[00:00:00] Speaker 04: United States versus Chodine, and it's 23-4069. [00:00:04] Speaker 04: And we'll hear from you, Mr. Sandford. [00:00:10] Speaker 02: Good morning, and may it please the court. [00:00:12] Speaker 02: My name's Dean Sandford from the Federal Defenders, and I'm here for Kirk Chodine. [00:00:16] Speaker 02: I'd like to start with the conviction issue, which is whether Mr. Chodine presented sufficient evidence to support a reasonable doubt that he believed the civil rights were restored. [00:00:26] Speaker 02: Our position is that he did. [00:00:28] Speaker 02: The records from the Oklahoma case established that he was charged with possessing a firearm but not for being a felon. [00:00:34] Speaker 02: Instead, he was charged with misdemeanor possession while under the influence. [00:00:38] Speaker 02: As Mr. Chodine argued, the state's choice to charge him with only the misdemeanor led him to believe that he was no longer a felon. [00:00:44] Speaker 02: Otherwise, he would have been charged in that way. [00:00:47] Speaker 04: Well, he would have been charged under the Oklahoma felon in possession statute or 922-G1. [00:00:54] Speaker 02: Well, who knows? [00:00:54] Speaker 02: I mean, he's a lay person, so he doesn't know. [00:00:56] Speaker 02: But everyone knows that being a felon, you can't own firearms. [00:01:00] Speaker 04: Not everybody knows that Oklahoma has a felon in possession statute. [00:01:05] Speaker 02: Well, that may be true. [00:01:07] Speaker 02: But I think it's generally known among lay people. [00:01:09] Speaker 02: If you ask a lay person on the street whether or not it's legal for a felon to possess a firearm, they're going to say no. [00:01:15] Speaker 02: That is a very common prescription. [00:01:17] Speaker 02: We're not saying Mr. Chodine knew the ins and outs of Oklahoma law, the ins and outs of federal law, or anything else. [00:01:23] Speaker 02: But what this charge communicated to him was, well, for the government to prove that this possession is illegal, they have to prove that I'm intoxicated. [00:01:32] Speaker 02: Why would they take that extra step if my status alone prohibits me from having a firearm? [00:01:39] Speaker 00: I mean, that's a great argument. [00:01:41] Speaker 00: But he did not testify. [00:01:45] Speaker 00: All he did was put in two documents. [00:01:50] Speaker 00: And that's enough, you think, to infer [00:01:53] Speaker 00: that we're going to take from those documents what he thought those documents told him? [00:02:00] Speaker 00: I mean, didn't he need to at least get up on the stand and say, I looked at these documents and I thought that it had been expunged, and I didn't think I anymore had the status? [00:02:14] Speaker 02: Sure. [00:02:15] Speaker 02: two responses to that. [00:02:16] Speaker 02: And the first one is that it certainly would have been helpful for him to testify. [00:02:20] Speaker 02: But the documents, I think, were enough. [00:02:23] Speaker 02: And this is for a couple of reasons. [00:02:25] Speaker 02: So first, to prove state of mind, you don't have to have direct evidence. [00:02:31] Speaker 02: You can prove state of mind by circumstantial evidence. [00:02:33] Speaker 03: Well, wait a minute, counsel. [00:02:35] Speaker 03: One of the documents was just the docket sheet. [00:02:37] Speaker 03: Isn't that right? [00:02:38] Speaker 02: A docket sheet and a judgment, that's correct. [00:02:40] Speaker 03: Okay, the docket sheet that I looked at doesn't get you anywhere with me. [00:02:45] Speaker 03: So how does the other one get you there? [00:02:48] Speaker 03: Because I'm exactly where Judge McHugh was saying. [00:02:52] Speaker 03: Sure. [00:02:52] Speaker 03: The way you normally try a case, if you're going to put on testimony, is you're sworn. [00:02:57] Speaker 03: And that was my question, was he sworn before he introduced [00:03:02] Speaker 03: these two documents that was introduced. [00:03:06] Speaker 03: If not, he just made a nice speech to the judge. [00:03:10] Speaker 02: Well, no, he was not sworn for his closing argument or opening statements. [00:03:13] Speaker 02: And we're not relying on those as evidence. [00:03:15] Speaker 02: But let me explain why I think that the documents you've got to understand with me. [00:03:19] Speaker 03: You've got to have something more than what you're relying on. [00:03:22] Speaker 03: I just want to clear it up between you and me right now. [00:03:26] Speaker 02: I totally understand your position. [00:03:27] Speaker 02: But what we have are these two documents. [00:03:29] Speaker 02: So let me explain to you why I think they were enough. [00:03:31] Speaker 02: So the docket sheet, what the docket sheet shows is what he was charged with. [00:03:36] Speaker 02: And he was charged with possession of a gun, but while he was intoxicated, not as being a felon. [00:03:41] Speaker 03: So the question is... Under Oklahoma law or the federal statute? [00:03:45] Speaker 02: Well, he was charged, it was a state charge. [00:03:47] Speaker 02: It was a state charge. [00:03:49] Speaker 02: But as I mentioned before, what these documents communicated to him was that... Well, how do we know what they communicated to him? [00:03:58] Speaker 02: Well, I think that you can, so his opening statement and his closing arguments, they're not evidence. [00:04:04] Speaker 02: They're not evidence. [00:04:06] Speaker 02: That is absolutely right. [00:04:07] Speaker 02: They're not evidence. [00:04:08] Speaker 02: But what lawyers use those for is to highlight for the jury the inferences that they're drawing from them. [00:04:13] Speaker 02: And you can certainly look to them for that purpose. [00:04:16] Speaker 02: Well, this is a bench draw. [00:04:18] Speaker 02: Well, to the fact finder. [00:04:19] Speaker 02: It doesn't have to be a jury. [00:04:21] Speaker 02: But that's the purpose of closing argument and opening statement. [00:04:25] Speaker 02: More closing argument is to say, here's the evidence we have. [00:04:28] Speaker 02: Here are the inferences we want you to draw from them, fact finder, whether it's jury or judge. [00:04:33] Speaker 03: Now run it by me again, because the two evidences that he has is the docket sheet and the judgment. [00:04:39] Speaker 03: So how does that climb the hill that you're trying to climb? [00:04:42] Speaker 02: I mean, I certainly agree with you that it's not much. [00:04:45] Speaker 02: He was representing himself per se. [00:04:47] Speaker 02: He probably should have testified. [00:04:49] Speaker 02: But we maintained that these documents were enough to at least create a reasonable doubt as to what his belief was. [00:04:56] Speaker 00: Well, there was another document that he didn't put into evidence, I think, from the record, where the judge checked that he was not a felon. [00:05:04] Speaker 00: But that's not one of these two, right? [00:05:07] Speaker 02: It is not one of those two. [00:05:08] Speaker 02: He did not put that document into evidence. [00:05:11] Speaker 00: I cannot explain why. [00:05:11] Speaker 00: Well, I mean, why couldn't this just be prosecutorial discretion of what they decided to charge him with? [00:05:17] Speaker 02: Well, I think you have to, again, look at this from a layperson's perspective. [00:05:22] Speaker 02: This were the initial charges that were levied against him. [00:05:26] Speaker 02: And if the government could prove that his possession was unlawful based solely on his status, why bother proving that he was intoxicated? [00:05:34] Speaker 02: There would have been no need for them to take on that extra burden. [00:05:37] Speaker 02: And that's the inference that he drew from them. [00:05:39] Speaker 02: And I understand it would be a stronger case if he had testified. [00:05:43] Speaker 00: Yeah. [00:05:44] Speaker 00: It's not an easy inference from the documents that were provided. [00:05:49] Speaker 02: I understand. [00:05:51] Speaker 02: I understand that. [00:05:52] Speaker 03: Well, let's make sure I'm on the same page with you. [00:05:56] Speaker 03: Are we here on plain error? [00:05:59] Speaker 02: Well, no. [00:06:01] Speaker 03: Not on this issue. [00:06:02] Speaker 03: We're not on plain error. [00:06:03] Speaker 03: OK. [00:06:03] Speaker 03: Let's move to the issue of which we are on plain error. [00:06:08] Speaker 03: Sure. [00:06:11] Speaker 03: We have to look at this under the [00:06:13] Speaker 03: you know, the categorical approach. [00:06:15] Speaker 02: That's right. [00:06:16] Speaker 03: And we look at California law, can you cite me to any California state cases which have used the wording in that, in the, I forgot the name of the California state case. [00:06:31] Speaker 03: Are there any other cases out there that California courts have been able to look at and say that this was plain error? [00:06:40] Speaker 03: Because that's what we, [00:06:42] Speaker 03: I'm struggling true with the question, is the error playing that you're arguing? [00:06:48] Speaker 03: And I know from my reading through it and everything, by the time I got through the point, I was lost again. [00:06:54] Speaker 03: So help me out there. [00:06:55] Speaker 02: OK. [00:06:56] Speaker 02: All right. [00:06:56] Speaker 02: Let me see if I can. [00:06:57] Speaker 02: So Williams is the California Supreme Court's definitive statement of what the mens rea is for California assault. [00:07:06] Speaker 02: It was decided 20 years ago. [00:07:07] Speaker 02: It hasn't changed since then. [00:07:08] Speaker 02: And what Williams says is, [00:07:11] Speaker 02: The defendant doesn't have to be subjectively aware of the risk that a battery will occur. [00:07:15] Speaker 02: But other state courts cited that. [00:07:18] Speaker 02: But it's the highest court in California. [00:07:20] Speaker 02: I don't know why we would need another state court. [00:07:22] Speaker 02: It is the definitive and authoritative explanation of what California law is. [00:07:27] Speaker 02: And it says that subjective knowledge of the risk, subjective awareness of the risk is not required. [00:07:33] Speaker 02: That's exactly what's required even for recklessness under Borden, is a conscious disregard of the risk. [00:07:38] Speaker 02: So on the one hand, you have Borden saying, recklessness, you need subjective awareness of the risk. [00:07:44] Speaker 02: California Supreme Court saying, for California's sake, you don't need that. [00:07:47] Speaker 02: It doesn't matter whether the defendant was aware. [00:07:50] Speaker 02: It's whether a reasonable person, knowing the facts that the defendant knew, would think battery was likely to occur. [00:07:56] Speaker 00: And there's California Court of Appeals cases who cite Williams for that proposition. [00:08:00] Speaker 02: That's right. [00:08:01] Speaker 02: And California Supreme Court cases, I think, that have come after that. [00:08:04] Speaker 02: That law is settled. [00:08:05] Speaker 02: It's been settled since 2001. [00:08:07] Speaker 02: And I think that's what makes the error plain, is on the one hand, you have recklessness requires subjective awareness. [00:08:14] Speaker 02: The California statute does not. [00:08:16] Speaker 02: I think that ends the matter, because even recklessness doesn't count under the elements clause. [00:08:22] Speaker 02: And what California has done instead is use this reasonable person standard, which more closely approximates negligence. [00:08:29] Speaker 02: It's an objective standard in which the defendant's awareness doesn't make any difference. [00:08:34] Speaker 00: Well, and did the Ninth Circuit held that as well? [00:08:37] Speaker 02: Yes, that's right. [00:08:40] Speaker 04: Let me ask you, Mr. Saterford, let's say hypothetically, you make an argument to us. [00:08:47] Speaker 04: Your opposing counsel makes an argument to us. [00:08:51] Speaker 04: We don't call you on it. [00:08:53] Speaker 04: We silently disagree with it. [00:08:56] Speaker 04: We don't mention it in the opinion. [00:09:01] Speaker 04: implicitly and conclusively show that we must have endorsed the mutual position that you and opposing counsel had advocated because we didn't say anything about it? [00:09:16] Speaker 02: I think that's a tricky question. [00:09:18] Speaker 02: I mean, I think ordinarily when you're looking at a case and reading to see what a case means, you look at what the case says. [00:09:23] Speaker 02: I mean, I think there's certainly an argument that if there's a kind of untested assumption underlying an opinion, [00:09:30] Speaker 02: that has gone unchallenged, then probably you could make an argument that that's what the court meant. [00:09:35] Speaker 02: But maybe I'm not understanding your question. [00:09:39] Speaker 02: It looks like maybe I'm not answering it. [00:09:42] Speaker 04: No, I think you are. [00:09:43] Speaker 04: I think you are answering it. [00:09:46] Speaker 02: OK. [00:09:47] Speaker 02: I mean, I guess I'm not sure exactly how it maps on to this case, because we have Williams saying explicitly that subjective awareness of the risk is not required. [00:09:58] Speaker 02: And again, that's exactly what Borden says recklessness is. [00:10:02] Speaker 02: Now, a lot of the cases that were pre-Borden that held that California assault was a crime of violence rely on the intentional act requirement. [00:10:11] Speaker 02: So Williams says, assault requires an intentional act. [00:10:14] Speaker 02: But Borden makes clear that an intentional act isn't enough. [00:10:17] Speaker 02: It can be enough to show a use of physical force, but it doesn't show that the use of physical force was against another. [00:10:24] Speaker 02: And you see this in the reckless commuter example that's used in Borden. [00:10:28] Speaker 02: That commuter made two intentional acts. [00:10:31] Speaker 02: He drove the car on purpose, and he intentionally ran a red light, but he didn't train the car towards another person so it wasn't forced against another. [00:10:41] Speaker 02: So the intentional act requirement just doesn't get you far enough. [00:10:45] Speaker 02: And neither does this idea that California assault is a general intent crime, because even Williams says, [00:10:52] Speaker 02: That's not really a useful way to define the mental state. [00:10:56] Speaker 02: It's really just a signal that certain defenses aren't available, like voluntary intoxication. [00:11:00] Speaker 02: And general intent in its kind of typical definition is you intend the act, but you don't intend the consequences. [00:11:08] Speaker 02: So you're right back around to this intentional act requirement, which doesn't show that force was used against another person. [00:11:15] Speaker 02: This is exactly what the Ninth Circuit said in Gomez, which is the only Ninth Circuit case post-Borden to address this. [00:11:22] Speaker 02: they reached the same conclusion that we're advocating for here. [00:11:32] Speaker 00: Did Gomez specifically hold it wasn't a crime of violence? [00:11:38] Speaker 02: Yes. [00:11:39] Speaker 02: Under both the elements clause and the enumerated offenses clause. [00:11:42] Speaker 02: And I can address the enumerated offenses clause really quickly. [00:11:47] Speaker 00: Well, remind me whether Gomez was a plain error case. [00:11:51] Speaker 02: Gomez wasn't a plain error case. [00:11:53] Speaker 02: It was not. [00:11:54] Speaker 02: I'm sorry, it was not. [00:11:55] Speaker 02: The enumerated defenses clause, the only possible enumerated defense that could match this is aggravated assault. [00:12:03] Speaker 02: And as we've shown in our briefs, every circuit to address the issue has said that generic aggravated assault requires extreme indifference recklessness. [00:12:11] Speaker 02: So the kind of recklessness that's necessary for second degree murder. [00:12:15] Speaker 02: Under Williams, this crime doesn't even require recklessness, so I don't [00:12:21] Speaker 02: think it's even plausible that this crime qualifies as a generic aggravated assault. [00:12:28] Speaker 02: Unless the court has further questions, I'll... Well, let's stop this clock. [00:12:32] Speaker 04: Can I ask you one question? [00:12:34] Speaker 04: By the way, there's a good reason you didn't understand my question, because it really... I was conflating this with Calderon. [00:12:41] Speaker 04: If it wasn't a question I had asked you. [00:12:43] Speaker 04: It's another case. [00:12:46] Speaker 04: Sorry about that. [00:12:50] Speaker 02: No, no, that's okay. [00:12:50] Speaker 02: That makes me feel better. [00:12:51] Speaker 04: Thank you. [00:12:54] Speaker 04: I want to go back. [00:12:56] Speaker 04: Sorry to keep going back and forth on your first issue. [00:13:00] Speaker 04: Let's say he had not said anything in opening or closing about that he thought that his civil rights had been restored. [00:13:09] Speaker 04: Would he still have satisfied his burden of production? [00:13:13] Speaker 02: I don't think it would be a much closer question. [00:13:15] Speaker 02: And I do understand that the opening and closing aren't evidence. [00:13:18] Speaker 02: There's no question about that. [00:13:20] Speaker 02: But I do think that they're useful in the sense that they help direct the fact finder to the inferences that the lawyer or the pro se litigant is trying to draw from the evidence. [00:13:29] Speaker 02: I do think it would be a closer question. [00:13:31] Speaker 02: I do think it's helpful that he actually made the arguments. [00:13:37] Speaker 04: Thank you. [00:13:38] Speaker 04: All right, thank you. [00:13:41] Speaker 01: Good morning, Your Honors. [00:13:42] Speaker 01: May it please the court Briggs Matheson on behalf of the United States. [00:13:46] Speaker 01: The evidence at trial was sufficient to prove that at the time Mr. Shodin possessed the rifle in southern Utah, he knew that he had previously been convicted of shooting a man in California for which he served a nearly nine-year sentence in state prison. [00:14:01] Speaker 01: Mr. Shodin failed at trial to adequately support any of the various theories he presented about what might have happened to that prior felony conviction, including the argument that he presents on appeal that he subjectively believed his civil rights had been restored. [00:14:16] Speaker 01: I think to address Your Honor's questions about the two documents that Mr. Shodin put in evidence. [00:14:22] Speaker 01: Those documents tell us nothing about Mr. Shodin's prior felony conviction. [00:14:27] Speaker 01: They have nothing to say about rights restoration. [00:14:29] Speaker 01: And most importantly, they have nothing to say about what Mr. Shodin actually subjectively believed at the time of the offense in this case. [00:14:37] Speaker 01: And that's the fundamental problem. [00:14:39] Speaker 01: with his sufficiency of the evidence claim. [00:14:41] Speaker 01: The district court properly considered the trial evidence, which consisted only of Mr. Shodin's stipulations and six exhibits, the firearm, the three reliable records that the government tendered in evidence showing Mr. Shodin was present and in court at the time of his conviction and sentence, and then the two documents that Mr. Shodin entered into evidence, the docket and the judgment from the Oklahoma case. [00:15:04] Speaker 01: But we don't know, because there is no competent evidence in the trial record [00:15:07] Speaker 01: about what Mr. Shodin actually subjectively believed when he possessed that rifle about his prior felony conviction, why he held that belief, when he formed that belief, and his comments during the bench trial don't shed any light on what he believed in relation to those two documents that he did put in evidence. [00:15:25] Speaker 01: Judge McHugh, you asked about other proposed exhibit that Mr. Shodin did lodge with the court prior to the bench trial. [00:15:32] Speaker 01: That was the plea agreement in the Oklahoma case. [00:15:34] Speaker 01: And I think it's telling that after [00:15:37] Speaker 01: the bench trial in advance of sentencing. [00:15:40] Speaker 01: Mr. Shodian pointed to that document and said that he could have presented the argument that he subjectively believed his civil rights had been restored based on what his prior attorney, Ron Mickey, who had represented him in the Oklahoma case, had told him about his civil rights and based on what the trial judge in Oklahoma had told him. [00:15:58] Speaker 01: The problem is that Mr. Chodine didn't actually put any of that evidence in the record, despite being advised by the court about what he would need to do to move his proposed exhibits into evidence, and the fact that Ron McGee was sitting in the back of the courtroom ready, willing, and able to testify. [00:16:13] Speaker 01: And indeed, the government and the trial judge expected that Ron McGee would testify about what he may or may not have told Mr. Chodine. [00:16:21] Speaker 01: And so on this record, the evidence was certainly sufficient for a reasonable juror to conclude [00:16:25] Speaker 01: that Mr. Chodin had the requisite knowledge of his prohibited status at the time of the offense. [00:16:30] Speaker 00: Is Mr. Chodin's defense an affirmative defense, or is it more an element-negating defense? [00:16:40] Speaker 01: I think it is most consistent with what the Supreme Court has said in Rahef and in Greer about what the government has to prove to satisfy this element. [00:16:49] Speaker 01: to say that the government always bears the burden to prove beyond a reasonable doubt that the defendant knew he'd previously been convicted of a felony. [00:16:56] Speaker 01: And the defendant is free to argue that, for whatever reason, he lacked such knowledge and that is best understood within the framework of reasonable doubt. [00:17:02] Speaker 01: Indeed, Justice Sotomayor. [00:17:04] Speaker 00: So an element negating. [00:17:06] Speaker 01: Correct. [00:17:07] Speaker 01: It's essentially an argument that the government has not satisfied its burden on that element. [00:17:11] Speaker 01: And that's precisely how the Eighth Circuit understood this kind of a defense to work in the Jackson case that's cited in the government's brief. [00:17:18] Speaker 01: Recall that in Jackson, the defendant in that case made precisely the same argument at trial that Mr. Chodine is arguing now on appeal that he could have made. [00:17:25] Speaker 01: The defendant in Jackson said, I didn't know that I was previously convicted of a felony because I subjectively believed that my civil rights had been restored. [00:17:33] Speaker 01: And the key difference is that the defendant in Jackson took the stand at his own trial and he testified. [00:17:38] Speaker 01: And he said, I didn't [00:17:40] Speaker 01: know that I was a felon because I believe my civil rights were restored because when I was discharged from parole, a parole officer presented me with discharge papers. [00:17:50] Speaker 01: I signed them. [00:17:52] Speaker 01: And the parole officer said, you can now vote and do anything a US citizen can do. [00:17:56] Speaker 01: Your rights have now been restored. [00:17:58] Speaker 01: And what the district judge did in Jackson is it instructed the jury that the government bore the burden to prove beyond a reasonable doubt that the defendant knew he'd previously been convicted of a felony. [00:18:09] Speaker 01: And in deciding whether the government had met its burden on that element, the jury could consider the defendant's argument that he believed his civil rights had been restored. [00:18:17] Speaker 01: Now, Mr. Chodin could have litigated his defense the same way. [00:18:21] Speaker 01: He chose not to. [00:18:22] Speaker 01: And the only way to draw the inferences that Mr. Chodin is asking this panel to draw is to go outside of the trial record. [00:18:28] Speaker 01: His comments during opening statement and closing argument, of course, are not evidence. [00:18:32] Speaker 01: And they don't shed light on what inferences he would have drawn from those two documents, from the docket [00:18:38] Speaker 01: and the judgment in the Oklahoma case. [00:18:41] Speaker 04: Mr. Mathison, is that really fair? [00:18:43] Speaker 04: I mean, he's a pro-C litigant, and he presents the docket sheet in the judgment. [00:18:51] Speaker 04: And in a vacuum, had it not been explained to the judge in opening statement what the inferences that he wanted drawn from the docketing statement or the judgment, [00:19:04] Speaker 04: might have been very difficult to detect. [00:19:08] Speaker 04: But it was clear from the opening statement what he was arguing that the inference to be drawn from these two documents was. [00:19:18] Speaker 04: And he is pro se. [00:19:22] Speaker 04: And it's only a burden of production. [00:19:25] Speaker 04: It's not a burden of persuasion. [00:19:27] Speaker 04: So why isn't it at least a reasonable inference that he had [00:19:33] Speaker 04: satisfied his burden of production because it was apparent to the judge already the inference that he wanted drawn from it. [00:19:40] Speaker 01: Two responses to that question, Judge Baccarat. [00:19:42] Speaker 01: The first is that from the documents themselves, it is not clear what inferences can be drawn about what Mr. Shodian actually believed, what he was relying on in forming that belief. [00:19:53] Speaker 01: We don't know what argument or evidence Mr. Shodian might have presented. [00:19:57] Speaker 01: had he been under oath, subject to penalty of perjury, subject to cross-examination by the government, if he had testified or if he had called his former lawyer to testify about what he actually believed. [00:20:09] Speaker 01: The second point is that Mr. Shodian said quite clearly in his opening statement and closing argument what the centerpiece of his argument was at the bench trial. [00:20:18] Speaker 01: And it was not that he subjectively but mistakenly believed his civil rights had been restored. [00:20:23] Speaker 01: His argument was that his civil rights were as a matter of law restored. [00:20:27] Speaker 01: In fact, he opened his opening statement at the bench trial by saying, and this is a quote, there is nothing else to talk about except for have the defendant's rights been restored or not. [00:20:38] Speaker 01: He went on on eight more occasions during the opening statement to say that his argument was that his civil rights were as a matter of law restored under Section 921A20. [00:20:48] Speaker 01: And so even his statements during opening statement and closing argument don't shed light on [00:20:54] Speaker 01: the issue he is raising today about his subjective beliefs. [00:20:57] Speaker 01: And in fact, what he did say about what he had been told about his prior felony conviction, it's not clear what their relevance is to those two documents that he put in evidence. [00:21:06] Speaker 01: Let me give you just one example. [00:21:08] Speaker 01: He said in his closing argument that he had been told by a parole officer in Oklahoma 10 years ago that his civil rights were going to be restored. [00:21:18] Speaker 01: And there's no evidence in the record that that person exists, that that conversation took place, that that's something that Mr. Shodian relied on in forming a subjective belief about what had happened to his prior felony conviction. [00:21:27] Speaker 01: And there's nothing in his argument or in evidence that would suggest that [00:21:32] Speaker 01: That story about what he was told about his civil rights has anything to do with the docket sheet or the judgment in the Oklahoma case, which merely show that he'd been convicted. [00:21:39] Speaker 04: Well, why is that? [00:21:42] Speaker 04: I mean, he says that he had been told that when he had satisfied his parole, that his rights would be restored. [00:21:49] Speaker 04: When that period had last, when the parole period had expired, Oklahoma did prosecute him. [00:21:57] Speaker 04: for a violation, but not a felony possession statute. [00:22:05] Speaker 04: So I think that those two are in sync. [00:22:09] Speaker 01: Well, to be clear about what he said about his rights restoring, he said that his rights were automatically restored once he got off of parole. [00:22:15] Speaker 01: But don't hold him to that, because that's just something that his legal assistant and spouse had told him. [00:22:21] Speaker 01: And so ultimately, I think the question for this court is whether there's anything [00:22:25] Speaker 01: in the record that would suggest that Mr. Chodin had a subjective belief that his civil rights had been restored at the time of the offense, and there is no such evidence. [00:22:35] Speaker 01: I do want to address, if I may, the sentencing issue, and in particular this question about what the California Supreme Court said in People v. Williams. [00:22:45] Speaker 01: The question for this panel is whether it is clear [00:22:47] Speaker 01: or obvious, the California Penal Code, Section 245A, has a mental state that is incompatible with the board and plurality's concerns about targeting and the deployment of physical force against another person. [00:22:59] Speaker 01: And due respect to the California Supreme Court, but it has not articulated an answer to that question with the sufficient clarity for Mr. Shodian's claim to prevail under a plain error standard. [00:23:09] Speaker 04: If 245A does require a mens rea less than rectilistice, you do not dispute [00:23:14] Speaker 04: that it would not satisfy the elements of the enumerated defense [00:23:18] Speaker 01: That's correct, Your Honor. [00:23:19] Speaker 01: But that's an important point. [00:23:20] Speaker 01: You're framing of whether Williams articulates a mental state for section 245A below recklessness. [00:23:25] Speaker 01: Because that is what the Gomez panel in the Ninth Circuit suggested, is that actually what section 245A requires for a mental state is something below recklessness, some form of negligence. [00:23:35] Speaker 01: Now the problem with that is that to the extent people versus Williams says anything with clarity, it said quite clearly that negligence is not enough under section 245A. [00:23:43] Speaker 01: And it said it in two ways. [00:23:46] Speaker 01: With respect to the particular jury instruction that was at issue in Williams, the problem with that jury instruction is that it would have allowed for a conviction under a negligent standard. [00:23:56] Speaker 01: It would have allowed the jury to convict the defendant based on facts that he did not know, but that he should have known. [00:24:02] Speaker 01: And Williams said that was error. [00:24:04] Speaker 01: That was harmless error, but that was the error with the jury instruction in that case. [00:24:09] Speaker 01: In Pupil v. Calantuona, which was the case in which the California Supreme Court interpreted the mens rea for Section 245A before Williams, the California Supreme Court said that negligence is not enough. [00:24:22] Speaker 01: And Williams, the California Supreme Court, affirmed that holding and said, we are not disturbing that holding. [00:24:27] Speaker 01: What we are doing is we are adding, and this is a quote, an actual knowledge requirement. [00:24:32] Speaker 01: And the Gomez- Of the Act. [00:24:34] Speaker 01: I beg your pardon? [00:24:34] Speaker 01: Of the Act. [00:24:36] Speaker 01: of the facts sufficient to show that the intentional act by the defendant would have the direct, natural, and probable result of the application of physical force against another person. [00:24:48] Speaker 04: In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to believe that a battery would directly, naturally, and probably result from his conduct. [00:24:58] Speaker 04: That's the sentence immediately following the sentence that you're relying on in 788. [00:25:04] Speaker 01: Correct, Your Honor. [00:25:05] Speaker 01: Two pages later, [00:25:07] Speaker 01: The California Supreme Court states it's holding, I think, with greater clarity and stating without using this reasonable person language. [00:25:13] Speaker 01: And to be clear. [00:25:14] Speaker 01: It says that we hold that assault requires that the defendant engage in an intentional act [00:25:21] Speaker 01: and that he actually knows the facts sufficient to show that his intentional act, I'm paraphrasing, by the way, will have the direct natural and probable consequence of the application of physical force. [00:25:31] Speaker 04: How do you square that with footnote three? [00:25:33] Speaker 04: A defendant who honestly believes that his act was not likely to result in battery is still guilty of assault if a reasonable person viewing the facts known to the defendant, reasonable person, would find that the act would directly, naturally, and probably result in a battery. [00:25:51] Speaker 04: I don't see anything in the text, even including the provisions that you're citing, where it interposes a subject, an actor, in the phrase would naturally and directly produce a result in a battery. [00:26:08] Speaker 04: You have that predicate clause, but there's no subject attached to it, except on 788. [00:26:17] Speaker 04: And in footnote three, where it interposes the subject, a reasonable person. [00:26:22] Speaker 01: Your honor, I don't disagree that Williams contains language that is at times internally inconsistent and that can be read to suggest a standard that falls below the purpose or knowledge that the board and plurality was concerned about. [00:26:34] Speaker 01: The problem is that that's not all that Williams says. [00:26:37] Speaker 01: And the type of mental state that People v. Williams was trying to articulate, I think, is arguably the type of heightened recklessness, but the more extreme version of recklessness that this court and the other courts of appeals cited in the government's brief has held falls somewhere between recklessness and knowledge and satisfies the Borden's concerns about targeting. [00:26:55] Speaker 04: But we know, OK, I'm sorry, you go ahead. [00:26:58] Speaker 01: My only follow-up point, Your Honor, on that is that if you look at what Borden has to say about ordinary recklessness, about simple recklessness, [00:27:05] Speaker 01: The reason that does not satisfy the plurality's concerns about targeting and directing physical force against another person is because it has at its core a concern about the defendant paying insufficient attention to his conduct and a risk that need not come anywhere near a likelihood of occurring. [00:27:22] Speaker 01: That's not the kind of risk that the California Supreme Court is concerned about in Williams. [00:27:26] Speaker 01: And we know this when you take Williams in its entirety. [00:27:29] Speaker 01: And what it was trying to do, keep in mind that what the California Supreme Court explicitly was trying to do in Williams was to clarify the confusion that it had created in people versus Kalantuono. [00:27:39] Speaker 01: Now, I happen to agree with the dissent in Williams on this one point that in trying to do so, it actually compounded the confusion created by Kalantuono. [00:27:47] Speaker 01: But it did say quite clearly that in people versus Kalantuono, you had to have an intentional act that would have the direct, natural, and probable result of the application of physical force. [00:27:58] Speaker 01: What Williams adds to that is an actual knowledge requirement and says that a defendant can't have the requisite intent under this statute unless he actually knows the facts sufficient to show that his intentional act, by its very nature, not by some unforeseen consequence or ancillary condition, by its very nature, it will have the direct and likely consequence of the application of physical force against him. [00:28:20] Speaker 04: Under a reasonable man's feet? [00:28:22] Speaker 01: While the Williams court did [00:28:25] Speaker 01: articulate or did use the words a reasonable person, it went on to expressly disclaim articulating a negligent standard. [00:28:31] Speaker 04: And again, this is... Well, can I... Please go ahead. [00:28:35] Speaker 04: I keep talking. [00:28:36] Speaker 04: I'm sorry. [00:28:38] Speaker 04: But the only thing that I wanted to make sure that I'd factor into your answer is in footnote four, where you mentioned the Calantano case, [00:28:50] Speaker 04: But in footnote four, Williams specifically equates recklessness in its historical sense as a synonym for criminal negligence. [00:29:01] Speaker 04: So I'm not sure that I'm as confused about Williams as maybe I should be. [00:29:09] Speaker 04: But it seems to be that Williams is specifically saying, OK, in Colentano, they're talking about recklessness. [00:29:15] Speaker 04: We're talking about it in its historical sense, not as a subjective awareness of risk, [00:29:20] Speaker 04: but in terms of its synonym for negligence. [00:29:24] Speaker 04: Negligence is not enough. [00:29:26] Speaker 04: And then on 788, it says you have to be aware of the direct act that will directly and naturally result in a battery, but would directly and naturally result, it says, in other words, in a reasonable man's standard that is made abundantly clear in footnote three that you don't have to be subjectively aware [00:29:50] Speaker 04: that it will result in a battery, just that it would reasonably do that. [00:29:56] Speaker 04: So it's a long-answered question. [00:30:00] Speaker 04: But it seems to me that it's clear. [00:30:07] Speaker 04: But why am I oversimplifying it? [00:30:12] Speaker 04: Which is wrong. [00:30:13] Speaker 01: I see that my time has elapsed, if I may answer the court's question. [00:30:18] Speaker 01: Two responses to that question, Your Honor. [00:30:19] Speaker 01: The first is, I think, understanding the context for people versus Williams and why it uses this language about why a defendant need not have the subjective awareness of the risk of a particular harm. [00:30:31] Speaker 01: The reason it uses that language is because that was the central issue in both people versus Kalantumono and people versus Rocha. [00:30:39] Speaker 01: The question in those cases was whether the defendant has to specifically intend to cause a particular injury. [00:30:46] Speaker 01: And People v. Colantuono comes in and says, no, Section 245A is a general intent statute. [00:30:51] Speaker 01: A defendant need not specifically intend to cause a particular injury. [00:30:56] Speaker 01: And Williams, in trying to clarify what Colantuono meant, adopts that language and says, we're not changing the law here. [00:31:03] Speaker 01: We agree with Colantuono that a defendant does not need to be subjectively aware of the risk of causing a particular harm or injury. [00:31:10] Speaker 01: But we do think that Colantuono [00:31:12] Speaker 01: fail to adequately explain what a defendant does have to know. [00:31:16] Speaker 01: The defendant does have to actually know that his intentional act, by its very nature, will have the direct and probable result of the application of physical force against another. [00:31:27] Speaker 01: And so just to contextualize that standard a little bit more concretely, the type of conduct that Williams was concerned about [00:31:35] Speaker 01: I think the best example is the People v. Osnavele case. [00:31:38] Speaker 01: That's the A-Z-N-A-V-O-L-E-H case that's discussed in Gomez and in the concurrence in Gomez. [00:31:45] Speaker 01: There, the defendant, this is a reckless driving case, sped through a red light. [00:31:51] Speaker 01: And there were facts showing that the defendant himself actually knew that by his intentional act, by speeding through that red light, he would directly and naturally inflict physical force against the victim car because [00:32:04] Speaker 01: there was evidence to prove that he saw the car in the cross traffic and that his passengers warned him not to hit it. [00:32:11] Speaker 01: When you have those kind of facts, that's the kind of actual knowledge requirement that Williams requires. [00:32:16] Speaker 03: When you have the kind of facts that we have in Williams, you understand now when I say we're on plane error, it ain't plane. [00:32:24] Speaker 01: Judge Baldoch, I agree that [00:32:27] Speaker 01: The difficulty in this case is that People v. Williams does not say clearly and obviously what the mental state under Section 245A is, nor has the Ninth Circuit. [00:32:36] Speaker 01: It is spoken out of both sides of its mouth in terms of which standard it thinks it should apply under Section 245A. [00:32:43] Speaker 01: And under that plain error standard, we ask this Court to affirm. [00:32:47] Speaker 01: Unless there are further questions, Your Honors, thank you. [00:32:58] Speaker 04: Let's give him another minute and a half. [00:33:04] Speaker 02: I just have a couple of points. [00:33:06] Speaker 02: The first one is there's nothing internally inconsistent about Williams. [00:33:11] Speaker 02: Williams says the defendant has no facts that would lead a reasonable person to know that a battery will probably occur. [00:33:19] Speaker 02: That's a perfectly fine interpretation of what it was saying before when it said the defendant has no facts sufficient to [00:33:29] Speaker 02: sufficient to create the situation. [00:33:31] Speaker 02: I don't remember exactly the language where a battery would likely occur. [00:33:35] Speaker 02: So if you look at the paragraph that's the block quoted in our reply brief, that's where Williams states it's holding. [00:33:42] Speaker 02: And it says two complementary things. [00:33:45] Speaker 02: One thing is the defendant doesn't have to be subjectively aware of the risk, which is exactly what Borden says you need for recklessness. [00:33:51] Speaker 02: Instead, you look at it from an objective standpoint and say, [00:33:55] Speaker 02: Would a reasonable person have been aware of the risk? [00:33:58] Speaker 02: That moves the needle closer to negligence than recklessness. [00:34:01] Speaker 02: I understand that Williams says criminal negligence isn't enough. [00:34:05] Speaker 02: But wherever we are, we're less than recklessness. [00:34:08] Speaker 02: Because recklessness requires subjective awareness of the risk. [00:34:12] Speaker 02: So the government talked a lot about the prior cases, Calatano and all that sort of thing. [00:34:17] Speaker 02: None of those cases matter. [00:34:19] Speaker 02: Williams is from the California Supreme Court. [00:34:21] Speaker 02: It's their last word on it. [00:34:23] Speaker 02: I don't think it's confusing. [00:34:25] Speaker 02: The California Supreme Court has not had to step back in and re-explain it again. [00:34:30] Speaker 02: So I think if you look at that paragraph in the reply brief, which is the clearest statement of its holding, it's obvious that recklessness is not required because the defendant doesn't have to be subjectively aware of the risk. [00:34:43] Speaker 02: And I think that's regardless of whatever the facts underlying Williams are. [00:34:47] Speaker 02: This is the categorical approach. [00:34:49] Speaker 02: You don't look at the underlying facts. [00:34:51] Speaker 02: You're looking at the [00:34:53] Speaker 02: Definition of the crime as set forth by the California Supreme Court. [00:34:59] Speaker 02: Unless the court has further questions. [00:35:03] Speaker 03: Let me ask you, what is it then you would ask us to send it back to do what? [00:35:09] Speaker 02: To vacate the sentence on that issue. [00:35:11] Speaker 02: To vacate the sentence and re-sentence without the base offense level increase for the crime of violence. [00:35:20] Speaker 02: Thank you. [00:35:21] Speaker 04: I have a totally unrelated question. [00:35:24] Speaker 04: So before you were appointed, your client filed an extensive pro se brief, and the order obviously asked you to focus on the rehab issue and whatever else you wanted to address. [00:35:41] Speaker 04: You addressed that crime of violence issue. [00:35:44] Speaker 04: Did your brief amend or supplement [00:35:50] Speaker 04: your client's brief. [00:35:52] Speaker 04: And the real question is, are the other issues, for example, the sufficiency of the indictment, there's a number of other arguments your client made. [00:36:00] Speaker 04: Right. [00:36:00] Speaker 04: Are those superseded by your brief? [00:36:03] Speaker 02: No, no, they're not. [00:36:04] Speaker 02: We were appointed to file a supplemental brief that just addressed additional issues in addition to the ones that he briefed. [00:36:10] Speaker 02: So it's a supplement. [00:36:12] Speaker 02: OK. [00:36:13] Speaker 02: Thank you. [00:36:14] Speaker ?: Thank you. [00:36:15] Speaker ?: Thank you for doing that, too. [00:36:17] Speaker 04: Yes, thank you very much. [00:36:18] Speaker 04: Well, this matter was submitted. [00:36:21] Speaker 04: Another editorial comment. [00:36:24] Speaker 04: I thought the briefs and the arguments today were just super. [00:36:27] Speaker 04: So thank you.