California’s Supreme Court has a well-earned reputation for consensus. For example, during the last term there were dissents in only four of 55 cases decided by opinion, and there was a 4-3 vote in only one of those four.
But subtler disagreements are found at the margins, with some justices taking different paths to reach the same results as a majority of their colleagues. Here are a few examples.
Most recent is the 5-0-2 decision in People v. Mumin (2023) 15 Cal.5th 176. (See here.) All the justices (including one pro tem) agreed a jury instruction on a concurrent intent, or “kill zone,” theory of attempted murder should not have been given in the case. However, even though ruling for the defendant, the majority rejected a heightened standard of review the defendant had proposed.
Justice Goodwin Liu, joined by Justice Kelli Evans, came to the same bottom-line conclusion about the impropriety of giving the instruction, but approached the issue from another angle. Separately concurring and not signing the court’s opinion, Justice Liu wrote “to focus on a threshold issue that would render consideration of the proper standard of review unnecessary: the viability of continuing to instruct juries on the ‘so-called kill zone theory.’ ” He advocated for “yield[ing] to experience and abandon[ing] the ‘kill zone theory’ as a distinct theory of attempted murder.” The majority responded, “[t]he lesson of experience is that the theory is a complex one that must be employed with care and explained with precision,” and said, “the concurrence does not persuasively explain how failing to instruct the jury would solve the problems the concurrence articulates.”
Somewhat similar are two concurring opinions by Justice Leondra Kruger.
Conservatorship of Eric B. (2022) 12 Cal.5th 1085 (see here) — a 7-0-3 opinion — held that, for determining constitutional equal protection rights, people under conservatorships for the gravely disabled are similarly situated with those committed to state hospitals after being found not guilty of a felony by reason of insanity. Because of that status, the government is required to “justify its differential treatment” of the two groups regarding the right to not testify at proceedings establishing those conservatorships.
Justice Kruger signed the court’s opinion, but in a concurrence she called for a change in how the court analyzes equal protection claims. (Justices Liu and Joshua Groban concurred in both the court’s and Justice Kruger’s opinions.) She wrote that the “threshold inquiry” of whether two groups are similarly situated “doesn’t serve much purpose [and] [w]orse, it risks harm.” Instead, she contended, courts should go directly to a determination “whether an admitted difference in treatment of two groups is justified under the law.”
Then there’s the court’s 7-0-2 decision in People v. Lewis (2023) 14 Cal.5th 876 (see here), where Justice Kruger (again joined by Justice Groban) agreed with the court opinion making it easier for prosecutors to convict a defendant of kidnapping an intoxicated person, but wasn’t content with the way the court stated the law to get to that result.
The court held that, for the statutorily required force element of kidnapping, “the Legislature must have intended [a] relaxed standard of force to apply to [intoxicated persons].” Justice Kruger suggested an alternative — “it could be argued that the operative standard under our precedent is best described not as a ‘relaxed’ or ‘reduced’ force standard, but as a constructive force standard — a standard that is satisfied so long as the defendant can be said to have caused the movement of a victim who, because of the victim’s young age, state of intoxication, or other mental impairment, can neither effectively resist nor consent to the movement.”
Related:
Justice Guerrero says Supreme Court collegiality sometimes leads to narrow opinions
Chief Justice: the court narrows its opinions “because we realize we don’t need to speak so broadly”
Law reviews focus on the Supreme Court, with differing views about court consensus
“California Supreme Court consistently unanimous, even in contentious cases”
