Monday, November 09, 2009

People v. Hernandez (Cal. Ct. App. - Nov. 9, 2009)

I can count on one hand the number of times I've seen a petition for rehearing actually succeed in changing the result. It's generally one of the biggest wastes of time -- at least in terms of practical effect -- that you can do in the Court of Appeal.

Can it occasionally (and, even then, rarely) result in minor nonsubstantive changes? Sure. Can an exceptionally well-argued petition for rehearing even sometimes alter the court's legal reasoning? Yep. That very, very rarely happens as well.

But change the actual result? That's almost unheard of. If only because the Court of Appeal has already heard the appeal and decided it. They're busy. They're locked in. Your additional words generally aren't going to matter.

But for even the most ironclad judicial rule, there are exceptions. And here's the exception from earlier today that proves it.

I congratulate Justices Elia, Rushing and Premo. It's very, very easy to just stick with what you have already done. It's harder -- both practically and intellectually -- to devote real effort and think about a petition for rehearing and decide that, you know what, the losing party is actually right. And then change both your mind as well as the result of the appeal. But that's precisely what happens here.

Hernandez was convicted, and the Court of Appeal initially affirmed the conviction. It was, indeed, so easy and straightforward that this initial decision was unpublished. But then his counsel -- Marc Zilversmit (kudos to Marc as well) -- filed a petition for rehearing, basically arguing that what he had said all along was right. And the Court of Appeal agreed, and on that basis reversed the conviction and remanded for a new trial. This time, in a published opinion.

I'm impressed. Extremely, extremely impressed.

It's easy to get it right the first time. It's even easier to think -- or pretend -- you got it right the first time even if you start to doubt yourself.

It's much, much harder to do what the Court of Appeal does here. As well as exceptionally rare.

So when it happens, the Court of Appeal deserves a shout out.

So consider this precisely that.