It's a slow "news" (opinion) day today, with only a single (clearly right) published opinion from the Ninth Circuit and nothing yet from the California appellate courts, so I thought I'd go back and briefly mention this opinion from last week. If only because it's unusual. Typically, when the Attorney General makes a concession in a criminal case, it's accepted by the Court of Appeal, and thought well-founded.
In 2008, Kelly Kimble gets a three strikes sentence of 25 to life, plus one year for an enhancement. In 2022, he attempts to be resentenced, but the trial court only shaves off the extra enhancement year, so he appeals. The Attorney General's office opposes the appeal, and in July of 2023, the Court of Appeal agrees with the Attorney General and affirms.
Usually, that'd be the end of the story.
But, here, two weeks later, the Attorney General files a petition for rehearing, saying "that his position had changed, and that he now conceded defendant was entitled to application of the Reform Act’s revised penalties at his 2022 resentencing." That's a big win for the defendant, right?
Not so much. The Court of Appeal is not persuaded. It says that "[t]he Attorney General did not explain the basis for his change in position, cite to any recent authority that might have triggered the sudden reversal, or point out any errors of law or fact in our opinion." So the Court of Appeal tells the AG to pound sand, and refuses to change its opinion.
End of story, right?
Nope.
Then the California Supreme Court gets involved.
After the Court of Appeal refuses to rehear the case or change its opinion, in October of 2023, the California Supreme Court grants review and transfers the case back to the Court of Appeal with instructions to "reconsider the cause in light of the Attorney General’s concession that defendant was entitled to resentencing under the revised penalty provisions of the Three Strikes Reform Act. (Cal. Rules of Court, rule 8.528(d).)”
Defendant then submits briefs saying that he's entitled to resentencing (and noting the AG's previous concession), and the Attorney General's office doesn't submit an opposition.
Okay. Handwriting on the wall, right? Certainly, at this point, the Court of Appeal will relent and go the way that pretty much everyone -- even the California Supreme Court -- apparently seems to think is the correct resolution, right?
Nope. Not even then.
Here's how Justice Krause summarizes the Court of Appeal's current take:
"Having carefully reconsidered the matter, we again decline to accept the Attorney General’s bare concession. As a general rule, we are not bound by concessions made by the People in a criminal case. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021.) And here, we are not inclined to give the Attorney General’s concession significant deference, as the issue before us turns on a question of statutory interpretation, such that the analysis is not invalidated simply by a change in party position.
It also is worth highlighting that while the Supreme Court’s basis for granting review appears to be the Attorney General’s concession, he has declined to take any position after transfer. Defendant, however, advances new arguments in his supplemental brief following the Supreme Court’s transfer order. We will address these contentions, and explain why the judgment is properly affirmed."
There you have it.
Which is basically the Court of Appeal saying: "Hey, we still think we're right, and we don't care what anyone else seems to think. At this point, it's your move, Cal Supremes. If you think we're wrong, fix it yourself. We're sticking with what we said."
Now we just wait and see if the California Supreme Court feels like fixing the alleged problem itself.
