Under a 2016 rule change, a Supreme Court grant of review no longer automatically depublishes a published Court of Appeal opinion in the case. The grant of review, however, does still eliminate the opinion’s “binding or precedential effect,” leaving the opinion citable only “for potentially persuasive value.” (Rule 8.1115(e)(1).) Unless the Supreme Court orders “otherwise,” that is. And the court will sometimes do that.
There are basically two options for the court to order otherwise.
The court can depublish the Court of Appeal opinion when it grants review, which means the opinion can’t be cited at all, not even for its persuasiveness. (Rules 8.1115(a), 8.1125(c).) The Supreme Court does that occasionally. (See, e.g., here, here, here, here, here, and here.)
Much more rare is an order under rule 8.1115(e)(3) that a Court of Appeal opinion will retain its binding or precedential effect pending review, thus requiring superior courts throughout the state to follow the opinion unless there’s contrary appellate precedent or until the Supreme Court reverses the Court of Appeal. As far as we can tell, the court has done that only twice, and both times under unusual circumstances.
The first (e)(3) order was in March 2017, when the court granted-and-held in People v. Meraz. (215 Cal.Rptr.3d 3.) The court granted review because of an issue regarding life without parole for juveniles, but the published portion of the Court of Appeal’s partially published opinion didn’t address that issue, discussing instead a Sanchez issue (see here) (People v. Meraz (2016) 6 Cal.App.5th 1162). In a number of subsequent Sanchez cases, the Courts of Appeal relied on the Meraz decision.
The second (e)(3) order came just a few months ago, in In re Humphrey, the high-profile bail case. However, the court probably wouldn’t have made that order had it not been for the COVID-19 pandemic. Soon after it granted review more than two years ago, the court denied a request to maintain the Court of Appeal opinion’s precedential effect pending review. But, with the pandemic raging through many of California’s prisons and jails, and the Attorney General citing “the unexpected change in circumstances caused by the unprecedented impacts of the novel coronavirus pandemic,” the Supreme Court in August restored precedential effect to the part of the Court of Appeal opinion that requires “consideration of a defendant’s ability to pay” in setting bail. With superior courts at least for now mandated to follow the Court of Appeal opinion, there will presumably be fewer defendants incarcerated pretrial.
So, go ahead and ask for an (e)(3) order if you think it appropriate, but don’t get your hopes up that the request will be granted.
