People v. Pena

Opinion

We consider in this case the propriety of a notice form regularly utilized by the Fourth District Court of Appeal, Division Two, in ascertaining whether appellate counsel will waive oral argument in appeals pending before that appellate court. As we shall explain, we conclude that there exists a danger that the language of the waiver notice employed here suggests too strongly (1) that the appellate court already has finally decided the case and will not be affected by oral argument, and (2) that appellate counsel might face adverse consequences if oral argument is requested. As such, the notice has a real potential to interfere with a party’s proper exercise of the right to present oral argument on appeal.

Under these circumstances and in the exercise of our supervisory power over the courts, we shall direct the Court of Appeal to refrain from utilizing this waiver notice in future cases. Further, because defendant’s appellate counsel brought this issue to the Court of Appeal’s attention in a petition for rehearing and indicated that the language of the waiver notice in fact had deterred counsel from requesting oral argument, we shall reverse the judgment and transfer the matter to the Court of Appeal with directions to calendar the matter for oral argument and reconsider the cause in light of such argument.

Schuelke, defendant, and the passenger, who later was identified as defendant’s girlfriend, returned to the Grainger Street residence, which defendant shared with his sister, brother, and brother-in-law. Pursuant to defendant’s consent, Schuelke and other officers searched the residence, finding under a bedroom dresser four semiautomatic pistols, ammunition, and more than $1,000 in cash. Elsewhere in the bedroom, officers found two bindles of cocaine. Items observed in the bedroom suggested that defendant shared the room with his brother. In the garage, officers found a gram scale. A Honda Accord parked in the garage had a “Toastmaster” box in the trunk, containing a kilogram of cocaine. Officers found in the Accord a receipt from “Daniel’s Carburetor’s” with defendant’s nickname and cellular phone number written on it.

Defendant was charged by information with transporting cocaine (Health & Saf. Code, § 11352, subd. (a)), possessing cocaine for sale (Health & Saf. Code, § 11351) with an allegation defendant was personally armed with a firearm (Pen. Code, § 12022, subd. (c)), and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). The information also alleged defendant had suffered a prior “strike” conviction (Pen. Code, § 1170.12) and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). After defendant pleaded not guilty, the trial court denied defendant’s suppression motion (Pen. Code, § 1538.5) and his motion

Justice Thomas E. Hollenhorst, a justice currently serving on the Fourth Appellate District, Division Two, and who concurred in the opinion below, explained in a law review article that the division had determined that “knowing whether all three of the panel members concurred in the draft of the opinion was deemed to be of some help to counsel in deciding whether to continue with their request for oral argument after receipt of the tentative decision and to further refine strategy for oral argument should counsel wish to pursue oral argument.” (Hollenhorst, Tentative Opinions: An Analysis of Their Benefit in the Appellate Court of California (1995) 36 Santa Clara L.Rev. 1 , 14-15, fn. omitted (Tentative Opinions)) The tentative opinions were unsigned and did not specify the numerical breakdown of the votes of the participating justices (id. at p. 15, fn. 67). The court, however, issued different cover letters with the tentative opinions, depending upon whether a majority of the panel agreed with the opinion with no dissenting view, a majority agreed with the opinion but there existed a dissenting view as to at least one issue, or there existed no majority. The original rules for the tentative opinion program set out the wording of each type of letter. When there was a majority panel with no dissenting view, the original rules indicated that the following notice would be sent: “ ‘Enclosed is the tentative opinion of a majority of the panel of three justices hearing the appeal. In this case the court has determined that the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. The court is therefore willing to submit this case without oral argument.’ ” (Id. at p. 2, fn. 4.) Appellate counsel was then required to reconfirm his or her desire to have oral argument, and failure to do so would be treated as a waiver of oral argument. In those cases where some disagreement existed among the participating justices, the notice letter either would “invite[] oral argument or point[] to a specific issue for counsel to address . . .” (id. at p. 15, fn. 67), without requiring reconfirmation of oral argument (id. at p. 3, fn. 4).

B

We emphasize initially, however, that the Court of Appeal’s adoption of a procedure under which it prepares and provides the parties with a tentative opinion prior to oral argument does not in itself improperly interfere with the right to present oral argument on appeal. In past decisions, this court has rejected challenges that have been directed against tentative rulings issued by trial courts. In People v. Hayes (1990) 52 Cal.3d 577 [ 276 Cal.Rptr. 874 , 802 P.2d 376 ] (Hayes), we found unpersuasive the defendant’s claim that he was deprived of “meaningful oral argument” on a motion for modification of a sentence of death by the trial court’s preparation of a written tentative ruling prior to the hearing on the motion. We explained: “We find nothing objectionable in the court’s studying the merits of a motion in advance of the hearing and reaching a tentative conclusion as to how the motion should be resolved. . . . Nor do we see anything improper in the court’s having reduced its tentative ruling to writing. To do so does not mean that the court is unalterably bound by the writing or that it will not amend or even discard the writing if counsel’s arguments persuade the court that its tentative views were incorrect. Nothing in the record indicates that the trial court failed to give due consideration to defense counsel’s argument at the hearing.” (Id. at p. 645.)

Furthermore, under circumstances similar to those in Hayes, we stated in People v. Brown (1993) 6 Cal.4th 322 [ 24 Cal.Rptr.2d 710 , 862 P.2d 710 ] (Brown): “Based on this court’s own practice and experience [citation], we know that tentative written determinations prepared prior to argument are both helpful to the court in collecting and organizing its thoughts, and not infrequently altered or even reversed after argument and further reflection. The suggestion that a defendant receives a ‘less meaningful’ hearing when the court prepares a tentative opinion is simply untenable.” (Id. at pp. 339-340.)

Under the reasoning of Hayes and Brown, a tentative written decision does not interfere with the right to present oral argument so long as the court is not “unalterably bound by the writing” and gives “due consideration” to any oral argument presented to it. Although neither Hayes nor Brown considered the dissemination of a court’s tentative decision to the parties prior to oral argument, we believe that the reasoning of those decisions applies with equal force to the Court of Appeal’s distribution of a tentative opinion to the parties here. So long as the appellate court’s decision is truly “tentative,” that is, so long as the court is willing to “discard the writing if counsel’s arguments persuade the court that its tentative views were incorrect” (Hayes, supra, 52 Cal.3d at p. 645), the drafting and dissemination of a

The Court of Appeal here both distributed to the parties a tentative opinion and indicated, by way of the oral argument waiver notice, that the court was prepared to decide the case without oral argument. Either action would have been proper if the Court of Appeal had made clear to the parties and counsel that it nonetheless was fully open to further argument upon request, that is, that the appellate court was not “unalterably bound” by its tentative decision and was willing to “amend or even discard” its prior decision “if counsel’s arguments persuade the court that its tentative views were incorrect.” (Hayes, supra, 52 Cal.3d at p. 645; see Moles v. Regents of University of California, supra, 32 Cal.3d at p. 872 [“This aspect of oral argument—the chance to make a difference in result—is extremely valuable to litigants. If oral argument is to be more than an empty ritual, it must provide the litigants with an opportunity to persuade those who will actually decide an appeal”].) The language of the oral argument waiver notice employed here, however, strongly suggests that the Court of Appeal’s “tentative” opinion was not in fact tentative. The notice states unequivocally the appellate court’s assessment that “oral argument will not aid the decision-making process . . .” and that “the tentative opinion should be filed as the final opinion without oral argument. . . .” (Ante, at p. 394, italics added.) Given this strong language, we believe that a litigant or counsel reasonably could doubt whether oral argument would be “meaningful” (Brown, supra, 6 Cal.4th at p. 340) and whether the appellate court would give “due consideration” to oral argument (Hayes, supra, 52 Cal.3d at p. 645) were appellate counsel to decline to waive argument.

By suggesting the Court of Appeal already has decided the case without oral argument and that oral argument, if requested, would have no impact on its decision, the oral argument waiver notice here has the potential to improperly discourage the exercise of the right to present oral argument on appeal. Although the Court of Appeal did not preclude oral argument in the present case as the appellate court did in Brigham, supra, 25 Cal.3d 283 , in our view the notice here at issue, by stating in advance that the appellate court has determined, based upon its evaluation of the merits, that oral argument will not affect the decisionmaking process, as a practical matter is likely to have an effect comparable to the appellate court action that we

V

We now turn to the question of the appropriate remedy in this case. In Brigham, supra, 25 Cal.3d 283 , after concluding that the appellate court’s “summary affirmance” of the defendant’s conviction deprived him of his right to present oral argument on appeal, we went on to address the merits of the defendant’s appellate claim ourselves, “[a]s a matter of judicial economy” (id. at p. 289), rejecting the claim and affirming the judgment of conviction. In Moles v. Regents of University of California, supra, 32 Cal.3d 867 , by contrast, after concluding that the parties’ right to oral argument on appeal was violated when the appellate court replaced one justice after oral argument but prior to final decision, we ordered the case “retransferred to the Court of Appeal for reargument and decision by a properly constituted panel.” (Id. at p. 874.)

We conclude that a remand, akin to that employed in Moles, is appropriate here. Defendant’s appellate counsel, in a petition for rehearing filed in the Court of Appeal, challenged the validity of the notice utilized by that court and informed the court that counsel had been deterred from seeking oral argument based upon the language of the notice. We limited review in this case to the question of the validity of the standard oral argument waiver notice employed by Division Two of the Fourth District Court of Appeal, and

The judgment of the Court of Appeal is reversed and the matter is remanded to that court with directions to calendar the matter for oral argument and reconsider the cause in light of such argument.

Kennard, J., Baxter, J., Werdegar, J., Chin, J., Brown, J., and Moreno, J., concurred.

INSTRUCTIONS FOR REQUESTING ORAL ARGUMENT

This court mails a tentative opinion in every case with one of two different notices about oral argument.

If the court has decided that oral argument will aid the decision-making process, a notice has been included with the tentative opinion that the parties will be notified about 30 days in advance of the date and time of oral argument.

If the court has decided that oral argument will not aid the decision-making process, a 12-day notice of waiver of oral argument has been included with the tentative opinion. (Cal. Rules of Court, rule 22.1 [rule governing oral argument unless court orders otherwise].) With this kind of notice, a form to be used in waiving or requesting oral argument is also included. If, despite the court’s evaluation that oral argument will not aid the decisionmaking process, you decide to request oral argument, then you must promptly and correctly fill out the included form and mail it back to this court so that it is received within,12 days of the date of the notice.

The court does not grant relief from default in failing to timely request oral argument, because the court has determined that oral argument will not assist the decisionmaking process. (Cal. Rules of Court, rale 45(e) [relief from default discretionary].) If a party has failed to timely request oral argument and objects to the final opinion, a timely petition for rehearing may be filed. (Cal. Rules of Court, rule 27.)

This procedure assists the court in timely resolving its cases, and the court thanks you for your cooperation.