Are multiple resentencing laws overburdening appeal courts?

Are resentencing laws coming out of Sacramento overburdening the appellate courts? It’s a view some appellate justices have expressed recently.

There’s little doubt California’s courts have been going through tough times in the wake of backlogs caused by the COVID-19 pandemic. Resentencing laws in recent years have also caused some criminal cases to make multiple trips through their courtrooms. But some of the justices expressing these frustrations also appear to oppose the state’s move toward lighter sentences.

Perhaps the most outspoken has been 2nd District Court of Appeal, Division 6 Justice Kenneth R. Yegan. He took direct aim at lawmakers in a concurring opinion published last week in People v. Ruiz, B324477 (Cal. App. 2nd, filed Nov. 9, 2022).

“There is a price to be paid in the quest for perfect justice,” Yegan wrote. “Here, by reason of the Legislature’s constant tinkering with sentencing rules, we are asked to reverse/remand for a fourth sentencing hearing. And, of course, if appellant is not satisfied, he will appeal for the fourth time. This is an undue burden upon the criminal justice system, the Superior Court and the Court of Appeal. It also adversely impacts the civil justice system.”

“I prefer not to add or subtract from the four corners of the opinion and it is still a pending case,” Yegan said when reached by email on Thursday.

The opinion published Dec. 13 was the court’s third related to enhancements added to a criminal defendant’s sentence for use of a firearm and a prior serious felony conviction. The case returned after lawmakers passed a pair of relevant resentencing laws in 2021. AB 518 states that a crime that can be punished “in multiple ways” no longer has “to be punished under the law that provides for the longest possible term of imprisonment.” SB 567 calls on judges to impose no worse than the “middle” of a possible sentence unless there are aggravating circumstances.

The second appeal caused the man’s sentence to be reduced from 28 to 23 years. The third trip to the Ventura appellate courthouse was filed in response to yet another law passed in 2021. AB 333 makes it harder for prosecutors to impose gang enhancements.

Yegan wrote a unanimous opinion remanding the case back to the lower court for a resentencing hearing, though he added that on previous remands the Ventura County trial court has not been inclined to show leniency. Justices Hernaldo J. Baltodano and Tari L. Cody also signed on to his opinion.

The criticism of lawmakers was confined to the concurrence, which Yegan alone signed. He wrote that the appellant “is lucky to be serving a 23-year determinate term” and could easily have been charged with “premeditated attempted murder.” Yegan also wrote fondly of the “dear dead days of the indeterminate sentence law.”

“Because of the Legislature’s constant tinkering with the already complex sentencing rules, the law has become an unsettled minefield,” Yegan wrote. “The goal of the Determinate Sentence Law is to impose ‘terms that are proportionate to the seriousness of the offense with provisions for uniformity in the sentences of people incarcerated for committing the same offense under similar circumstances.’ (§ 1170, subd. (a) (1).). Does anyone think that this goal is now being achieved?”

Retired appellate attorney Jon B. Eisenberg commented on the opinion in an email Thursday. “My initial reaction is to wonder (1) what his court’s caseload is and whether it justifies his complaining about being overburdened, and (2) how many of these resentencing cases are resulting in (a) substantial reductions of sentences at the trial level and (b) reversals on appeal, so that the interests of justice in these cases trumps any so-called ‘increased burden’ on the criminal justice system.”

Eisenberg has been a critic of delays on appellate courts. He filed a Commission on Judicial Performance complaint that forced former 3rd District Court of Appeal Presiding Justice Vance W. Raye to retire.

Eisenberg added, “I’m particularly interested in whether any of these resentencing cases he’s complaining about are for felony murder convictions, which have been notoriously unjust.”

Several appellate justices have commented in recent years about the flood of sentencing changes coming from the Legislature. In a February profile in the Daily Journal, 5th District Court of Appeal Justice Jennifer R.S. Detjen said lawmakers have passed “a lot of new laws,” increasing the court’s workload.

“Criminal defendants are having their cases heard on appeal and over and over again,” Detjen said. “They’ve been coming at us fast and furious. It creates a lot of appellate litigation.”

But in that interview, Detjen said she also understood why the “pendulum” had swung against harsher sentencing. Efforts to reach Detjen on Thursday were unsuccessful.

By contrast, Yegan — a rare Gov. George Deukmejian appointee still on the bench — has a record of speaking out against sentence reductions. On Dec. 8, he was part of a 2-1 majority that reinstated a felon’s sentence even though his third strike was neither “serious or violent,” in possible defiance of a recent state law. People v. Superior Court, County of Santa Barbara, B329457 (Cal. App. 2nd, filed June 12, 2023). In other recent opinions, he has cited his own First Amendment right to object to recent laws and California Supreme Court rulings, even as he complied with them and reduced criminal sentences.

According to the most recent Court Statistics Report published by the Judicial Council, the 2nd District had the highest caseload per justice in the state in 2022, as well as the biggest increase in caseload from 2021. However, the report also showed the number of criminal appeals has fallen in recent years, in the 2nd District and statewide.