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Name: Johnson v. Superior Court, Appellate Division
Case #: H039764
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 10/17/2014

Superior court appellate divisions violate Code of Civil Procedure section 77 by having two-judge panels, rather than three-judge panels, hear misdemeanor appeals. Johnson was convicted of a misdemeanor for disorderly conduct. His appeal was heard by a two-judge panel of the appellate division despite his objection that a three-judge panel was required under Code of Civil Procedure section 77. After the two-judge panel affirmed his conviction, Johnson sought a writ of mandate in the Court of Appeal to compel rehearing by a three-judge panel. Held: Writ issued. The plain language of section 77 requires that “three judges shall participate” in hearing each case before the appellate division and the concurrence of two of those three is required to reach a decision. The legislative history of section 77 and the cases that have considered its provisions are not inapposite. Thus the two-judge panel in Johnson’s case violated section 77. The error is not subject to harmless error review because it is “impossible to know how [a third judge’s] ‘perceptions, premises, logic, and values’ may have influenced the ultimate decision . . . .” (Quoting Moles v. Regents of University of California (1982) 32 Cal.3d 867, 874.) Johnson is “entitled to the benefit of whatever influence a third judge may have on the disposition of the appeal.”