A petition for review to the Supreme Court must start “with a concise, nonargumentative statement of the issues presented for review.” (Rule 8.504(b)(1).) Standard advice to practitioners is to not overload a petition with too many issues. (E.g., Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2022) Ch. 13-B ¶ 13:59 [“Be selective about the issues. It is rarely helpful to raise more than two issues. . . . A petition with too many issues is likely to suggest to the court that none of them are very compelling.”].)

On the other hand, there’s what happened in last week’s People v. Ramirez opinion. (See here.)

The court rejected the claim that a defendant was deprived of his right to be present for part of his trial, holding substantial evidence supported the superior court’s finding that the defendant voluntarily absented himself when he sought treatment for a drug overdose. The defendant argued in the alternative that, if there was a voluntary absence, “then the trial court’s refusal to grant a one-day continuance was an abuse of discretion.” (Brief here.)

The court refused to decide the alternative argument, however, because, the opinion said in footnote, “Defendant’s petition for review did not adequately raise the additional question of whether the trial court abused its discretion when it denied defense counsel’s motion for a continuance.” Although two justices dissented, saying they wanted to reach — and rule in the defendant’s favor on — the continuance issue, the defendant was out of luck.

The Ramirez majority was following the rule that the court “may decide any issues that are raised or fairly included in the petition or answer.” (Rule 8.516(b)(1).) Thus, the corollary to the advice about not raising too many issues is that you need to raise enough issues. (See Cal. Practice Guide: Civil Appeals & Writs, Ch. 13-B ¶ 13:59 [“in exceptional cases, several major issues may have to be raised so as not to risk a waiver on review”].)

It’s a Goldilocks conundrum — don’t raise too many issues, but don’t raise too few, either.

Of course, there are also caveats to the corollary.

Even if an issue is listed in a petition for review that is granted, the court is not obligated to decide it. (Rule 8.516(b)(3) [“The court need not decide every issue the parties raise”].) And, in fact, in Ramirez, the court said, “Even if the secondary issue were adequately raised, we are not compelled to address it and decline to do so here.”

Another caveat is that an issue can still be reached even if not raised in a petition for review. (Rule 8.516(b)(2) [“The court may decide an issue that is neither raised nor fairly included in the petition or answer if the case presents the issue and the court has given the parties reasonable notice and opportunity to brief and argue it”].)

The court has maximum flexibility in, and retains ultimate control over, what issues it will decide (other than in automatic death penalty appeals), but counsel should nonetheless strive to hit the sweet spot in a petition for review, so that the statement of issues presented — à la Goldilocks — is “just right.”