Opposition Brief — Shumsky v. Chein

a,

No. 04-219

In The

Supreme Court of the Gnited States

~¢

v

RICHARD SHUMEKY,

Chief Probation Officer, Los Angeles County,

Petitioner,

V.

EDMUND Y. CHEIN,

Respondent.

5

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

Sd

BRIEF IN OPPOSITION

CHARLES M. SEVILLA

LAW OFFICE OF CHARLES SEVILLA

1010 Second Ave., Ste. 1825

San Diego, CA 92101-49026

Telephone: (619) 232-2222

Attorney for Respondent Chein

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED’

1. May petitioner for the first time assert in this Court

the question of whether 28 U.S.C. § 2254(d). requires a

more deferential form of federal review of Jackson v.

Virginia, 443 U.S. 307 (1979) insufficiency of evidence

claims than dictated by Jackson, when petitioner never

presented that the issue to either the district court or the

Court of Appeal, and neither court ruled on the issue?

2. Is the question of whether AEDPA’s deferential review

standard to Jackson v. Virginia claims worthy of review

when the en banc majority, although not deciding the legal

question because it was not raised, assumed AEDPA’s

deferential standard did apply and accordingly correctly

reviewed the insufficiency questions under that standard

as well as under Jackson?

3. Is petitioner’s claim that the en banc majority inaccu-

rately characterized the state statutory element of materi-

ality itself erroneous given the unbroken line of California

authority defining the materiality element as a statement

that “could probably have influenced the outcome of the

proceedings?”

* Under Rule 15.2, respondent’s Brief in Opposition is to argue

misstatements of law in the petition or deficiencies “based on what

occurred in the proceedings below.” Because petitioner’s issues are

raised for the first time in this Court and premised on inaccurate

statements of California law, respondent poses the questions based on

these deficiencies.

il

TABLE OF CONTENTS

Page

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Argument

1. This Court Does Not Review on Certiorari a

Question Presented by the Petitioner for the

Firat "Tose 20h Tee CS osivcscaccnts ee .

There is no Circuit Split on This Issue...........

Given that the En Banc Opinion Assumed

Without Deciding AEDPA’s Deferential Re-

view Standard Applied to the Case, This

Case Poses No Certiorari Question Worthy of

BUI 6s escxinsannvteanaacntitanieeanaena

The County and the Dissent Err in Stating

4.

the California Definition of “Materiality”.......

COI IIIIOY 6ssanissiinscesisssatinccnyaseinicdeaneanaeeaee

ill

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Adams v. Robertson, 520 U.S. 83 (1997) ....... ccc ceccceccceeeceeee 5

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103

RENAL iA La Ake eae iukd cahioneneasnieccedbusmienianiienonankeeiuaid bihecah 5

Bledsue v. Johnson, 188 F.3d 250 (5th Cir. 1999)............... 8

Bronston v. U.B., 409 U.S. BEB (2G73B). ........0c0.ccsecesesceesesesees 3

Clifford v. Chandler, 333 F.3d 724 (6th Cir. 2003) ............. 8

Delta Airlines v. August, 450 U.S. 346 (1981) ....... ee. 5

Dockins v. Hines, 374 F.3d 935 (10th Cir. 2004)......000...000... 9

Evans v. Luebbers, 371 F.3d 438 (8th Cir. 2004)................. 9

Farrington v. Senkowsi, 214 F.3d 237 (2nd Cir.

As iets hs cain sh ncth Sabsdadehcaah bahlchandssniidnancniicavaeetnesande 8

Hurtado v. Tucker, 245 F.3d 7 (1st Cir. 2001)...........0..0000... 7

Jackson v. Virginia, 443 U.S. 307 (1979)... passim

Johnson v. Bett, 349 F.3d 1030 (7th Cir. 2003)................... 8

Matsushita Electric Industrial Co. v. Epstein, 516

a ical alain d ahd hac ndenhanngeladahanndcenaniiabicninn 5

Ponnapula v. Spitzer, 297 F.3d 172 (2nd Cir. 2002)........... 8

Sams v. Smith, 2003 U.S. App. LEXIS 16086 (6th

ERIE RESIS FPR a Pe Oa 8

Sanford v. Yukins, 288 F.3d 855 (6th Cir. 2002)................. 8

Santellan v. Cockrell, 271 F.3d 190 (5th Cir. 2001)........ 7,8

Sexton v. Kemna, 278 F.3d 808 (8th Cir. 2002).............000... 8

U.S. v. Gaudin, 515 U.S. 506 (1995)... ee eeeeeseeeeeeeee 17

iv

TABLE OF AUTHORITIES — Continued

Page

United States ex rel Petillo v. New Jersey, 400

SI. BAe eae. FPN anicnsacracacsinntnssonaxnnsencreciokenns 3

United States v. Ortiz, 422 U.S. 891 (1975)... .eceeceeeeee eee 6

Weston v. Dormire, 272 F.3d 1109 (8th Cir. 2001)............... 8

Wiggins v. Corcoran, 288 F.3d 629 (4th Cir. 2002).............. 7

Youakim v. Miller, 425 U.S. 231 (1976) ou... eee eens 5

|

STATE CASES

In re Braynard, 199 P.2d S76 (1921)..........c.ccccsscssccecsseesess 14 |

Ba FO TE, Be Be Oe inven nnn nnciccinccecpunsvnciocersecvesees 14

People v. Agnew, 176 P.2d 724 (1947)... eeeeeeeeeees 14 |

People v. Barry, 314 P.2d 531 (1957) ....c.ccesceccsessesseseeseesen 14

People v. Davidson, 38 Cal. Rptr. 660 (1964)... 14 |

People v. DiGicomo, 14 Cal. Rptr. 574 (1961)... 14

People v. Feinberg, 60 Cal. Rptr. 2d 323 (1997)........0000... 17 |

People v. Grider, 19 Cal. Rptr. 41 (1962)... 14 |

People v. Hedgecock, 795 P.2d 1260 (1990) ................. 14,17

People v. Jimenez, 15 Cal. Rptr. 2d 268 (1992)................. 14

People v. Kobrin, 903 P.2d 1027 (1995)... passim

People v. Kriton, 166 P.2d 45 (1946)..................0....00..0s00000 14

People v. Macken, 89 P.2d 174 (1939)... eeeeeseeeeeeee 14

People v. Matula, 342 P.2d 252 (1959) ......... eee 14 |

People v. McRae, 63 Cal. Rptr. 854 (1967) ...c.cssssssssssssseee 14 |

People v. Pierce, 423 P.2d 969 (1967)........ccsecceeeee: 14, 16,17 |

eR a

TABLE OF AUTHORITIES — Continued

Page

People v. Pustau, 103 P.2d 224 (1940)... ee eeeeeeee 14

People v. Rubio, 17 Cal. Rptr. 3d 524 (2004)..........0.... 15, 16

In re Wright, 144 Cal. Rptr. 535 (1978)... eeeeeees 14

STATUTES

ERDF elf ”_ | RRNA RR rencinUn OO NN URSIN ENON NCTOSTEN TS passim

Cal. Porn Cae SOCtiOt 1G ......cccscesscssseccassescccescens 15, 16, 17

STATEMENT OF THE CASE

Respondent Chein filed a habeas petition in the

Central District of California challenging his state convic-

tion for three counts of perjury. Among the issues raised,

respondent Chein asserted that there was insufficient

evidence to support the elements of the perjury offenses

because the evidence could not reasonably support a

finding of guilty beyond a reasonable doubt under Jackson

v. Virginia, 443 U.S. 307, 318 (1979).

The charges stemmed from allegations of perjury over

his credentials in his testimony in a car accident case in

which he testified as a treating physician. Appellant was a

licensed California medical doctor who had successfully

completed a residency at the University of Southern

California in Physical Medicine and Rehabilitation. The

charges were based on his statements about the nature of

his speciality upon completion of his residency, how many

offices he had, and the name of his medical school.

In responding to an Order to Show Cause issued by the

district court, petitioner, Los Angeles County Chief Proba-

tion Officer Shumsky [hereafter referred to as the County,

or petitioner], filed a Return that argued Jackson v. Vir-

ginia was the proper standard for review of the insuffi-

ciency claims, and did not argue that AEDPA’s more

deferential standard applied to petitioner’s Jackson claims.

The Magistrate’s Report and Recommendation [R&R]

reviewed the insufficiency claims under a Jackson uv.

Virginia, 443 U.S. 307 (1979), standard. Although men-

tioning AEDPA’s deferential review standard (A.-59), the

R&R cited Jackson as the controlling rule (A.-60), and

then reviewed de novo each count and concluded: “Thus,

this Court cannot conclude that no rational trier of fact

could have found proof of guilt beyond a reasonable doubt.”

A.-68. The R&R was adopted by the district court. A.-77.

Respondent appealed.

Before the three-judge panel in the Court of Appeals,

the County’s position was again that the standard of

review for the insufficiency claims was a straight Jackson

v. Virginia, 443 U.S. 307 (1979), standard.

The three-judge panel majority opinion voided two of

the three convictions for insufficiency and upheld only one

count, the “offices” count. A.-95. Again, the standard used

was Jackson and in upholding the one count, the panel

majority held that “a reasonable juror could conclude that

Chein’s testimony at trial that he only had one office

location was materially false.” A.-94 The dissent agreed

that the two counts should be voided for insufficiency, but

also would have voided the third count for insufficiency of

evidence. A.-109.

SOREN

PT NRE EE SOP ECE

Respondent Chein filed a petition for rehearing and

rehearing en banc, which was granted. One of the issues

raised in the petition for rehearing was the insufficiency

claim to challenge the remaining perjury count. In the

County’s Brief in Opposition to the grant of a rehearing,

the insufficiency argument was not addressed.

Re Ee EY I EE Ce A Rr Re Re een

——

The Court of Appeal granted en banc review. At no

time did the County argue to the en banc court that the

habeas standard of review for insufficiency should be the

other than the straight Jackson v. Virginia, 443 U.S. 307

(1979), standard. That the AEDPA-~Jackson issue was not

raised in any pleadings or decided by the district court or

the panel opinion is noted in the majority en banc opinion.

A.-120. The majority opinion stated that both sides argued

the insufficiency claims should be decided under a straight

- |

3

Jackson standard of review. However, the majority, with-

out deciding the legal issue, applied AEDPA’s more defer-

ential standard and held that under it, or straight

Jackson, the counts were grounded in constitutionally

insufficient evidence.

For the first time in this litigation, petitioner argues

to this Court, contrary to the legal position presented to

the district court and the Court of Appeals, that the

standard for habeas review for an insufficiency of evidence

claim is not straight Jackson, but rather whether the state

court was reasonable in finding the evidence sufficient

under Jackson.

The Circuit majority, which assumed AEDPA applied

and ruled under it (and under a straight Jackson), faith-

fully applied California law of perjury, and found that the

California Court of Appeal unreasonably concluded the

evidence was sufficient. There is no “conflict” of Circuits on

the issue, as the majority opinion’s application of AEDPA

to the issue does not conflict with opinions of other Cir-

cuits.

SUMMARY OF ARGUMENT

Perjury is an offense quite susceptible to selective

prosecution. Seldom will witnesses for the State be subject

to it, no matter how blatantly inconsistent their testimony.

See United States ex rel Petillo v. New Jersey, 400 F. Supp.

1152, 1183 n.16 (D.C.N.J. 1975). The primary safeguard

for errant testimony is cross-examination. See Brénston v.

U.S., 409 U.S. 352, 360 (1973). Here, a sitting judge in a

civil case referred this case for prosecution and then

became the State’s star witness as its perjury expert,

claiming to the jury that alleged discrepancies in respon-

dent’s testimony about his credentials were material

perjury. See A.-131, n.6.

{

To forestall insubstantial selective perjury prosecu-

tions, California law requires that an alleged falsity be

proven material, that is, that the false statement be able

to probably affect the outcome of the case. None of the

three statements in question came close to meeting that

standard.

Petitioner seeks review of a question not decided

below concerning AEDPA review of Jackson claims. But

petitioner is barred from raising this claim because peti-

tioner did not raise it below. In fact, petitioner informed

the federal courts that the Jackson review standard alone

was the proper standard. The Court of Appeal noted this

deficiency and did not decide the question petitioner now

poses. Instead, without deciding the issue, the court

applied AEDPA and Jackson. There is no conflict in the

Circuits on this issue.”

Finally, petitioner criticizes the majority opinion for

using an alleged incorrect California definition of materi-

ality. As will be shown, it is petitioner who has erred as a

solid wall of California cases over the last eighty years

used the definition correctly applied by the majority

opinion.

ad

* Petitioner asserts a conflict, but the cases it cites do not support

the contention. One set of cases applies AEDPA to Jackson claims. The

other cited cases do not discuss the issue (perhaps because, as here, the

State never presented the issue to the federal courts), and simply apply

Jackson. A.-10-11.

ARGUMENT

1. This Court Does Not Review on Certiorari a

Question Presented by the Petitioner for the

First Time in This Court.

A “question presented in [a] petition but not raised in

court of appeals is not properly before us.” Delta Airlines v.

August, 450 U.S. 346, 362 (1981). Although this court has

the power to do so, “ordinarily, this Court does not decide

questions not raised or involved in the lower court.”

Youakim v. Miller, 425 U.S. 231, 234 (1976). As this court

stated in Adarand Constructors, Inc. v. Mineta, 534 U.S.

103 (2001), it does not grant review to decide constitu-

tional questions not raised by the parties or decided in the

case by the lower courts:

“Mindful that this is a court of final review and

not first view,” Matsushita Elec. Industrial Co. v.

Epstein, 516 U.S. 367, 399, 134 L. Ed. 2d 6, 116

S. Ct. 873 (1996) (GINSBURG, J. concurring in

part and dissenting in part), we thus decline to

reach the merits of petitioner’s present challenge.

Petitioner points out that this case presents ques-

tions of fundamental national importance calling

for final resolution by this Court. But the impor-

tance of an issue should not distort the principles

that control the exercise of our jurisdiction. To

the contrary, “by adhering scrupulously to the

customary limitations on our discretion regard-

less of the significance of the underlying issue,

we promote respect ... for the Court’s adjudica-

tory process.” Adams v. Robertson, 520 U.S. 83,

92, n.6, 137 L. Ed. 2d 203, 117 S. Ct. 1028 (1997)

(per curiam) (internal quotation marks omitted).

We also “ensure that we are not tempted to en-

gage in ill-considered decisions of questions not

6

presented in the petition.” Jzumi Seimitsu, supra,

at 34. Jd. at 110-111.

The County, having urged the Jackson standard in

both the district court and appellate courts, and the issue

it now presents not being decided_by those courts, there is

no reason for this Court to alter its practice of declining to

review questions on certiorari not presented to the lower

courts.

For example, in United States v. Ortiz, 422 U.S. 891,

898 (1975), the government attempted to argue a legal

position concerning checkpoint searches that it had not

taken in the lower courts. This Court held: “Examination

of the Government’s brief in the Ninth Circuit indicates

that it did not raise this question below. On the contrary, it

represented to the court that the decision in Bowen would

be ‘determinative of the issues in this case.’ We therefore

decline to consider this issue, which was raised for the

first time in the petitioh for certiorari.”

Similarly, the County argues a legal question (AEDPA

review of Jackson claims) that it not only did not raise

below, but took a position before the lower courts that

straight Jackson was the appropriate standard of review

to resolve the insufficiency questions.

This deficiency did not escape the attention of the

majority en banc opinion. It discussed the failure of the

parties to raise the issue now presented by the County and

noted that such an issue, if considered, would require

pleadings and judicial evaluation of several subissues:

The parties to this case and the original three

judge panel assumed, without analysis, that

Jackson applies as written. There has therefore

been no briefing in this case, and no judicial

7

analysis, concerning the proper intersection of

Jackson and AEDPA, or whether it is § 2254(d)(1)

or § 2254(d)(2) that applies to Jackson substan-

tial evidence review under AEDPA. As will ap-

pear, we would reach the same result in this case

were we to follow Davis and Turner or, instead,

ask whether the California Court of Appeal rea-

sonably applied the Jackson standard. We there-

fore do not consider the question concerning the

impact, if any, of AEDPA on the Jackson stan-

dard. A.-120.

The en banc majority opinion thus did not decide, and

left open, the question of whether AEDPA’s deferential

review standard applies to Jackson claims, and if so,

under which subsections of the statute. However, it con-

cluded that the outcome of its review of the insufficiency

questions in respondent’s case would not be different if

AEDPA’s deferential review standard were applied to the

assessment of the state court of appeal Jackson ruling.

Because the issues the County presents here have

never been briefed below and thus neither the district

court nor the Court of Appeals ruled on the issue, review

should be denied. This Court is not the proper place to

commence review of constitutional issues not raised or

decided in the lower courts.

2. There is no Circuit Split on This Issue.

Petitioner asserts a conflict between Circuits. Pet. 5-7.

There is none. The cases cited do not support the conten-

tion. One set of cases petitioner cites applies AEDPA to

Jackson claims. Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir.

2001); Wiggins v. Corcoran, 288 F.3d 629, 637 (4th Cir.

2002); Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir.

8

2001); Sanford v. Yukins, 288 F.3d 855, 863 (6th Cir. 2002);

Johnson v. Bett, 349 F.3d 1030, 1034 (7th Cir. 2003);

Weston v. Dormire, 272 F.3d 1109, 1112 (8th Cir. 2001).

The other cases cited by petitioner simply do not

discuss the issue. They apply Jackson to deny relief to the

petitioner, but there is no holding in any of them that

AEDPA does not apply. The cases simply don’t mention

AEDPA. See Farrington v. Senkowsi, 214 F.3d 237, 240-

241 (2nd Cir. 2000) (affirming the denial of relief); Bledsue

v. Johnson, 188 F.3d 250 (5th Cir. 1999) (reversing a

district court grant of relief under Jackson); Clifford v.

Chandler, 333 F.3d 724, 728 (6th Cir. 2003) (affirming

denial of relief); Sexton v. Kemna, 278 F.3d 808, 814 (8th

Cir. 2002) (affirming denial of relief by the district court

which concluded the record supported the state court of

appeal’s assessment of the evidence). These are cases

where the State apparently never presented the AEDPA

issue to the federal courts, and the courts simply applied

Jackson. A.-10-11.

However, when the issue has been addressed in each

of these purported “conflict” Circuits (the 2nd, 5th, 6th and

8th), AEDPA was applied to the Jackson claim. See Pon-

napula v. Spitzer, 297 F.3d 172, 180 (2nd Cir. 2002) (“peti-

tioner has failed to demonstrate that the state court’s

finding of sufficient evidence of his intent to commit

larceny amounted to an unreasonable application of

clearly established federal law as required by 28 U.S.C.

§ 2254(d)(1).”) The Fifth Circuit applied AEDPA in Santel-

lan, supra, even though its earlier Bledsue case did not

discuss AEDPA. The Sixth Circuit applied AEDPA to a

Jackson claim in an unpublished ruling, Sams v. Smith,

9

2003 U.S. App. LEXIS 16086 (6th Cir. 2003).’ The Eighth

Circuit also applied AEDPA to a Jackson claim in Evans v.

Luebbers, 371 F.3d 438, 441 (8th Cir. 2004).

Thus, petitioner’s cases show no split of authority on

the issue of AEDPA review of Jackson claims. The instant

case does not present one either. Petitioner has cited no

case where a court has held that AEDPA deference is not

accorded to Jackson habeas claims. The best that can be

said for petitioner’s “conflict” cases is that they merely

reflect instances where AEDPA was not raised, or not

decided.

These cases do show, however, that there are legal

questions on how AEDPA would be applied to a Jackson

claim. Is it a factual issue under 2254(d)(2), or a legal

question one under §(d)(1)? Dockins v. Hines, 374 F.3d 935,

939 (10th Cir. 2004); see A.-120, the en banc opinion noting

the issue. But petitioner, not having raised an AEDPA

issue below, is not entitled to review of it here.

3. Given That the En Banc Opinion Assumed With-

out Deciding AEDPA’s Differential Review Stan-

dard Applied to the Case, This Case Poses No

Certiorari Question Worthy of Review.

The en banc majority opinion found insufficiency of

evidence supporting the three perjury counts under

straight Jackson review as well as by assuming the

AEDPA review standard applied. The opinion specifically

* Under Sixth Circuit Rule 28(g), unpublished decisions may be

cited as authority. Although disfavored, such cases may be cited in the

Sixth Circuit when deemed precedential.

10

reviewed the assessments of the state court of appeal, and

found them unreasonable under AEDPA in finding suffi-

cient evidence under Jackson. See nn.5, 7 and 8 at A.-130,

137, 138.

Thus, the County’s second issue in its petition, which

asks this Court to grant certiorari to assess whether the

state court finding of sufficiency of evidence was a reason-

able application of Jackson is a request for review for

correctness of an AEDPA application to an insufficiency of

evidence question. That is not an issue worthy of the

certiorari of this court especially when the petitioner’s

premise of faulty application of the review standard is

based on its own serious misunderstanding of the Califor-

nia definition of the element of materiality (discussed in

the next section).

Respondent briefly addresses why the evidence was so

clearly insufficient as to make the state findings of suffi-

ciency an unreasonable application of Jackson. 7

As to the specialty count, the State’s doctors testified

that the term “specialty” has several acceptable meanings.

They preferred that a doctor use the term to mean a

discipline in which one is American Medical Association

(AMA) board-eligible after residency training. They also

agreed that the more general AMA-approved definition — a

speciality denoting advanced training in a specific area —

is also an acceptable meaning. A.126. The panel opinion

agreed that this count failed because the debate over Dr.

Chein’s testimony was “semantic hair splitting.”* The en

* The Appendix has inadvertently omitted pages from the panel

opinion where it unanimously found insufficiency on the specialist

count. See A.-92-93. See A.-109.

11

banc majority found insufficiency. It did not have to

address the issue of respondent’s testimony being literally

true (he was a “specialist” under the AMA definition). He

gave accurate testimony on his training in his residency in

Physical Medicine and Rehabilitation at the University of

Southern California, and that he had done no surgery

since finishing that residency. The en banc majority held

that reviewing the complete testimony, there was no

rational way a jury could find material the statement

about his specialty as it could not have influenced the

outcome. A.-127. The thrust of respondent’s testimony was

that the plaintiffs in the auto accident would require

surgery, an opinion that was unquestionably within his

expertise, as his mentor, Dr. Caillet, testified. A.-128.

In the context of respondent’s testimony about his

credentials before the jury, the difference between the

State’s version of truth and what respondent testified was

so minor as to make a finding that it could probably have

influenced the result irrational, and render unreasonable

an appellate court finding of sufficiency. This result is even

more true when factored into the sufficiency calculus is

the prosecution position that no accident producing inju-

ries occurred. This renders even more insignificant the

alleged materiality of respondent’s specialty statement.

See A.-129-130.

As to the “offices” count, as the majority opinion

states, the only witness on materiality was Judge Altman

and the thrust of his testimony was his concern that if a

doctor practices out of several offices, he may be the type

who does not actually see patients. As the majority opinion

states, no rational jury could find that a doctor who

practices out of four locations in Los Angeles County is

thereby unlikely to have seen his patients. A.-136. The

12

California Court of Appeal conclusion finding Jackson

sufficiency is unreasonable because it did not assess Judge

Altman’s materiality testimony on the issue. A.-137, n.7.

As to the interrogatory count, the panel opinion

unanimously found this count insufficient because “[t]here

is no evidence in the record that the location of Chein’s

medical school was material to any of the issues in the

case.” A.-94. The en banc majority agreed that in a fraud

and contract dispute between business associates, such a

difference in school description in an interrogatory could

not have influenced the outcome of the case. (The en banc

dissent elected not to address this count. A.-150.)

Assessing how an interrogatory answer could affect

the outcome of a lawsuit which the plaintiff dismissed (RT

1066-1067; ER 158-159) without it progressing even to the

deposition phase is difficult. Respondent had written in

answer to the question of where he obtained his education

as: “The American University School of Medicine, Florida.”

The complete answer would have been: “American Univer-

sity of the Caribbean School of Medicine,” adding that all

records for American students, such as respondent, were

kept at the medical school’s Coral Gables, Florida office.

RT 931-932; ER 148-149. The plaintiff recipient of the

interrogatory did not deem the information material

enough to investigate it either by contacting Florida school

officials or simply contacting the California Medical Board.

Had he done so, he would have obtained complete informa-

tion. RT 974; ER 150.

Had the case progressed in discovery to deposition and

trial and had respondent been asked about it, he would

have been able to explain that if one wanted his records

for attendance at the medical school, one would need to

13

contact the school’s office in Florida. Further, as the

plaintiff’s attorney testified, this was a lawsuit between

the plaintiff chiropractor and respondent doctor who had

successfully completed his residency at U.S.C. He testified,

“[t]he source of the dispute primarily concerned what we

believed to be an unfair accounting over patient files... . ”

RT 1025; ER 151. It was an issue of, “Who owes what to

whom.” RT 1047; ER 155. When asked, even plaintiff’s

counsel could not articulate that it would probably have

effected the outcome of the case. RT 1047; ER 155.

Finally, as the majority opinion correctly states,

materiality is an important element of a perjury charge in

California. Without it, mere falsity could be charged as

perjury. That is not California law. Without a showing that

the falsity could probably affect the outcome of the pro-

ceeding, “the crime would be false swearing rather than

perjury.” People v. Kobrin, 903 P.2d 1027, 1033 (1995).

4. The County and the Dissent Err in Stating the

California Definition of “Materiality.”

The County’s petition erroneously criticizes the en

banc majority for purportedly misconstruing the Califor-

nia definition of the materiality element of perjury. The

County then applies its erroneous definition of the materi-

ality element to argue that each count of conviction was

supported by sufficient evidence of materiality.

It is the County that has erred.° The County informs

the Court that the California definition of the perjury

* The dissent makes the same error in the lengthy footnote

criticizing the majority for (accurately) describing the California

definition of materiality. See A.-142-144, n.2. See also A.-149, the

(Continued on following page)

14

materiality element is when a false statement “might”

have affected the verdict. Pet. 16. The County then pro-

ceeds to argue the sufficiency of each count under its

erroneous “might have” standard. Jd. at 17, 18, 20. The

County has misstated California law.

California statutory and case law defines materiality

just as the en banc opinion stated and as California courts

have uniformly held: “The test is whether the statement

could probably have influenced the outcome of the proceed-

ings.” People v. Pierce, 423 P.2d 969, 975 (1967) (italics

added); accord In re Imbler, 387 P.2d 6, 11 (1963); People v.

Matula, 342 P.2d 252, 254 (1959); People v. Hedgecock, 795

P.2d 1260, 1265 (1990); People v. Jimenez, 15 Cal. Rptr. 2d

268, 272-273 (1992); In re Wright, 144 Cal. Rptr. 535, 549,

n.5 (1978); People v. McRae, 63 Cal. Rptr. 854, 863 (1967);

People v. Davidson, 38 Cal. Rptr. 660, 662 (1964); People v.

Grider, 19 Cal. Rptr. 41, 43 (1962); People v. DiGicomo, 14

Cal. Rptr. 574, 581 (1961); People v. Barry, 314 P.2d 531,

541 (1957); People v. Agnew, 176 P.2d 724, 729 (1947);

People v. Kriton, 166 P.2d 45, 48 (1946); People v. Pustau,

103 P.2d 224, 227 (1940); People v. Macken, 89 P.2d 174,

179 (1939); In re Braynard, 199 P.2d 576, 578 (1921).

Against this wall of authority, petitioner cites no case

except for the unpublished court of appeal discussion in

this case. Pet. 15-16. This, too, is error. Both the trial court

and the court of appeal used the correct definition of

materiality. The majority en banc opinion was correct in

its characterization of California law.

dissent’s doubting that the Judge Altman testimony on the office count

would sustain materiality, but concluding the false statement “might

have” been used to affect the proceeding. A.-149-150. Again, the “might

have” standard is wrong.

ane at eel

15

The trial court twice instructed the jury pursuant to

the pattern CALJIC [California Jury Instructions, Crimi-

nal] instruction (noted at A.-127) under the “could proba-

bly” definition of materiality: 1) “A false statement is

material if it could probably have influenced the outcome

of the proceedings in which it was uttered.” RT 1286. 2) “A

false statement is material if it could probably have

influenced the outcome of the proceedings in which it was

uttered.” RT 1291.

It was no surprise then that the California Court of

Appeal, in its unpublished opinion in respondent Chein’s

appeal, also used the “could have” standard. The state

court ruled on the first two counts that “[t]he jury could

reasonably conclude defendant’s testimony was material to

the outcome ...” and “[t]he jury could reasonably conclude

this false testimony was material to the outcome. .. .” A.-19.

On the last count, the state trial court told the jury:

“[t]he jurors could conclude defendant’s interrogatory

answer was material to the outcome of that case... .” It

also said: “[t]he false interrogatory answers ... might

have been used to affect the proceeding. (§ 123;° see People

v. Kobrin, supra, 11 Cal. 4th at p. 420.)” A.-20.

Finally, the California Court of Appeal, as recently as

August 18, 2004, reiterated the “could have influenced”

definition of materiality for perjury cases. People v. Rubio,

17 Cal. Rptr. 3d 524 (2004). The Court of Appeal noted the

* Referring to Cal. Penal Code section 123, which reads: “it is no

defense to a prosecution for perjury that the accused did not know the

materiality of the false statement made by him; or that it did not, in

fact, affect the proceeding in or for which it was made. It is sufficient

that it was material, and might have been used to affect such proceed-

ing.” Emphasis added.

16

en banc opinion in this case, finding it to have correctly

assessed the California definition of materiality. Id. at 528.

Rubio reiterated the California Supreme Court definition

from People v. Pierce, supra, and other cases, to hold that

the correct definition of a false material statement is one

that “could probably have influenced the outcome” of the

proceeding in which it is uttered. Jd. at 528.

For petitioner to claim, relying on the en banc dissent,

that “the en banc majority’s definition of ‘materiality’

rested upon a complete misreading of prior state cases”

(Pet. 16, n.7), is itself a gross misreading of California case

law. As the recent Rubio case reiterates, the “could proba-

bly” standard is the correct definition in California. As

Rubio notes, the “might have” language is the second

prong of California Penal Code section 123’s requirement

of proof for the offense of perjury, and the decision in

Kobrin referenced the “might have” second component of

Penal Code section 123 perjury requirement. It did not

establish a new definition of materiality.

We do not think that Kobrin requires a dif-

ferent result. As authority for its statement that

materiality means “whether the statement or

testimony ‘might have been used to affect [the

proceeding in or for which it was madel],’” the

Supreme Court cited Pierce and section 123. In

our view, neither Pierce nor section 123 supports

such a broad definition of materiality. Pierce de-

fines materiality as a false statement that could

probably influence the outcome of the proceeding.

Section 123 states a false statement must be “ma-

terial, and might have been used to affect” the pro-

ceeding. (Italics added.) The use of the conjunction

“and” in section 123 denotes dual requirements: (1)

The false statement must be material, and (2) the

17

false statement must have been used in a fashion

that might have affected the proceeding. We do

not believe the sentence should be read as pro-

viding a definition for material.’ Jd. at 528.

Thus, California courts before, during and after

respondent Chein’s trial have ruled that the materiality

element definition requires proof that a statement “could

have influenced” the outcome of the case.

The County, having assessed the counts of conviction

with its erroneously broad “might have influenced” defini-

tion of materiality, has failed to cite the extensive case law

correctly defining materiality and the dual requirements

of Penal Code section 123. The en banc majority was quite

correct in its recapitulation of the California law.

Given that the sufficiency of evidence issue petitioner

raises is premised on its erroneous definition of the mate-

riality element of the offense, it hardly makes a case for

error, much less an issue worthy of review.

ie

v

" People v. Kobrin, 903 P.2d 1027(1995), held that materiality was a

question for the jury under the guidance of this Court’s decision in U.S.

v. Gaudin, 515 U.S. 506 (1995), and People v. Hedgecock, supra. People

v. Feinberg, 60 Cal. Rptr. 2d 323 (1997), relied on by the en banc

dissent, is a case where no definition of materiality was given by the

trial court and the appellate court merely noted the Kobrin quote and

the Pierce definition. Neither case “defined” materiality, as the dissent

erroneously suggests. A.-142-143, n.2. Kobrin, for example, merely cited

the “might” language of Penal Code section 123 and then cited to its

own opinion stating the “could have” definition in People v. Pierce,

supra.

18

CONCLUSION

It is respectfully requested that the County’s petition

for certiorari be denied.

September 13, 2004 Respectfully submitted,

CHARLES M. SEVILLA

LAW OFFICE OF CHARLES SEVILLA

Attorney for Edmund Chein