New Balance at the California Supreme Court

In sharp contrast to the first year of Chief Justice Tani Cantil-Sakauye's leadership of the California Supreme Court, her second year saw dissent and disagreement rates sharply increase, with some unusual combinations in both the majority and dissenting opinions. From July 1, 2012, to June 30, 2013, the court split 4-3 in seven cases, compared with only one in the previous twelve months. (See "Justices United," September 2012.) There were also seven 5-2 opinions, compared with one the previous year. As a result, the overall dissent rate nearly tripled - from 2.3 percent to 6.1 percent.

Justices Joyce Kennard and Goodwin Liu tied for the highest dissent rate (15.5 percent), but they weren't always dissenting in the same cases. And even when they were, they rarely joined each other's opinions.

When the court split 4-3, I found the alignments to be especially intriguing, with a different lineup in each case. (See "Close Calls" below.) Five of the seven were criminal cases. The defense lost in four of those five. Although few consistent patterns emerged, I did note that Liu was with the defense in all five cases, joined by Justice Kathryn Werdegar in four. Justice Marvin Baxter, on the other hand, was with the prosecution in four of the five cases. In the one case in which he sided with the defense, Baxter wrote an unusual (for him) concurring opinion, offering a Scalia-like explanation that the result was compelled by the plain language of the statute, without looking beyond the text. (People v. Rodriguez, 55 Cal. 4th 1125, 1139-1141 (2012) (Baxter, J., concurring).)

Disagreement Rates
Rates of disagreement measure the proportion of cases in which the justices vote on opposite sides of cases that divide the court. The lowest rate of disagreement is that between Baxter and Justice Ming Chin, who were on the same side in 98 percent of the cases. The highest rates of disagreement were registered by Liu and Baxter, who were on opposite sides in 15 percent of the cases. (Kennard and Liu cast different votes 13.3 percent of the time.)

To me, the biggest surprise was Liu's rate of agreement with Justice Carol Corrigan. They voted together in 94 percent of the cases - an "odd couple" - in which one of the more conservative justices (Corrigan) joined one of the more liberal (Liu). The explanation for this may be that they actually talk to each other outside the conferences!

In a pair of interesting cases, Liu joined Corrigan's dissenting opinions: In re Boyette (56 Cal. 4th 866 (2013)), in which she argued that jurors watching a film about prison life during their deliberations was misconduct requiring reversal; and People v. Dungo (55 Cal. 4th 608 (2012)), one of the Confrontation Clause cases discussed on the opposite page. Liu also had a 94 percent rate of agreement with Werdegar.

Like her predecessor, Chief Justice Ronald George, Chief Cantil-Sakauye staked out a very centrist position, tilting slightly to the right. She parted company with Chin in 5 percent of the cases, and with Liu in 10 percent. Liu's tilt to the left was very similar to that of his predecessor, Justice Carlos Moreno: Liu disagreed with both the chief and Chin in 10 percent of the cases.

When the cases are broken down into separate categories - civil cases, death penalty cases, and noncapital criminal cases - the dissent and disagreement rates look very different. Of the 96 cases decided this year, 32 were civil cases, 21 were death penalty cases, and 43 were noncapital criminal cases. The dissent rate for civil cases was 5.1 percent. Although three of the death cases were reversals, only two of the affirmances drew dissents, for an overall dissent rate of 2.8 percent. For non-death criminal cases, however, the dissent rate was 7.9 percent.

Confrontation Confusion
What happens when the U.S. Supreme Court fails to muster a majority to agree on the same rationale for its decision? Last term the high court did just that, fumbling the ball in its decision in Williams v. Illinois (132 S. Ct. 1221 (2012)). In upholding the admission of the results of a laboratory DNA analysis without cross-examination of the analyst who prepared it, four justices joined a plurality opinion that watered down the Confrontation Clause analysis of Crawford v. Washington (541 U.S. 36 (2004)), while four justices, including Crawford author Justice Antonin Scalia, insisted that Crawford required reversal. The concurring opinion of Justice Clarence Thomas, which relied upon a totally different rationale, arguing that Confrontation Clause protection applies only to statements "with the solemnity of an affidavit or deposition," provided the fifth vote needed to decide the case. But the decision's split rationales left the fate of Crawford's approach to the Confrontation Clause in limbo.

In California, the state Supreme Court struggled with the impact of Williams upon the admissibility of various forensic reports in a trilogy of cases. Not surprisingly, the cases resulted in a bewildering array of opinions, as the justices attempted to pick through the high court's tea leaves. All three of the cases produced majority opinions upholding the convictions, and all were authored by Justice Kennard.

In People v. Lopez (55 Cal. 4th 569 (2012) (blood-alcohol concentration test results)), the state Supreme Court concluded that a laboratory technician's initials on a report "were not made with the requisite degree of formality or solemnity" to be considered testimonial. Justice Liu dissented.

The conclusion in People v. Dungo (55 Cal. 4th 608 (2012) (observations during autopsy)) was that a physician's description in a report of what he observed during an autopsy was not testimonial, because a criminal investigation was not the primary purpose of the autopsy, but rather only one of several purposes. Justices Corrigan and Liu dissented.

In People v. Rutterschmidt (55 Cal. 4th 650 (2012) (toxicology analysis)), Justice Kennard threw up her hands and declared that even if an analyst's report was testimonial, its admission was harmless error. Just like Williams, none of these cases will provide much guidance to trial courts in determining whether out-of-court statements were testimonial. But one can hardly blame the California Supreme Court: It was simply following the bad example of the highest court in the land.

The Best and the Worst
Although I didn't like the result in the closely watched case of City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (56 Cal. 4th 729 (2013)), I must compliment Justice Baxter on a masterful job of laying out the issues and resolving them concisely: State medical-marijuana laws do not preempt local regulation. Therefore, local governments remain free to prohibit the operation of marijuana dispensaries within their jurisdiction, even when such operations are in full compliance with state law. Unfortunately, this encourages a not-in-my-backyard mentality that will likely drive distribution underground, as well as require many patients to travel long distances to get safe access to medical marijuana. But as Justice Baxter notes, "[N]othing prevents future efforts by the Legislature, or by the People, to adopt a different approach."

A different approach indeed was used in the recent initiative measures legalizing recreational use of marijuana in the states of Colorado and Washington. The Colorado measure requires a comprehensive system of statewide rules that will preempt local regulation of marijuana distribution. Similarly, the Washington measure creates a framework similar to the regulation of liquor, to be administered by the state Liquor Control Board. This issue will surely be confronted in California's next marijuana-legalization initiative.

I thought the best opinion of the year was Justice Liu's concurrence in People v. Barrett (54 Cal. 4th 1081, 1114--1151 (2012)). He concluded that a distinction between mentally ill persons and mentally retarded persons in the statutory right to advisement to be tried by a jury violates California's own constitutional guarantee of equal protection. Thus the Mosk Doctrine - that state courts should look first to their independent state constitutions-lives on.

In my view, the worst opinion of the year was Justice Kennard's majority opinion in In re Richards (55 Cal. 4th 948 (2012)). (See "Close Calls," below.) By creating a shadowy distinction between the testimony of experts and the testimony of laypersons in applying the protections against false evidence in Penal Code section 1473(b), the decision creates a substantial obstacle to correcting what the California Commission on the Fair Administration of Justice identified as the second-most-common factor contributing to wrongful convictions: erroneous scientific evidence - in identifying "hair, bullets, handwriting, footprints, bite marks and even venerated fingerprints."

The court's opinion, by requiring that evidence that a forensic expert's conclusions were mistaken must point "unerringly to innocence or reduced culpability," would deny relief even if the defendant can show it is reasonably probable that the verdict would have been different absent the expert's mistake.

A close runner-up for worst opinion of the year was Chief Cantil-Sakauye's majority opinion in People v. Aranda (55 Cal. 4th 342 (2012)). In this case there was no question that the trial court erred in failing to instruct the jury on reasonable doubt. But Cantil-Sakauye confidently concluded that it was harmless error because "there was no reasonable probability that the outcome" would have been different had the instruction been given. Yet both Justices Kennard and Liu dissented because they were not convinced, beyond a reasonable doubt, that the jury in the case applied the correct standard of proof.

If two justices on the state Supreme Court have a reasonable doubt, how can a majority of that court confidently conclude that a reasonable juror would not? In general, I'm suspicious of "harmless error" findings that are not unanimous. As Justice Liu noted in his dissent, "Until today, no California case had ever held or even suggested that despite a trial court's failure to instruct the jury with a standard reasonable doubt instruction ... an appellate court can still be certain beyond a reasonable doubt that the jury understood its obligation."

Gerald F. Uelmen is a professor at Santa Clara University School of Law. Earl Horner (Class of 2014) compiled the data for this article.

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Close Calls: The 4-3 Splits

People v. Villatoro, 54 Cal. 4th 1152 (July 30, 2012)
Evidence Code section 1108 provides that when a defendant is charged with a sexual offense, evidence of another sexual offense can be considered as character evidence of a propen-sity to commit sexual offenses. When the additional offense is charged in the same case, this reduces the burden of proof for considering those charges as propensity evidence to a mere preponderance. Should section 1108 be limited to sexual offenses not charged in the same case?
NO Chin, joined by Baxter, Cantil-Sakauye, and Kennard.
YES Corrigan, joined by Werdegar; separate dissent by Liu.

In re Greg F., 55 Cal. 4th 393 (Aug. 27, 2012)
Welfare and Institutions Code section 733(c) provides that a juvenile cannot be committed to a juvenile correctional facility unless his most recent offense was violent. When a ward on probation for such an offense violates probation by committing one that is not so defined, the ward's probation may be revoked and he or she can be committed. If the prosecution instead files the violation as a new charge, however, section 733(c) applies, and the juvenile cannot be committed. Does the juvenile court have discretion to dismiss the new charge and treat the offense as a probation violation, to allow commitment of the juvenile?
YES Corrigan, joined by Baxter, Chin, and Werdegar.
NO Cantil-Sakauye, joined by Kennard and Liu.

People v. Schmitz, 55 Cal. 4th 909 (Dec. 3, 2012)
May a warrantless search of a parolee seated as a front-seat passenger extend to the entire contents of the automobile in which he was a passenger?
YES Corrigan, joined by Baxter, Cantil-Sakauye, and Chin.
NO Werdegar (the issue was not preserved for appeal and should not be decided on this record), joined by Kennard; separate dissent by Liu.

In re Richards, 55 Cal. 4th 948 (Dec. 3, 2012)
A habeas corpus challenge to a conviction based on new evidence may be granted only if the new evidence "points unerringly to innocence or reduced culpability." However, a claim that the prosecution used false evidence permits relief if it was "substantially material or probative on the issue of guilt or punishment." (Cal. Penal Code § 1473(b)(1).) Where an expert witness later recants his testimony as inaccurate, based on newly available technology, does it render his trial testimony false, thereby permitting application of the broader standard of section 1473?
NO Kennard, joined by Baxter, Cantil-Sakauye, and Corrigan.
YES Liu, joined by Chin and Werdegar.

People v. Rodriguez, 55 Cal. 4th 1125 (Dec. 27, 2012)
California Penal Code section 186.22(a) permits punishment for a separate offense of "gang participation" by one "who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a criminal gang activity, and who willfully promotes, furthers or assists in any criminal conduct by members of the gang." Does the commission of an attempted robbery by a gang member while acting alone constitute the crime of gang participation?
NO Corrigan, joined by Baxter, Liu, and Werdegar.
YES Kennard, joined by Cantil-Sakauye and Chin.

Apple, Inc. v. Superior Court (Krescent), 56 Cal. 4th 128 (Feb. 4, 2013)
California's Song-Beverly Credit Card Act of 1971 prohibits retailers from requiring personal identification information to be recorded as a condition of accepting a credit card as payment. Does this provision apply to online purchases of electronically downloadable products?
NO Liu, joined by Cantil-Sakauye, Corrigan, and Werdegar.
YES Kennard, joined by Baxter and court of appeal Justice Barbara J. R. Jones (in place of Chin).

City of Los Angeles v. Superior Court (Engineers & Architects Ass'n), 2013 WL 3064811 (June 20, 2013)
May a charter city arbitrate disputes over collectively bargained wage-and-hour provisions without unlawfully delegating to the arbitrator its discretionary budgeting authority?
YES Kennard, joined by Cantil-Sakauye, Liu, and Werdegar.
NO Corrigan, joined by Baxter and Chin.

-G.F.U.

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Opinion Count
The Court decided 96 cases in the past year, compared with 86 in the previous twelve months. The number of concurring and dissenting opinions increased sharply, largely due to the output of Justices Kennard and Liu. Justice Liu's low rate of majority opinions is most likely a result of reassignments. When the court grants a hearing, the chief justice assigns the task of preparing a calendar memorandum to one of the justices who supported taking the case; the calendar memorandum evolves into a majority opinion if three other justices sign on. If the calendar memorandum does not draw a majority, the case is reassigned to another justice who will write the majority opinion. The justice's calendar memorandum then ends up as a separate opinion. Some of Liu's concurrences and dissents read as though they had been prepared to be majority opinions - for example, People v. Barrett (54 Cal. 4th 1081 (2012)). -G.F.U.

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