Liu and Evans drive surge in Supreme Court dissents over criminal review denials

The number of state Supreme Court dissents from denials of petitions for review of criminal cases doubled during the 2024-25 term, driven in part by objections by Justice Goodwin H. Liu and Justice Kelli M. Evans over the length of sentences for younger convicts.

While Chief Justice Patricia Guerrero raised eyebrows by dissenting four times in published opinions this year, more than any other justice, it is Liu and Evans - members of the court's liberal wing - who dissent most often on decisions about whether to review appellate court rulings.

Those determinations are made in the state Supreme Court's conferences, held about once a week, and they attract less attention than published opinions.

But justices set the court's agenda by deciding what cases to consider in the first place. Liu has long been a dissenter, and Evans has often joined him since she joined the court in 2023.

According to data published this week on the At the Lectern blog and compiled by David S. Ettinger, of counsel with Horvitz & Levy LLP, Liu dissented 69 times on decisions not to review appellate rulings, all but one in criminal cases, during the 2024-25 term. Evans dissented 63 times, all in criminal cases.

The number of recorded dissents from denials of review or habeas corpus rose from 66 during the 2023-2024 term to 159 in the most recent term, wrote Ettinger, who could not be reached for comment Wednesday.

The dissents by Liu and Evans far exceeded any other justice, Ettinger wrote. Justice Joshua P. Groban cast 22 dissents in conference, but only 10 in criminal cases. Justice Leondra R. Kruger cast two dissents in criminal cases, while Justice Martin J. Jenkins dissented once.

On criminal appeals, Guerrero and Justice Carol A. Corrigan did not dissent once on denials of review in conference, according to Ettinger. Corrigan dissented on a couple of civil cases.

Liu and Evans have often dissented in cases in which they argue that minority prospective jurors have been improperly excluded.

They also are casting dissents on the high court's decision to deny review of appeals by people convicted of murder or attempted murder when they were teenagers. That happened in four cases in May, for example.

Erica Hitchcock, who was convicted of shooting a woman to death on a Santa Monica beach in 2004 when she was 17, petitioned a Los Angeles County Superior Court judge that her 40-years-to-life sentence was the "functional equivalent" of a life sentence.

Her motion was denied, and 2nd District Court of Appeal Justice Lee Smalley Edmon, writing for the panel, affirmed that ruling in an unpublished decision.

"Our California Supreme Court has yet to address what is the uppermost sentence that can constitute a de facto life without parole sentence," Edmon wrote. But, she added, "we do not agree that a 40-years-to-life sentence is functionally equivalent to life without parole."

The state Supreme Court denied Hitchcock's petition, as well as petitions from three other convicted juveniles. Liu and Evans would have granted it. People v. Hitchcock, S290120 (S. Ct., filed April 7, 2025).

Joshua Patashnik, a former deputy solicitor general with the state attorney general's office who is now a partner with Perkins Coie LLP, said Liu and Evans have argued consistently to consider appeals by convicted criminals.

"They're willing to dissent repeatedly, but they have not been able to persuade the rest of the court," he said in a phone interview Wednesday.

David A. Carrillo, executive director of the California Constitution Center at UC Berkeley School of Law, said disagreement about whether to accept review of appeals is unsurprising.

"It's arguably natural for the court to show less agreement at the petition stage, where the question is whether the case is worth accepting at all," he wrote in an email.