[00:00:00] Speaker 04:
Good morning.

[00:00:02] Speaker 04:
If it would please the court, we'd like to reserve three and a half minutes for the rebuttal argument.

[00:00:10] Speaker 04:
So I'm just going to get straight to it.

[00:00:12] Speaker 04:
When looking at the cases that survived the heck bar and comparing those to the ones that don't, the central distinction is whether there are allegations that some aspect of the incident was unlawful.

[00:00:29] Speaker 04:
versus some aspect of it being lawful.

[00:00:32] Speaker 04:
That is the central distinction that was relied on by Sanders.

[00:00:37] Speaker 04:
And in distinguishing the Hooper case, the Sanders court held that Hooper did not help Sanders because in Hooper, it was proven that the plaintiff, or it was alleged that the plaintiff engaged in multiple obstructive acts

[00:00:56] Speaker 04:
but there was a clear distinction between lawful and unlawful police action.

[00:01:01] Speaker 04:
The reason why the Sanders Court upheld the heck bar is because in that case, the factual basis for Plaintiff Sanders' plea was based on three distinct acts of resistance that he stipulated to in the preliminary hearing.

[00:01:19] Speaker 02:
Had he not stipulated, though, it's theoretically possible that you have that division where some was lawful, some was

[00:01:25] Speaker 02:
is the fact that the court essentially found all three had been stipulated to.

[00:01:31] Speaker 04:
Exactly.

[00:01:31] Speaker 04:
I think the court's hands were tied in that regard because there was a very clear delineation of exactly what three acts of resistance formed the basis.

[00:01:40] Speaker 04:
And the plaintiff was not able to show or did not allege that one or more of those was unlawful.

[00:01:46] Speaker 02:
Was there an express stipulation as to all three acts or was that inferred from the results of the preliminary hearing at Sanders?

[00:01:53] Speaker 04:
It simply says, as part of his guilty plea, Sanders stipulated that the factual basis for his conviction encompassed three instances of resistance identified in the preliminary hearing transcript.

[00:02:09] Speaker 04:
Justice Boumete distinguished that case from Hooper simply on the grounds that in Hooper there were allegations of unlawful conduct coupled with allegations of lawful conduct.

[00:02:21] Speaker 04:
which is exactly what we have here.

[00:02:25] Speaker 02:
So why isn't reference to the police report similar here, just incorporating by reference the police report, which described all the acts of resistance.

[00:02:35] Speaker 04:
The police report is not going to encompass all of the allegations that are going to be in the complaint as to the unlawfulness of

[00:02:48] Speaker 04:
the actions of Officer Bryce.

[00:02:50] Speaker 04:
I direct the court to Yount, the Supreme Court case, seminal case.

[00:02:55] Speaker 04:
In that case, the Supreme Court found that Yount's conviction established culpability during the entire episode.

[00:03:05] Speaker 04:
And the Yount court also found that Yount's conviction encompassed his admission that he was resisting the officers up until the time that he was shot.

[00:03:16] Speaker 01:
May I ask you a question about Yon?

[00:03:18] Speaker 01:
I agree that it makes a distinction between acts of resisting arrest versus whether excessive force was used.

[00:03:25] Speaker 01:
Yes.

[00:03:25] Speaker 01:
But in its discussion of multiple acts of resistance, it actually seems to cut against Mr. Cardenas.

[00:03:34] Speaker 01:
It says, you know, if we... First of all, it says that the Court of Appeal is sort of proposing

[00:03:44] Speaker 01:
something along the lines of what you're proposing, and they say we find no support in HEC for that notion, and they say it'll create perverse effects such that an individual who's only committed one resistant act would be HEC-barred, but someone who's done multiple would not, and then also says it's up to the defendant when they plead guilty to decide if they want to specifically identify their own factual basis or not.

[00:04:12] Speaker 01:
And in a misdemeanor, you don't even have to do that, which is the case here for 148 penal code violations.

[00:04:19] Speaker 01:
And then it also says, but you get the benefit by doing this really broad plea, because then you won't be criminally liable for anything that happened.

[00:04:27] Speaker 01:
But then at the same time, you get this civil benefit.

[00:04:32] Speaker 01:
And so why should you have, I mean, you know, they say it would be anomalous to construe

[00:04:40] Speaker 01:
the criminal conviction broadly for criminal purposes to shield from further prosecution of any of the events that happened, get the benefit in a no contest plea, then turn around and use that narrowly to bring a 1983.

[00:04:54] Speaker 01:
So can you just address these concerns in this decision?

[00:04:57] Speaker 04:
It would be helpful for me.

[00:04:59] Speaker 04:
Absolutely.

[00:05:00] Speaker 04:
Those go right to the heart of this case.

[00:05:02] Speaker 04:
So why does the young court allow that claim to proceed?

[00:05:11] Speaker 04:
799.

[00:05:12] Speaker 04:
It allows that claim to proceed.

[00:05:15] Speaker 01:
But let's be specific.

[00:05:17] Speaker 01:
They're allowing the excessive force claim to proceed.

[00:05:21] Speaker 01:
They're not allowing the slicing up of the different acts of resistance, are they?

[00:05:26] Speaker 01:
That's not how I read how they handle the multiple acts of resistance.

[00:05:31] Speaker 01:
I agree with you.

[00:05:32] Speaker 01:
They say excessive force is different.

[00:05:35] Speaker 01:
That's not heck barred.

[00:05:37] Speaker 04:
What it says is, and I'll quote the Supreme Court, to the extent that Yount's 1983 claim alleges that Officer Shrum's use of deadly force was an unjustified and excessive response to Yount's resistance, that claim is not barred.

[00:05:52] Speaker 04:
So what we have is a factual distinction here.

[00:05:55] Speaker 04:
Yes, he has admitted to resisting throughout the entire interaction.

[00:06:00] Speaker 04:
Yes, he has pled guilty to 148.

[00:06:02] Speaker 04:
However,

[00:06:04] Speaker 04:
He is also able to say that this aspect of it was not lawful.

[00:06:12] Speaker 04:
The idea that a person is resisting arrest does not necessarily encompass the lawfulness of all of the actions that were taken in connection with that arrest.

[00:06:24] Speaker 04:
Stanford or both Yon and Hooper.

[00:06:28] Speaker 01:
But you would agree.

[00:06:30] Speaker 01:
I'm completely in agreement with you on the excessive force.

[00:06:34] Speaker 01:
Totally in agreement.

[00:06:35] Speaker 01:
But if you look at, Yonk doesn't say if there are multiple acts of resistance, you can slice them up and not be heck barred on some and yes, be heck barred on others.

[00:06:47] Speaker 01:
Or at least, that's the way I'm looking at pages 480 through 482.

[00:06:53] Speaker 04:
And again, I don't want to get into a mincing words things.

[00:07:02] Speaker 04:
It doesn't mean that an allegation that excessive force was used during the rest would be heck barred if it is unlawful.

[00:07:11] Speaker 04:
The court concluded that Yalt's criminal conviction encompassed his admission that he was resisting the officers right up until the time that he was shot, just like my complaint did for Mr. Cardenas.

[00:07:25] Speaker 04:
However, to the extent that Young's claim alleges that use of deadly force was unjustified and excessive, you can have a continuous arrest where some of the things are lawful and some of the things are not lawful.

[00:07:41] Speaker 04:
The idea here is that what is being proposed to the court is that if a defendant says, checks that box,

[00:07:50] Speaker 04:
which says that there's a factual basis for the plea based on the police report, he has necessarily admitted the lawfulness of the officer's actions during that entire interaction.

[00:08:04] Speaker 04:
That is not what a factual basis plea does.

[00:08:10] Speaker 02:
Are you saying that even if the plaintiff in this case admitted that he had pled to all of the things that are alleged in the report,

[00:08:19] Speaker 02:
that he could still, without inconsistency, have an excessive force claim because of the degree of force?

[00:08:25] Speaker 02:
It doesn't, you don't have to do the slice and dice that... What Yon says is that... I'm asking what your argument here.

[00:08:33] Speaker 02:
I understand that Yon, I mean, if the police turn around and shot him, I could see there's an excessive force claim, regardless of whether he resisted arrest or not, and therefore they're not necessarily inconsistent.

[00:08:43] Speaker 02:
But is that what you're arguing here?

[00:08:44] Speaker 02:
I thought you were arguing that their temporal

[00:08:47] Speaker 02:
slices where he only had to have pled based on the early or one of those and not necessarily to other ones.

[00:08:54] Speaker 02:
I'm out of time.

[00:08:57] Speaker 00:
Please go ahead and answer the question.

[00:08:59] Speaker 00:
Yes.

[00:09:00] Speaker 00:
I think Sanders is distinguishable too.

[00:09:03] Speaker 00:
I do.

[00:09:04] Speaker 00:
And I'm just like, I'm confused about where you're and I agree with you in principle that he could be resisting arrest.

[00:09:14] Speaker 00:
And be guilty of resisting arrests and then but even having done that the police that might not justify the police exercise of the degree of force that they used even though I mean, you know excessive force claims that you know, it's the level of threat and immediacy of the action against the police and

[00:09:41] Speaker 00:
that justifies their use of force.

[00:09:43] Speaker 00:
So I can see a distinction there.

[00:09:46] Speaker 04:
And that's exactly what I'm saying.

[00:09:47] Speaker 04:
In response to the court's question, one continuous transaction can involve multiple acts of resistance.

[00:09:56] Speaker 04:
However, you can have a situation where the officer's conduct in one continuous transaction is both lawful and unlawful.

[00:10:06] Speaker 04:
And in this case,

[00:10:07] Speaker 04:
It's not really distinguishable because what the complainer alleges and what we allege in summary judgment was that at the very end of this incident, Mr. Cardenas was not resisting and he was subjected to an unlawful use of force.

[00:10:22] Speaker 04:
These don't necessarily require a temporal distinction.

[00:10:27] Speaker 04:
The issue is more, and I didn't say this as good as I could have,

[00:10:32] Speaker 04:
Is it lawful and is it unlawful?

[00:10:34] Speaker 04:
And one continuous chain of events can involve both lawful and unlawful conduct from an officer.

[00:10:40] Speaker 02:
So even with the resistance, assuming resistance is what he actually admitted to it, although there is a question there, there could still be an unlawful use of force because it was so excessive in light of the stipulated to resistance, it still violated the Fourth Amendment.

[00:10:55] Speaker 04:
Exactly.

[00:10:56] Speaker 04:
Yet not every aspect of his resistance was like that.

[00:10:59] Speaker 04:
Officer Bryce acted lawfully throughout most of that encounter.

[00:11:03] Speaker 04:
But at the end, in this chain of events, it was unlawful.

[00:11:08] Speaker 04:
I've gone past my time.

[00:11:09] Speaker 00:
Okay, I will give you some minutes, a couple minutes for rebuttal.

[00:11:13] Speaker 00:
And let's hear from your friends on the other side.

[00:11:15] Speaker 04:
Can't thank you enough.

[00:11:21] Speaker 03:
Thank you, Your Honors.

[00:11:22] Speaker 03:
Good morning to everyone.

[00:11:23] Speaker 03:
My name is Steve DePale, may it please the court.

[00:11:25] Speaker 03:
Also with me is City Attorney from Santa Maria, Mr. Tom Watson.

[00:11:30] Speaker 03:
We together represent the City of Santa Maria and Officer Bryce of the Santa Maria Police Department in this matter.

[00:11:37] Speaker 03:
Before I begin, I want to just take a moment and thank the court and the court staff.

[00:11:42] Speaker 03:
and all the folks that are working in this moment of federal shutdown for your efforts.

[00:11:48] Speaker 03:
I think the court has a very difficult job, even under normal circumstances, and these aren't normal circumstances.

[00:11:53] Speaker 03:
So we thank you on behalf of, I'm sure Mr. Dunn will join me on this, for doing what you need to do to make this happen today.

[00:12:00] Speaker 01:
Can I ask you a question?

[00:12:02] Speaker 01:
The jury instruction only requires a jury to find at least one act of resistance, and here you have four.

[00:12:11] Speaker 01:
So why should Mr. Cardenas be precluded from or heck barred on all four when only one would have sufficed?

[00:12:22] Speaker 03:
Thank you, Your Honor.

[00:12:23] Speaker 03:
The key to this case is that all of what occurred is recorded in Officer Bryce's report.

[00:12:29] Speaker 03:
And Officer Bryce's report was submitted by Mr. Cardenas with his counsel as the factual basis for his subsequent plea of guilty or no contact.

[00:12:41] Speaker 01:
But isn't there a problem with that?

[00:12:42] Speaker 01:
Because you don't need a factual basis for the misdemeanor.

[00:12:46] Speaker 01:
You only need a factual basis for the felony.

[00:12:49] Speaker 01:
And Officer Bryce wasn't really the witness on the felony that was Officer Miller.

[00:12:56] Speaker 01:
Why would you have attached the Have the misdemeanor resisting arrest police report be the factual basis for the felony that was witnessed by another The plea form is to all three counts

[00:13:14] Speaker 01:
Okay.

[00:13:15] Speaker 03:
Count three is the 148, which is the misdemeanor.

[00:13:18] Speaker 03:
Count three in the complaint, the court will note, is directly linked to Officer Bryce, not to the Guadalupe office.

[00:13:24] Speaker 01:
Right, but the document doesn't say police reports, plural.

[00:13:29] Speaker 01:
It says police report.

[00:13:31] Speaker 03:
It is for all three counts, and the only police report that would support the 148 is Officer Bryce's report.

[00:13:39] Speaker 02:
Well, he wasn't part of the chase, was he?

[00:13:41] Speaker 03:
He was not part of the chase.

[00:13:43] Speaker 03:
He was the officer that ultimately subdued Mr. Cardin.

[00:13:46] Speaker 02:
Don't you need Officer Miller's report also to support the other counts?

[00:13:52] Speaker 03:
Officer Miller's report presumably supported the other counts in the plea agreement.

[00:13:57] Speaker 03:
Right.

[00:13:57] Speaker 03:
Which pertained to all three.

[00:13:58] Speaker 02:
And this plea was to all three counts, right?

[00:14:02] Speaker 02:
Yes.

[00:14:02] Speaker 03:
When it says police report, how do we know which one we're talking about?

[00:14:05] Speaker 03:
Well, the only report that would support the plea to count three, which is specifically included in the plea agreement, is Officer Bryce's report.

[00:14:13] Speaker 03:
There's no other report that would support that.

[00:14:15] Speaker 01:
But how is Officer Bryce's report the factual predicate for the felony, which is what the court needed to find?

[00:14:23] Speaker 03:
It's not, Your Honor.

[00:14:25] Speaker 01:
Okay, so then that looks like from the court document, that looks like the only basis for the plea.

[00:14:33] Speaker 01:
So I guess I'm unclear, unless you're saying Officer Bryce's report

[00:14:37] Speaker 01:
also sets forth the factual braces for the felony.

[00:14:41] Speaker 03:
So the same argument that you're posing, Your Honor, could apply in Sanders and could have applied in Brazina.

[00:14:47] Speaker 03:
In Sanders, there was a plea to a 148 and they used the preliminary hearing transcript.

[00:14:51] Speaker 03:
There's no preliminary hearing needed for a misdemeanor.

[00:14:55] Speaker 02:
So... Which makes the situation even less clear.

[00:14:59] Speaker 02:
We don't have a transcript because it's not needed.

[00:15:02] Speaker 02:
All we have is a check box which simply says, I understand the court may consider

[00:15:07] Speaker 02:
the following is proof.

[00:15:08] Speaker 02:
I'm not sure what that means.

[00:15:09] Speaker 02:
It doesn't stipulate that all facts therein are true, and I admit to it, just may consider.

[00:15:15] Speaker 02:
So why couldn't the court consider one of the four or two of the four acts of resistance in supporting the plea?

[00:15:21] Speaker 03:
So we would be making assumptions, Your Honor, if we went down that road.

[00:15:26] Speaker 03:
Nothing in the record would support that?

[00:15:28] Speaker 02:
Well, but the law requires that, under HEC, necessarily imply inconsistency.

[00:15:37] Speaker 02:
We've held that the court, the record must be, quote, clear, unquote.

[00:15:40] Speaker 02:
So maybe you don't like the presumption, but there is sort of a presumption level of proof that's built into the doctrine.

[00:15:48] Speaker 02:
It's got to be clear that it necessarily implies an inconsistency between a civil rights verdict and a conviction.

[00:15:56] Speaker 03:
The court in Brasino in affirming this court in affirming Brasino found that.

[00:16:02] Speaker 03:
And this court in Sanders found that with the preliminary hearing transcript.

[00:16:06] Speaker 03:
It would be irreconcilable with those opinions to find otherwise in this, I respectfully submit.

[00:16:11] Speaker 00:
Do you think that's a very good practice in general for instead of reciting a factual basis or admitting to a factual basis, just referring generally to a police report or preliminary hearing transcript?

[00:16:28] Speaker 00:
I mean, you don't really know what specifically is the factual basis.

[00:16:35] Speaker 00:
It just doesn't strike me as a really good practice.

[00:16:39] Speaker 00:
Maybe it's expedient.

[00:16:40] Speaker 00:
But it doesn't strike me as the best way to record a specific factual basis for a plea.

[00:16:51] Speaker 03:
Your Honor, I've never been a Superior Court judge, so I've never practiced in that environment either.

[00:16:57] Speaker 03:
So I really don't know how things work there.

[00:16:59] Speaker 03:
I imagine, I can only imagine, it's not part of the record, so I'm just speculating.

[00:17:03] Speaker 00:
I haven't been a Superior Court judge either, so.

[00:17:05] Speaker 03:
So I imagine they have a very, very heavy docket, and they have designed forms to make it as expedient but as expansive as that expediency will allow.

[00:17:15] Speaker 03:
Here, it's really.

[00:17:17] Speaker 00:
You're right, because in Feral Court, we'd never do that.

[00:17:20] Speaker 03:
It's different in federal court.

[00:17:21] Speaker 03:
I certainly agree.

[00:17:23] Speaker 03:
But here we have a situation where they cite in the plea agreement to all three charges, including the 148.

[00:17:30] Speaker 03:
And no, they weren't required to make a factual basis or have a factual basis for it, but they in fact did, and they cite to the police report.

[00:17:37] Speaker 03:
The only police report that, sorry.

[00:17:39] Speaker 01:
But this is still my confusion here.

[00:17:43] Speaker 01:
If they cited to Officer Bryce,

[00:17:45] Speaker 01:
Officer Bryce just says officer Miller confirmed that the driver of the pickup truck was subject to arrest for felony evading in a reckless manner and hit and run So it doesn't seem like officer Bryce's report Actually observed any of the conduct that led to that federal felony

[00:18:05] Speaker 01:
evading an officer charge.

[00:18:07] Speaker 01:
So I don't see how it could be the factual predicate for that charge.

[00:18:10] Speaker 03:
It's not.

[00:18:11] Speaker 03:
That's my point, Your Honor.

[00:18:12] Speaker 03:
It can only provide a factual basis for the 148.

[00:18:14] Speaker 03:
Therefore, it is the factual basis for the 148.

[00:18:18] Speaker 01:
I understand that.

[00:18:19] Speaker 01:
But this looks like a plea form for all three counts, including the felony.

[00:18:24] Speaker 01:
So does that mean that he pled no contest with no factual predicate for the felony, which is the only one that the court actually needed to find a factual basis because they don't

[00:18:34] Speaker 01:
have to under state law for the misdemeanor resisting arrest.

[00:18:38] Speaker 03:
We have not submitted, I think it is part of the record, the Guadalupe police report also provided the factual predicate for the felony.

[00:18:46] Speaker 03:
So there were two police reports.

[00:18:50] Speaker 03:
As Judge Willner indicates in his decision, he didn't find it in any way exceptional that the form refers to police report in the singular.

[00:18:59] Speaker 03:
when in fact there were two police reports necessary to have the factual predicate for the three charges that are part of the plea agreement.

[00:19:06] Speaker 02:
So how do we know that what's being referred to here as a police report in the singular and what was used by the court was only those that address the felony counts and since one is not needed for the misdemeanor 148 that the report addressing the factual circumstances of the resisting arrest which underpin the 148 was not

[00:19:28] Speaker 02:
part of the police report checked here.

[00:19:30] Speaker 02:
I mean, we don't know, right?

[00:19:32] Speaker 02:
You would admit there's some ambiguity there.

[00:19:34] Speaker 03:
Your Honor, I would propose to you that if it was only going to refer to the felony, the plea agreement would only refer to the felony.

[00:19:40] Speaker 03:
The plea agreement refers to all three charges, including the misdemeanor.

[00:19:43] Speaker 02:
But you only needed a factual predicate for the felonies.

[00:19:46] Speaker 02:
Correct.

[00:19:47] Speaker 02:
And the factual predicate were arguably the police report that explained and described the felonious conduct.

[00:19:54] Speaker 03:
And one other point on that, if I may,

[00:19:57] Speaker 03:
Mr. Cardenas was represented by counsel at the time.

[00:20:00] Speaker 03:
If there was a desire to separate the factual basis out and say we're only pleading to the felony with this report as the basis for the felony, that being the Guadalupe report, he had counsel there who could have done that.

[00:20:14] Speaker 02:
But we're drawing inferences now about counsel could have meant, should have meant, did.

[00:20:19] Speaker 03:
I'm not drawing an inference.

[00:20:20] Speaker 03:
I'm stating in fact he was represented by counsel at the time.

[00:20:24] Speaker 03:
Council had the opportunity to do that and did not.

[00:20:26] Speaker 03:
That's supported by the record.

[00:20:28] Speaker 03:
That's not an influence.

[00:20:28] Speaker 02:
But you would also concede that the way this box is checked.

[00:20:31] Speaker 02:
There's some ambiguity as to what report is actually being relied upon and used by the court to support the plea.

[00:20:39] Speaker 03:
I respectfully disagree, Your Honor, because the Bryson report is the only report that provides a factual basis for the 148.

[00:20:47] Speaker 03:
And the fact that one was not required is no different than what it was in Sanders and no different than what it was in Brazina.

[00:20:53] Speaker 01:
Well, could it be I was a Superior Court Judge?

[00:20:54] Speaker 01:
If you look at Count 3 of a felony complaint,

[00:20:57] Speaker 01:
It says that the crime of resist-obstruct delay of peace officer was obstructing A. Bryce, a police officer attempting to and discharging the duty of his or her office and employment.

[00:21:09] Speaker 01:
So there wouldn't be any confusion that the resisting obstructing was as to Miller, correct?

[00:21:15] Speaker 01:
Because the complaint that he would be pleading to specifically says Bryce is the officer that was obstructed.

[00:21:20] Speaker 03:
I'm not suggesting there was any confusion.

[00:21:22] Speaker 03:
I'm suggesting that count three was clearly tied only to Bryce.

[00:21:27] Speaker 03:
The defendant in this action and Bryce's report is the only document that would provide a factual basis for that count which he pled to, Mr. Cardenas pled to and the court accepted.

[00:21:40] Speaker 00:
But who used the taser?

[00:21:43] Speaker 03:
Officer Bryce as described in his report which was the factual basis for the plea.

[00:21:50] Speaker 03:
Mr. Dunn by the way made reference here for the first time to the Sanders case.

[00:21:53] Speaker 03:
You'll recall in his briefs it's not raised anywhere

[00:21:57] Speaker 03:
And he indicated I think for the first time here that his complaint refers to something excessive beyond what's apparently either in his complaint or perhaps in Officer Bryce's report.

[00:22:08] Speaker 03:
You'll note Officer Bryce's report specifically describes the circumstances that resulted in him using the taser.

[00:22:15] Speaker 03:
And the taser was used to take Mr. Cardenas into custody.

[00:22:19] Speaker 03:
My understanding in this case for Mr. Cardenas is that he is claiming that the taser is excessive force.

[00:22:25] Speaker 03:
That is this case.

[00:22:27] Speaker 03:
And that use of the taser is part of the police report that was the factual basis.

[00:22:33] Speaker 02:
So you're saying there's no claim that even if there was deemed a stipulation that all aspects of resisting arrest provided the basis of the plea, that notwithstanding that, that the use of the taser cannot be deemed excessive force as a matter of law?

[00:22:50] Speaker 03:
Yes, Your Honor, because it is part of the factual basis

[00:22:53] Speaker 03:
of the Superior Court's conviction of this gentleman, and it would be irreconcilable and contrary to heck for him to be able to proceed with that same claim in support of a 1983 cause of action.

[00:23:06] Speaker 02:
Well, the conviction didn't require, didn't necessarily preclude that there was excessive force.

[00:23:11] Speaker 02:
I mean, if Officer Bryce had pulled out a gun and shot,

[00:23:15] Speaker 02:
Mr. Cardenas in an attempt.

[00:23:18] Speaker 02:
Even if Cardenas did all the four acts of resistance, at some point there could be excessive force given the amount of resistance.

[00:23:27] Speaker 02:
You could still be arrested and charged with a resisting arrest.

[00:23:30] Speaker 02:
The fact that the officer then overreacted doesn't undo the charge, does it?

[00:23:35] Speaker 03:
Or it can be a Yant situation.

[00:23:36] Speaker 03:
If you recall, Yant was a weapon confusion case.

[00:23:40] Speaker 03:
Mr. Yant resisted arrest, he was subdued, he was arrested,

[00:23:44] Speaker 03:
as far as I can tell, and placed in the back of the patrol car.

[00:23:47] Speaker 03:
And it was only after he kicked out one of the windows on the side of the patrol car that he was removed from the patrol car.

[00:23:53] Speaker 03:
And the officer intending to tase him actually pulled out his revolver, I don't know if it was revolver or his firearm, and shot him after the fact, accidentally.

[00:24:02] Speaker 03:
I mean, there was no dispute that it was an accidental discharge based upon weapon confusion.

[00:24:07] Speaker 03:
Completely separate situation than we have here.

[00:24:10] Speaker 03:
You'll also note in Yao,

[00:24:11] Speaker 03:
There was no record as to what the basis for the plea was, unlike here, just like there was no record in Hopper or the other cases that Mr. Cardenas is relying upon here.

[00:24:22] Speaker 03:
The case that's dispositive in this instance is Sanders and further reinforced by this court's decision to affirm the Bracino case, where there's a clear record of what the Superior Court relied upon, what the defendant in the Superior Court presented as the factual basis for his plea.

[00:24:40] Speaker 03:
How can he present something and say, this is what happened to the Superior Court, and I'm pleading no law for it, and then make the same claim at a federal court in support of a 1983 cause of action?

[00:24:51] Speaker 03:
That's contrary to comedy.

[00:24:53] Speaker 03:
It's contrary to finality.

[00:24:55] Speaker 03:
It's contrary to heck.

[00:24:58] Speaker 03:
Thank you.

[00:24:59] Speaker 00:
Appreciate your time.

[00:25:01] Speaker 00:
Thank you, counsel.

[00:25:03] Speaker 00:
Mr. Dunn.

[00:25:04] Speaker 04:
Thank you so much for indulging me.

[00:25:07] Speaker 04:
I'm going to point the court to Yant at page 482.

[00:25:11] Speaker 04:
Now, in Yant, it's important to understand that the Supreme Court concluded that his criminal conviction encompassed an admission that he was resisting the officers up until the time that he was shot.

[00:25:25] Speaker 04:
A defendant might resist a lawful arrest to which the arresting officers might respond with excessive force to subdue him.

[00:25:33] Speaker 04:
The subsequent use of excessive force would not negate the lawfulness of the initial arrest attempt or negate the unlawfulness of the criminal defendant's attempt to resist it.

[00:25:41] Speaker 04:
Though occurring in one continuous chain of events, two isolated factual contexts would exist.

[00:25:49] Speaker 04:
The first giving rise to criminal liability on the part of the criminal defendant

[00:25:53] Speaker 04:
and the second giving rise to civil liability on the part of the arresting officer.

[00:25:58] Speaker 04:
That's Yalt at page 482.

[00:26:00] Speaker 04:
Yalt conceded that his conviction encompassed everything.

[00:26:08] Speaker 04:
It just said that there were two separate things happening, which is the exact same thing the court said in Hooper.

[00:26:15] Speaker 04:
Finally.

[00:26:15] Speaker 01:
I have a question on the plea form.

[00:26:18] Speaker 01:
It says, you know, I understand I will be convicted and my no contest plea could be used against me in a civil case.

[00:26:27] Speaker 01:
Can you tell me what would that have meant?

[00:26:34] Speaker 04:
Well, the issue is, are we saying that anytime there's a misdemeanor conviction,

[00:26:42] Speaker 04:
that that will automatically preclude any excessive force.

[00:26:46] Speaker 04:
He can acknowledge that it's going to be used against him, but that doesn't mean.

[00:26:51] Speaker 01:
But I'm seeing for the factual predicate, you can specify what the facts are.

[00:26:56] Speaker 01:
You don't have to check the box for police report.

[00:26:59] Speaker 01:
It has a box that specifically says specify facts.

[00:27:04] Speaker 01:
It has a box that says other specify.

[00:27:07] Speaker 01:
So there is a choice here.

[00:27:09] Speaker 01:
in choosing whether to identify the facts that you want to plead no contender aid to.

[00:27:15] Speaker 01:
And there's an advisement that this plea could be have implications and used against you in a civil case.

[00:27:25] Speaker 01:
So I guess how are we to think about that?

[00:27:29] Speaker 01:
I mean, is it sort of playing it all ways like that court discussion of like, OK, I want the broadest practical criminal release

[00:27:41] Speaker 04:
or criminal purposes, but then I'm going to have this perverse incentive later of just trying to undo it for civil purposes and... Yes, I would just, I would stress that notwithstanding those admissions, notwithstanding that acknowledgement, notwithstanding that advisement, he is not pleading to the lawfulness of everything that happened in that report.

[00:28:08] Speaker 04:
Otherwise,

[00:28:10] Speaker 04:
He would, what essentially it would be is if there's ever anyone that checks that box in any misdemeanor case, once the prosecution can land that conviction, it's going to necessarily invalidate the civil case, which is one of the problems that the Yelp Court had, because it said that

[00:28:32] Speaker 04:
They were trying to stray away from the idea that it says that it would imply that once a person resists law enforcement, he has invited the police to inflict any reaction or retribution they choose while forfeiting the right to sue for damages.

[00:28:47] Speaker 04:
Put another way, police subduing a suspect could use as much force as they wanted and be shielded from accountability under civil law as long as the prosecutor could get the plaintiff convicted on a charge of resisting.

[00:29:01] Speaker 02:
Council, if I make sure I understand your argument, are you conceding that there was a stipulation that Mr. Cardenas engage in all the acts that are described in the Bryce report, but that nonetheless the use of the Taser was excessive force, or are you saying

[00:29:19] Speaker 02:
He did not necessarily stipulate to all three or four acts of resistance.

[00:29:23] Speaker 04:
I'm saying that the plea agreement does not necessarily imply the invalidity of a 1983 action.

[00:29:33] Speaker 02:
In other words... No, I understand that, but in terms of his resistance that's ascribed in the Bryce Report, are you conceding that by checking that box, he stipulates that those are all four acts that he did

[00:29:49] Speaker 02:
were all stipulated to as a basis for the plea.

[00:29:54] Speaker 04:
I did so in the lower court, your honor, and I think it would be unethical for me to change my tune now.

[00:30:00] Speaker 02:
Your argument is more the Yonter argument, that notwithstanding that, it was unlawfully, it was over the top to tase him.

[00:30:08] Speaker 04:
You gave a great example.

[00:30:09] Speaker 04:
What if he had just shot him at the end of that?

[00:30:11] Speaker 04:
You know, I represented Steve Yonter.

[00:30:12] Speaker 04:
That was me on that case.

[00:30:14] Speaker 04:
He just shot him at the end of that.

[00:30:16] Speaker 04:
This is really no different.

[00:30:18] Speaker 04:
And what the courts were struggling with is he did this plea and he took a plea to 148, which encompassed everything.

[00:30:26] Speaker 04:
But you had a situation where part of it was lawful and part of it was unlawful.

[00:30:31] Speaker 04:
I don't think I could in good faith tell you that Bryce's report didn't have something to do with this plea.

[00:30:40] Speaker 04:
The problem is that whether you look at Hooper, Hooper says in one continuous chain of events you could have

[00:30:47] Speaker 04:
events that are lawful and unlawful.

[00:30:49] Speaker 01:
I'm sorry.

[00:30:50] Speaker 01:
Can I ask you a question?

[00:30:51] Speaker 01:
So you said you, in the criminal case, did stipulate to all four?

[00:30:54] Speaker 01:
Because I thought on the briefing you were contesting the third and fourth act of resistance.

[00:31:00] Speaker 01:
And maybe I'm misremembering.

[00:31:03] Speaker 04:
I didn't represent Mr. Cardenas in the criminal case.

[00:31:07] Speaker 01:
So I'm sorry.

[00:31:08] Speaker 01:
When you just said it would be against my ethical duty to say I didn't stipulate to the four, which court?

[00:31:16] Speaker 01:
Were you referring to that you had done that?

[00:31:18] Speaker 01:
Was that before Judge Wilmer?

[00:31:20] Speaker 04:
Yes.

[00:31:20] Speaker 04:
I know that you look at it day noble.

[00:31:22] Speaker 04:
Okay.

[00:31:22] Speaker 04:
And I know that you're not relying on that, but I did say that that police report could have been referenced.

[00:31:31] Speaker 04:
It may, there's that word may.

[00:31:33] Speaker 01:
And that police report, you mean Bryce?

[00:31:35] Speaker 04:
Bryce's report.

[00:31:36] Speaker 01:
Okay.

[00:31:36] Speaker 04:
May have been referenced.

[00:31:38] Speaker 04:
Uh-huh.

[00:31:38] Speaker 04:
But what I was trying to convince Judge Wilmer of is it's not fatal to his civil claim.

[00:31:45] Speaker 04:
Based on y'all based on Hooper Hooper very clearly distinguishes between lawful and unlawful conduct in one continuous chain of events and that is why Judge Belmonte and Sanders distinguished it In saying we could divide Hooper's arrest into separate factual conducts the lawful police action and the unlawful police action well now I'm sorry now, I'm more kind of confused because I

[00:32:15] Speaker 01:
Our case law that has allowed cases to go forward and not be heck barred have been because it's been unclear what has been the subject of the prior criminal conviction.

[00:32:28] Speaker 01:
But if all four of those acts of resistance were the basis, then I don't think the cases that would allow the heck bar would apply here like Martel.

[00:32:42] Speaker 01:
Like Martel where you couldn't tell what was actual the factual basis of the, I mean I think that's throughout all that line of cases.

[00:32:50] Speaker 01:
It's only when you cannot tell what is the basis of the prior conviction that you allow, you know, heck bar not to preclude the claim.

[00:32:59] Speaker 01:
But if we know what it is, then I don't think any of those line of cases actually helps you.

[00:33:04] Speaker 04:
I think that the distinction that the Sanders Court relied on was

[00:33:10] Speaker 04:
the concept of lawfulness and unlawfulness in one continuous chain of events.

[00:33:15] Speaker 04:
In Sanders, there was no allegation that part of this, these acts that encompass that plea agreement were lawful and part of them were unlawful.

[00:33:28] Speaker 01:
The idea that... But I thought the turning point in Sanders is that there were three acts of resistance and there was no question that all three of those were part of the criminal conviction.

[00:33:38] Speaker 01:
They were part of the factual basis.

[00:33:41] Speaker 01:
That, to me, is how I view standards as having been decided.

[00:33:45] Speaker 01:
And then the way I distinguish Martel is, Martel, you couldn't tell which of the underlying acts were the factual basis for the conviction.

[00:33:54] Speaker 01:
But in Sanders, there was no question, right?

[00:33:55] Speaker 01:
Because it was the whole preliminary hearing transcript, and it was stipulated that that was the factual basis.

[00:34:01] Speaker 01:
So I guess now I'm

[00:34:03] Speaker 01:
More confused.

[00:34:04] Speaker 04:
In Sanders, it said Hooper does not help Sanders.

[00:34:07] Speaker 04:
In Hooper, Hooper engaged in multiple obstructive acts in one continuous transaction, but there was a clear distinction between lawful and unlawful police action.

[00:34:21] Speaker 04:
That's why they distinguished him.

[00:34:23] Speaker 01:
Well, what I'm looking at here, we cannot separate out which of Sander's obstructive acts led to his conviction since all of them did.

[00:34:29] Speaker 01:
As part of his guilty plea, Sander stipulated the factual basis for his conviction encompassed the three instances of resistance identified in the preliminary hearing transcript.

[00:34:38] Speaker 01:
And the only reason why for Lemus the court found no heck bar was that there were four acts of resistance and only one of them needed to be the basis for the jury conviction on a 148 charge.

[00:34:51] Speaker 01:
And so that's why they said there's no heck bar because we don't know what the factual basis is.

[00:34:55] Speaker 04:
And that was a jury trial in which the jury had four things to choose from.

[00:34:59] Speaker 04:
The idea for a misdemeanor conviction as we have here, I just stressed that the reason why the Sanders court denied liability was because it was unable to determine based on the entire factual record whether any

[00:35:19] Speaker 04:
those three acts were deemed to be unlawful.

[00:35:23] Speaker 04:
Whereas here, I have always said that the fourth phase of this incident has been unlawful and the other three were lawful.

[00:35:34] Speaker 02:
And... So your case, if this case were to proceed as a 1983 case, it would come to the jury with the stipulation that Cardenas did charge

[00:35:45] Speaker 02:
officer Bryce came down the stairs and came within whatever was 15 feet or something, right?

[00:35:49] Speaker 02:
Because that was recited in the Bryce report.

[00:35:51] Speaker 02:
But your argument to the jury would be, nonetheless, tasing him was excessive.

[00:35:56] Speaker 04:
In my complaint and in my opposition to summary judgment, what I said in the paragraphs was, at the time he was being tased, he was at the top of the stairs and he could go no further.

[00:36:08] Speaker 04:
He was contained and not resisting at that time.

[00:36:12] Speaker 02:
I thought the police report said he

[00:36:14] Speaker 02:
came down off the stairs toward the officer.

[00:36:17] Speaker 02:
That's in the police report, and if you stipulated to the facts of the police report as being a basis for the plea, that's a fact that is now written in stone for purposes of your 1983 action.

[00:36:29] Speaker 02:
If that's what you're, that's what I'm asking, is that what you, otherwise you're contesting the police report.

[00:36:34] Speaker 04:
This is the heart of all of this litigation.

[00:36:37] Speaker 04:
Have I said, because I stipulate that that's a factual basis,

[00:36:41] Speaker 04:
Have I said that everything contained in that police report represents a lawful police action?

[00:36:49] Speaker 00:
Or it was even true.

[00:36:50] Speaker 00:
True.

[00:36:51] Speaker 00:
You're saying that not everything in the police report was true.

[00:36:56] Speaker 04:
Exactly.

[00:36:56] Speaker 04:
And I think that that's the right that any person that brings a 1983 action has, is you're not going to basically think about... Contesting the report, but not contesting the conviction.

[00:37:09] Speaker 04:
Yes, that is exactly the distinction.

[00:37:13] Speaker 04:
And again, I... You're over like... I'm still sorry.

[00:37:18] Speaker 00:
It's okay.

[00:37:18] Speaker 00:
We turned this into an hour hearing, but that's okay.

[00:37:23] Speaker 00:
No, it's a very... I agree.

[00:37:24] Speaker 00:
I agree.

[00:37:25] Speaker 00:
And it's confusing when you stipulate to like a whole report or a... I also recognize you said that the judge may refer to, not that you're stipulating that this is true.

[00:37:39] Speaker 00:
It's a close case, difficult.

[00:37:41] Speaker 00:
Thank you, council, all of you.

[00:37:43] Speaker 00:
Cardenas versus City of Santa Maria will be submitted.