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The California Supreme Court’s 2013-2014 term: A few surprises

By J. Clark Kelso

Clark KelsoThe law is full of surprises. Just when you think you have an area of law completely figured out, a new piece of legislation is enacted or interpreted in unusual ways, old law applied to new fact patterns may produce novel results or a court may simply strike out in a new direction. The California Supreme Court’s 2013-2014 term gives us a number of these surprises.

We start with a criminal case where, given the court’s reasoning, it appears the defendant can safely remain silent only by speaking up. Next we review a few cases involving red light camera citations where the governing rule appears to be “pay your ticket at the door,” even in a case where the government has not followed statutory procedures. That same “the government always wins” attitude was also evident in a case rejecting on relevancy grounds expert testimony in a DUI case that properly functioning and calibrated breath-testing equipment used by law enforcement never accurately measures deep-lung concentrations of alcohol.

Finally, we have two duty cases, one of which recognizes an architect’s duty to future homeowners, and the other which denies that a large retailer has a duty to its customers to acquire and have available automatic external defibrillators (AED) for use in medical emergencies.

The right to remain silent

We all know the Miranda warnings. Anything you say can and will be used against you. You have the right to remain silent. And so forth. So it stands to reason that if you remain silent, your silence cannot be used against you, right?

Not quite. The U. S. Supreme Court has held that the Fifth Amendment’s right against self-incrimination – which is the basis for the Miranda warnings – is not “self-executing.” According to that court in a recent plurality decision, Salinas v. Texas, 123 S.Ct. 2174 (2013), this means that a defendant must “expressly” invoke the right to remain silent, at least in a pre-arrest, noncustodial context. It is not enough to simply be silent; the defendant must somehow indicate that he or she is invoking the Fifth Amendment right to remain silent.

In People v. Tom, 2014 Westlaw 3953471 (Aug. 14, 2014), the California Supreme Court, by a 4-3 vote, extended the plurality rule in Salinas to post-arrest, pre-Miranda silence in the absence of custodial interrogation where the defendant failed expressly to invoke his Fifth Amendment right to remain silent.

There is something contrary to common sense and expectation about a rule that requires ordinary people to speak up in order to benefit from the supposed constitutional protection of remaining silent. If silence is protected, why can’t I just remain silent? Moreover, it would seem that government coercion should attach the moment a defendant is taken into custody and arrested, coercion that should make any subsequent silence constitutionally protected (just as silence after the Miranda warnings are given is constitutionally protected). Yet the analysis in Tom assumes, again contrary to common sense and expectation, that an arrest is not a coercive governmental action that triggers protection for silence.

It is not clear whether People v. Tom will survive for very long. The author of the majority opinion, Justice Marvin Baxter, is retiring at the end of his term in January 2015. Gov. Jerry Brown has already announced his successor, Stanford Law Professor Mariano-Florentino Cuéllar, and there is a good chance that Professor Cuéllar would join the minority in Tom, thereby changing the result in the case. A reconsideration of Tom in 2015 may be in the offing. Stay tuned!

Red light camera citations

By now, we’ve all gotten used to red light cameras at major intersections. We’ve all seen the bright flash of light as the last few cars go through the yellow-changing-to-red light.

When these systems were first being installed, there was controversy about the reliability of the technology and the use of the technology on unsuspecting drivers, the assumption being that drivers should have some advance knowledge or warning of what technologies were being used to catch vehicle code violators. To address these concerns, the Legislature enacted Section 21455.5(b) as follows:

“Prior to issuing citations under this section, a local jurisdiction utilizing an automated traffic enforcement system shall commence a program to issue only warning notices for 30 days. The local jurisdiction shall also make a public announcement of the automated traffic enforcement system at least 30 days prior to the commencement of the enforcement program”

In People v. Gray, 58 Cal.4th 901 (2014), the city of Culver City installed its first red light camera at an intersection in 1998. Consistent with the statute, the city made a public announcement and gave violators warning notices for 30 days instead of citations. After that, however, the city installed several more red light cameras without making any public announcements and without issuing warning notices. The city interpreted the statute as requiring that the city only make the announcement and issue warnings when the city installed its first red light camera, and not for any subsequent cameras installed at different intersections.

The defendant received a red light camera citation in 2008 for running a red light at an intersection where the red light camera had been installed more than two years earlier in 2006. The defendant argued that the citation was invalid because the city had failed to make a public announcement about installation at that intersection and had failed to implement a 30-day warning notice program.

The Court of Appeal held that the citation was properly issued because, in its view, a local jurisdiction only had to satisfy the statutory prerequisites when it installed its first red light camera. No public notices and no warnings were necessary after that first installation.

Based on its analysis of the statutory scheme, the California Supreme Court disagreed with the Court of Appeal. To the court, it was clear that the Legislature intended to provide the notice and warning to drivers at each intersection where a red light camera was installed. As the court noted, it would be odd to think that a public notice and warning notices in 1998 with respect to one intersection could somehow answer the fairness and notice concerns of drivers clear across town at a different intersection.

Good news for the defendant, yes? Well, no. Because it turns out that when a municipality fails to do what the statute says it “shall” do, there really aren’t any consequences. According to the unanimous court, even if a municipality does not issue a public notice and does not implement a 30-day warning notice period, once 30 days have passed from the installation of a system, the municipality is free to issue enforceable traffic citations.

The court explains this counter-intuitive result by invoking the distinction between “directory” procedural requirements, for the violation of which there are no consequences, and “mandatory” procedural requirements, which may sometimes trigger invalidating consequences. Stated another way, in language that is equally conclusory and obfuscatory, the court held that a city’s compliance with the statutory requirements “is not a jurisdictional precondition to enforcement.” The court just as well might have said “shall means may, and please pay your fine on your way out the door.”

In another case involving evidentiary rulings in red light camera citation cases, the court in People v. Goldsmith, 59 Cal.4th 258 (2014), rejected an objection to the routine authentication by a police investigator of the digital pictures produced by the privately operated system and rejected a hearsay objection to information printed on the pictures (such as date, time, location and how long the light had been red at the time of the picture). Both objections were premised partly on an assertion that computer-generated digital information is much more readily altered and therefore requires the imposition of higher evidentiary hurdles before being placed before the court, particularly given the “rushed” dynamics of traffic court where commissioners regularly discount the defendants’ testimony.

The court was not impressed with these arguments, “declin[ing] to adopt special rules for the ATES digital evidence offered in trials of red light traffic camera cases.” So again, get over it and pay your fine.

Accuracy of breath-testing machines

You might think it would be relevant testimony from a properly qualified expert that breath-testing machines used by law enforcement overestimate the amount of alcohol in the breath and don’t actually measure the deep-lung, alveolar concentration of alcohol. In particular, the expert in People v. Vangelder, 58 Cal.4th 1 (2013), was prepared to testify that breath tests are inherently inaccurate as a measure of how much alcohol a person has in them.

He never got the chance to testify. Instead, the California Supreme Court held that his testimony was irrelevant. But if the breath-testing machine does not accurately measure blood-alcohol levels, how can his testimony be irrelevant? Don’t DUI prosecutions depend upon blood-alcohol levels being above .08 percent?

The answer is a clear “not exactly,” at least not since 1990 when the Legislature redefined the so-called “per se” offense of driving with .08 percent or more, by weight, of alcohol in a person’s blood. In that year, the Legislature added language providing that “for purposes of this article … percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” Vehicle Code Section 23152(b). With this language, the Legislature endorsed a set of scientific tests which had established a close correlation between grams of alcohol per 210 liters of breath, as measured by a properly working and calibrated breath-testing machine, with the .08 percent by weight of alcohol in a person’s blood.

Given this statutory language and legislative history, it is no longer relevant whether breath-tested concentrations of alcohol can be accurately converted to blood concentrations. It is enough if a properly working and calibrated breath-testing machine measures more than the statutory minimum in the breath. Therefore, it doesn’t matter if a breath-testing machine actually measures deep-lung air or not; the statute makes the machine’s results conclusive.

Scientists wishing to challenge the underlying basis for the statute will have to address their arguments to the Legislature (Good luck with that!). The courts will not second-guess the legislative determination reflected in Section 23152(b).

Two duty holdings

The court had two important decisions involving tort duties. In Beacon Residential Community Association v. Skidmore, Owings & Merrill, 59 Cal.4th 568 (2014), the court unanimously confirmed that primary architects owe a duty of care to future homeowners with respect to residential building design where the architects’ negligence could foreseeably result in personal injury or property damage.

The defendant argued that no duty existed, relying primarily upon the reasoning in Bily v. Arthur Young & Co., 3 Cal.4th 370 (1992), where the court held that an auditor ordinarily does not owe a duty to non-client third party investors. But Bily was easily distinguishable. An auditor is typically more remote from the transactions that cause the third party investor losses, the plaintiffs in auditor liability cases tend to be more sophisticated and able to protect themselves, and it was not clear that exposing auditors to third-party liability would improve the quality of audits. In addition, auditor liability cases involve only economic loss, whereas architect negligence creates risks of personal injury or property damage.

An interesting counterpoint to Beacon is found in Verdugo v. Target Corp., 59 Cal.4 th 312 (2014), which involved the issue of whether Target had a duty to acquire and have available to its customers an automatic external defibrillator (AED) for use in medical emergencies involving cardiac arrests. AEDs are relatively easy to use and clearly have the potential to save lives because they can be deployed many minutes before 911 medical emergency personnel are likely to arrive. And an AED only costs around $1,200. At a minimum, you might think a jury should be permitted to determine whether, applying the reasonable person standard, a big business like Target should be required to install AEDs.

Not so, according to the court. Unlike the plaintiff in Beacon, the plaintiff in Verdugo had to overcome the common law “no duty to rescue” rule. California cases had already recognized that a business has a general duty to take reasonable action to protect or aid customers who sustain an injury on the business’s premises, but that duty extended only to providing relatively simple measures such as summoning emergency medical personnel or providing simple first aid.

In Verdugo, the court held that if the relative burden of providing a particular safety precaution is “onerous rather than minimal,” then the duty to take that precaution will be recognized by a court only if there is a showing of a “heightened” or “high degree” of foreseeability of the risk. The court concluded that acquisition of AEDs and the training and maintenance required by their installation would be onerous, even for Target, and the risk of cardiac arrests requiring use of an AED was not sufficiently heightened to trigger a duty.

Of greatest interest, the court clearly was reluctant on its own to impose substantial new costs on businesses in an area where the Legislature was already aware of the issue. As the court noted, the Legislature has already encouraged AEDs in many state buildings, has required health clubs  to have AEDs and has established immunity from civil liability for businesses that install AEDs. In these circumstances, one can certainly understand the court’s observation that “the Legislature is generally in the best position to examine, evaluate and resolve the public policy considerations relevant to the duty question.”

Here we see a common law court deferring to a legislative body on the question of whether a common law duty of care should be established. How’s that for a surprise?

J. Clark Kelso is a professor at the University of the Pacific McGeorge School of Law and serves as the federally appointed receiver responsible for California’s prison medical care system. The views expressed in this article are solely the personal views of the author.