September 17, 2017

Justice Liu separate statements influence legislative session

Justice Goodwin Liu has revived the practice of occasionally writing separate statements when the Supreme Court denies petitions for review.  Two of those statements influenced bills that the Legislature passed on Friday at the end of its 2017 session.

Senate Bill 395 would require that minors under 16 consult with an attorney before a custodial interrogation.  A similar bill passed last year that was inspired, at least in part, by Justice Liu’s dissenting statement (concurred in by Justice Mariano-Florentino Cuéllar) from the 2015 denial of review in In re Joseph H., the high-profile case of a 10-year-old who shot and killed his neo-Nazi father and who was found by the Court of Appeal to have knowingly waived his Miranda rights.  Governor Jerry Brown vetoed that bill, but promised to “work with proponents, law enforcement and other interested parties to fashion reforms that protect public safety and constitutional rights.”  Maybe the Governor will approve of this year’s bill.

The Legislature also passed Senate Concurrent Resolution 48, which “recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.”  One of the resolution’s 28 “whereases” quotes a portion of Justice Liu’s 2016 dissent from the denial of review in People v. Cruz-Santos.  The dissent criticized an unpublished Court of Appeal opinion concerning the natural and probable consequences doctrine as used to determine accomplice liability.

Justice Liu’s most recent separate statement (three weeks ago) and a July concurring opinion suggested legislative action in different areas of juvenile dependency law.  Because Justice Liu appears to have the Legislature’s ear (as the Chief Justice does on the issue of federal immigration agents in California’s courthouses), it wouldn’t be surprising to see action in the next session on these recommendations.

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