The Supreme Court yesterday ordered supplemental briefing in three capital appeals regarding foundational California Racial Justice Act (here and here) issues. In People v. Bankston (see here), People v. Barrera (see here), and People v. Chhuon and Pan (see here), the parties were directed to address:
(1) Once a violation of Penal Code section 745, subdivision (a)(2) is established on direct appeal, is an analysis for harmless error required under article VI, section 13 of the California Constitution before relief can be granted under Penal Code section 745, subdivision (e)(2), regardless of whether there is a statutory obligation to conduct a harmless error analysis under Penal Code section 745?
(2) Does the Legislature have authority to declare that certain errors are a “miscarriage of justice” within the meaning of article VI, section 13 of the California Constitution and thereby obligate courts to reverse a judgment whenever such an error is found, even when the error in question would otherwise be subject to review for harmless error?
(3) If a Racial Justice Act violation has occurred, is the defendant ineligible for the death penalty under Penal Code section 745, subdivision (e)(3) regardless of whether the violation was prejudicial? If so, would reversal of a death judgment under Penal Code section 745, subdivision (e)(3) without possibility of retrial on penalty be barred by the “Briggs Initiative” (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978))?
Almost 18 months ago, the court turned down an opportunity to address the second issue. The court denied review in People v. Simmons (2023) 96 Cal.App.5th 323 (see here), where the 2-1 Second District, Division Two, opinion held “the state constitution does not limit the Legislature’s power to define a miscarriage of justice,” but the dissent asserted the “majority’s deferral to the Legislature violates the California Constitution’s separation of powers clause” because “the Legislature usurped the judiciary’s authority to determine what constitutes ‘a miscarriage of justice’ within the meaning of Article VI.”
The Simmons majority wrote, “We are hopeful, indeed confident, that our Supreme Court will resolve this issue . . . soon” and the dissent specifically urged the Supreme Court to grant review on its own motion (see rule 8.512(c)(1)), as did the California District Attorneys Association.
Court staff has previously identified Bankston and Barrera as “includ[ing] an issue involving the applicability of the California Racial Justice Act of 2020 (Pen. Code, § 745) on direct appeal.”
Bankston, Barrera, and Chhuon and Pan have all been argued already. (See here, here, and here.) Because of the supplemental briefing ordered yesterday, the court has targeted the cases’ submissions — which start the 90-day clock running — for September 2, meaning the cases might not be decided until December 1.
Bankston and Barrera will actually be resubmitted, because they were submitted — Barrera after its June 5 argument and Bankston on May 28 after the completion of other supplemental briefing — and yesterday’s orders vacated the submissions. (Chhuon and Pan hadn’t been submitted yet because, like Bankston, there was other post-argument briefing.)
It’s very unusual to have submission vacated. (See, e.g., here, here, and here.) More often, but still not routine, the court will delay submission of a case for post-argument briefing, as it did in Bankston and Chhuon and Pan.
[July 2 update: Craig Anderson had this in the Daily Journal, “State high court to review Racial Justice Act in death penalty cases.” I’m quoted in the article.]
