Supreme Court Decisions

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Supreme Court Decisions in California

Opinion Count in 2012

By Gerald F. Uelmen, a professor at Santa Clara University School of Law.

The Court decided 96 cases in 2012, 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)).

Close Calls in 2012: 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.
  • People vs Goldsmith were the Chief Justice held that the right to confrontation can be denied because a defendant cannot cross-examine a machine. However, in State vs Bullcoming the New Mexico Supreme Court used the exact words in affirming his conviction Mr. Bullcoming and the U S Supreme Court reversed. Does the California Supreme Court think it can overrule the U S Supreme Court.
  • 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.

Productivity of the Supreme Court in 2011-2012

By Gerald F. Uelmen, a professor at Santa Clara University School of Law.Luci Buda, JD (Class of 2012), compiled the data for this article.

The court’s 86 published majority opinions represent a slight drop from the 100-opinions-per-year average achieved by the George Court. The decline may be attributed to the long delay in filling the seat after Justice Moreno’s retirement, requiring the temporary assignment of a different court of appeal justice for each case up until Justice Liu’s confirmation on August 31, 2011 (he was sworn in the following day). The authorship of majority opinions was evenly divided among the justices, with two exceptions: Despite his late start, Justice Liu produced 10 majority opinions and 7 concurring opinions, as well as his single dissenting opinion. Justice Kennard produced only 8 majority opinions, but she led the court in dissents, with 4. (Kennard also continued her practice of labeling some of her concurring opinions as dissents, although she joined fully in the court’s judgment.)

The longest opinion of the year was a 213-page death penalty affirmance written by the chief justice. (People v. Clark, 52 Cal. 4th 856 (2011).) Justice Chin should win the Professor Stephen Barnett Memorial Prize for brevity and precision: His 15 majority opinions were models of concise legal reasoning, with no superfluous asides.
Speaking of superfluous asides, check out Justice Baxter’s concurring opinion in People v. Lowery (52 Cal. 4th 419 (2011)). In that case, Justice Kennard authored a unanimous opinion holding that the statutory prohibition on willfully threatening violence against a crime victim or witness requires no proof that the threat was made with the intent to intimidate, nor is such intent required by the First Amendment. In a footnote, she dismissed a recent Ninth Circuit decision (United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011)), stating simply that “we are not persuaded.” (52 Cal. 4th at 427 & n. 1.) Baxter’s unusual concurrence offered an extensive critique of the Bagdasarian case, concluding it is “both mistaken … and dangerous.” His analysis drew four other votes (from the chief justice and Justices Werdegar, Chin, and Corrigan). What we’re left with, then, are two majority opinions, the only difference being their eagerness to slap down the Ninth Circuit.

Are the changes in the composition of the court the only explanation for the new-found accord? In part, the unanimity may reflect the high proportion of death penalty cases on the docket (see “Dealing with Death”, right). It may also reflect the deferral of difficult decisions to a later day. In any case, a timeless reality rings true: With each new appointment, the dynamic of the entire court changes.

In the numbers is a story, and it is a simple tale of togetherness.

Other Decisions

In People vs Goldsmith, the Chief Justice held that the right to confrontation can be denied because a defendant cannot cross-examine a machine. However, in State vs Bullcoming the New Mexico Supreme Court used the exact words in affirming his conviction Mr. Bullcoming and the U S Supreme Court reversed. Does the California Supreme Court think it can overrule the U S Supreme Court.

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