Jul. 20, 2021
A five-justice majority of the California Supreme Court recently held that appellate courts owed no deference to a trial court’s finding that a person seeking to overturn his conviction was not credible when declaring that he would not have entered a plea had he properly understood the immigration consequences of doing so, because that finding was based on “written declarations and other documents” rather than live witnesses. Will there be a franchise?
In "Jurassic Park," the chaotician Ian Malcolm expressed shock and dismay upon learning that the park's geneticists had crossed a new boundary by resurrecting dinosaurs, decrying that they had been "so preoccupied with whether or not they could, they didn't stop to think if they should."
In People v. Vivar, 11 Cal. 5th 510 (2021), a five-justice majority of the California Supreme Court held that appellate courts owed no deference to a trial court's finding that a person seeking to overturn his conviction was not credible when declaring that he would not have entered a plea had he properly understood the immigration consequences of doing so, because that finding was based on "written declarations and other documents" rather than live witnesses. Id. at 527-28. Justice Carol Corrigan and Chief Justice Tani Cantil-Sakauye dissented, arguing that the majority crossed a boundary by departing from the traditional rule deferring to all factual findings made by a trial court. Id. at 537-41.
Will Vivar's new creation stay in its paddock?
Let us first define the boundary.
Traditionally, questions reviewed by appellate courts fall into one of three categories: (1) questions of law, (2) questions of fact, or (3) mixed questions of law and fact.
Questions of law call upon an appellate court to decide what the law is. Appellate courts do not defer to a trial court's rulings on questions of law, and thus employ the nondeferential "de novo" standard of review. People v. Waidla, 22 Cal. 4th 690, 730 (2000). Why? Because appellate courts have "'several'" "'[s]tructural'" "'advantages over trial courts in deciding questions of law'" -- chiefly, they have more time to consider such questions and they sit in three- or seven-judge panels (and multiple heads are better than one). People v. Louis, 42 Cal. 3d 969, 986 (1986), superseded on other grounds, People v. Mickey, 54 Cal. 3d 612 (1991); People v. Haworth, 50 Cal. 4th 372, 384 (2010). De novo review also allows appellate courts to speak more freely and thus unify precedent. United States v. Ornelas, 517 U.S. 690, 697-98 (1996).
Questions of fact call upon an appellate court to review the trial court's findings regarding "historical" facts (that is, what happened) and questions of credibility. People v. Cromer, 24 Cal. 4th 889, 900 (2001); Haworth at 384. Appellate courts generally defer to a trial court's findings of fact, and thus employ the deferential "substantial evidence" standard of review. Haworth at 384. Under this standard, a finding of historical fact must be affirmed unless, when the record is viewed in the light most favorable to that finding, there is no "reasonable, credible evidence" to permit a "reasonable trier of fact" to make that finding, People v. Barnwell, 41 Cal. 4th 1038, 1052 (2007); In re George T., 33 Cal. 4th 620, 630-31 (2004), and a credibility finding cannot be "reevaluat[ed]" and must be affirmed unless the content of the witness's testimony was "physically impossible" or its truth or falsity evident without resort to inferences or deductions, People v. D'Arcy, 48 Cal. 4th 257, 293 (2010); People v. Mayberry, 15 Cal. 3d 143, 150 (1975). Importantly, this deference traditionally applies "whether the trial court's [factual finding] is based on oral testimony or declarations." Shamblin v. Brattain, 44 Cal. 3d 474, 479 (1988); Haraguchi v. Superior Court, 43 Cal. 4th 706, 711 (2008).
Why this level of deference to a trial court's factual findings? The answer is twofold. First, trial courts -- at least vis-à-vis appellate courts -- "are in a better position" to "evaluate and weigh the evidence" and "to assess witness credibility." Haraguchi at 713; Haworth at 385. Second, tasking the trial courts with making factual findings relieves appellate courts of "the burden of a full-scale independent review and evaluation of the evidence," thereby "conserving" their time for the legal issues "that appellate courts ... are best situated to decide." Louis at 986; Haworth at 385.
Mixed questions of law and fact "concern the application of the rule to the facts and the consequent determination whether the rule is satisfied." Haworth at 384. Whether appellate courts will defer to a trial court's ruling on a mixed question depends upon whether it is "predominantly legal" (that is, when the question "requires a critical consideration, in a factual context, of legal principles and their underlying values") or "predominantly factual" (that is, when the question turns on "the application of the fact-finding tribunal's experience with the mainsprings of human conduct" or "human affairs"). Crocker Nat'l Bank v. City & County of San Francisco, 49 Cal. 3d 881, 888 (1989); Louis at 987; Waidla at 730-31. Appellate courts review the former independently, and the latter solely for substantial evidence. Haworth at 385; Crocker at 888.
At issue in Vivar was a petition to vacate a conviction under Penal Code Section 1473.7 due to the petitioner's failure to understand the immigration consequences of his plea. It was undisputed that the petitioner was not given correct immigration advice, so his entitlement to relief turned on whether he was prejudiced by that omission -- that is, whether it was "'reasonably probable' that [the petitioner] would not have pleaded guilty" if he "had correctly understood" the immigration consequences of his plea. Vivar at 521, 528-29. Presented only with written declarations, the trial court found no prejudice because it found the petitioner had been more concerned with receiving drug treatment than with immigration consequences. Id. at 521.
The Vivar majority held that the trial court's prejudice finding was not entitled to deference on appeal because it was not "based on the trial court's own observations." Vivar at 527-28. In addition to the attorney general's concession on this point, the majority cited a number of reasons for this holding, including that (1) prejudice is a mixed question that is predominantly legal, (2) even if prejudice was a question of fact, a trial court is in "no better position" to evaluate a witness's credibility where, as here, the witness did not testify in person and hence there was nothing to observe, and (3) appellate courts follow a similar rule when evaluating the factual findings of referees in habeas cases filed originally in appellate courts. Id. at 524-528.
The dissenters disagreed with the majority's view of the issue for three reasons: (1) the question under review was what had subjectively motivated the petitioner's plea, which was a question of fact rather than a mixed question of law and fact; (2) the traditional rule of deference applicable to questions of fact applies even when the evidence is documentary, and for good reason -- namely, because disregarding this deference empowers the "reviewing court [to] assume the role of factfinder," which leaves appellate courts less time to focus on issues of law; and (3) the analogy to habeas is inapt because a referee makes recommendations to help the appellate court make factual findings of its own, while this case involves appellate review of a trial court's factual findings. Id. at 535-39.
Obviously, the majority view prevailed and its new rule -- that a question of subjective intent is to be viewed as a mixed question that is entitled to no deference if based on documentary evidence -- is now the law.
Vivar purported to confine its new rule to review of Section 1473.7 petitions. Id. at 527 n.7.
But just as the plan to keep the "Jurassic Park" dinosaurs from breeding did not stop them from doing so because, in Malcolm's words, "life ... finds a way," will Vivar's reinvigorated role for appellate courts -- and, more importantly, the logic animating it -- "find a way" outside of the paddock Vivar purported to build around it?
Will it affect resentencing proceedings under Penal Code Section 1170.95? Right now, appellate dockets are full of appeals under that statute, which retroactively eliminates vicarious liability for murder. In many of those appeals, the trial court conducted an evidentiary hearing and independently found, beyond a reasonable doubt, that the defendant would be found guilty under a still-valid theory -- and did so based on the documents in the "record of conviction" and without hearing testimony. Does Vivar's logic apply here and empower (or even obligate) appellate courts to independently review the evidence in those cases? What about the legion of similar retroactive resentencing bills pending in our Legislature, such as Senate Bills 81, 300, 333, 775 and Assembly Bills 1259 and 1509?
"Jurassic Park" spawned several sequels. What remains to be seen is if Vivar's logic will spawn its own franchise.