The California
Supreme Court’s 2013-2014 term: A few surprises
By J.
Clark Kelso
The 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.