[00:00:07] Speaker 04:
Morning.

[00:00:08] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:00:10] Speaker 04:
My name is Kristen O'Brien, and I'm a Pepperdine Law student representing the appellant, Jerry Lee King.

[00:00:16] Speaker 04:
I will reserve five minutes for my colleague's rebuttal.

[00:00:19] Speaker 04:
Your Honors, this case turns on whether success in King's excessive force lawsuit against the defendants would necessarily imply the invalidity of his Section 69 resistance conviction, which was predicated on a no-contest plea.

[00:00:33] Speaker 04:
This analysis, like all HECBOR applications, requires an understanding of what is legally essential to a jury finding in favor of King in the excessive force claim, and what is legally essential to the elements of Section 69, just to ensure that they have not been implied to be invalid.

[00:00:50] Speaker 02:
So let's talk about the no-contest plea.

[00:00:53] Speaker 02:
Yes, Your Honor.

[00:00:54] Speaker 02:
In your brief, you indicate that when King pleaded no-contest, he stipulated that there was a factual basis for the plea.

[00:01:02] Speaker 02:
What was that factual basis that he stipulated to?

[00:01:05] Speaker 04:
Your Honor, by pleading no-contest, King stipulated that there was a factual basis based upon the probable cause document and the reports and discovery.

[00:01:15] Speaker 04:
We see the interaction of the plea hearing

[00:01:19] Speaker 04:
on ER 176.

[00:01:20] Speaker 02:
So what is that document that formed the basis for the factual basis?

[00:01:25] Speaker 04:
So, Your Honor, by pleading no contest, I think understanding what he was pleading to is helpful here.

[00:01:31] Speaker 04:
So in the plea hearing transcript, it says he stipulated that there was a factual basis pursuant to People v. West and a no contest plea.

[00:01:41] Speaker 04:
And so the Ninth Circuit

[00:01:43] Speaker 04:
interpretation of people view West is that they are not admissions of factual guilt.

[00:01:48] Speaker 04:
So to answer your question, Your Honor, he stipulated there was a factual basis for one count of section 69, which involves some resistance and some lawful officer response.

[00:01:58] Speaker 04:
But he did not admit that everything within the probable cause documents and within the defendant's statements attached to the plea were actually true.

[00:02:07] Speaker 02:
What seems to me that you're asking for an extension of HAC and one of your

[00:02:13] Speaker 02:
assertions is that a conviction based on a no contest plea cannot form the basis for a claim that a subsequent civil action arising out of the same underlying incident is heck barred.

[00:02:27] Speaker 02:
Is that what you want us to do?

[00:02:29] Speaker 02:
And what's your best authority for that?

[00:02:30] Speaker 02:
Do you have a case out there?

[00:02:33] Speaker 04:
Your Honor, we are not advocating for an extension of heck.

[00:02:39] Speaker 04:
Our pleading has been guided by the

[00:02:43] Speaker 04:
which is whether success in the civil claim would necessarily imply the invalidity of the conviction.

[00:02:52] Speaker 02:
And in this case... But in the fact that it's a no-contest plea as opposed to a guilty plea, you seem to be saying that's significant here.

[00:03:00] Speaker 02:
What's your best authority that we should treat that differently?

[00:03:04] Speaker 04:
Sure, Your Honor.

[00:03:04] Speaker 04:
So I think the cases of both Ovey and Lockett and also Lemos, the Ninth Circuit in those cases really emphasized what is legally essential to a plea, or what is legally essential to the conviction.

[00:03:17] Speaker 04:
And I think that that, while there should not be necessarily a categorical bar on using no contest pleas for heck, I think that the procedure by which the conviction was procured is relevant in that what

[00:03:30] Speaker 04:
What was the basis of the conviction and therefore how can it be undermined?

[00:03:35] Speaker 00:
Now this question may be coming out of left field to you.

[00:03:38] Speaker 00:
There's some briefing on it but not a whole lot.

[00:03:41] Speaker 00:
Federal evidence 410A provides in a civil, I'm just eliding the materials irrelevant, provides in a civil case evidence of the following is not admissible against the defendant who made the plea

[00:03:56] Speaker 00:
So why is this even admissible at all?

[00:04:02] Speaker 00:
As I read 410A, it says simply not admissible in this case.

[00:04:06] Speaker 00:
So why can we even look at it?

[00:04:09] Speaker 04:
Your Honor, so we agree that 410 can help us in this case.

[00:04:15] Speaker 04:
The reason that we made it a footnote and not a more primary argument was because that is

[00:04:22] Speaker 04:
typically in an evidentiary context.

[00:04:25] Speaker 00:
However... Well, I think you're bringing in the conviction, or the state is bringing in the conviction, as evidence.

[00:04:31] Speaker 00:
I mean, that's what it's using it for.

[00:04:34] Speaker 04:
Yes, Your Honor.

[00:04:35] Speaker 04:
Well, we did mention in our brief that 410 is helpful, and that no contest please.

[00:04:40] Speaker 04:
Again, because of their very nature, they are not admission to factual guilt, and therefore they should not be used to bar a subject... But that generally happens in a case, say like you

[00:04:51] Speaker 02:
You plead no contest to a vehicle infraction, and then you get sued for causing injuries as a result of your vehicle infraction.

[00:05:01] Speaker 02:
They can't put the no contest plea in there as evidence that you committed that infraction.

[00:05:06] Speaker 02:
They have to prove it, as opposed to if you plead guilty, they can put evidence.

[00:05:11] Speaker 02:
So you're right that it's not exactly the same, because under HEC, we've got to decide, is this

[00:05:22] Speaker 02:
If every no contest plea could therefore just be completely removed from the HEC analysis, that would be an extension of HEC.

[00:05:31] Speaker 04:
Your Honor, in this case, we focused on even if Mr. King pled no contest to the elements of Section 69,

[00:05:40] Speaker 04:
That is not necessarily inconsistent with success in his civil claim because a reasonable jury could find that despite Mr. King resisting at one point and the officers using lawful force in response, that's not necessarily inconsistent with the fact that the officers may have used excessive force upon him when they took him to the ground and punched him in the eye while he was on the ground or ground his ankles into the asphalt.

[00:06:02] Speaker 04:
So those things are not necessarily inconsistent.

[00:06:05] Speaker 04:
So you want to parse out this whole incident.

[00:06:10] Speaker 02:
prison kerfuffle hair, I'm going to call it.

[00:06:13] Speaker 02:
And I was on Lemos, and you probably know that, because I know that you read it, and you got very well prepared on all of that.

[00:06:21] Speaker 02:
And you know that I was in dissent.

[00:06:23] Speaker 02:
But factually, Lemos had a couple of different things going on.

[00:06:27] Speaker 02:
And so I'm going to say, hypothetically, that if we didn't think that Lemos covered it, that this is just one continuous brawl,

[00:06:39] Speaker 02:
and excessive force situation, Lemos wouldn't help you, right?

[00:06:43] Speaker 02:
You have to parse this out and show that there's more than one act there, or that there's an excessive force after the incident, right?

[00:06:53] Speaker 02:
You've got to go in slow-mo.

[00:06:56] Speaker 02:
And this looks like just one fight.

[00:07:00] Speaker 04:
No, Your Honor.

[00:07:01] Speaker 04:
I think the Ninth Circuit, in other cases, such as Hooper and recently in Martell,

[00:07:06] Speaker 04:
has explained that even within one continuous transaction, a single course of events, that the court is able to identify both resistance and lawful officer response and also excessive or unlawful force within a very brief transaction of time.

[00:07:23] Speaker 04:
In Hooper, that was 45 seconds.

[00:07:25] Speaker 04:
In Martel more recently, the resistance that formed the basis of the conviction and the unlawful officer response was just 10 seconds later.

[00:07:33] Speaker 04:
And so I think that that

[00:07:35] Speaker 04:
Looking at one continuous transaction, identifying both lawful and unlawful conduct is consistent with the Ninth Circuit precedent.

[00:07:42] Speaker 02:
Well, if he, I think in his complaint, Mr. King, initially, his initial complaint, he alleges he was subject to the misuse of force, quote unquote, during the incident.

[00:07:54] Speaker 02:
Does he need to file an amended complaint if he wants to allege that he was treated with excessive force after the incident?

[00:08:02] Speaker 04:
Your Honor, first of all, Mr. King's complaint was initially, he was pro se, proceeding as an inmate in prison, kind of handwriting his complaint.

[00:08:10] Speaker 04:
And so I don't know that the, just him using the word dearing there kind of has the legal significance that we may be ascribing it.

[00:08:20] Speaker 04:
I think that all of the allegations that Mr. King is making against the officers are laid on his complaint.

[00:08:26] Speaker 04:
He describes initially

[00:08:29] Speaker 04:
kind of the verbal encounter while he was standing up and that he was taken to the ground and then kind of the punch to the eye and the grounding in the ankles.

[00:08:36] Speaker 04:
I don't think that Heck bars his claim.

[00:08:41] Speaker 04:
Now it's possible that granting leave to a med can be helpful in helping him kind of clarify or make things more precise.

[00:08:49] Speaker 02:
Let me ask you this.

[00:08:50] Speaker 02:
The whole incident took less than a minute, right?

[00:08:53] Speaker 02:
And so how did the district court err in concluding that there is no possible way

[00:08:59] Speaker 02:
these two sets of fact could simultaneously be true.

[00:09:04] Speaker 02:
Tell me.

[00:09:05] Speaker 04:
Sure, Your Honor.

[00:09:06] Speaker 04:
So the district court's comparator when they were applying this analysis was they said,

[00:09:12] Speaker 04:
We're going to compare all the allegations in Mr. King's pro se complaint with everything that's contained in the probable cause documents and the reports and discovery.

[00:09:21] Speaker 04:
For the reasons I explained earlier, by pleading no contest pursuant to People v. West, Mr. King did not agree that everything contained within those documents was true.

[00:09:32] Speaker 00:
Agreed that anything was true contained in those documents what the plea agreement says or the no low plea says is that there is a factual basis There's no statement in there that any of the allegations in terms of what's in the report by the guards is true He says there is a factual basis and whether the factual basis is accurately recounted in anything that the prison guards are saying we don't know I agree your honor.

[00:09:58] Speaker 04:
Thank you and

[00:09:59] Speaker 04:
The other piece of the district court's analysis focused on all of the allegations included in that complaint.

[00:10:05] Speaker 04:
So the court said because he said he never resisted in his complaint and because he stipulated that all of the probable cause documents was true, therefore the claim is heck barred.

[00:10:16] Speaker 04:
But because a reasonable jury could find that Mr. King

[00:10:21] Speaker 04:
The officers use excessive force upon Mr. King, even if he did resist.

[00:10:25] Speaker 04:
That is not legally essential to success in his civil claim, which is what the HEC inquiry is looking at.

[00:10:31] Speaker 04:
Whether success in the civil claim would necessarily imply the invalidity of the conviction, that was the improper kind of comparator.

[00:10:38] Speaker 04:
It should be whether a reasonable jury could find in favor of King the civil claim without necessarily implying the invalidity of the elements of Section 69.

[00:10:46] Speaker 04:
Thank you.

[00:10:47] Speaker 04:
Thank you, Your Honors.

[00:10:49] Speaker 02:
Any additional questions?

[00:10:50] Speaker 02:
All right.

[00:10:51] Speaker 02:
Your time's expired.

[00:10:52] Speaker 02:
We took you a little over, but you were answering our questions, so thank you.

[00:10:56] Speaker 02:
Thank you.

[00:11:04] Speaker 02:
Oh, I guess the clock wasn't right.

[00:11:08] Speaker 02:
Did we give her full 10?

[00:11:11] Speaker 02:
Well, she saved

[00:11:13] Speaker 02:
Oh, but this is 15 minutes.

[00:11:15] Speaker 02:
Oh, so, yeah.

[00:11:16] Speaker 00:
So, all right.

[00:11:17] Speaker 02:
I like to be fair to all of my children here.

[00:11:19] Speaker 02:
So, okay.

[00:11:20] Speaker 02:
So, we're good.

[00:11:21] Speaker 02:
We're good.

[00:11:22] Speaker 02:
Thanks.

[00:11:24] Speaker 02:
We can't do math.

[00:11:26] Speaker 02:
Thanks.

[00:11:27] Speaker 02:
All right.

[00:11:29] Speaker 02:
Good morning to you as well.

[00:11:31] Speaker 02:
Thank you.

[00:11:33] Speaker 03:
Go ahead.

[00:11:33] Speaker 03:
Good morning, Your Honors.

[00:11:34] Speaker 03:
Deputy Attorney General Sarah Bratton on behalf of Defendants Appellees.

[00:11:38] Speaker 03:
May it please the Court?

[00:11:39] Speaker 03:
Mr. King battered a correctional officer and resisted orders to stop injuring a second officer in the process.

[00:11:46] Speaker 03:
That's what they say.

[00:11:49] Speaker 01:
I have a question for you, counsel.

[00:11:50] Speaker 01:
What facts in the record did King admit when he was pleading no contest?

[00:11:55] Speaker 03:
He admitted that the factual basis for his no contest plea was based on the probable cause statement and reports and discovery.

[00:12:02] Speaker 03:
And those are in the record at ER 124, that's where it begins, and the reports and discovery follow that until about ER 158.

[00:12:16] Speaker 03:
important because he Mr. King's counsel is right he didn't have to specify a factual basis but he did well he just said a factual basis based on the probable cause statement but that only means if we take it out of there that means only one factual basis out of what are a lot of facts well your honor that I would point this court to Sanders versus city of Pittsburgh which I think is instructive here

[00:12:42] Speaker 03:
There, it was a no contest plea based on the preliminary hearing transcript.

[00:12:47] Speaker 03:
The preliminary hearing transcript.

[00:12:49] Speaker 00:
And the standards are very specific, admitted as to everything.

[00:12:52] Speaker 00:
He didn't say A, he admitted as to everything.

[00:12:55] Speaker 00:
Well, I think that's analogous here, because he... Well, no, if you admit to everything, that's different from admitting to one thing, when there are several things.

[00:13:04] Speaker 03:
Okay, correct, Your Honor.

[00:13:06] Speaker 03:
I understand that.

[00:13:06] Speaker 03:
I think, aside from, even if he didn't specify a factual basis, this specific lawsuit is still heck barred because his civil case, the basis and allegations in his civil case is that he never resisted at any point in time.

[00:13:21] Speaker 00:
Well, it could be that he's telling the truth and the officers are lying.

[00:13:24] Speaker 00:
It could be the officers are telling the truth and that he's lying.

[00:13:27] Speaker 00:
I don't know the answer to that.

[00:13:29] Speaker 03:
Well, if he prevailed on his civil lawsuit, on his allegations that he never resisted at any point in time, that necessarily implies the invalidity of his no contest plea to resisting the officers.

[00:13:46] Speaker 02:
People enter no contest pleas, but it's not always a West plea.

[00:13:50] Speaker 02:
Can you explain what a no contest plea pursuant to West is?

[00:13:55] Speaker 02:
And does that make any difference between a straight up no contest plea

[00:14:00] Speaker 03:
Your honor, my understanding, at least from Ninth Circuit case law, is that the West plea, People versus West, is a California case.

[00:14:07] Speaker 03:
It essentially is a nullocontendory plea.

[00:14:10] Speaker 03:
I don't believe there's any difference in West versus nullocontendory.

[00:14:17] Speaker 03:
I believe they are interchangeable.

[00:14:20] Speaker 03:
a West or no contest plea is different, obviously, than a guilty plea because you're not admitting to the factual, the facts of the conviction, but you're still being treated by the court as guilty for all purposes.

[00:14:35] Speaker 02:
Well, can you, I think Judge Fletcher asked a question of your friends on the other side, that a no contest plea is not admitted, is not admissible in civil proceedings.

[00:14:49] Speaker 02:
How does that relate to its consideration in HEC-BARD?

[00:14:53] Speaker 02:
And does that section actually apply here?

[00:15:00] Speaker 03:
Yes, Your Honor.

[00:15:00] Speaker 03:
Federal of Evidence 410 does not apply in the HEC analysis.

[00:15:04] Speaker 03:
It is an evidentiary rule, whereas HEC is not an evidentiary rule.

[00:15:08] Speaker 03:
It's a bar to bringing a lawsuit.

[00:15:09] Speaker 00:
But wait a minute.

[00:15:10] Speaker 00:
You're bringing in evidence, right?

[00:15:13] Speaker 00:
So it says this cannot be considered as evidence.

[00:15:15] Speaker 00:
What's wrong with my saying that?

[00:15:18] Speaker 03:
Well, you're not admitting it into evidence like you would be during a trial.

[00:15:24] Speaker 03:
Where 410 would apply was if the officer sued Mr. King for violating his constitutional rights and tried to admit Mr. King's no contest plea.

[00:15:35] Speaker 00:
Let me read you the rule again.

[00:15:36] Speaker 00:
It says, in a civil case, evidence of the following is not admissible against the defendant who made the plea, a no-lo contendere plea.

[00:15:43] Speaker 00:
So this is a civil case.

[00:15:45] Speaker 00:
Evidence of the plea is evidence, and it's evidence of a NOLO plea.

[00:15:51] Speaker 00:
It says you can't bring in evidence of a NOLO plea.

[00:15:53] Speaker 00:
What's so hard for that?

[00:15:55] Speaker 00:
I don't understand your argument, because this seems so straightforward to me.

[00:15:58] Speaker 03:
It doesn't implicate rule 410.

[00:16:02] Speaker 00:
Essentially, if the court were to... 410 says you can't put it into evidence, and you're trying to put it into evidence.

[00:16:08] Speaker 00:
You're then having a specific use for it, but you're trying to put it into evidence.

[00:16:12] Speaker 00:
And 410 says you can't.

[00:16:14] Speaker 03:
We're not putting it into evidence at, per se, a trial.

[00:16:18] Speaker 03:
Again, if we were trying to do that, if the officer had sued Mr. King and just said, I want to establish liability here.

[00:16:25] Speaker 00:
But it doesn't say trial.

[00:16:26] Speaker 00:
It says case.

[00:16:29] Speaker 03:
I understand that.

[00:16:31] Speaker 03:
And there was case law cited in our brief, I believe, Arrington, where this court has

[00:16:36] Speaker 03:
said, it's just not applicable.

[00:16:38] Speaker 03:
These are different situations.

[00:16:40] Speaker 00:
Well, I looked at our case law, and I'm actually kind of puzzled by it.

[00:16:44] Speaker 00:
We have, in several cases, including Sanders, treated no-lobe pleas as if they were guilty pleas.

[00:16:51] Speaker 00:
Let's say we've not differentiated.

[00:16:53] Speaker 00:
But we've never actually analyzed, in a published opinion, the effect of Rule 10.

[00:16:59] Speaker 00:
So we've just assumed that they are, but we've never analyzed Rule 410 in the hex context in a published opinion.

[00:17:07] Speaker 02:
I actually agree with you as a former trial judge that 410 is different than the analysis that you do under HEC.

[00:17:14] Speaker 02:
And if we were to say that a no contest plea cannot be, that it automatically cannot be considered as part of the HEC analysis, I think that's an extension of the current jurisprudence.

[00:17:31] Speaker 03:
That's correct, Your Honor.

[00:17:32] Speaker 02:
It is an extension because... I mean, we can extend if we chose, but I think they're apples and oranges.

[00:17:39] Speaker 02:
But obviously Judge Fletcher is questioning you in a different way and doesn't think that they're apples and oranges.

[00:17:45] Speaker 02:
And your friends on the other side mentioned it and said it's helpful to them, but not dispositive.

[00:17:53] Speaker 03:
If this court were to adopt a rule saying 410 bars a court from looking at a NOLO plea when considering HEC, it essentially would insulate a NOLO plea from ever being barred by HEC, and that would undermine the purposes of HEC, which is the consistency between civil and criminal judgments.

[00:18:14] Speaker 00:
finality and consistency that I think it wouldn't depending on heck I mean heck I understand says listen if you've been adjudicated guilty or if you have pled guilty okay you can't turn around and say I'm not guilty but that's what heck says heck does not talk about NOLA please well the inquiry in hack is whether the civil lawsuit would necessarily undermine the outstanding criminal

[00:18:38] Speaker 03:
imply the inviolability of the outstanding criminal conviction.

[00:18:42] Speaker 02:
As a trial judge, if someone pleads no contest to you, you still sentence them.

[00:18:48] Speaker 02:
It's not like, oh, no contest that there isn't.

[00:18:51] Speaker 02:
It still is a conviction.

[00:18:54] Speaker 02:
The question is, what can you do with it?

[00:18:56] Speaker 02:
The evidence code says you can't introduce it in another civil case as evidence of guilt if that's part of what they're trying to prove, that someone's negligent or something along those lines.

[00:19:07] Speaker 02:
But the HEC inquiry in my mind right now is I think Lemos is the best argument for the other side in the sense if there's a way, obviously I didn't agree in Lemos, but I didn't have enough votes.

[00:19:23] Speaker 02:
So if you can parse this out,

[00:19:26] Speaker 02:
then that would be my question here.

[00:19:30] Speaker 02:
I think that Lemos, if there's a way to parse this out, and you can't, that everything about what he pled to, whether the no contest plea to me doesn't make a difference here, it's what did he plead to?

[00:19:44] Speaker 02:
And not whether it was no contest or guilty, but what did he plead to, and is there a way to parse this out, and would it necessarily undermine that on a heck bar?

[00:19:57] Speaker 03:
Yes sir I think limos is distinguishable for a few reasons first there it was a jury verdict which I don't believe is I think that any conviction whether it's a guilty no low or jury verdict should be treated the same way in the sense you're looking at the factual basis of that conviction.

[00:20:15] Speaker 03:
and comparing it to the civil lawsuit.

[00:20:18] Speaker 03:
And so in Lemos, there was four bases that were presented to the jury that they could find her guilty of.

[00:20:24] Speaker 03:
They found her guilty of the fourth.

[00:20:27] Speaker 03:
I'm sorry, they found her guilty, but didn't specify one of the four.

[00:20:32] Speaker 03:
She only challenged the fourth act.

[00:20:34] Speaker 03:
And so because there was three other bases that she could have potentially found guilty of, that didn't undermine the verdict.

[00:20:42] Speaker 03:
If she had if the jury had said the fourth act is the act that she's guilty of and she had filed the lawsuit saying the fourth act was the one that was excessive, I think we most would be different.

[00:20:54] Speaker 03:
Similarly, if the jury found all four acts were

[00:21:00] Speaker 03:
she was guilty of, I don't think she could bring a civil lawsuit without it being hack barred.

[00:21:06] Speaker 03:
Here, we know what the factual basis is.

[00:21:09] Speaker 03:
We know it's based on the probable cause statement and the reports and discovery.

[00:21:15] Speaker 00:
We don't know what the factual basis is.

[00:21:17] Speaker 00:
There was a plea to a factual basis and a lot of things happened.

[00:21:23] Speaker 03:
Even assuming that, even if we just say there was a factual basis, this case is distinct because, again, you have to look at whether success in the civil lawsuit would undermine that.

[00:21:34] Speaker 03:
And here, if he succeeded, he's saying, I never resisted at all, period.

[00:21:41] Speaker 03:
It's not I resisted at first.

[00:21:43] Speaker 03:
I did punch the officer, but the response was excessive.

[00:21:47] Speaker 03:
That's different.

[00:21:48] Speaker 03:
That would be a very different analysis.

[00:21:50] Speaker 03:
But here, he's saying, I never resisted at any point.

[00:21:53] Speaker 03:
There was no provocation by me.

[00:21:55] Speaker 03:
I was in restraints on the ground, and they just completely pummeled me.

[00:21:59] Speaker 03:
There's no way that that can be consistent with his plea to resisting those officers.

[00:22:06] Speaker 02:
How long is the tire confrontation?

[00:22:10] Speaker 03:
I'm not sure that's in the record, but I believe it was very quick.

[00:22:16] Speaker 03:
But again, I don't even think that this court needs to parse out the different acts because he doesn't even admit

[00:22:23] Speaker 03:
that he engaged in the conduct he pled to.

[00:22:27] Speaker 03:
He didn't have to plead to the criminal conviction.

[00:22:31] Speaker 03:
He could have gone to trial and to see what a jury did, but he agreed to be treated as if he did those acts.

[00:22:40] Speaker 03:
And now he turns around and says, no, I never did any of it.

[00:22:43] Speaker 03:
It's not like Lemos, where she admits

[00:22:46] Speaker 01:
Well, counsel, that's a little bit of an unfair characterization.

[00:22:48] Speaker 01:
He's waited six years to get the cases heard, pushed through.

[00:22:53] Speaker 01:
And he specifically said several times on the record to the judge, to his counsel, this isn't going to impact my ability to move forward with my civil case, is it?

[00:23:02] Speaker 01:
Well, I'm not sure about that.

[00:23:02] Speaker 01:
I don't know.

[00:23:03] Speaker 01:
But this isn't going to impact my ability to move on with my civil case, is it?

[00:23:08] Speaker 01:
So it was promenade.

[00:23:09] Speaker 01:
It wasn't that he just said, OK, I'm just going to go ahead and he wanted to do it so he could move on to a civil case, which would have been stopped pending the outcome of the criminal case.

[00:23:19] Speaker 03:
Well, I would say he also was facing 12 years and a third strike under the Three Strikes Act.

[00:23:24] Speaker 03:
And so by pleading, he got eight months and basically time served.

[00:23:28] Speaker 03:
So I don't think the reason he pled was so he could continue his civil suit.

[00:23:33] Speaker 03:
I don't think that's.

[00:23:34] Speaker 02:
Well, let's just say even – all right, if you look at that part of the record, let's just say he's trying to say, hey, I still want my civil suit, and the judge doesn't – says, I don't know if it's going to affect your civil suit at all.

[00:23:47] Speaker 02:
Let's just assume that it happened exactly that way, and the fact that he was a third striker and could have gotten 25 to life was his motivation to get eight months or 12 years or whatever the situation was.

[00:24:02] Speaker 02:
Would that make a difference?

[00:24:05] Speaker 03:
I mean, was he promised this won't affect your civil suit?

[00:24:09] Speaker 03:
He certainly wasn't promised both his counsel and the judge said we don't know how this will affect that.

[00:24:14] Speaker 03:
And if he believes, I mean, his remedy at that point is in habeas.

[00:24:19] Speaker 03:
It's not to challenge

[00:24:21] Speaker 03:
that plea through this civil lawsuit.

[00:24:23] Speaker 03:
It is to bring a habeas saying my plea was not knowing and voluntary.

[00:24:27] Speaker 02:
Well, no, or maybe the answer was it depends on what your panel says of what's heck barred.

[00:24:33] Speaker 02:
That might have been a better answer, but I don't think they have that sophistication.

[00:24:39] Speaker 00:
So a different question.

[00:24:42] Speaker 00:
Assuming that the heck applies.

[00:24:44] Speaker 00:
Assuming that Rule 410 is off the table.

[00:24:47] Speaker 00:
So for the purpose of my question, I'm giving you that.

[00:24:50] Speaker 00:
How do you distinguish this case from Martel?

[00:24:53] Speaker 00:
I mean, your argument is, listen, this is all one continuous sequence of events.

[00:24:56] Speaker 00:
It all happened pretty fast.

[00:24:58] Speaker 00:
Well, that's true in Lemos.

[00:24:59] Speaker 00:
That's true in Martel.

[00:25:01] Speaker 00:
I mean, how do you distinguish the analysis in this case from the analysis in those cases?

[00:25:07] Speaker 00:
Yes, Your Honor.

[00:25:07] Speaker 00:
I think that's the hard part for you.

[00:25:10] Speaker 03:
Well, Martel's similar to Lemos.

[00:25:12] Speaker 03:
The factual basis was not specified.

[00:25:15] Speaker 03:
It was a guilty plea.

[00:25:18] Speaker 03:
But there, Mr. Martel was just challenging the push to the floor.

[00:25:24] Speaker 03:
He was not saying, I never resisted at all.

[00:25:27] Speaker 03:
He was saying, he admits.

[00:25:29] Speaker 00:
He challenged the push to the floor, and he challenged a lot of other things, too.

[00:25:33] Speaker 03:
Yes, but his guilty plea didn't specify what the factual, he never specified the factual basis for the plea.

[00:25:43] Speaker 03:
And so there were other acts before and after the push to the floor that could have served as the factual basis for that plea.

[00:25:51] Speaker 03:
He's not saying I was just on the ground in handcuffs and the

[00:25:57] Speaker 03:
the sheriffs just came in and pummeled me.

[00:26:00] Speaker 00:
Oh no, I guess I'm asking a slightly different question.

[00:26:03] Speaker 00:
I'm asking the question about there's an argument here that this is all one continuous sequence of events that occurred over a short period of time and therefore we can't parse this into individual events.

[00:26:17] Speaker 00:
If that's the argument, that seems to me inconsistent with both Limos and with Martel.

[00:26:23] Speaker 03:
Well, I think the parsing relates, you have to look at the civil lawsuit allegations to be able to parse.

[00:26:30] Speaker 03:
If the litigant says, yes, there was several acts that happened within a minute, but he is just challenging one of those acts and admits the other acts happened, I did resist.

[00:26:44] Speaker 03:
That's where the court gets into the parsing.

[00:26:48] Speaker 03:
Here, we don't have that because he's saying, the entire interaction, I never resisted at all.

[00:26:54] Speaker 03:
And so there's no need for the court to parse like they did in Limos and Martell because in Martell and Limos, they admit they engaged in conduct that could have served as the factual basis.

[00:27:06] Speaker 02:
Let me ask you this.

[00:27:07] Speaker 02:
I realize we're going over, but these are judge questions.

[00:27:12] Speaker 02:
from your perspective, so I best understand your argument.

[00:27:16] Speaker 02:
You're saying no contest, and you're saying, and he admits a factual basis, and you're saying that the record supports that the factual basis is the probable cause statement, and what else?

[00:27:29] Speaker 03:
The reports and discovery.

[00:27:31] Speaker 02:
And so if that were the case, what does the probable cause statement say?

[00:27:36] Speaker 03:
The probable cause statement says that he

[00:27:41] Speaker 03:
It's on ER-124.

[00:27:43] Speaker 03:
He battered a peace officer by punching the officer with his fist and injuring another officer while trying to subdue his attack.

[00:27:52] Speaker 02:
And then the other reports are how long?

[00:27:54] Speaker 02:
And where are they on the record?

[00:27:56] Speaker 03:
They are right after that, so ER-125 to 158.

[00:28:01] Speaker 03:
And it's the prison's incident report and kind of investigation of the incident.

[00:28:09] Speaker 02:
OK, you don't have to read those.

[00:28:11] Speaker 03:
Yeah, I mean, they basically say the same thing, that he battered, he punched the officer, and in trying to subdue him, he hurt another officer in the process.

[00:28:20] Speaker 02:
All right, let me ask my colleagues if they have any additional questions.

[00:28:23] Speaker 02:
We don't, so thank you for answering our questions.

[00:28:26] Speaker 03:
Thank you.

[00:28:27] Speaker 02:
All right, we're ready for rebuttal.

[00:28:36] Speaker 02:
It's still good morning, so I could kill.

[00:28:41] Speaker 05:
While it is still morning good morning your honors and may it please the court.

[00:28:45] Speaker 05:
My name is Rachel Trowner certified law student from Pepperdine law

[00:28:49] Speaker 05:
I would like to start by addressing Your Honor's question about how we parcel out these events.

[00:28:56] Speaker 05:
Mr. King does not need to prove to a jury that he never resisted during the course of the entire interaction in order to prevail on his civil claim.

[00:29:06] Speaker 05:
A reasonable jury could find that his Section 69 conviction was satisfied in the first half of the incident, for instance, when it was just Officer Villegas on the scene with Mr. King while they were standing.

[00:29:18] Speaker 05:
And there was the allegations of pushing him into the wall and some resistance there.

[00:29:22] Speaker 05:
And then a reasonable jury could find that once Mr. King was taken to the ground, Officer Cruz arrived on the scene, they began grinding his ankles to the ground, that those actions could constitute an excessive force claim.

[00:29:34] Speaker 05:
And those later subsequent acts of excessive force would not negate prior acts

[00:29:39] Speaker 00:
lawful conduct by an officer.

[00:29:55] Speaker 00:
Has he, in a sense, pled himself out of court by saying something that can't be true?

[00:30:03] Speaker 00:
Because what I think he could say that would save this case would be, well, maybe at one point I was resisting, but most of the time I was not, and there was excessive force.

[00:30:14] Speaker 00:
Is it fatal to his case that he says, I never resisted?

[00:30:17] Speaker 05:
It is not, Your Honor, because

[00:30:20] Speaker 05:
It is not for two reasons.

[00:30:22] Speaker 05:
One, because his excessive force claim isn't dependent on him proving that he never resisted.

[00:30:28] Speaker 05:
We agree that that allegation is inconsistent with his conviction.

[00:30:33] Speaker 05:
However, this could go back to if your honors found that that line that he never resisted in his civil complaint would heck bar.

[00:30:42] Speaker 05:
There are ways of solving this issue, for instance, on remand.

[00:30:47] Speaker 05:
There could be motions to strike, motions in lemonade to narrow the scope of his complaint.

[00:30:54] Speaker 05:
There could be jury instructions to clarify that Mr. King stipulated that there was a basis for a Section 69 resistance conviction.

[00:31:03] Speaker 05:
Any of those could theoretically cure an issue, but it is also our position that if the issue is curable, then it wouldn't even be Heckbard in the first place.

[00:31:15] Speaker 05:
His claim is not Heckbard.

[00:31:16] Speaker 05:
There might be particular theories of liability that Mr. King could not bring to trial, but his excessive force claim overall would not be precluded because of that particular allegation there.

[00:31:30] Speaker 01:
Should Mr. King have an opportunity to amend so he can avoid the HECC claim?

[00:31:38] Speaker 05:
If Your Honors found that that allegation would bar his HECC claim, then yes, we would ask that.

[00:31:45] Speaker 02:
I guess I showed a hand in the sense that I didn't think that 410 really helped you.

[00:31:53] Speaker 02:
I would like you to just clarify on I'm looking at the no contest plea.

[00:32:01] Speaker 02:
what was, and it does say that he stipulated there was a factual basis and there is a reference to someone else.

[00:32:07] Speaker 02:
How do you get around that?

[00:32:11] Speaker 05:
So because he specified that there existed a factual basis, he's merely saying that there was enough to convict him based on his elements.

[00:32:21] Speaker 02:
But they reference specific places in the record.

[00:32:24] Speaker 02:
They reference the probable cause statement,

[00:32:27] Speaker 02:
and then some other discovery.

[00:32:30] Speaker 02:
So why doesn't that just, you know, why doesn't that doom it right there?

[00:32:35] Speaker 05:
Because stipulating, Your Honor, to a factual basis does not mean that he was stipulating to every single fact contained in those probable cause reports.

[00:32:43] Speaker 02:
Well, yeah, it kind of does sometimes.

[00:32:46] Speaker 05:
We would disagree, Your Honor, just because he specifically pleaded pursuant to People v. West.

[00:32:52] Speaker 05:
in those pleading transcripts on page 176 of the record.

[00:32:58] Speaker 05:
He specified, and People v. West,

[00:33:01] Speaker 05:
is clear in that he is not admitting factual guilt.

[00:33:04] Speaker 05:
Here he is only merely stating that the state had brought enough to satisfy the elements of that Section 69 conviction and that he was not going to contest that evidence.

[00:33:18] Speaker 05:
So what's contained in the probable cause reports also is not necessary to make his plea valid.

[00:33:24] Speaker 05:
Under People v. Palmer, specific factual details are not necessary to make a plea valid.

[00:33:30] Speaker 05:
This court in Reese County of Sacramento said that that plea was also, that no contest plea was also valid despite there being no extra factual details to specify.

[00:33:44] Speaker 05:
So both because he pleaded pursuant to People v. West and because- What about what your friend on the other side said?

[00:33:52] Speaker 02:
Yeah, eight months sounded really good relative to 12 years in prison.

[00:33:57] Speaker 05:
He he made a decision at the time to to not contest the charges and instead plead no contest in order to get his civil suit to To get a good deal and to get a good get a good deal because if we went to trial Then he might have gotten 12 years, right?

[00:34:17] Speaker 05:
That that is possible.

[00:34:18] Speaker 05:
He was risking that if he Okay, let me see

[00:34:22] Speaker 02:
We have no additional questions.

[00:34:24] Speaker 02:
Thank you.

[00:34:24] Speaker 02:
Thank you, Your Honors.

[00:34:25] Speaker 02:
Thank both sides for your argument.

[00:34:27] Speaker 02:
And similarly, as to I'm not going to make it a contest between UCLA and Pepperdine.

[00:34:36] Speaker 02:
Everyone on both sides in both cases, you're welcome back in terms of just because you're law students doesn't mean you weren't prepared and doesn't mean that you didn't do a good job, because you certainly were prepared and you did a good job, as did the other side.

[00:34:52] Speaker 02:
So the person that wins is the person that has the facts and the law and two votes on this panel.

[00:35:00] Speaker 02:
So that's how it works.

[00:35:02] Speaker 02:
But anyway, thank you both.

[00:35:04] Speaker 02:
And this court will stand in recess until we have one more case at 2 o'clock.

[00:35:09] Speaker 02:
Have a lovely lunch, everyone, since you've finished your argument.

[00:35:14] Speaker 02:
And now you can hold down some food, right?

[00:35:37] Speaker 01:
This court for this session stands adjourned.