Johnson v. Appellate Division of Superior Court

In this original proceeding petitioner Gary Allen Johnson seeks writ relief from a decision of the Appellate Division of the Santa Cruz County Superior Court affirming a judgment convicting him of a misdemeanor. Petitioner contends that the appellate division violated Code of Civil Procedure section 77, subdivision (b) (section 77(b)) by hearing his appeal with only two judges rather than the prescribed three. We agree with Johnson that the challenged procedure was unauthorized and therefore grant the requested relief.

Background

On March 29, 2012, Johnson was convicted of disorderly conduct by lodging in a place “without the permission of the owner or person entitled to the possession or in control of it.” (Pen. Code, § 647, subd. (e).) On March 21, 2013, over Johnson’s objection, his appeal was heard by a panel of two appellate division judges. At the conclusion of the hearing the panel affirmed the judgment.

Johnson then filed a petition for rehearing, contending that the participation of only two judges at the hearing violated section 77(b) and made the panel more likely to prejudge the outcome and “less susceptible to persuasion by oral argument than they would…