So Padilla six had successfully filed for habeas back in 2014. And appeals had been rattling around since then he got re sentenced to the same life without possibility of parole. But yeah, he appealed that in 2016. In the meantime, the United States Supreme Court handed down clarification of the Miller case in Montgomery versus Louisiana, about the analysis required for sentencing of minors. So Patea got the RE sentencing reversed and remanded again. So he's keeping this appeal alive. So to that extent, ultimately, the California Supreme Court would find that it was non final. So by 2020, proposition 57 passed the DSR his open shot on the goal and he took it although he had only sought habeas of his sentencing the sentencing aspect of his conviction hat. Now, he would argue that conviction too was improper under Prop 57. And so writing for the 443 majority, Justice Liu held that prop 57 Israel retroactive in non final cases, was Phidias. Case final, no the majority held because the habeas proceedings had made the final judgment non final writing in dissent, Justice Corrigan joined by the Chief Justice and a pro tem justice argued, quote, the majority suggestion that a long final case can subsequently become non final, essentially treats finality like a switch that can be toggled on and off. And also, the result will be that if the trial court finds that pedia should have been charged originally in juvenile court, now applying prop 57, quote, the juvenile court could no longer assert jurisdiction over him. His immediate release would be required regardless of any sign of rehabilitation or consideration of public safety and Justice Corrigan went on, it seems highly unlikely that voters intended by silence to dispense with these carefully crafted procedures for the treatment of youth offenders facing life without opportunity of parole terms. Jeff, you have any reactions to that?

Jeff Lewis  5:16
Yeah, I can understand why it is such a close decision. You know, my gut tells me when the law is amended to make the law better, to improve upon the prior law, that those who can take advantage should be able to take advantage of a new statutory scheme, even though the result is counterintuitive here to have an adult who's gotten a number of days in court, the benefit of juvenile law.

Tim Kowal  5:44 
Yeah, yeah, I found. Initially, I thought justice Corrigan's arguments were better. But I I find myself ambivalent about about him. I think both of the opinions have a point there the question about what makes a final decision, I think vexed both the majority and the dissent here because it was certainly a final decision. But once habeas was granted, certainly it's not literally final. So finality becomes something of a term of legal art. And so is only the sentencing part. Non final, is the entire thing non final, is there. Can you be halfway pregnant? It kind of kind of can you be halfway final? That seems to be what the Justice Corrigan thinks that No, notwithstanding what's happening with the sentencing, we can't go back and touch the original guilty verdict. But that seems to be the opening that's left after VPD a case.

Jeff Lewis  6:36
Interesting, interesting case. A NeXT, another criminal or sort of criminal case, I want to talk about this case involving the Los Angeles Deputy District, excuse me, Los Angeles District Attorney, gas gone. On June 2, the California Court of Appeal resolved an issue involving how much discretion the TAs office has with respect to the three strikes law. In LA County, the voters, you know, elected a very progressive District Attorney Gus Kahn. And one of the things he has done is he directed all his deputy VAs not to fully enforce the three strikes law, which gives longer sentences to repeat criminal offenders. And a group of DEA sued gas gone over this new policy. At the trial level. The deputy DA is one, the court agreed and issued an injunction reversing the policies, meaning giving the deputy TAS the power back to enforce the three strikes law this week, in an opinion issued by second the second district court of appeal, the Court held that the La da was properly enjoined from directing deputy DA is to no longer enforce the three strikes law and bottom line gas Colin can no longer direct his deputy DA is not to plead or to seek Restrikes sentencing enhancements. But Deputy District Attorneys do retain the discretion to dismiss such an asset. It's such an enhancements. So at least at the front end, the Deputy District Attorneys are not going to be hamstrung by gas cones policy and more regarding the three strikes law. I found this case interesting reading in terms of the separation of powers anytime you have different branches of government telling each other what to do, it's always interesting reading. What do you think, Tim?

Tim Kowal  8:17 
Yeah, yeah, I agree with the with that separation of powers angle to it. It was interesting seeing that internees seem dispute inside the Los Angeles District Attorney's office. Obviously, significant contingent of deputy DA is there are not happy with with the policy here. And obviously, they got a win here out of the out of the Court of Appeal. All right. So moving on to anti slap denials, anti slap denials may not be appealable much longer in the Ninth Circuit anyway, when the plaintiff defeats a meritless slap motion. Jeff, you know that the the plaintiff may still have to face an appeal, even if it's a meritless appeal, and that's what happened twice. In the now seven year old case of Flo and Eddie Inc. Versus Pandora media LLC. This was a case out of the Ninth Circuit in June 2022. The plaintiffs are the founders of the turtles, they sued Pandora for failing to pay for for playing turtle's songs on their internet music platform. Pandora filed anti slap motions arguing that playing the music was protected speech. Pandora lost its slapped challenge, but it took two appeals and seven years to get there. And writing a concurrence Judge Daniel breasts, said he thought this was too much to take the federal rules do not provide for the appealability of denials of anti slap motions. Instead, they have been held to be appealable as collateral orders. But the definition of a collateral order is an order that among other things, is quote completely separate from the merits of the of the action, and an anti slap motion in the second prong explicitly requires the moving party to prove the complaint lacks merit. So almost by definition, an anti slap denial is not a collateral order. I wonder what you thought about that, Jeff, is that as our resident anti slap guru?

Jeff Lewis  10:11
Well, you know, I'm all in favor of federal courts enforcing slap laws. In this particular case, seven years of battling just over a slap. It seems like the cases were like a smack strategic motion against credible claim than a slap. And I wonder if it's time for SCOTUS to weigh in on the resolve and the split and authority about whether slabs are actually procedural or substantive under the Erie doctrine and resolve these issues.

Tim Kowal  10:37
Yeah, that has been a nettlesome nettlesome problem, the way that the federal courts, the Ninth Circuit anyway, has has applied, California's anti slap statute is by kind of grafting it on to Federal Rules of Civil Procedure 12 And as a motion to dismiss and or a rule 56 motion for summary judgment. But last time I read those statutes, they didn't say anything about public participation or write a petition. So so so the courts are doing doing something that's not quite obvious or intuitive there. I think we'd all be better off if Congress got in the act and and passed a federal anti slap statute.

Jeff Lewis  11:18
Absolutely. Make it even call it Tim's law now that you've suggested. Right?

Tim Kowal  11:22
And and just to be clear, for our listeners, the flow in Edie versus Pandora case, the majority does not accept the view that anti slap denials are not appealable they are still appealable immediately as collateral orders. But the judge, Judge presses concurrence notes that that he has several other circuits in his in his pocket, so to speak, on his side on the question of whether a denial of an anti slap motion is a collateral order,

Jeff Lewis  11:54
oh, well, we'll put a link to the case in our case notes and maybe even a link to a turtle song, see if we can be embroiled in litigation.

Tim Kowal  12:00 
Right. Okay, moving to to trial procedure involving expert witnesses. exclusion of expert opinion, was recently held to be a structural error on appeal that requires automatic reversal. This is cases Klein versus Zimmer, Inc. This was one of many lawsuits filed by a hip replacement patients against the maker of the Durham cup. That's Zimmer Inc. The trial court held there, that the rather the The Court of Appeal held that the trial court committed structural error when it improperly excluded the defendant Zimmers expert who was put on to rebut the plaintiffs expert. This is surprising Jeff because normally trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant can show that the the exclusion of evidence evidence affected the result. But here the exclusion of a rebuttal expert resulted in automatic reversal. Basically what happened is the plaintiff offered an expert to opine that the Durham cup was the cause of his pain and suffering. And in rebuttals Zimmer wanted to put on expert to to opine that there were other possible causes. Now, those other possible causes were not more likely than not they didn't arise to a 51% probability that they were the cause. And so on that ground, the trial court said no, it's not coming in the rule is that expert opinion is only allowed, if it if the opinion is that it's more likely than not to be the cause. Well, the Court of Appeal rejected that a defendants expert does not have to prove that does not have to offer a witness to prove a likelihood more than 50%. That 50 or 51% threshold is the relates to the plaintiffs burden of proof and the defendant does not have the burden of proof as long as the defendants expert can offer a another plausible theory of causation. That is acceptable and the opinion could not be excluded on that basis. And where the excluded rebuttal opinion was the only rebuttal opinion the exclusion led to a one sided presentation of the evidence. And this The Court of Appeal held was structural error and structural errors require reversal automatically. So I thought from this, Jeff, that maybe the upshot here is that, you know, look, I noticed that the trial judge is a former personal injury defense attorney that suggested to me that despite the care and experience devoted to this trial, that trials procedure governing experts is sometimes very important, obviously and very variable. You know, sometimes you don't know how these these things are going to come out the rule that the Court of Appeal held here was not was not expressed formally in the case law. So this is this is a new rule. So to the extent that expert issues could be crystallized and emotional laminae you know, and an emotional m&a is granted, let's say, let's say that that emotion lemonade for that rebuttal expert had been granted. And defendants rebuttal expert was As was excluded at the motion eliminate stage in this case, Jeff, would you advise taking up a writ petition on that rather than go through a whole trial that might wind up having to be redone because of this de facto structural error and excluding the the expert,

Jeff Lewis  15:15
I suppose, you know, I love it when motions eliminate are ruled on well in advance of the first day of trial. But if you're one of these courtrooms where motions eliminate are ruled on moments before opening statements or jury selection, I don't know that I would bother because I don't think you could get relief from the Court of Appeal in time for it to be meaningful.

Tim Kowal  15:34
Yeah, yeah, I wouldn't hold out a lot of hope. But if it's a although, I guess, on the other hand, if if this happens now, with the with this Zimmer case, in your back pocket, you know that you can get an automatic reversal if your rebuttal expert is excluded on this basis? Yeah, absolutely. Absolutely. All right. Well, that that does it for the for the case. today. Let's move on to some other news, some other appellate news out of our courts.

Jeff Lewis  16:04
Yeah, we've covered on a few different episodes. This delay up in the Third District Court of Appeal cases two years to be heard. At one point a prominent appellate lawyer brought a written petition to draw attention to this issue of long delays. The supreme court denied that petition to Muller to get anywhere. But although that writ was not successful, there was big news this month about these delays. The Commission of judicial performance issued a statement admonishing Presiding Justice Vance ray of the Third District, four years of delays, he was asked to retire and he may never hold judicial office again. The disciplinary document was pretty harsh in its findings that I think rather light in its discipline. It found that Justice Ray had engaged in a pattern of delay in deciding around 200 appellate matters over a 10 year period, in one matter appellant had received a six year prison term, and it served that sentence sentence while the appeal was pending in between January 2011 and march 2021. The Commission found that Justice rate failed to properly exercise his administrative and supervisory authority to provide a forum for the expeditious resolution of appellate disputes. So he's retired, no actual discipline other than being asked to resign and not to hold office again. There are now three vacancies in this district governor Governor Newsom has an opportunity to make a real impact in the administration and speed of appeals in the third district with new appointments.

Tim Kowal  17:34
Yeah, well, I can't help but think of, you know, we've covered John Eisenberg's project to try to get address some of these delays. And he was not able to get traction in the Supreme Court or in the judicial council. But that doesn't mean that those complaints were not heard or heated. They it looks like looks like we're just seeing the court system deal in the commission of judicial performance deal with these problems in its own way.

Jeff Lewis  18:01
Yeah, yeah. And in other news in the first district, I've got a case coming up arguing in early July, and I was excited to read it the first district as amended their rules to provide for a focus letters and tentative rulings, learned that for bench shots scan blog one week, in the case notes, I've got an argument coming up first week of July, so I'm really hoping to get a possible focus letter or tentative ruling in my case.

Tim Kowal  18:28
Yeah, I'm excited to see that I think that's, you know, from, from a lot of us practitioners lips to the first district districts IRS. I hope that I look for this and hope that other districts follow suit. All right. There was one more case I lied about being finished covering cases. There's one more case we want to cover briefly out of the Third District Court of Appeal. Jeff, is a bumblebee a fish, defense, the bans well, you're you're you're right be the third district answered yes, in almond alliance of California versus the Fish and Game Commission. The case involved the interpretation of the California Endangered Species Act, the state act is more limited in the federal act. The state Endangered Species Act only allows listing of endangered species that are quote, bird, mammal, fish, and phibian reptile or plant and Bumblebee doesn't quite fit neatly into any of those categories. Fish, on the other hand, is defined to include quote, invertebrates, and the definition does not specify that the invertebrate has to be in an aquatic invertebrates. So the court held that the legal definition of invertebrate was not limited to aquatic life. So a bumblebee can be a fish. And so it is

Jeff Lewis  19:48 
yeah, so I think we've established in this podcast that bumblebees can be fish and adults can be juveniles.

Tim Kowal  19:54
That's the upshot of this episode. And I think that wraps us up for today. And again, we want to thank casetext  for sponsoring the California appellate law podcast. And we include links in to the cases we discuss in the show notes. All of those links are to casetext and listeners of the podcast can find a 25% discount available to them if they sign up at casetext.com/calp

Jeff Lewis  20:19
If you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for in the field when preparing for trial. See you

Announcer  20:30 
next time. You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cal podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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