FISHER, Circuit Judge:
This appeal requires us to decide when a person arrested for an infraction may be taken into custody under California law. California Penal Code § 853.5 provides three narrow grounds for the nonrelease of a person arrested for an infraction. California Penal Code § 853.6(i) provides 10 broader grounds for the nonrelease of a person arrested for a misdemeanor. The defendants argue — and the district court ruled — that the grounds for custodial arrest specified in § 853.6(i) apply not only to misdemeanors but also to infractions. We disagree. Consistent with decisions of the California Court of Appeal and the statute's plain language, we hold that Penal Code § 853.5 provides the exclusive grounds for custodial arrest of a person arrested for an infraction. We therefore vacate the judgment in favor of the defendants on the plaintiff's state law false arrest claim and remand for further proceedings.
In 2000, Erris Edgerly was standing by himself inside a playground at the Martin Luther King/Marcus Garvey Housing Cooperative in San Francisco, where he was not a resident. The playground was surrounded by a fence and had "No Trespassing" signs posted at every entrance. Two San Francisco Police Department officers, John Conefrey and David Goff, arrested Edgerly for trespassing. The officers conducted a pat-down search, then transferred Edgerly to the Park Police Station, where they performed an additional search. The search did not reveal any contraband and Sergeant Frederick Schiff, the police supervisor on duty at the time, authorized the officers to issue Edgerly a citation for trespass and release him. Edgerly was cited and released. Edgerly was not prosecuted for trespass or any other offense.
Edgerly filed this 42 U.S.C. § 1983 action against Goff, Conefrey, Schiff and the City and County of San Francisco, alleging that Goff and Conefrey unlawfully arrested and searched him in violation of the Fourth Amendment, and that Schiff and the City were liable for the officers' unconstitutional actions. Edgerly also asserted various state tort claims, including, as relevant here, claims for false arrest and unlawful search.
On appeal, we held that the officers lacked probable cause to arrest Edgerly under § 602(l) but that probable cause for an arrest existed under § 602.8. See Edgerly v. City & Cnty. of S.F., 599 F.3d 946, 954 (9th Cir.2010).
Id. at 959 (alterations in original but last ellipsis added).
The district court agreed with the defendants that "these ten exceptions from section 853.6 are incorporated into section 853.5." In support of this conclusion, the district court cited People v. Arnold, 58 Cal.App.3d Supp. 1, 132 Cal.Rptr. 922, 925 n. 2 (1976), and California Criminal Procedure § 3:58 (2010-11 ed.).
Having decided that § 853.6(i) applies to infractions, the district court permitted three of § 853.6(i)'s grounds for nonrelease to be submitted to the jury. See Cal.Penal Code § 853.6(i)(4), (7).
The district court's interpretation of state law is reviewed de novo. See Lahoti v. Vericheck, Inc., 636 F.3d 501, 505 (9th Cir.2011).
Edgerly was arrested for trespass under Penal Code § 602.8. A first or second offense under § 602.8 is an infraction. See Cal.Penal Code § 602.8(b). Penal Code § 853.5(a) governs when a person arrested for an infraction can be taken into custody. It provides:
Cal.Penal Code § 853.5(a) (sentence numbering added).
By its express terms, § 853.5(a) specifies only three situations in which custodial arrest is permitted for an infraction: (1) the arrestee refuses to sign a written promise to appear; (2) the arrestee is unable to produce satisfactory identification; or (3) the arrestee refuses to provide a thumbprint or fingerprint.
At the same time, however, § 853.5(a) also expressly incorporates the procedures for release applicable to misdemeanor arrests. Section 853.5(a) thus incorporates, at least in part, § 853.6. The question presented here is whether § 853.5(a) incorporates all of § 853.6 — including its grounds for nonrelease in § 853.6(i) — or only some of § 853.6. The defendants argue that § 853.5(a) incorporates all of § 853.6, including § 853.6(i), whereas Edgerly argues
"In a case requiring a federal court to apply California law, the court must apply the law as it believes the California Supreme Court would apply it." Kairy v. SuperShuttle Int'l, 660 F.3d 1146, 1150 (9th Cir.2011) (internal quotation marks omitted). In the absence of a controlling California Supreme Court decision, "we follow decisions of the California Court of Appeal unless there is convincing evidence that the California Supreme Court would hold otherwise." Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 889 (9th Cir.2010).
Here, there are two California Court of Appeal decisions on point, and each supports Edgerly's position. In In re Rottanak K., 37 Cal.App.4th 260, 43 Cal.Rptr.2d 543 (1995), the court of appeal stated:
Id. at 552-53 (emphasis added). Similarly, in People v. Williams, 3 Cal.App.4th 1100, 5 Cal.Rptr.2d 59 (1992), the court of appeal stated:
Id. at 61 n. 1 (emphasis added). Notably, although Williams cited § 853.5 and § 853.6(a), it did not cite § 853.6(i). Each of these decisions said that § 853.5(a), not § 853.6(i), provides the exclusive grounds for nonrelease of a person arrested for an infraction. They make clear that § 853.6(i) does not apply to infractions.
We recognize that Rottanak K. and Williams conflict with People v. Arnold, 58 Cal.App.3d Supp. 1, 132 Cal.Rptr. 922, 925 n. 2 (1976), which stated that § 853.6(j) — now § 853.6(i) — applies to infractions as well as misdemeanors. Arnold, however, is a decision of the appellate department of the superior court, which is inferior to the California Court of Appeal and the California Supreme Court. See Snukal v. Flightways Mfg., Inc., 23 Cal.4th 754, 98 Cal.Rptr.2d 1, 3 P.3d 286, 300 (2000). The appellate department's decisions are not binding on the California Court of Appeal, see Carter v. Cohen, 188 Cal.App.4th 1038, 116 Cal.Rptr.3d 303, 311-12 (2010); Worthington v. Cal. Unemployment Ins. Appeals Bd., 64 Cal.App.3d 384, 134 Cal.Rptr. 507, 510 (1976), and we do not follow decisions of the appellate department when, as here, they conflict with decisions of the California Court of
As noted, "we follow decisions of the California Court of Appeal unless there is convincing evidence that the California Supreme Court would hold otherwise." Carvalho, 629 F.3d at 889. Here, we find no evidence that the California Supreme Court would depart from these decisions. On the contrary, California's rules of statutory construction strongly support Rottanak K. and Williams' construction of § 853.5(a).
Under California law, "our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute." Martinez v. Combs, 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259, 268 (2010) (alteration omitted). "In this search for what the Legislature meant, the statutory language itself is the most reliable indicator, so we start with the statute's words, assigning them their usual and ordinary meanings, and construing them in context." Id. (alteration and internal quotation marks omitted). "If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs." Id. "On the other hand, if the language allows more than one reasonable construction, we may look to such aids as the legislative history of the measure and maxims of statutory construction. In cases of uncertain meaning, we may also consider the consequences of a particular interpretation, including its impact on public policy." Id.
The defendants' statutory construction argument relies on the first sentence of § 853.5(a). This sentence says:
Cal.Penal Code § 853.5(a) (emphasis added). As the defendants point out, this language incorporates "procedures ... for... release" governing misdemeanors and makes them applicable to infractions, except as otherwise provided by law. The defendants argue that the grounds for nonrelease specified by § 853.6(i) are "procedures for release" and that they are therefore incorporated by § 853.5(a). We find this argument unpersuasive.
First, giving the phrase "procedures for release" its natural and ordinary meaning, one would not generally understand that term to extend to grounds for nonrelease. Procedures for release and grounds for nonrelease appear to constitute two different, albeit related, subjects. There is, therefore, nothing in § 853.5(a)'s plain language to suggest that the legislature intended to incorporate § 853.6(i) in the first instance.
Second, even if § 853.6(i)'s grounds for nonrelease could be considered release procedures (and, hence, potentially subject to incorporation), the first six words of § 853.5(a) — "Except as otherwise provided by law" — would bar that result. Incorporating § 853.6(i) into § 853.5(a) would conflict with § 853.5(a) itself, which specifies in its fifth and final sentence only three grounds for nonrelease for a person arrested for an infraction. The grounds for nonrelease specified in § 853.5(a) would therefore control.
Third, it is a general rule of statutory interpretation that "a statutory provision containing a specific enumeration shall take precedence over another
Fourth, "[i]t is a settled principle of statutory construction, that courts should strive to give meaning to every word in a statute and to avoid constructions that render words, phrases, or clauses superfluous." In re C.H., 53 Cal.4th 94, 133 Cal.Rptr.3d 573, 264 P.3d 357, 362 (2011) (internal quotation marks omitted). If, as the defendants argue, § 853.6(i) determines when a person arrested for an infraction can be taken into custody, then § 853.5(a)'s fifth sentence — "Only if the arrestee refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprint or fingerprint may the arrestee be taken into custody" — serves no purpose. Under Edgerly's reading, by contrast, every word in § 853.5(a) is given meaning and no words are rendered superfluous. The first sentence incorporates § 853.6's release procedures (but not its grounds for nonrelease) and the fifth sentence specifies the grounds for nonrelease of a person arrested for an infraction.
Finally, the defendants' interpretation contradicts not only California case law and the statute's plain language but also the leading treatise on California law. Witkin explains that "[a] person arrested for an infraction is subject to the release procedure specified in P.C. 853.6." 4 B.E. Witkin, California Criminal Law § 57, at 299 (4th ed. 2012) (emphasis added). When it comes to grounds for nonrelease, however, Witkin states that § 853.6(i) governs misdemeanors and § 853.5(a) governs infractions, as Edgerly argues. See id. § 61, at 301-03. According to Witkin: "Except as specified in Veh. C. 40302, 40303, 40305, and 40305.5 ..., a person arrested for an infraction may be taken into custody only if he or she refuses to present satisfactory evidence of identity or refuses to sign the promise to appear. Otherwise, the person must be released. (P.C. 853.5.)" Id. at 302-03 (emphasis added); accord L. Levenson, California Criminal Procedure §§ 3:59, 3:64 (2012-2013 ed.) (same).
In sum, we find no convincing evidence that the California Supreme Court would not follow Rottanak K. and Williams. Consistent with those decisions, the statute's plain language, the rule against superfluity and other persuasive authority, we hold that Penal Code § 853.5 provides the exclusive grounds for custodial arrest of a person arrested for an infraction.
We reject Edgerly's remaining contentions. First, although his argument to the contrary is understandable, we hold that the district court did not violate the law of the case doctrine or the rule of mandate by submitting Edgerly's false arrest claim to the jury. See United States v. Thrasher, 483 F.3d 977, 981 (9th Cir.2007) ("For the [law of the case] doctrine to apply, the issue in question must have been decided explicitly or by necessary implication in the previous disposition."); Hall v. City of L.A., 697 F.3d 1059, 1067 (9th Cir.2012) ("[T]he rule of mandate allows a lower court to decide anything not foreclosed by the mandate."). Second, Edgerly has not shown that the district court's error on the false arrest claim tainted the jury's finding that he was not subjected to a strip search. See GCB Commc'ns, Inc. v. U.S.S. Commc'ns, Inc., 650 F.3d 1257, 1262 (9th Cir.2011) ("We review evidentiary rulings for abuse of discretion, but will not reverse those unless it is more probable than not that an error, if any, tainted the outcome."); Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir.2009) ("An error in instructing the jury in a civil case requires reversal unless the error is more probably than not harmless."). The judgment on Edgerly's unlawful search claims therefore stands.
We affirm judgment in favor of the defendants on Edgerly's unlawful search claims. We vacate judgment in favor of the defendants on Edgerly's state law false arrest claim and remand for further proceedings. Costs of appeal are awarded to Edgerly.
Cal.Penal Code § 602.8(a)-(b).
Cal.Penal Code § 853.5(a).
Cal.Penal Code § 853.6(i).
The jury answered each of these questions in the affirmative.
