Justice Goodwin Liu has written a(nother) long dissenting statement from the denial of a petition for review. He is critical of a First District, Division Two, Court of Appeal unpublished opinion concerning the natural and probable consequences doctrine as used to determine accomplice liability. He says he would have granted review “[b]ecause this case would enable us to provide useful guidance to the trial courts, and because defendants present a strong argument that they were convicted of second degree murder on a theory unsupported by sufficient evidence.”
Dissenting statements from denials of review are getting to be a thing for Justice Liu. He filed one five months ago, but that apparently was the first one by a California Supreme Court justice in almost 60 years.
So, where can you read the dissent? You have to know where to look. The dissent is on the Supreme Court’s docket in the case — People v. Cruz-Santos — but not in an easy-to-read format. It’s also available at the end of the Court of Appeal’s opinion that was re-posted to include the dissent. At some point, it’s possible that the dissent will appear on Westlaw and Lexis.
The more important question is how do you find out in the first place that a justice has issued a dissenting statement? That’s more difficult to answer. Atypically, the denial of review did not happen at the court’s regular Wednesday conference and thus nothing about the dissent even appears on the court’s posted conference list, which itself is relatively obscure. I found out about the dissent from fellow appellate lawyer and blogger Ben Shatz, who noticed an unusual “S” at the end of the case number on the webpage with links to unpublished Court of Appeal opinions.
If justices are going to write separate statements when the court denies review, those statements should not be buried as they are now. Justice Liu’s earlier dissenting statement was in a high-profile case, so that denial of review attracted media attention in general. A ruling on the petition for review in Cruz-Santos, however, was probably being watched for by nobody other than the parties to the case.
There should be a better way. As we wrote when Justice Liu’s filed his first dissenting statement, separate statements concerning the denial of a petition 
for review are important and deserve better. They should be published in the official reports. There should also be some notice that a separate statement has been issued. Maybe something like a notice of forthcoming filing that the court posts the day before an opinion is issued, except the notice could be after the fact for a separate statement. Also, the separate statement should be posted with other Supreme Court opinions and opinion modifications.
Justice Liu’s dissenting statement prompted Chief Justice Tani Cantil-Sakauye to issue a brief concurring statement, which also appears on the Supreme Court docket and at the end of the re-posted Court of Appeal opinion. She “note[d] that reasonable minds may differ about the characterization of the record below” and added that “it is well established that this court’s denial of a petition for review is not an expression of the court’s opinion concerning the correctness of the underlying appellate decision, or its result, or of any law stated in that decision.” Justices Kathryn Werdegar, Ming Chin, and Carol Corrigan concurred in the Chief Justice’s concurring statement. Justice Leondra Kruger was absent and did not participate. Justice Mariano-Florentino Cuéllar apparently did not concur in the Chief Justice’s or Justice Liu’s statement, and either simply did not vote to grant review or decided not to record a dissenting vote. Without an eagle eye like Ben Shatz’s, however, you probably wouldn’t know about any of this.
Thank you for this post–fascinating. And thanks to Ben for catching this “dissent” for the benefit of all of us. I especially appreciate this one, as a trial court judge in a criminal assignment who is always seeking to understand the nuances of applying a general rule of law on an issue to new and different facts that test the limits of the rule, and as to which there is no case directly on all fours. This “dissent” really shows how to apply this general rule re natural and probable consequences, and where the rule might reach the limits. I would hate to miss another one like this!
There are obviously ways to propose a new rule of court to address these dissents from denial of review, through the State Bar Committee on Appellate Courts or otherwise. Are you inclined to pursue that, especially now with the added “concurrence” by the Chief here? I hope you do!