There was no regular Supreme Court conference this week to rule on petitions for review, but that didn’t stop the court from agreeing on Thursday to hear a criminal matter. The unusual grant in People v. Aledamat is probably attributable in part to the court’s long-unfilled vacancy. (It’s been an astounding 486 days since Justice Kathryn Werdegar announced her retirement and 310 days since she left the court.)
In Aledamat, only three of the court’s justices — Chief Justice Tani Cantil-Sakauye and Justices Ming Chin and Carol Corrigan — voted for review. Because of that and the vacancy, it was necessary to undertake the somewhat time-consuming process of appointing a Court of Appeal justice as a pro tem to cast the deciding vote whether to grant the petition. (On petitions for review, a pro tem justice is appointed to fill the vacancy only if “four justices cannot agree on a disposition,” according to the court’s Internal Operating Practices and Procedures.) The delay is likely why the court found itself with no regularly scheduled conferences before its time to rule on the petition was to run out. (See rule 8.512(b).)
The pro tem — Fourth District, Division Two, Justice Carol Codrington — voted to grant. It might have happened before, but we can’t remember the last time the court granted review with a pro tem justice’s vote.
The issue in Aledamat is whether error in instructing the jury on both a legally correct theory of guilt and a legally incorrect one is harmless if an examination of the record permits a reviewing court to conclude beyond a reasonable doubt that the jury based its verdict on the valid theory, or whether the error is harmless only if the record affirmatively demonstrates that the jury actually rested its verdict on the legally correct theory. In a published opinion, the Second District, Division Two, reversed a conviction for assault with a deadly weapon, but recognized that “the rules regarding prejudice that we apply in this case are arguably in tension with more recent cases, such as People v. Merritt (2017) 2 Cal.5th 819″ (see here and here). However, that court said, other Supreme Court case law “is directly on point and remains binding on us” and “[a]ny revisiting or reconsideration of this case law is for our Supreme Court, not us.”