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Johnson v. Superior Court (People)

California Court of Appeals, Sixth District

October 17, 2014

GARY ALLEN JOHNSON, Petitioner,
v.
APPELLATE DIVISION OF THE SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent THE PEOPLE, Real Party in Interest.

Santa Cruz County Superior Court Nos. M64170, AP001660 Hon. Ariadne J. Symons, Hon. Paul P. Burdick Judge

Page 826

COUNSEL

Edwin A. Frey for Petitioner.

Steven L. Mayer, Jan T. Chilton, John B. Eisenberg, Dennis A. Fischer, Lisa R. Jaskol, Robin B. Johansen; Jay-Allen Eisen Law Corporation, Jay-Allen, and Aaron S. McKinney for California Academy of Appellate Lawyers as Amicus Curiae on behalf of Petitioner.

Jarvis, Fay, Doporto & Gibson and Rick W. Jarvis for Respondent.

Page 827

OPINION

ELIA, J.

In this original proceeding petitioner Gary Allen Johnson seeks writ relief from a decision of the appellate division of the Santa Cruz County Superior Court affirming a judgment convicting him of a misdemeanor. Petitioner contends that the appellate division violated Code of Civil Procedure section 77, subdivision (b) (section 77(b)) by hearing his appeal with only two judges rather than the prescribed three.[1] We agree with Johnson that the challenged procedure was unauthorized and therefore grant the requested relief.

Background

On March 29, 2012, Johnson was convicted of disorderly conduct by lodging in a place “without the permission of the owner or person entitled to the possession or in control of it.” (Pen. Code, § 647, subd. (e).) On March 21, 2013, over Johnson’s objection, his appeal was heard by a panel of two appellate division judges. At the conclusion of the hearing the panel affirmed the judgment.

Johnson then filed a petition for rehearing, contending that the participation of only two judges at the hearing violated section 77(b) and made the panel more likely to prejudge the outcome and “less susceptible to persuasion by oral argument than they would otherwise be.” The appellate division rejected Johnson’s arguments and denied the petition, again ruling that two judges were sufficient under section 77(b).

Johnson then sought writ review in this court to enable him to obtain a rehearing before a three-judge panel of the appellate division.[2] He contends that he was deprived of a “crucial part of the appellate process” when only two judges heard his appeal, in violation of section 77(b). In response to this court’s request, both respondent superior court and the People, acting as real party in interest, submitted preliminary opposition. After we issued an order to show cause, respondent filed a return in letter form, to which Johnson replied. We have also received an articulate and ...


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