10/17/14
                               CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SIXTH APPELLATE DISTRICT


GARY ALLEN JOHNSON,                                   H039764
                                                     (Santa Cruz County
           Petitioner,                                Super. Ct. Nos. M64170, AP001660)

           v.

APPELLATE DIVISION OF THE
SUPERIOR COURT OF SANTA CRUZ
COUNTY,

           Respondent;

THE PEOPLE,

           Real Party in Interest.



           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
                                                                             1
hearing his appeal with only two judges rather than the prescribed three. We agree with
Johnson that the challenged procedure was unauthorized and therefore grant the
requested relief.



1
   All further statutory references are to the Code of Civil Procedure except as otherwise
indicated.
                                        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
                                                     2
before a three-judge panel of the appellate division. 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 cogent discussion of the issue
in an amicus curiae brief submitted by the California Academy of Appellate Lawyers in
support of Johnson’s petition.
                                        Discussion
       Section 77 establishes the appellate division of each county’s superior court and
prescribes the rules governing its composition and function. Subdivision (a) states that
this judicial body consists of “three judges or, when the Chief Justice finds it necessary,


2
  In the petition Johnson requested a “writ of review or other appropriate relief.” This
court elected to treat his application as a petition for writ of mandate.

                                              2
four judges.” Subdivision (b), the provision under which respondent attempts to justify
its procedure, states: “In each appellate division, no more than three judges shall
participate in a hearing or decision. The presiding judge of the division shall designate
the three judges who shall participate.” Subdivision (d) adds that “[t]he concurrence of
two judges of the appellate division of the superior court shall be necessary to render the
decision in every case. . . .”
       Respondent maintains that its procedure was consistent with both section 77 and
                                    3
the county’s local rules of court. Respondent relies on the first sentence of section 77(b),
calling for the participation of “no more than three judges” and the first clause of
subdivision (d), requiring the “concurrence of two judges . . . to render the decision in
every case.” (§ 77, subd. (d).) In focusing narrowly on this language, however,
respondent has overlooked the maxim that particular words or phrases of a statute
“should not be interpreted in isolation, but must be construed in the context of the entire
statute of which [they are] a part, in order to achieve harmony among the parts.” (People
v. Morris (1988) 46 Cal.3d 1, 16, disapproved on another point in In re Sassounian
(1995) 9 Cal.4th 535, 551, fn 5; People v. Skiles (2011) 51 Cal.4th 1178, 1185, quoting
People v. Pieters (1991) 52 Cal.3d 894, 899.) In its resolute emphasis on the condition in
subdivision (b) that “no more than three judges shall participate in a hearing or decision,”
respondent ignores subdivision (a), which specifically defines the appellate division as
“consisting of three judges or, when the Chief Justice finds it necessary, four judges.”
(§ 77, subd. (a), italics added.)
       In examining statutory language, we give it “a plain and commonsense meaning.”
(Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market,

3
   Santa Cruz County Local Rules of Court, rule 8.1.01, enacted January 1, 2013, states:
“The provisions of Code of Civil Procedure section 77 and California Rules of Court,
8.800 through 8.891 apply fully to these local rules. Pursuant to CCP section 77(b),
appeals and writs may be heard and decided by two judges of the Appellate Division.”

                                              3
LLC (2011) 52 Cal.4th 1100, 1107; Flannery v. Prentice (2001) 26 Cal.4th 572, 577.)
“When the language is clear and there is no uncertainty as to the legislative intent, we
look no further and simply enforce the statute according to its terms.” (DuBois v.
Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387-388.) So viewed, subdivisions
(a), (b), and (d) of section 77 plainly denominate a three-judge panel to hear every case,
two of whom must concur in order to reach a decision. In dictating the composition of
the appellate division the Legislature unquestionably contemplated a structure of three
judges hearing and deciding an appeal even if there are four constituting the judicial body
as a whole. The phrase “no more than three judges” in subdivision (b) clarifies that even
in those counties in which the appellate division comprises four judges, only three of
those may participate in a particular case. The next sentence clearly contemplates that
three, not two, sit on any one case: “The presiding judge of the division shall designate
the three judges who shall participate.” (§ 77(b), italics added.)
       Resorting to the legislative history of section 77 does not advance respondent’s
        4
position. The original three-judge “[a]ppellate department” was created in 1929 to hear
appeals arising from municipal courts and other inferior courts. (Former § 77a, added by
Stats. 1929, ch. 475, § 1, p. 836.) Newly added section 77b of the 1929 legislation
required two judges to “transact any business, except such as may be done at chambers,
and the concurrence of two judges shall be necessary to pronounce a judgment.” (Former
§ 77b, added by Stats. 1929, ch. 475, § 2, p. 836.)
       In 1953 the Legislature enacted and then amended former Government Code
section 69540, establishing an appellate department in every county containing three or
more superior court judges and a municipal court. (Former Gov. Code, § 69540, added

4
   Although the “plain and commonsense meaning” of the current statute makes it
unnecessary to examine the legislative history (People v. Skiles, supra, 51 Cal.4th at
p. 1185), we grant respondent’s motion for judicial notice of the specified enactments
pertaining to section 77 between 1929 and 1998.

                                             4
by Stats. 1953, ch. 206, § 1, p. 1252, amended by Stats. 1953, ch. 1387, § 1, p. 2969.)
The Legislature then amended that legislation, recognizing superior courts of 50 or more
judges; in any such county the chairman of the Judicial Council was authorized to appoint
four judges to the appellate department. Otherwise, if there were three or more judges in
the superior court, three were to serve as the appellate department. (Stats. 1953,
ch. 1387, § 1, p. 2969.) The Legislature made it clear, however, that if four judges made
up the appellate department in those larger courts, “in such case no more than three of the
judges so designated shall participate in the hearing or decision of any matter coming
before the department, and the presiding judge of the department shall designate the
judges who shall so participate.” (Stats. 1953, ch. 1387, § 1, p. 2969, italics added.)
       In 1955 new legislation enacting the present section 77 called for three judges in
the appellate department whenever the superior court held three or more judges. (Former
§ 77, subd. (c)(i), added by Stats. 1955, ch. 527, § 1, p. 1001.) This legislation reflected
the earlier qualification when the Chairman of the Judicial Council found it necessary to
designate four judges to the appellate department in courts containing 50 or more judges.
In those departments no more than three of the four judges were to participate in any
case, and the presiding judge was to “designate the three judges who shall so
participate.” (Former § 77, subd. (c)(ii), added by Stats. 1955, ch. 527, § 1, p. 1001,
italics added.) The statute also stated that although three judges were to participate in the
hearing or decision of the case, “[t]he concurrence of two judges of such department shall
be necessary to render the decision.” (Ibid., italics added.) The earlier version in former
section 77b (requiring only two judges to “transact any business”) was repealed, along
with former section 77a and former Government Code section 69540. However, the new
section 77(b) still permitted the existing number of judges in a superior court to serve as
the appellate department if that court consisted of only one or two judges. (Former
§ 77(b), added by Stats. 1955, ch. 527, § 1, p. 1001.)



                                              5
       In 1961 the Legislature dictated that in smaller counties consisting of only one
judge, three would still be assured, through the appointment of two other judges from
another county or a retired superior court judge or appellate court justice. Larger
counties were to designate three judges—or, again, in counties with 50 or more judges in
the municipal courts, four judges, if the Chairman of the Judicial Council found it
necessary. The 1961 amendment retained the limitation on those larger departments to
three participating judges for each case. (Stats. 1961, ch. 937, § 1, p. 2570.)
       In 1984 section 77(b) was clarified further with more specific reference to
appellate departments of four or more judges: “In an appellate department with four
judges, no more than three judges shall participate in a hearing or decision. The
presiding judge of the department shall designate the three judges who shall participate.”
(Stats. 1984, ch. 704, § 1, p. 2614.) Thus, the 1984 amendment retained the 1961
expectation that three judges would participate in every appeal, even where four judges
constituted the appellate department.
       The revisions after 1984 are consistent with the requirement that three judges
participate in hearing and deciding every appeal. The 1998 amendment, which conforms
the statute to the unification of the municipal and superior courts, omitted the
introductory phrase “In an appellate department with four judges” and retained the
language limiting the hearing and decision of the now “appellate division” to three. Also
retained was the 1955 provision allowing the concurrence of only two judges to “render
the decision” in each case. (Former § 77, subd. (c)(ii).) Nothing in the background of
this amendment indicates an intent to change the existing requirement to permit fewer
participating judges; on the contrary, the Law Revision Commission comment noted that
subdivision (b) “continues the rule that the appellate division sits in panels of three.”
(Cal. Law Revision Com. com., 13 West’s Ann. Gov. Code (2066 ed.) foll § 77, p. 189.)
       Taken together, the history of section 77 convinces us that the current version has
not altered the nearly 60-year-old requirement that three judges in an appellate division of

                                              6
the superior court hear the matters before them. As in the Court of Appeal, the
concurrence of only two judges is required to render a decision, but three must
participate in hearing and deciding the case. It is clear, therefore, that the appellate
division in Santa Cruz County erred in insisting that it could proceed without a third
judge. (Cf. In re Ramirez (2001) 89 Cal.App.4th 1312, 1319-1320 [appellate division
hears and decides cases in three-judge panels].)
       Ets-Hokin v. Appellate Dept. of Superior Court (1941) 42 Cal.App.2d 326, 328,
Whittaker v. Superior Court (1968) 68 Cal.2d 357, and People v. Castellano (1978) 79
Cal.App.3d 844, 862 do not compel a different result. The court in Ets-Hokin was
applying the predecessor of section 77(b), Code of Civil Procedure section 77b, which
required only two judges to “transact any business” of the appellate department. The
court in Whittaker did not decide whether the hearing of an appeal by one judge violated
section 77(b) but only responded to a due process claim of error by holding that the
judge’s review could not be deemed inherently unfair. Thus, contrary to the People’s
argument, Whittaker does not contribute to an understanding of the procedure required by
section 77(b). Finally, the appellate court in Castellano held that the California
Constitution authorized two justices to decide an appeal from a judgment in a criminal
case.5 Whatever limited value that decision brought to the facts before it, we decline to
follow the Castellano holding in our analysis of section 77(b).
       More persuasive is the Supreme Court’s reasoning in Moles v. Regents of
University of California (1982) 32 Cal. 3d 867 (Moles), cited by amicus curiae. In that
case three justices of the Court of Appeal heard oral argument in an employment


5 Article VI, section 3, of the California Constitution states: “The Legislature shall
divide the State into districts each containing a court of appeal with one or more
divisions. Each division consists of a presiding justice and 2 or more associate justices. It
has the power of a court of appeal and shall conduct itself as a 3-judge court.
Concurrence of 2 judges present at the argument is necessary for a judgment.”

                                              7
termination case brought by a university professor against the university Regents. After
the argument, however, the presiding justice replaced one of the justices with another
who had not heard argument or participated in the matter in any way. The Supreme
Court overturned the resulting decision, holding that a judge who has not participated in
all stages of the decisionmaking process may not be permitted to participate in the final
decision and sign the opinion issued by that panel. The court noted that article VI,
section 3, of the California Constitution requires a judgment to result from the
concurrence of “two judges present at the argument.” It explained that “[the] right to oral
argument would be an empty right indeed if it did not encompass the right to have one’s
case decided by the justices who heard the argument. Oral argument provides the only
opportunity for a dialogue between the litigant and the bench. As a result, ‘it promotes
understanding in ways that cannot be matched by written communication.’ ” (Moles,
supra, at p. 872; see also Luco v. De Toro (1891) 88 Cal. 26 [change in composition of
the court after oral argument, absent stipulation, required new hearing before the newly
constituted court].)
       The People nevertheless insist that Johnson “has not shown prejudice from the
two-judge procedure employed in this case since only two judges must concur in order to
render a decision in an appellate division matter.” This argument misses the point. The
statute requires three judges to consider a defendant’s case, not two. The defendant is
entitled to the benefit of whatever influence a third judge may have on the disposition of
the appeal. The People cannot simply assume that because two judges concurred in
Johnson’s case, those two necessarily would have reached the same conclusion had
another judge expressed his or her views on the merits of the case. Notably, our Supreme
Court rejected the assertion of harmless error in Moles: “As one commentator has
observed, ‘The whole reason for there being more than one judge on an appellate court is
that the different perceptions, premises, logic, and values of three or more judges ensure a
better judgment. In these differences and in the process of criticism, response, and

                                             8
resolution lies the virtue of the appellate process. The heart of collegiality is unremitting
criticism.’ ” (Moles, supra, 32 Cal.3d at p. 873, quoting Coffin, The Ways of a Judge
(1980) p. 174.)
       Because an additional justice participated in the decision of Moles’s case, the
Supreme Court noted that it was impossible to know how that justice’s “perceptions,
premises, logic, and values” may have influenced the ultimate decision of the appellate
court. (Moles, supra, 32 Cal.3d at p. 874.) “This court can only speculate about the
influence his legal analysis and tentative conclusions had on the other panel members.
The only certainty is that the outcome of Moles’ appeal could easily have been affected
by a justice whom Moles never had an opportunity to address and persuade. His right to
attempt that persuasion through oral argument was denied.” (Ibid.) Although the court in
Moles was not addressing a situation like that of Castellano and the case before us, where
the same two judges heard and decided the appeal, the same reasoning can equally apply
when considering the complete lack of any participation by a third panel member.
       In response to our order to show cause, respondent advised us that since January
2014 it has adopted a practice of hearing appeals in panels of three judges rather than
two, and that it anticipates amending its local rule 8.1.01 to discontinue the authorization
of two-judge panels in the appellate division. Implicitly recognizing that these plans do
not rectify petitioner Johnson’s current situation, respondent suggests that it would now
grant rehearing but lacks jurisdiction to do so. Respondent therefore requests “guidance
as to how to proceed.” Having concluded that respondent’s practice and local rule 8.1.01
violate section 77(b), we will issue the writ of mandate and thereby enable respondent to
grant Johnson’s rehearing petition.
                                         Disposition
       Let a peremptory writ of mandate issue directing the appellate division of the
superior court to vacate its order denying Johnson’s petition for rehearing before a panel
of three judges and to issue a new order granting the petition.

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                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
MIHARA, J.




Johnson v. Superior Court
H039764
Trial Court:                     Santa Cruz County Superior Court


Trial Judge:                     Hon. Ariadne J. Symons
                                 Hon. Paul P. Burdick


Attorney for Petitioner:         Edwin A. Frey

Attorneys for Amicus             California Academy of Appellate Lawyers
Curiae 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

Attorneys for Respondent:        Jarvis, Fay, Doporto & Gibson
                                 Rick W. Jarvis




Johnson v. Appellate Division of The Superior Court
H039764
