When the Supreme Court yesterday denied review in In re Flores and a depublication request in People v. Flores (cases involving two different people), Justice Goodwin Liu filed separate statements in both, dissenting in the former and concurring in the latter.
In In re Flores, a Proposition 57 case, the Third District Court of Appeal unpublished opinion held determinately sentenced prisoners do not have a right to in-person parole hearings. Justice Liu writes he doubts the denial of such hearings “comports with due process,” and he explains his doubts at length, including criticism of the Fourth District, Division One, decision in In re Kavanaugh (2021) 61 Cal.App.5th 320, on which the Flores court relied. Without a noted dissent, the Supreme Court denied review and a depublication request in Kavanaugh. Flores was released on parole after filing his habeas corpus petition, but Justice Liu says that fact “demonstrates that this is an issue capable of recurring yet evading review.” Because of that and because “thousands of Proposition 57-eligible inmates remain in prison,” Liu says the issue is one of “statewide importance” and would hear the case.
The First District, Division Three, partially published opinion in People v. Flores found it harmless that a superior court imposed an upper term sentence based on aggravating circumstances that had been found by the superior court instead of a jury. Justice Liu says a recent amendment of the applicable sentencing statute — Senate Bill 567 — requires, “in an appropriate case,” revisiting two Supreme Court cases that interpreted the statute before its amendment. The “appropriate case” might be the Fourth District, Division One, opinion in People v. Lopez (2022) 78 Cal.App.5th 459, which disagreed with Flores and which Liu identifies in his concurring statement. Then again, Lopez might not be an appropriate case — the defendant there prevailed on the sentencing issue and filed a petition for review only to exhaust state remedies (see rule 8.508). The Attorney General still has a few days left to file his own petition for review in Lopez.