[00:00:00] Speaker 02:
First case for argument is crew versus ratliff Ten minutes per side and counsel you can begin when you're ready Just let me know whether you'd like to reserve time for rebuttal yes your honor Evan Young appearing for Appellant mark Christopher crew, and I'd like to reserve three minutes for rebuttal if I may thank you.

[00:00:19] Speaker 00:
Thank you I

[00:00:20] Speaker 00:
This case is about the core due process principles of notice, foreseeability, and the right to fair warning.

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The issues it presents are whether it was foreseeable to a reasonable person in 1982 that the 1978 death penalty statute

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would be interpreted to apply to a case of murder and incidental theft, and that the definition of the financial gain special circumstance would differ depending on whether a felony murder special circumstance was also charged.

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In 1984, the first time that the California Supreme Court was asked to interpret the statute in a case that involved offenses committed in the same time period as Mr. Crew's case,

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The court and people versus Bigelow narrowed the state's vague and broad language and adopted a limiting construction.

[00:01:13] Speaker 03:
Ms.

[00:01:13] Speaker 03:
Young, you're not maintaining the standalone vagueness challenge on appeal, are you?

[00:01:18] Speaker 00:
Yes, Your Honor.

[00:01:19] Speaker 03:
And why isn't that controlled by Noguera?

[00:01:23] Speaker 00:
Well, in Noguera, the issue that we have presented, which is the due process issue under Bowie versus City of Columbia,

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and the lack of fair notice was not presented to any court in Nogura.

[00:01:39] Speaker 00:
OK.

[00:01:39] Speaker 03:
So the one issue you have, which whether it's framed as due process or part of vagueness, is just the buoy issue, not some standalone void for vagueness challenge.

[00:01:48] Speaker 00:
Exactly.

[00:01:48] Speaker 00:
Yes, Your Honor.

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And that was not addressed in Nogura.

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In 1984, as I said, that was the first time that the statute was interpreted.

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And under that construction, the facts in Bigelow, which were similar to those in Mr. Crew's case, did not qualify as murder for financial gain.

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Bigelow was thereafter applied by California courts to all financial gain special circumstance cases until 1988 when the court decided Howard.

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Ms.

[00:02:24] Speaker 03:
Young, why wouldn't we just, if we're trying to understand the notice and if there has been no intervening judicial construction of the statute, why wouldn't we just look at the statute?

[00:02:35] Speaker 03:
Why isn't just the question whether that was enough to put Mr. Crew on notice?

[00:02:40] Speaker 00:
Well, because it had not yet been interpreted.

[00:02:43] Speaker 03:
But it was still law.

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It was still law, but the first time, the first chance that the California Supreme Court had to interpret it, it said,

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This is what it means.

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This is what the financial gain special circumstance means.

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And it was interpreting it as to conduct that happened in that intervening time, which was the same as Mr. Cruz.

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And Howard didn't overrule Bigelow.

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It didn't say that the plain language of the statute applies in all cases.

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because even after Howard, the California Supreme Court does apply the Bigelow standard under certain circumstances, that is when no other, when no felony murder special circumstance is charged.

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So that brings us back to Bowie because that

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Construction or that variation?

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When it applies only to in certain circumstances is what was unforeseeable It's Go ahead.

[00:03:54] Speaker 03:
I guess it's it's kind of odd to say that the Howard the last case was an unforeseeable construction of Bigelow

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an earlier case, when both of them post-dated the conduct at issue.

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Well, but Bigelow was interpreting the statute as it applied to conduct that happened in 1980 and 1982 in our case.

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So that the fact that Bigelow post-dated

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the conduct doesn't mean that it's not relevant.

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And also for a buoy analysis, you also look at what the other existing law was.

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We're not relying totally on Bigelow, although in our opinion, it obviously provides relevant evidence about what the statute meant

[00:04:56] Speaker 02:
I'm wondering how you reconcile your arguments with the California Supreme Court's holdings in Karasi and in Edelbacher.

[00:05:09] Speaker 00:
Well, those happened after Howard.

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So what we're talking about is that Howard was unforeseeable.

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Howard changed

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equation.

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Bigelow had said this is the definition of the financial gain special circumstance.

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It had never been interpreted before and we're saying this is what it means and what they said it means is that the murder either has to be consideration for or an essential prerequisite to the financial gain.

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So, and as I said, thereafter, the California courts applied Bigelow to all financial gain special circumstances cases, including ones in which a felony murder special circumstance was not also charged.

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So then you have Howard come along and say, well, Bigelow only applies

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if there is not another, or if there is not a felony murder special circumstance charged as well.

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That is a categorical change.

[00:06:25] Speaker 03:
And Bigelow... Wasn't that kind of already baked into Bigelow?

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I mean, Bigelow's reasoning was that we should avoid the overlap in special circumstances.

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so that we should narrow each one so they're doing independent work, that can only occur when there are multiple special circumstances assigned.

[00:06:48] Speaker 00:
Well, the court in Bigelow didn't limit its holding to cases in which only the financial gain special circumstance was charged.

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California courts understood Bigelow to apply to all the financial gain special circumstance, including one in which

[00:07:10] Speaker 00:
a felony murder special circumstance wasn't charged.

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And finally, Justice Broussard, who wrote the opinion in Bigelow, in his dissent in Howard, directly addressed the majority's opinion that Bigelow's formulation should only apply in cases in which there was the potential for overlap, and said that

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that the majority in Howard had limited Bigelow in, quote, a rather unusual and undesirable fashion.

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So clearly, he as the author and the court in Bigelow did not intend Bigelow to be conditional.

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It was categorical.

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That was the definition of

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special circumstance.

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OK.

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I think I've come to an end of, yes.

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Did you want to reserve for the rest of you?

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Do either of you have any questions now?

[00:08:03] Speaker 02:
OK.

[00:08:04] Speaker 00:
OK.

[00:08:04] Speaker 02:
You have two minutes, 15 seconds for rebuttal.

[00:08:07] Speaker 02:
Thank you.

[00:08:11] Speaker 01:
Good morning.

[00:08:12] Speaker 01:
Gregory Off for a respondent.

[00:08:14] Speaker 02:
Good morning.

[00:08:16] Speaker 01:
Bowie focuses on the law, quote, the law which had been expressed prior to the conduct and issue.

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It is not coextensive with the ex post facto clause.

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It looks at the law, at the time of the conduct.

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Strictly speaking, what the court did in Bigelow or Howard really doesn't matter in the equation.

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The best analogy here is Brad Shaw v. Ritchie.

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There, the transferred intent doctrine was in existence in Ohio at the time of the defendant's conduct, a subsequent

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Ohio case, eliminated it, and then when Bradshaw's case got to the Ohio Supreme Court, that court applied the Transferred Intent Doctrine.

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So he took it to the Supreme Court, and the Supreme Court says one of the arguments was that the intermediate case, which eliminated the Transferred Intent Doctrine, applied to him.

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And the court said this was a buoy issue, that

[00:09:20] Speaker 01:
Court that case has no bearing on whether the law at the time of the charge conduct was clear enough to provide Fair notice is exactly the the scenario that we have here now Sorry, Mr.. Otter you Saying then that the the Bigelow Howard line of cases doesn't enter at all.

[00:09:38] Speaker 01:
We're just looking at the statute It really doesn't despite my my briefing of you know and addressing both of those cases it really doesn't because we're looking at

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the law on the books or Bowie looks at the law on the books or judicial decisions interpreting it, of which there were none in 1982.

[00:09:55] Speaker 03:
I guess, but Mr. I think your problem there is that the state court decision that's at issue seems to rely entirely on Howard.

[00:10:05] Speaker 03:
It's not engaging any original interpretation of the 78 statute.

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It's not construing that in isolation.

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The entire discussion is a discussion distinguishing Bigelow and saying, no, here Howard applies.

[00:10:23] Speaker 03:
So why doesn't that bring us to Bowie?

[00:10:25] Speaker 01:
Because Howard simply applied the language of the statute.

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The language of the statute was the only diversion.

[00:10:33] Speaker 03:
Where would we find that in the state court's decision?

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I don't have it in front of me, but they plainly do not apply.

[00:10:47] Speaker 01:
the Bigelow exception.

[00:10:48] Speaker 03:
I mean, I'm not seeing them, I'm not seeing our state court colleagues cite the statute.

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I mean, they cited it at the beginning, but the entire discussion of the application in this insufficiently evidence is with reference to Howard and Bigelow.

[00:11:08] Speaker 03:
So I guess in other words, doesn't that at least get us into Bowie territory that the state court seemed to think that what it was doing was interpreting Howard, not the statute.

[00:11:21] Speaker 01:
Well, you could say that, but Howard simply applied, I'm saying this, Howard simply applied the language of the statute.

[00:11:28] Speaker 01:
And again, Bowie is simply looking to fair notice at the time of the conduct and what the court did in Howard

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or Bigelow doesn't really matter.

[00:11:40] Speaker 01:
Bigelow did construe.

[00:11:42] Speaker 01:
I'll give you that.

[00:11:44] Speaker 01:
It's definitely relevant.

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It construed the financial gain special circumstance.

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But as the court in Howard explained, if it wasn't explained in Howard, that was a contextual limitation.

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In fact, they did not expand the law.

[00:12:01] Speaker 01:
That was really an instructional error case.

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You'll notice at the end of their discussion, they say,

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The jury should have been instructed on this limitation so that we don't have the same facts proving two special circumstances or a special circumstance and felony murder.

[00:12:17] Speaker 01:
Howard said, made clear that that was an exception to the statutory language.

[00:12:25] Speaker 01:
And I do dispute that every case, every California case since Bigelow has applied Bigelow's test.

[00:12:34] Speaker 01:
I didn't see that come up in the briefing, but I definitely dispute that claim.

[00:12:40] Speaker 01:
Certainly the California Supreme Court did not.

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And I believe if you look at Howard, the court is applying just simply the plain language of the statute.

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And I think that's why the court in Crewe is discussing Howard.

[00:12:55] Speaker 03:
What do we do?

[00:12:57] Speaker 03:
You spend some time on the Metrish case.

[00:13:01] Speaker 03:
I guess I'm trying to understand the weight we should afford to state lower court holdings.

[00:13:10] Speaker 03:
Because Metrish, I believe, there was a Michigan Court of Appeals decided one thing.

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But it was a reasonable application for the state Supreme Court then to come in and resolve the issue.

[00:13:25] Speaker 03:
So just in terms of, are you conceding your friend's point that the state lower court decisions would be probative of what the law is, or should we just be looking at the apex court for the booty analysis?

[00:13:40] Speaker 01:
Well, on this issue here, I think we're looking at just the apex court.

[00:13:45] Speaker 01:
I mean, in Bradshaw, there was an intermediate court that was addressed.

[00:13:49] Speaker 01:
There the state of the intermediate California courts was not that Bigelow and Bigelow standard website Bigelow standard is the law of the financial gain circumstance if I'll if an intermediate court There's an argument that I think was a newberry applied it It's certainly not binding here.

[00:14:14] Speaker 01:
It was after the conduct of

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I still say we go back to the notice, and it's about fair notice at the time of the conduct, and that is the statutory language.

[00:14:25] Speaker 01:
The states, and this can't be confused with an ex post facto argument.

[00:14:31] Speaker 01:
The Supreme Court in Rogers goes into that discussion and differentiates the two provisions.

[00:14:36] Speaker 01:
The due process is a much narrower, the due process under Bowie is a much narrower provision.

[00:14:42] Speaker 01:
It really deals with fairness, and that fairness is tied to the notice at the time of the conduct.

[00:14:50] Speaker 01:
The court says that in Bowie, the court reiterates it in Rogers, and this court reiterated it by quoting that language in Webster, that that's what we're looking at.

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So even if the court in Bigelow, let's say, or Howard, expanded

[00:15:06] Speaker 01:
that they didn't have to apply it retroactively.

[00:15:09] Speaker 01:
The ideas of ex post facto and whether something gets locked in as the law and applies retroactively don't apply under BUI.

[00:15:18] Speaker 01:
And in any event, a state doesn't have to apply its laws retroactively.

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So that's my position on BUI, that really Howard and Bigelow aren't controlling.

[00:15:34] Speaker 01:
to me, Howard simply clarified what Bigelow did, which was carve out an exception.

[00:15:40] Speaker 01:
It is necessary only when the facts are subject to proving two special circumstances or a special circumstance and a felony murder count.

[00:15:56] Speaker 01:
On the subject of vagueness, one thing I wanted to add to that is this court

[00:16:02] Speaker 01:
and the state courts in Noguera and this court and state Supreme Court has found the plain language of the statute is not vague.

[00:16:13] Speaker 01:
Those decisions

[00:16:15] Speaker 01:
issued after bigelow, but if you look at them, they only discuss the plain language of the statute.

[00:16:20] Speaker 01:
They're not discussing the plain language of the statute as interpreted by bigelow.

[00:16:24] Speaker 01:
So there's an argument that, well, those cases came after Howard, or they came after bigelow, so therefore they're saying that bigelow is not vague.

[00:16:31] Speaker 01:
Well, no, that's not what they were doing.

[00:16:33] Speaker 01:
You look at the language that they're talking about, and it's the statutory language.

[00:16:36] Speaker 01:
They never mentioned Bigelow.

[00:16:38] Speaker 01:
Noguera did not mention Bigelow or Bigelow's tests at all in saying that this language is not vague, it's not overbroad, and that's the language that put Mr. Crew on notice at the time of his conduct, which our position is eliminates his buoy argument.

[00:16:59] Speaker 01:
If the court has no questions, I'll submit that.

[00:17:03] Speaker 02:
Thank you very much.

[00:17:04] Speaker 02:
Thank you.

[00:17:08] Speaker 00:
Thank you.

[00:17:10] Speaker 00:
First, the California Supreme Court did not do a reasonable buoy analysis.

[00:17:16] Speaker 00:
They simply said that because Bigelow post-dated the offenses that it couldn't be applied.

[00:17:27] Speaker 00:
But there was no analysis about foreseeability.

[00:17:31] Speaker 00:
I just wanted to clarify that when I was talking about all cases applying Bigelow,

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I was referring to the time period between Bigelow in 1984 and Howard in 1988.

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Obviously, after Howard, things changed.

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And that's the problem here is that there was no notice.

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When you're talking about a buoy analysis and you're looking at the existing law at the time of the offenses,

[00:18:02] Speaker 00:
A critical point here is that there was no other special circumstance in California where the definition of the special circumstance depended on what the prosecutor decided to charge.

[00:18:17] Speaker 00:
In this case, if you have a prosecutor deciding to charge robbery or not, that then somehow changes the definition of the statute.

[00:18:29] Speaker 00:
That occurs nowhere else.

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It's a complete anomaly.

[00:18:32] Speaker 00:
And it seems to me difficult to say that that kind of a change doesn't require some sort of fair notice.

[00:18:47] Speaker 00:
The idea that somehow Howard clarified Bigelow or clarified the statute I think then answers the buoy question.

[00:18:57] Speaker 00:
If you need a clarification, then how can you say that there was fair notice at the time of the offenses?

[00:19:07] Speaker 00:
And going to Nagura, if this court decides that existing circuit precedent forecloses relief,

[00:19:15] Speaker 00:
based on Naguera, then Mr. Krue respectfully submits that this case presents an important question warning consideration by the court en banc to maintain uniformity in the application of the U.S.

[00:19:29] Speaker 00:
Supreme Court's fair warning jurisprudence.

[00:19:32] Speaker 03:
Is that in your briefs?

[00:19:35] Speaker 03:
The request to preserve Naguera?

[00:19:36] Speaker 02:
No.

[00:19:37] Speaker 02:
Okay.

[00:19:37] Speaker 02:
Thank you.

[00:19:37] Speaker 02:
It's not.

[00:19:41] Speaker 02:
Thank you very much for your arguments.

[00:19:43] Speaker 02:
We thank both counsel for their arguments in this case.

[00:19:45] Speaker 02:
This matter is now submitted.