[00:00:00] Speaker 01:
Thank you.

[00:00:03] Speaker 01:
And the next case we have is Hanley versus Moore, case number 24-499.

[00:00:44] Speaker 04:
Good morning, Your Honors.

[00:00:45] Speaker 04:
May it please the Court, Cliff Gardner for Appellant, Kyle Hanley.

[00:00:48] Speaker 04:
I'll be reserving three minutes for rebuttal if I can, and I'll do my best to keep my eye on the clock.

[00:00:54] Speaker 04:
I'm sure the Court is aware from reviewing the briefs there are many issues, my colleague from the Attorney General's office and I disagree about.

[00:01:01] Speaker 04:
But to put those issues in context, I thought I'd start with three points on which we agree.

[00:01:06] Speaker 04:
First, we agree that according to the State Court of Appeal, Section 209, at least with respect to punishment, Section 209 sets forth two very different offenses.

[00:01:17] Speaker 04:
One is simple kidnapping for ransom, and one is aggravated kidnapping for ransom.

[00:01:22] Speaker 04:
And they're different, most importantly, in the context of punishment.

[00:01:26] Speaker 04:
The second point we agree on is that the charge in this case referenced Section 209, but then took the language

[00:01:33] Speaker 04:
in conveying the charge to the jury and in the information, it took the language of the simple form of the offense, not the aggravated form of the offense.

[00:01:43] Speaker 04:
And the third point we agree on is that, in fact, defendant was convicted of the aggravated version of the offense, not the simple version of the offense.

[00:01:52] Speaker 01:
Those three points clarify one thing really quickly before you continue mr. Gardner.

[00:01:56] Speaker 01:
I thought section 209 a puts forward aggravated kid kidnapping because it's kidnapping for a certain purpose and that form of aggravation can be enhanced as a punishment if bodily injury is is one of the

[00:02:13] Speaker 01:
Things that is proven and so I I didn't understand it to be simple kidnapping But aggravated kidnapping as far as what the state court decision was that's more question of terminology And I I use the terminology simple kidnapping for ransom and aggravated kidnapping for ransom

[00:02:27] Speaker 04:
I think Your Honor is correct.

[00:02:28] Speaker 04:
It's all aggravated kidnapping.

[00:02:29] Speaker 01:
Right.

[00:02:29] Speaker 01:
But different consequences based on... There is what I call a simple form of the offense and a more aggravated form of the offense.

[00:02:35] Speaker 04:
But I appreciate this semantic error in my characterization, certainly.

[00:02:40] Speaker 04:
I use it simply because the State Court of Appeals said that as far as punishment, it's correct to say there's simple kidnapping for ransom and aggravated kidnapping for ransom.

[00:02:51] Speaker 04:
But it is all under the aggravated kidnapping umbrella.

[00:02:54] Speaker 04:
That brings us to the points of disagreement.

[00:02:56] Speaker 04:
There's, I think, three major points I want to make a response on each one if I can.

[00:03:03] Speaker 04:
Excuse me.

[00:03:06] Speaker 04:
My colleague from the Attorney General's office suggested habeas relief is barred under 2254D because there's no clearly established federal law, quote, requiring that punishment enhancing facts be explicitly alleged in the charging document.

[00:03:19] Speaker 04:
That's the clearly established federal law point.

[00:03:22] Speaker 04:
Second, putting that aside, my colleague suggests that citation of the statute 209 is enough.

[00:03:27] Speaker 04:
And third, we have a difference of agreement as to prejudice, what standard applies and how it applies.

[00:03:32] Speaker 04:
Let me make an additional comment on each.

[00:03:35] Speaker 04:
With respect to clearly established federal law, I think in light of this Court's decision in Frye v. Broomfield and the United States Supreme Court's decisions in Williams v. Taylor and, more recently, Andrew v. White, there are two ways of establishing clearly established federal law.

[00:03:52] Speaker 04:
One, we can look to see if there's what Andrew versus White called a holding for purposes of EDPA.

[00:04:00] Speaker 04:
We look for a Supreme Court decision that is a holding with respect to, for the purpose of EDPA.

[00:04:06] Speaker 04:
Second, we can look, as Frye versus Broomfield did, when there's no holding, we can look to see if a principle is deeply embedded in the law.

[00:04:15] Speaker 04:
I think in this case, we have both.

[00:04:18] Speaker 04:
In Justice Thomas's concurring opinion in Apprendi and his opinion in Elaine, he traces the common law provenance of the notice rule that we're talking about.

[00:04:28] Speaker 04:
And it's several hundred years old.

[00:04:30] Speaker 04:
I think that common law provenance suggests why, shows why this principle of notice that we're talking about is deeply embedded in the law.

[00:04:40] Speaker 04:
And I think the application of that principle in the

[00:04:44] Speaker 04:
case, 1888 case of Britain versus United States, and more recently in Blakely and in Apprendi and in Elien and in Jones, shows that indeed it is deeply embedded, and those constitute holdings to purposes of EDPA as well.

[00:04:59] Speaker 01:
And what is that principle that's deeply embedded in your view?

[00:05:02] Speaker 04:
The principle is that when a fact exposes you to additional punishment not available in the absence of that fact, it has to be pled in the charging document.

[00:05:10] Speaker 02:
And that's because it's an element of the crime, and all those

[00:05:13] Speaker 02:
long traditions of Justice Thomas cited in a lien and were also discussed in Apprendi in less fulsome form is that you have to be apprised at the information stage so a defendant has a fair opportunity to know what the consequences of the charge are and how to deal with it.

[00:05:29] Speaker 02:
Plead guilty, strategies of trial and everything else.

[00:05:31] Speaker 02:
Would you agree with that?

[00:05:32] Speaker 04:
That's exactly right.

[00:05:33] Speaker 04:
It's an element of the crime.

[00:05:35] Speaker 04:
If a fact exposes you to additional punishment, it is an element of the crime and you have to plead that so the defendant has noticed really

[00:05:41] Speaker 04:
of what the crime is and what potential punishment he or she faces.

[00:05:45] Speaker 01:
So in your view, if that is either a net beholding or a deeply embedded principle, does that mean that California's informal amendment process is unconstitutional as a result?

[00:05:57] Speaker 04:
Not necessarily.

[00:05:59] Speaker 04:
The question is if you provide notice in an adequate way.

[00:06:04] Speaker 01:
But a moment ago, you said it has to be in the charging document.

[00:06:07] Speaker 01:
And so if we would agree with you, then that would seem to suggest that informal amendment, such as what was here orally done, can't happen, right?

[00:06:17] Speaker 01:
And wouldn't you agree that there's no clearly established law that says that California's informal amendment process is unconstitutional?

[00:06:26] Speaker 04:
Well, first of all, I don't think the court has to go that far in this case.

[00:06:31] Speaker 01:
I think we do, because if informal amendment is permissible, that may be dispositive in this case.

[00:06:39] Speaker 04:
Let me respectfully disagree, because let's accept for a moment for the premise that an informal amendment is permissible.

[00:06:46] Speaker 04:
I take it we would agree that the informal amendment has to serve the same function and has to advise the client, potentially the defendant, my client, the defendant, has to be advised of what the potential punishment is and what the facts are.

[00:06:59] Speaker 04:
And let's look at what is alleged to be the informal amendment in this case, and we can talk perhaps in a minute about whether Gal vs. Lewis permits an instructional conference

[00:07:09] Speaker 04:
near the end of trial to serve as the constitutionally required notice.

[00:07:15] Speaker 04:
There's a good argument that it can't because the purpose of notice is to allow you to prepare for trial, not find out at the end of trial what the allegation is.

[00:07:22] Speaker 02:
Well, I wouldn't rely on gout.

[00:07:23] Speaker 02:
I'd rely on Supreme Court cases that say that.

[00:07:26] Speaker 02:
We have to look at Supreme Court precedent.

[00:07:28] Speaker 02:
But I think the principle is that same principle is in Alleen and Apprendi.

[00:07:33] Speaker 04:
Well, then let's rely on those.

[00:07:36] Speaker 04:
But put that aside for the moment.

[00:07:38] Speaker 04:
Let's say that putting aside those cases that an end of the trial conference was sufficient to provide.

[00:07:46] Speaker 04:
I take it we would agree that that has to provide necessary elements of notice.

[00:07:51] Speaker 04:
And in this case, not only did it not provide a notice, the state appellate court held it didn't.

[00:07:56] Speaker 04:
What happened was, at the end of the trial, they talked about instructions.

[00:08:00] Speaker 04:
And the court said, OK, here's what we're going to do.

[00:08:02] Speaker 04:
And the court then confused the bodily injury allegation, which is relevant to 209, the bodily harm allegation, with the bodily injury allegation that was in count four, completely muddled it, and then told the defendant that, basically, don't worry.

[00:08:15] Speaker 04:
These factual allegations won't enhance your sentence.

[00:08:18] Speaker 04:
Well, how could that possibly be noticed to the defendant

[00:08:21] Speaker 04:
that he was now facing a life without parole term.

[00:08:24] Speaker 02:
On that issue, that's an unreasonable application of fact, isn't it?

[00:08:30] Speaker 02:
That's exactly right.

[00:08:31] Speaker 02:
And I would add, sympathetic to what you're saying, I would also point out that the Court of Appeal expressly stated that we are mindful, appellant, was never expressly informed.

[00:08:42] Speaker 02:
that he could be sentenced to LWOP if the jury found the special allegations true.

[00:08:48] Speaker 02:
So I've been trying to struggle with this.

[00:08:51] Speaker 02:
As a matter of unreasonable fact, was the so-called informal amendment not proper here?

[00:08:58] Speaker 04:
And I think that's right.

[00:08:59] Speaker 04:
And there's two different issues here.

[00:09:00] Speaker 04:
First, with respect to whether the charging document and the reliant, the State Court of Appeals reliance on the 1936 decision in Britain, in people versus Britain,

[00:09:11] Speaker 04:
That issue, I think, comes under the contrary, too.

[00:09:15] Speaker 04:
It's contrary to this long-established law.

[00:09:17] Speaker 04:
With respect to the informal amendment, that's an unreasonable determination of facts within 2254D.

[00:09:23] Speaker 04:
It's a different prong of the analysis, but neither of the explanations given by the state court holds merit under 2254D.

[00:09:31] Speaker 01:
Can I ask, so there's the footnote in Apprendi that says we're not reaching the issue of charging as opposed to what we all understand Apprendi to be about sentencing and proof beyond a reasonable doubt in order to enhance the sentence beyond the statutory maximum.

[00:09:48] Speaker 01:
Why doesn't that take it out of your argument that it's either an Edpa-holding or a deeply embedded principle if Apprendi itself walked back from addressing that issue?

[00:10:01] Speaker 04:
Well, I think the answer is Eliane, Blakely, Jones, United States versus Britain, and then the recent decision by the U.S.

[00:10:08] Speaker 04:
Supreme Court in Andrew versus White.

[00:10:12] Speaker 04:
A principle can be deeply embedded, and it doesn't have to come alone from Apprendi.

[00:10:16] Speaker 04:
It doesn't come alone from Apprendi.

[00:10:17] Speaker 04:
It comes from the 200 years of common law tradition that's discussed in Justice Thomas's concurring opinion in Apprandi and again in Elien.

[00:10:26] Speaker 01:
But again, LEN is a sentencing case, right?

[00:10:30] Speaker 01:
And so part of what I'm wrestling with is the state court decision did mention that the California Supreme Court took up this issue.

[00:10:38] Speaker 01:
I think it was in People vs. Contreras.

[00:10:41] Speaker 01:
And the state Supreme Court held that Apprendi is about sentencing and not about charging.

[00:10:55] Speaker 01:
But there hasn't been a Supreme Court decision, or as I understand it, a circuit decision that has said that Contreras is wrongly decided under Supreme Court authority, is there?

[00:11:06] Speaker 04:
Okay, well, no, I'm out of time, but let me answer with two responses.

[00:11:11] Speaker 04:
First, this is why I think Frye v. Broomfield is so important.

[00:11:14] Speaker 04:
Frye v. Broomfield was the case that dealt with shackling.

[00:11:17] Speaker 04:
The state made the same argument there and said this was before Deck v. Missouri, which was the United States Supreme Court case that finally reached a holding on whether unjustified shackling was permissible.

[00:11:27] Speaker 04:
The state decision in DEC was before in Five versus Broomfield was before DEC.

[00:11:34] Speaker 04:
And so the state argued there's no, there was no clearly established federal law.

[00:11:40] Speaker 04:
And Five versus Broomfield, this court held we don't need a holding if it's deeply embedded in the law.

[00:11:46] Speaker 04:
So the fact that Apprendi may not be a holding on the notice issue, and I'll concede that footnote three means it's not a holding as we would

[00:11:52] Speaker 04:
traditionally describe a holding, I don't think is that significant in light of Frye versus Brumfeld.

[00:12:00] Speaker 04:
The question isn't so much necessarily whether it's a holding, the question is whether it's deeply embedded in the law.

[00:12:06] Speaker 02:
Well, I think you're conceding too much because Andrew says

[00:12:11] Speaker 02:
For EDPA purposes, if it's indispensable to our express holding, it is a holding for EDPA application.

[00:12:20] Speaker 02:
Justice Thomas went out of his way to say there is, quote, a well-established practice of including in the indictment

[00:12:31] Speaker 02:
and submitting to the jury every fact that was a basis for imposing or increasing punishment, which is what bodily harm is here, in my view, under Penal Code Section 209.

[00:12:41] Speaker 02:
So that, to me, is clearly an indispensable part.

[00:12:44] Speaker 02:
Notice is an indispensable part of aline and apprendi.

[00:12:47] Speaker 04:
I think that's right.

[00:13:08] Speaker 04:
we can perhaps disagree, is that traditionally a holding of a court is circumscribed by the facts before the court.

[00:13:16] Speaker 04:
But Andrew v. White was a case in which they looked at Payne v. Tennessee.

[00:13:22] Speaker 04:
I have to take a minute to unpack it, Your Honors.

[00:13:25] Speaker 04:
Payne v. Tennessee was a case where the court granted cert to decide if Booth v. Maryland should be overruled.

[00:13:31] Speaker 04:
Booth v. Maryland held that there was a per se 8th Amendment bar on victim impact evidence.

[00:13:37] Speaker 04:
Payne versus Tennessee overruled that and said there is no longer an Eighth Amendment bar on victim impact evidence.

[00:13:44] Speaker 04:
In doing that, they simply mentioned that due process can be violated by the introduction of testimony that renders the trial unfair.

[00:13:54] Speaker 04:
That wasn't a holding in any traditional sense of the word.

[00:13:58] Speaker 04:
And what Andrew versus White said, it said, it's good enough for purposes of EDPA.

[00:14:01] Speaker 04:
When this court relies on a legal rule or principle to decide a case, that principle is a holding of the court for purposes of EDPA.

[00:14:08] Speaker 01:
So would you agree that there's some tension then between California's allowance for informal amendment, even up to the stage of jury instructions, right?

[00:14:19] Speaker 01:
Because that was what People versus Anderson contemplated.

[00:14:23] Speaker 01:
Versus if this deeply embedded principle is there,

[00:14:28] Speaker 01:
giving some defendant adequate notice with sufficient time before the trial to know to apprise him or her of the charges that they're facing.

[00:14:40] Speaker 01:
If we're going down the road, I think Judge Gennaro mentioned unreasonable determination of the facts, if we're going down the road of deciding whether the state court unreasonably determined facts, wouldn't that be an analysis as to whether that court correctly applied Anderson, a state court decision?

[00:15:00] Speaker 01:
And if so, isn't that a request for federal habeas relief to determine whether state law is being adequately applied?

[00:15:09] Speaker 04:
Wow.

[00:15:10] Speaker 01:
It's a lot there.

[00:15:13] Speaker 04:
It's a long question, and I'm not saved by the bell, apparently.

[00:15:18] Speaker 04:
I mentioned this before, and Your Honor expressed reluctance to it.

[00:15:23] Speaker 04:
There may be a tension between a principle that says you can informally amend at the end of a case and what I view as the long embedded, deeply embedded principle of the Sixth Amendment notice that says it has to be in the charging document to give you notice.

[00:15:36] Speaker 04:
There may be a tension.

[00:15:38] Speaker 04:
But that tension is not present in this case because of the unreasonable determination of the facts.

[00:15:43] Speaker 04:
There can't be any disagreement that if you say, okay, it's okay to do this at the end of the case, the defendant still has to be told that you're facing life without parole.

[00:15:53] Speaker 00:
You want us to basically to assume then that California's informal amendment process fits comfortably somehow with Apprendi and Elaine.

[00:16:03] Speaker 00:
I mean, it seems to me that we have to.

[00:16:07] Speaker 00:
I don't understand how it can be the case that Apprendi requires

[00:16:12] Speaker 00:
that notice be provided in the charging document, but you can still have an informal amendment later on.

[00:16:16] Speaker 00:
I just, I don't see attention.

[00:16:18] Speaker 00:
I don't see those fitting together at all.

[00:16:21] Speaker 04:
I'm clearly not making myself clear and I'm sorry, Your Honor.

[00:16:24] Speaker 04:
I don't see, there may be attention, but it's not present in this case because even if you accept the premise that they're consistent, this particular jury instruction conference couldn't possibly have given notice.

[00:16:37] Speaker 04:
Because he was never told, as Judge Janano pointed out, the state court made a finding.

[00:16:42] Speaker 04:
He was never told he was facing a life without parole sentence.

[00:16:45] Speaker 04:
So regardless of when notice has to be provided, and maybe there's a reasonable disagreement before trial, during trial, at the end of trial, regardless of when notice has to be provided, it was never provided here.

[00:16:57] Speaker 00:
I guess, and your argument is maybe more specifically that the defendant needs to be expressly told.

[00:17:02] Speaker 00:
Because what the state court of appeal holds is that he was put on notice even if he wasn't expressly

[00:17:07] Speaker 00:
even if those exact words weren't stated to him.

[00:17:11] Speaker 04:
Sorry, Your Honor, did you?

[00:17:13] Speaker 04:
Yeah, please keep going.

[00:17:16] Speaker 04:
Expressly told, has to be told in some way.

[00:17:19] Speaker 04:
There's nothing in this record that suggests he was aware that he was facing life without parole, and the state appellate court found he was never told he was facing life without parole.

[00:17:29] Speaker 01:
I think the state would say Section 209A of the penal code

[00:17:33] Speaker 01:
says this is an aggravated kidnapping with two levels of punishment one rant you know what you were calling simple is life with the possibility of parole but if there's bodily injury or I think for the other you know isolation with I forgot exactly what the wording is

[00:17:49] Speaker 01:
Why isn't that the notice in the charging document of the crime with which he's being charged, plus the informal amendment, why wasn't that sufficient to apprise him of the consequences of the bodily injury issue?

[00:18:05] Speaker 04:
Perfectly good argument.

[00:18:06] Speaker 04:
And if the state had simply charged him with violating Section 209, I probably wouldn't be here.

[00:18:11] Speaker 04:
But that's not what the state did.

[00:18:13] Speaker 04:
The state charged him with 209, but then specifically selected the language from Section 209

[00:18:19] Speaker 04:
that conveys the simple form of the offense.

[00:18:22] Speaker 04:
In that sense, this case is very much like the US Supreme Court's decision in Langford, where they rejected the argument that citation of the statute, even though the statute contains the requisite punishment, citation of the statute is enough.

[00:18:35] Speaker 04:
And it wasn't enough here.

[00:18:36] Speaker 04:
Had they just cited the statute?

[00:18:37] Speaker 04:
I think that's a very good argument, and I wouldn't be here.

[00:18:40] Speaker 04:
But they didn't just cite the statute.

[00:18:41] Speaker 04:
They went beyond that and used the language that conveys the simple form of the offense.

[00:18:46] Speaker 03:
Okay, well we've let you gone over quite a bit and let's hear from your colleague on the other side Good morning your honors may it please the court California Deputy Attorney General Warren Williams for responded The State Court of Appeal

[00:19:12] Speaker 03:
did not erroneously interpret either California state law or US Supreme Court law.

[00:19:20] Speaker 03:
People versus Britain remains good law in California.

[00:19:23] Speaker 03:
And I want to reiterate that that case determined that 209A, the aggravated kidnapping statute, is but one crime with two types of punishments.

[00:19:33] Speaker 03:
The United States Supreme Court has never held that a statute, an individual statute,

[00:19:39] Speaker 03:
that has two types of punishments must be formally charged in the written charging document.

[00:19:45] Speaker 02:
That's just, I don't agree with that.

[00:19:47] Speaker 02:
Alene looks at 18 United States Code section 924C.

[00:19:52] Speaker 02:
It has one crime, a felon committing, a felon in possession of a firearm committing a crime of violence.

[00:19:58] Speaker 02:
It then has three, three levels of punishment, five years, seven years, ten years.

[00:20:03] Speaker 02:
In my view, it is indistinguishable from the statutory scheme in Section 209A.

[00:20:11] Speaker 02:
Justice Thomas went out of his way to say each one of those penalties is a separate element which must be stated in the information at the beginning of the case.

[00:20:22] Speaker 02:
That was an indispensable holding in Aline.

[00:20:24] Speaker 02:
So I'm having trouble understanding your broad statement about what you just said.

[00:20:29] Speaker 03:
Your Honor, I appreciate that point.

[00:20:31] Speaker 03:
And actually, Aline is a very interesting case because

[00:20:33] Speaker 03:
In that case, the firearm enhancement was generically charged.

[00:20:38] Speaker 03:
The prosecutor, the federal prosecutor, did not elect which of the three types of punishments was going to be.

[00:20:44] Speaker 02:
Well, that is different here because the prosecutor did specifically allege simple kidnapping.

[00:20:48] Speaker 02:
I'm looking at the October 2012 complaint all the way through the complaints that were filed, all pretrial complaints.

[00:20:56] Speaker 02:
In each one of those cases, as your colleague pointed out,

[00:20:59] Speaker 02:
This defendant was told only that he was being held to account for seizing a victim for ransom reward or extortion, not a peep about bodily injury, which effectively doubled his sentence.

[00:21:12] Speaker 02:
Didn't know that at all until the close of evidence and

[00:21:17] Speaker 02:
a frantic jury conference before the case got submitted to the jury.

[00:21:22] Speaker 02:
So there's no notice in this case.

[00:21:26] Speaker 02:
It just seems plain as day to me.

[00:21:27] Speaker 02:
Certainly no constitutionally adequate notice.

[00:21:30] Speaker 03:
Your Honor, the information charged, Section 209A, which is just but one crime, the elements of that offense were enumerated specifically within the information, the charging document.

[00:21:45] Speaker 03:
People versus Britain state law has determined as a matter of state law that that is but one crime.

[00:21:52] Speaker 03:
The punishment, the two tracks of punishment for that one crime of aggravated kidnapping for robbery was incorporated by reference within the statute itself.

[00:22:02] Speaker 03:
Any trial counsel worth his or her salt would have looked up the statute.

[00:22:08] Speaker 02:
You're talking as if Apprendi and Alleyne didn't exist.

[00:22:11] Speaker 03:
and in a lean however changed up change the world that i don't think your argument holds water and uh... in the wake of those two cases as a matter of which predate the court of appeal decision by the way as a matter of course as a matter of clearly articulated supreme court authority those cases respectfully were about jury determinations rather than charging i understand my friend on the other side discusses deeply embedded principles

[00:22:38] Speaker 03:
of notice and Cole versus Arkansas was a case regarding notice from the 1940s where a specific crime and in that particular case that's where the Arkansas Supreme Court essentially looked at the evidence presented at trial and determined that there was a completely separate offense that was that the defendant was convicted of where a different offense had been charged under a completely separate statute.

[00:23:03] Speaker 03:
So 209A, everything within this universe is within that one single statute.

[00:23:07] Speaker 03:
This is not a goth case where you have two different types of firearm enhancements, or Oracle versus Arkansas, where there's two different statutes with two separate crimes.

[00:23:20] Speaker 03:
I mean, this is but one crime, as People versus Britain, California Supreme Court held back in the 30s.

[00:23:25] Speaker 03:
Regardless of that, however, as Your Honors have discussed with my friend on the other side, there is the informal charging process within the state of California.

[00:23:34] Speaker 03:
Clearly it differs from the federal criminal practice of indictments where the evidence is presented to a grand jury outside of the defendant and his counsel.

[00:23:47] Speaker 03:
It's a it's a in California.

[00:23:49] Speaker 03:
There is no quote talismanic significance to the written charging document itself It's more of an organic process.

[00:23:56] Speaker 03:
You have a preliminary hearing the defendant is there hearing the evidence initially presented to the magistrate and then once there's Sufficient evidence then the information is fine.

[00:24:08] Speaker 02:
Let's assume that that's constitutionally.

[00:24:10] Speaker 02:
Okay.

[00:24:10] Speaker 02:
I have some doubts about that.

[00:24:11] Speaker 02:
Let's just assume it for now and

[00:24:13] Speaker 02:
wasn't the Court of Appeal just dead wrong in saying that notice was in fact given?

[00:24:18] Speaker 02:
Because I read that section where the court itself said, well, we know he never was told expressly.

[00:24:24] Speaker 02:
And I have to say, I read the transcript, but I'm not criticizing the trial judge.

[00:24:27] Speaker 02:
It was busy.

[00:24:28] Speaker 02:
I've done these conferences.

[00:24:29] Speaker 02:
I know how they go.

[00:24:30] Speaker 02:
But the trial judge didn't do any favors for clarity by saying to the defendant, you know, he expressly said,

[00:24:38] Speaker 02:
Well, don't worry about, you know, this is just a technical, oh, wait a minute, let's see.

[00:24:44] Speaker 02:
Oh, it's not technically, he actually said it's not technically a sentencing enhancement, which is just dead wrong, because, of course, he's going to double his time with this and get life without parole as, you know, a sentence.

[00:24:58] Speaker 02:
I mean, it is expressly a sentencing enhancement.

[00:25:02] Speaker 03:
Respectfully.

[00:25:02] Speaker 02:
So there's confusion and lack of express knowledge.

[00:25:06] Speaker 02:
How can the Court of Appeal then reasonably say, well, we're just going to conclude, as a matter of fact, he got adequate notice, even under the informal?

[00:25:15] Speaker 03:
Respectfully, Your Honor, it's the entire body of the process of that trial.

[00:25:21] Speaker 03:
You had the initial pretrial motions where the prosecutor discussed the fact that he was going to be subject to life without the possibility of parole.

[00:25:29] Speaker 03:
There was the fact that he was already on notice of all the evidence of the heinous acts that were committed against the victims in this case at the preliminary hearing.

[00:25:39] Speaker 03:
The trial evidence and then then pre before the instructions were given to the jury there was the informal amendment process and granted the judge did not specifically articulate the the punishment, but the

[00:25:55] Speaker 01:
Defendant was already on what can I ask about the pretrial motion?

[00:25:58] Speaker 01:
What what was the basis for the penalty?

[00:26:01] Speaker 01:
Being a lop at that point if there had not been an amendment an informal amendment yet What what was the basis for the prosecutor prosecutor's motion at that point well that was prior to the information, but it was the Incorporating by reference the punishments within 209a okay But it still doesn't tell the defendant that

[00:26:23] Speaker 01:
bodily injury would attach to the kidnapping charge and that would expose him to life without the possibility of parole.

[00:26:30] Speaker 01:
I guess, for me, the question is, does the state court decision, it was distinguishing Anderson on the basis, at least in part, that there had been a formal motion made, an oral motion to amend, as opposed to just jury instructions appearing out of the blue.

[00:26:47] Speaker 01:
And I guess the question that I have, and Judge Donahue is raising this question, and Judge Thomas, but is that enough if no one is telling the defendant the consequences of

[00:27:00] Speaker 03:
Kidnapping plus bodily injury means you're exposed to life without the possibility of parole even if there's an oral motion made Again, I believe the defendant was placed on notice and look at how the informal amendment process typically works in California based on the evidence presented at trial

[00:27:21] Speaker 03:
The prosecutor typically makes an oral amendment request based on the evidence solicited to conform to the evidence at trial.

[00:27:29] Speaker 03:
The judge does not have to grant that.

[00:27:31] Speaker 03:
Defense counsel is always entitled to object based on lack of notice.

[00:27:36] Speaker 03:
What happened here?

[00:27:37] Speaker 03:
There was no objection because the defendant was placed on notice prior to trial.

[00:27:43] Speaker 03:
by incorporating by reference the penalties, all the evidence presented.

[00:27:47] Speaker 01:
But there was no objection in Anderson either.

[00:27:49] Speaker 01:
And yet the California Supreme Court found no adequate notice there.

[00:27:54] Speaker 01:
So I mean, that's not dispositive, right?

[00:27:57] Speaker 03:
Slightly different statute, though.

[00:27:58] Speaker 03:
I mean, this is two tracks of punishment all within the same statute.

[00:28:02] Speaker 03:
But regardless, this notice is about fairness, right?

[00:28:08] Speaker 03:
The Sixth Amendment notice to the defendant is about fairness.

[00:28:11] Speaker 03:
This was fair based on the totality of what occurred below.

[00:28:14] Speaker 03:
There is no way in which this defendant did not know that he was going to be subject to life without the possibility of parole based on the evidence of all the egregious acts that were committed against the victims in this case.

[00:28:28] Speaker 02:
But regardless of all that, even if this court were... You know, I have to say, he was repeatedly told by the prosecutor that he wouldn't be, because he was never charged with that until the very day of closing argument.

[00:28:39] Speaker 02:
I looked at all the complaints.

[00:28:41] Speaker 02:
I looked at all the information that was filed.

[00:28:44] Speaker 02:
There was not a single one between October 2012 and the pretrial conference in 2018 where the prosecutor ever said

[00:28:55] Speaker 02:
to this defendant, we're going to hold you responsible for inflicting bodily harm and get you the higher enhancement under section 209.

[00:29:03] Speaker 03:
Never said it.

[00:29:04] Speaker 03:
Aside from the pretrial motion that explicitly said that?

[00:29:06] Speaker 02:
But the amended complaint filed after that didn't say bodily harm.

[00:29:12] Speaker 03:
Right, the information.

[00:29:14] Speaker 02:
It was never put into a charging document, ever.

[00:29:17] Speaker 02:
Now, I understand that there are references, but

[00:29:20] Speaker 02:
It seems a little strange to me to say a defendant has to piece together these breadcrumbs in order to get notice.

[00:29:25] Speaker 02:
I mean, that's just not... Does that seem right to you?

[00:29:30] Speaker 03:
I believe based on the totality of the circumstances, the counsel surely looked at the statute and clearly conveyed to his client, this is what we're facing.

[00:29:41] Speaker 02:
Even though the prosecutor never said, this is what you're facing?

[00:29:46] Speaker 03:
In a written document?

[00:29:47] Speaker 02:
Yes.

[00:29:48] Speaker 03:
I think it would be unlikely, to say the least, that defense counsel and defendant were not aware of what he was facing.

[00:29:57] Speaker 02:
I could not disagree with that more.

[00:29:59] Speaker 02:
You do what the prosecutor says.

[00:30:02] Speaker 03:
But regardless of that, I just want to quickly point out, even if this court were inclined to assume that the state court of appeal

[00:30:09] Speaker 03:
was made an objectively unreasonable determination, and the error was obvious and indisputable, it was harmless under breath.

[00:30:17] Speaker 03:
There was no way in which this defendant was going to change the defense based on the election of a life without the possibility.

[00:30:25] Speaker 02:
It's not just defense.

[00:30:26] Speaker 02:
It's maybe entering a plea.

[00:30:29] Speaker 02:
Bargaining for life with parole at the plea stage.

[00:30:32] Speaker 02:
I mean, there are so many variables that could have been different.

[00:30:35] Speaker 02:
I find it hard to say that it's not prejudicial.

[00:30:37] Speaker 03:
Respectfully your honor my friend on the other side never presented any kind of declaration from the prosecutor that the prosecutor would have been willing under any Circumstances to accept anything less than life without the possible.

[00:30:48] Speaker 02:
It's a rare day when a prosecutor is going to submit evidence on behalf of a habeas petitioner I Don't understand what you're asking him to do.

[00:30:55] Speaker 02:
Why would a prosecutor say yes?

[00:30:58] Speaker 02:
I'll support the defendant's petition with that kind of declaration

[00:31:01] Speaker 03:
Respectfully, speculation that the prosecutor would have been willing to accept anything less when life without the possibility of parole is not sufficient to show prejudice in this particular case.

[00:31:16] Speaker 03:
And I believe I am well over my time.

[00:31:18] Speaker 03:
Unless there's any further questions, I'm prepared to submit.

[00:31:20] Speaker 03:
Other questions?

[00:31:21] Speaker 03:
Thank you.

[00:31:26] Speaker 01:
We'll give you a couple minutes.

[00:31:27] Speaker 04:
I haven't posed on the court long enough, so I'll be brief.

[00:31:30] Speaker 04:
I have three points I want to make, and of course, if there's any questions.

[00:31:34] Speaker 04:
Counsel began his presentation by talking about the fact that this was actually one crime and not two.

[00:31:38] Speaker 04:
It didn't articulate two crimes, and there was an exchange about Allianz.

[00:31:43] Speaker 04:
I think we could talk about the case law, but I think it's better to talk about the fact that again and again, Apprendi and Allianz and Blakely

[00:31:49] Speaker 04:
The court says the Sixth Amendment requirements look at substance, not form.

[00:31:55] Speaker 04:
And in substance, we know what this statute's about because the State Court of Appeal has told us what it's about.

[00:32:00] Speaker 04:
They said as far as punishment, it creates two distinct offenses.

[00:32:03] Speaker 04:
And that's the way I believe the case should be looked at.

[00:32:06] Speaker 04:
Judge Satch, as you mentioned the pre-trial motion.

[00:32:09] Speaker 04:
And I just want to take a moment because we didn't have a chance to discuss that.

[00:32:13] Speaker 04:
Yes, five months before the information was filed, the prosecutor filed a motion to consolidate cases and mentioned the possibility of life without parole.

[00:32:22] Speaker 04:
And here's what the State Court of Appeals said about that.

[00:32:25] Speaker 04:
The motion to consolidate does mention appellant could get life without parole if convicted of aggravated kidnapping, but it appears to premise that possibility on the assumption appellant was expressly charged with inflicting bodily injury during that offense.

[00:32:37] Speaker 04:
This is at page 43 of the excerpt of record.

[00:32:40] Speaker 04:
Five months later, when the information was filed, there was no bodily injury allegation made.

[00:32:46] Speaker 04:
Defendant was entitled, I draw the complete opposite inference, as is often the case from my colleagues at the Attorney General's office, I draw the opposite inference.

[00:32:55] Speaker 04:
The district attorney made clear life without parole depended on an allegation of bodily injury.

[00:33:00] Speaker 04:
Five months later, that district attorney filed an information that did not charge bodily injury.

[00:33:05] Speaker 04:
The inference is clear.

[00:33:06] Speaker 04:
They're not going for aggravated kidnapping.

[00:33:09] Speaker 04:
Finally, as to prejudice, I want to reiterate the point that I think came from the bench.

[00:33:13] Speaker 04:
Yes, part of the notice requirement

[00:33:15] Speaker 04:
is to make sure the defendant can prepare for the actual trial.

[00:33:19] Speaker 04:
But it's just as important to make the decision to understand what consequences you're facing, what the elements of the charge are, to decide if you want to go to trial at all or if you want to seek a plea deal.

[00:33:30] Speaker 04:
That's the purpose of notice.

[00:33:32] Speaker 04:
It's a twin purpose, and my colleague's argument about prejudice ignores the second component of those purposes.

[00:33:38] Speaker 04:
So unless the court has any other questions, I'm happy to submit them.

[00:33:41] Speaker 04:
No.

[00:33:41] Speaker 04:
Thank you.

[00:33:42] Speaker 04:
So much for the extra time.

[00:33:43] Speaker 01:
Thank you, counsel, for your arguments.

[00:33:45] Speaker 01:
Very helpful.

[00:33:45] Speaker 01:
The matter will stand submitted.