What the hell?
On first glance, after reading today's opinion by Division Six of the Second District, it seemed like a run-of-the-mill split in the Court of Appeal. An earlier published opinion (Bartholomew) held that there was no statutory right for the state to appeal when the trial court reduced a felony wobbler to a misdemeanor prior to trial. Whereas, today, the Court of Appeal disagrees with that opinion, and holds that there is, in fact, a right to appeal.
Okay. No problem. Often happens. One panel disagrees with another. Unlike in the Ninth Circuit, there's no horizontal precedent in the Court of Appeal, so that's perfectly fine.
So, initially, all I was going to say was after today's opinion, this clearly becomes a matter as to which the California Supreme Court should grant review. The issue -- pretrial reductions of wobblers -- happens not infrequently, and now you have two opinions with directly contrary holdings. You don't want the law to depend entirely on what panel you happen to draw, so, sure, go ahead and grant review and figure it out.
Simple.
But then I looked up the earlier opinion. From the language of today's opinion, I had assumed that, as usual, it was from another district. ("We disapprove of the holding in Bartholomew.") But when I looked up the earlier opinion, I noticed that -- unmentioned by today's opinion -- it was from the same district; the Second. Not crazy unusual, since Los Angeles is a big county (plus Ventura, Santa Barbara, and San Luis Obispo), with lots of different divisions. But then I also noticed that the prior opinion was also from the same division in the Second, the Sixth.
Now, that's really unusual.
But then it got even weirder. Because the majority opinion repeatedly notes that there was a dissent in the earlier opinion, and often quotes it. Okay. That's, again, not uncommon with horizonal splits. But what the opinion today never expressly mentions is that the dissent in that earlier opinion -- published ten months ago, I might add -- was the same justice who authors today's opinion: Justice Yegan. You only find that out if you compare the opinion's parenthetical mention of the dissent ("A dissenting opinion contended that an appeal is permissible under these two subdivisions. (Bartholomew, supra, at pp. 780-785, dis. opn. of Yegan, J.)") with the last two words at the end of today's opinion ("YEGAN, J.").
I understand that authors often like to refer to themselves in the third person. But I think it bears mention at least somewhere that you were the dissent in that prior case. And that when the author says, as today's opinion does, that "We conclude the dissenting opinion is correct," that you're talking about yourself.
Yeah. Shockingly, the author believes that he's right.
But it gets even weirder.
I then look at the other justices. The author of the prior (November 2022) opinion was a retired judge from SLO sitting by designation. So obviously he's not on the panel for today's opinion. But Division Six only has four active judges, so there's often (though not always) some overlap. In the prior opinion, Justice Gilbert joined the majority. So I assumed that Justice Baltonado and/or Justice Cody from the Sixth -- and/or someone sitting by designation -- were on the panel and joined today's opinion to make it unanimous.
Justice Baltonado: Yep. On today's panel. Justice Cody? Nope. Someone sitting by designation? Nope.
Instead, Justice Gilbert was on both panels and in the majority in both cases. So he joined the majority opinion in Bartholomew ten months ago, over Justice Yegan's dissent, but today, joins Justice Yegan's opinion that says that Bartholomew was wrong.
With no concurring opinion to explain the changed vote.
I know that things get weird sometimes when you don't have horizontal precedent, and the whole stare decisis thing in the Court of Appeal is definitely different than what you see in the federal system. But I don't recall seeing a justice change their vote so rapidly before. Much less without explanation.
In short, the more I read this opinion, the more things got curiouser and couriouser.
(Regardless, what I said at the outset still holds: the California Supreme Court should grant review in short order and decide what the correct rule is.)
