Unpublished Disposition, 922 F.2d 844 (9th Cir. 1991)

MEMORANDUM^** 

Stephen Chi-Sen Li was convicted in Municipal Court of two violations of the Los Angeles County Health Code. After an inspection of Li's building in April 1985 the County Health Department sent him a report that identified numerous violations and gave him thirty days to comply. In June 1985, the Health Department again inspected and found that none of the violations had been corrected. The Department proceeded directly to a criminal prosecution, without an administrative hearing.

At Li's jury trial, the health inspector and his supervisor testified that Li's building had a corroded bathtub and a non-operating stove exhaust fan. They also testified that no written policy regarding administrative hearings existed. The jury was instructed that it did not need to find guilty knowledge or intent to find Li guilty; and it returned a verdict finding him guilty of failing to maintain bathrooms in good repair and failing properly to vent a gas range. He was sentenced to probation.

Li unsuccessfully appealed his conviction. He then filed a petition for writ of habeas corpus in state court which was denied, and his subsequent state court appeals were also denied. He next filed a habeas corpus petition in federal court; because he had failed to exhaust state remedies on the issue of ineffective assistance of counsel, that claim was severed and only the remaining issues were considered. After exhausting state remedies on the ineffective assistance issue, Li filed a second federal habeas corpus petition. The district court denied both petitions and the two cases have been consolidated on appeal. The denial of a petition for habeas corpus is reviewed de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). We affirm both decisions.

* Li challenges the trial court's jury instruction that violation of the Health Code is a strict liability crime. To the extent that Li is challenging the trial court's interpretation of the Health Code, he is raising an issue of state law, which may not be considered in a petition for habeas corpus. 28 U.S.C. § 2254(a). Li's only federal claim is that his conviction violated due process because it was based on strict liability.

The mere fact that a criminal law has no requirement of intent does not make it unconstitutional. In United States v. Freed, 401 U.S. 601, 607-10 (1971), the Court upheld a statute requiring registration of hand grenades even though the statute required no showing of scienter, noting: "This is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Id. at 609. See also Morissette v. United States, 342 U.S. 246, 255 (1952) (recognizing that strict liability is often imposed for "public welfare offenses," those offenses that are "in the nature of neglect where the law requires care, or inaction where it imposes a duty").

The violations at issue here are public welfare offenses. Li failed to maintain his rental property as specified by the Health Code and for that the County chose to impose criminal penalties. He argues that strict liability is improper in his case because he was not in a position to prevent the harm and the penalty was not relatively small. Yet he was the owner of the property and was therefore in a position to keep the premises in reasonable repair. Failing to maintain bathrooms in good repair and failing to have adequate ventilation do not require daily or weekly inspections, as Li asserts; they simply require occasional inspections that are not overly burdensome to tenants. Also, the penalty here was relatively small. The violations were charged as misdemeanors, and Li was not required to serve jail time.¹  Under the circumstances, Li "would hardly be surprised to learn" that he needed to inspect his property before the Health Department came to inspect. See Freed, 401 U.S. at 609.

II

Li also argues that his conviction is unconstitutional because he was not given adequate notice and an opportunity to comply. "There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.... On the other hand,.... [e]ngrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges." Lambert v. California, 355 U.S. 225, 228 (1957) (striking down a law requiring felons to register with the city within five days).

Li was given adequate notice. That the April report did not mention the specific violations for which he was convicted did not deprive him of the required notice or opportunity to comply. The report should have moved Li to inspect the rest of his property for instances of disrepair since he knew the property would be subject to health inspection and he knew that maintaining the bathrooms was a requirement of the Health Code. Thus, Li was put on sufficient notice to comply with or defend against charges of Health Code violations.

III

Li argues that the failure to provide an administrative hearing as required by the Health Department Manual violated his due process rights. An administrative agency's violation of its own regulations does not in itself constitute a due process violation. United States v. Caceres, 440 U.S. 741, 752 (1979).

Nor has Li shown that he has been deprived of any liberty without due process of law. He was, of course, deprived of liberty when he was ultimately placed on probation, but that only occurred after he was afforded a full criminal trial. The Constitution provides no liberty interest in not having criminal proceedings brought without an administrative hearing. The County did not create any additional liberty interest by establishing a provision for administrative hearings. At most, it created an expectation of process. Yet, " [p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement." Olim v. Wakinekona, 461 U.S. 238, 250 (1983). The only substantive interest here was not to face criminal penalties, but that interest was fully protected by the criminal trial. Accordingly, Li was not deprived of liberty without due process of law.

IV

Li contends that his constitutional rights were violated because the prosecutor failed to disclose the Health Department Manual after a discovery request in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). The prosecutor's duty to disclose information includes "production of impeachment evidence." Bagley v. Lumpkin, 798 F.2d 1297, 1300 (9th Cir. 1986) (citing United States v. Bagley, 473 U.S. 667, 677 (1985)).

Because Li wanted to use the Manual to impeach the witnesses' testimony that no written policy regarding administrative hearings existed, the Manual could have become "evidence" for purposes of the Brady rule. However, the prosecution did not suppress the Manual. It was "available at the Health Department," Appellant's Opening Brief at 27, and Li's counsel apparently had no difficulty obtaining the Manual on appeal. Therefore, the prosecution did not suppress evidence in violation of Brady. See Lugo v. Munoz, 682 F.2d 7, 10 (1st Cir. 1982) ("Since the information at issue here [psychiatric evaluation that was a matter of public record] was available to the defense attorney through diligent discovery, we find that the prosecutor's omission was not 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' ") (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)).

V

Li finally argues that he was denied effective assistance of counsel in violation of his sixth amendment rights. To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 689-94 (1984).

Li asserts that counsel should have discovered Los Angeles County Health Code sections that define substandard buildings as "nuisances" and require notification in writing and an opportunity to comply. However, Li received adequate notice of the substandard condition of his property. Therefore, any error by counsel in failing to discover the regulations could not have affected the outcome of the trial. For the same reason, Li's claim that counsel should have introduced the April 26 Inspection Report into evidence to show lack of adequate notice fails.

Li also argues that counsel was ineffective in failing to object to the strict liability jury instruction. As we have held, instructing on strict liability was proper under the Constitution. It was also proper under California law because strict liability is appropriate for the sort of regulatory offenses involved in this case. See, e.g., People v. Gonda, 138 Cal. App. 3d 774, 779, 188 Cal. Rptr. 295, 297 (1982) (" [T]he courts have consistently held that even where the statute requires a 'wilful' violation, public welfare offenses in general are punishable without proof of criminal intent."). Li could not have been prejudiced by counsel's failure to object.

The argument that counsel should have discovered the Health Department Manual providing for administrative hearings also fails. First, Li asserts that he was prejudiced because counsel could have moved to dismiss on due process and equal protection grounds if he had known about the Manual. However, as Li had no constitutional right to the administrative hearing, dismissal would not be warranted on that ground.

Second, Li argues that he was prejudiced by the failure to get the Manual because counsel could have used it for impeachment. The Manual could have been used to show that the prosecution's witnesses were wrong when they said no policy regarding administrative hearings existed. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland v. Washington, 466 U.S. 668, 693 (1984). The defendant must show a reasonable probability that the outcome would have been different. Id. at 694. The Manual could only have shown that the witnesses were wrong about the usual procedures, but those procedures were not relevant to any valid defense. It is not probable that the witnesses' credibility would have been significantly damaged by their error on this collateral point, especially since the basic facts about the conditions in the building (a corroded bathtub and a non-operating exhaust fan) appear to have been uncontroverted.

Finally, Li urges that counsel was ineffective in failing to supply jury instructions to the court including a definition of what "approved means" were for ventilating stoves. His defense was that even though his stove exhaust fans were not operating, the stoves were properly ventilated because a simple open air system, without a fan at all, would have satisfied the Health Code's requirements. However, the jury must have known what the approved means were because a Health Department supervisor, Lozano, testified that an open air system is satisfactory and that he believed Li's system met that requirement. Further, defense counsel mentioned the definition of approved means in his closing argument. The jury apparently concluded that the ventilation was not adequate, possibly because they believed the non-operating fan would block the air passage so that it was not equivalent to an open air system. Therefore, Li has failed to demonstrate prejudice from the alleged errors by counsel.

AFFIRMED.