[00:00:00] Speaker 02: Our first case for argument is Crew v. Ratliff, 10 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. [00:00:09] Speaker 00: Yes, Your Honor. Evan Young appearing for appellant Mark Christopher Crew, and I'd like to reserve three minutes for rebuttal, if I may. [00:00:18] Speaker 02: Thank you. [00:00:19] Speaker 00: Thank you. This case is about the core due process principles of notice, foreseeability, and the right to fair warning. The issues it presents are whether it was foreseeable to a reasonable person in 1982 that the 1978 death penalty statute 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. [00:00:52] Speaker 00: 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. Cruz's case, the court in People v. Bigelow narrowed the state's vague and broad language and adopted a limiting construction. [00:01:13] Speaker 03: Ms. 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 v. City of Columbia and the lack of fair notice, was not presented to any court in Noguera. [00:01:39] Speaker 03: Okay, so the one issue you have, which whether it's framed as due process or part of vagueness, is just the Bowie issue, not some stand-alone void for vagueness challenge. [00:01:48] Speaker 00: Exactly, yes, Your Honor. Okay, thank you. And that was not addressed in Noguera. [00:01:54] Speaker 00: In 1984, as I said, that was the first time that the statute was interpreted. And under that construction, the facts in Bigelow, which were similar to those in Mr. Cruz's case, did not qualify as murder for financial gain. Bigelow was thereafter applied by California courts to all financial gain special circumstance cases until 1988 when the court decided Howard [00:02:24] Speaker 03: Ms. 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. [00:02:44] Speaker 00: It was still law, but the first time, the first chance that the California Supreme Court had to interpret it, it said... This is what it means. This is what the financial gain special circumstance means. And it was interpreting it as to conduct that happened in that intervening time, which was the same as Mr. Cruz. [00:03:07] Speaker 00: And Howard didn't overrule Bigelow. It didn't say that the plain language of the statute applies in all cases. Because even after Howard, the California Supreme Court does apply the Bigelow standard under certain circumstances. [00:03:27] Speaker 00: That is when no felony murder special circumstance is charged. So that brings us back to Bowie. Because that construction or that variation, when it applies only in certain circumstances, is what was unforeseeable. [00:03:49] Speaker 03: Go ahead. [00:03:54] Speaker 03: I guess it's kind of odd to say that Howard, the last case, was an unforeseeable construction of Bigelow, an earlier case, when both of them post-dated the conduct at issue. [00:04:13] Speaker 00: Well, but Bigelow was... interpreting the statute as it applied to conduct that happened in 1980 and 1982 in our case. [00:04:30] Speaker 00: So that the fact that Bigelow post-dated the conduct doesn't mean that it's not relevant. And also for a Bowie analysis, You also look at what the other existing law was. We're not relying totally on Bigelow, although in our opinion, it obviously provides relevant evidence about what the statute meant. [00:04:58] 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. [00:05:13] Speaker 00: So what we're talking about is that Howard was unforeseeable. Howard changed the equation. Bigelow had said, this is the definition of the financial gain special circumstance. It had never been interpreted before. And we're saying, this is what it means. [00:05:35] Speaker 00: And what they said it means is that the murder either has to be consideration for or an essential prerequisite to the financial gain. [00:05:46] Speaker 00: 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. So then you have Howard come along and say, well, Bigelow only applies if there is not another or if there is not a felony murder special circumstance charged as well. [00:06:21] Speaker 00: That is a categorical change. [00:06:25] Speaker 03: And Bigelow... But wasn't that kind of already baked into Bigelow? I mean, Bigelow's reasoning was that we should avoid... the overlap in special circumstances 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. California courts understood Bigelow to apply to all the financial gains special circumstance, including one in which a felony murder special circumstance wasn't charged. 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. [00:07:31] Speaker 00: and said that the majority in Howard had limited Bigelow in, quote, a rather unusual and undesirable fashion. So clearly, he as the author and the court in Bigelow did not intend Bigelow to be conditional. It was categorical. That was the definition of special circumstance. Okay. Did you want to reserve the rest of your time? [00:08:02] Speaker 02: Do either of you have any questions? Okay. You have two minutes, 15 seconds for rebuttal. Thank you. [00:08:11] Speaker 01: Good morning. Gregory Yacht for Respondent. 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. [00:08:25] Speaker 01: It is not coextensive with the ex post facto clause. It looks at the law at the time of the conduct. [00:08:34] Speaker 01: Strictly speaking, what the court did in Bigelow or Howard really doesn't matter in the equation. The best analogy here is Bradshaw v. Ritchie. [00:08:45] Speaker 01: There, the transferred intent doctrine was in existence in Ohio at the time of the defendant's conduct. A subsequent Ohio case, eliminated it. [00:08:58] Speaker 01: And then when Bradshaw's case got to the Ohio Supreme Court, that court applied the transferred intent doctrine. So he took it to the Supreme Court. The Supreme Court says one of the arguments was that the intermediate case, which eliminated the transferred intent doctrine, applied to him. And the court said, and this was a buoy issue, that That case has no bearing on whether the law at the time of the charged conduct was clear enough to provide fair notice. It is exactly the scenario that we have here. [00:09:30] Speaker 03: Mr. Ott, are you saying then that the Bigelow-Howard line of cases doesn't enter at all? We're just looking at the statute? [00:09:40] Speaker 01: It really doesn't. Despite my briefing and addressing both of those cases, it really doesn't because we're looking at 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. Ott, I think your problem there is that the state court decision that's at issue seems to rely entirely on Howard. It's not engaging any original interpretation of the 78 statute. It's not construing that in isolation. The entire discussion is a discussion distinguishing Bigelow and saying, no, here Howard applies. So why doesn't that bring us to Bowie? [00:10:25] Speaker 01: Because Howard simply applied the language of the statute. [00:10:29] Speaker 01: 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? [00:10:35] Speaker 01: I don't have it in front of me, but they plainly do not apply – the Bigelow exception. [00:10:48] Speaker 03: I mean, I, I'm not seeing them. Uh, I'm not seeing, uh, our state court colleagues, uh, cite the statute. Uh, um, I mean, they cited at the beginning, but the entire discussion of the application and this insufficient evidence is, uh, with reference to Howard and Bigelow. [00:11:08] Speaker 03: So, so I guess in other words, it doesn't that at least get us into buoy territory that, that, that the state court seemed to think that what it was doing was, um, 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. And again, Bowie is simply looking to fair notice at the time of the conduct. [00:11:35] Speaker 01: And what the court did in Howard or Bigelow doesn't really matter. Bigelow did construe, I'll give you that. It's definitely relevant. It construed the the financial gain special circumstance. But as the court in Howard explained, if it wasn't explained in Howard, that was a contextual limitation. In fact, they did not expand the law. That was really an instructional error case. You'll notice at the end of their discussion, they say, well, the court, so 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. And I do dispute that every case, every California case since Bigelow has applied Bigelow's test. [00:12:32] 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. And I believe if you look at Howard, The court is applying just simply the plain language of the statute, and I think that's why the court in Crewe is discussing Howard. [00:12:55] Speaker 03: What do we do? You spent some time on the Metrish case. 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, but it was a reasonable application for the state Supreme Court then to come in and resolve the issue. 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 buoy analysis? [00:13:40] Speaker 01: Well, on this issue here, I think we're looking at just the apex court. I mean, in Bradshaw, there was an intermediate court that was addressed. But the state of the intermediate California courts was not that Bigelow and Bigelow's standard, let's say Bigelow's standard, is the law of the financial gain circumstance. [00:14:06] Speaker 01: If an intermediate court, there's an argument that I think it was Newberry, applied it. [00:14:13] Speaker 01: It's certainly not binding here. It was after the conduct. [00:14:16] Speaker 01: 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. The Supreme Court in Rogers goes into that discussion and differentiates the two provisions. The due process is a much narrower the due process under Bowie is a much narrower provision. It really deals with fairness, and that fairness is tied to the notice at the time of the conduct. 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. [00:14:59] Speaker 01: So even if the court in Bigelow, let's say, or Howard expanded that they didn't have to apply it retroactively. The ideas of ex post facto and whether something gets locked in as the law and applies retroactively don't apply under Bowie. [00:15:18] Speaker 01: And in any event, a state doesn't have to apply its laws retroactively. So that's my position on Bowie, that really Howard and Bigelow aren't controlling, but 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 of the things I wanted to add to that is this court And the state courts in Noguera and this court and state Supreme Court has found the plain language of the statute not vague. [00:16:13] Speaker 01: Those decisions issued after Bigelow, but if you look at them, they only discuss the plain language of the statute. They're not discussing the plain language of the statute as interpreted by Bigelow. So there's an argument that, well, those cases came after Howard or they came after so therefore they're saying that Bigelow is not vague. Well, no, that's not what they were doing. You look at the language that they're talking about, and it's the statutory language. They never mentioned Bigelow. 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. Crewe 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. 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. They simply said that because Bigelow post-dated the offenses, that it couldn't be applied. 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, I was referring to the time period between Bigelow in 1984 and Howard in 1988. [00:17:45] Speaker 00: Obviously, after Howard, things changed. [00:17:50] Speaker 00: And that's the problem here is that there was no notice. [00:17:54] Speaker 00: When you're talking about a buoy analysis and you're looking at the existing law at the time of the offenses, 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. 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. It's a complete anomaly. And it seems to me difficult to say that that kind of a change doesn't require some sort of fair notice. [00:18:43] Speaker 00: Finally, the idea that somehow Howard clarified or clarify the statute, I think then answers the buoy question. If you need a clarification, then how can you say that there was fair notice at the time of the offenses? [00:19:08] Speaker 00: And going to Nogura, if this court decides that existing circuit precedent forecloses relief based on Nogura, then Mr. Crew 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. 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 Noguera? [00:19:36] Speaker 00: No. [00:19:37] Speaker 02: Okay, thank you. It's not. [00:19:41] Speaker 02: Thank you very much for your arguments. We thank both counsel for their arguments in this case. This matter is now submitted.