Metropolitan News-Enterprise


Monday, October 20, 2014


Page 1


C.A. Rejects Use of Two-Judge Appellate Panel in Superior Court




A Superior Court appellate panel must consist of three judges, the Sixth District Court of Appeal ruled Friday.

The court granted a writ of mandate sought by a Santa Cruz Superior Court misdemeanor defendant, ordering that his case be reheard by a three-judge panel in the court’s appellate division.

Gary Johnson was convicted two years ago of disorderly conduct, consisting of lodging in a place “without the permission of the owner or person entitled to the possession or in control of it,” in violation of Penal Code §647(e).

He appealed to the Santa Cruz Superior Court Appellate Division, which affirmed the conviction in a case that was heard and decided by two judges, over defense objection.

Writ Petition

He then filed a writ petition before the Court of Appeal, arguing he was deprived of a “crucial part of the appellate process” when only two judges heard his appeal, in violation of Code of Civil Procedure 77(b). 

The statute provides: 

“In each appellate division, no more than three judges shall participate in a hearing or decision. The presiding judge of the division shall designate the three judges who shall participate.” 

In response, the Santa Cruz Superior Court and the district attorney said the court’s former policy of allowing two judges to hear a writ petition or appeal in the appellate division—cases have been heard by three judges since the beginning of this year—was consistent with the “no more than” language of §77(b) and with §77(d), allowing a case to be decided with the “concurrence of two judges.”

Remaining Language

But Justice Franklin Elia, writing for the Court of Appeal, said the defendant and his amicus, the California Academy of Appellate Lawyers, were correct in arguing that the lower court had overlooked the remaining language of §77, along with the legislative history.

“In its resolute emphasis on the condition in subdivision (b) that ‘no more than three judges shall participate in a hearing or decision,’ respondent ignores subdivision (a), which specifically defines the appellate division as ‘consisting of three judges or, when the Chief Justice finds it necessary, four judges,’” Elia wrote.

The justice explained that the history of the appellate division, formerly called the appellate department, goes back to 1929, and that all counties have been required to maintain such panels since the 1950s.

At one time, he noted, counties with fewer than three judges were permitted to have cases decided by the one or two judges of the court, but in 1961, the Legislature mandated three-judge departments in the smallest counties, with retired or visiting judges filling out the roster where necessary.

The history and language, Elia said, is clear—appeals in the superior courts are to be heard by three judges and decided with the concurrence of at least two.

“In dictating the composition of the appellate division the Legislature unquestionably contemplated a structure of three judges hearing and deciding an appeal even if there are four constituting the judicial body as a whole,” he wrote. “The phrase ‘no more than three judges’ in subdivision (b) clarifies that even in those counties in which the appellate division comprises four judges, only three of those may participate in a particular case.  The next sentence clearly contemplates that three, not two, sit on any one case: ‘The presiding judge of the division shall designate the three judges who shall participate.’”  

Not Harmless Error

Elia went on to reject the prosecution’s harmless error argument.

“The statute requires three judges to consider a defendant’s case, not two,” he wrote. “The defendant is entitled to the benefit of whatever influence a third judge may have on the disposition of the appeal. The People cannot simply assume that because two judges concurred in Johnson’s case, those two necessarily would have reached the same conclusion had another judge expressed his or her views on the merits of the case.”

The case is Johnson v. Appellate Division (People), H039764.


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