Yesterday, we analyzed whether there is a consistent, predictable relationship between dissent at the Court of Appeal and the result in civil cases at the California Supreme Court. Today, we turn our attention to the criminal docket.

The data is reported in Table 85 below. Interestingly, although the notion that a dissent at the Court of Appeal is crucial to getting review once again turns out to be wrong, there is a somewhat more stable relationship between the non-unanimous and unanimous decisions in terms of dissents below. Dissents were more than three times more common among non-unanimous criminal decisions in 2000 than they were among unanimous ones; 35.71% of non-unanimous decisions had a dissent below, but only 11.54% of unanimous ones did. The following year, the relationship between the two halves of the docket flipped, but in 2002, the numbers were quite similar: one-third of non-unanimous decisions had a dissent below, 14.29% of unanimous ones did. Dissents increased as a fraction of unanimous decisions in 2004, as 30.77% of non-unanimous decisions had dissenters below to 24.32% of unanimous decisions. In 2005, one-quarter of non-unanimous decisions had a dissent below, but none of the unanimous decisions did. The following year, non-unanimous decisions were down to 15.79% with a dissent below, and only 6.67% of unanimous decisions had a dissent.

In 2008 and 2009, dissents below were far more common in non-unanimous decisions than among the unanimous ones. In 2008, 60% of all non-unanimous decisions had a dissent below, to only 20% among the unanimous decisions. In 2009, one-third of all non-unanimous decisions had a dissent below, but only 3.57% of unanimous ones did.

For the rest of the period, the relationship between dissents in the Court’s criminal docket was less stable. In 2010, 8.33% of non-unanimous decisions had a dissent below to 13.51% of unanimous decisions. The following year, the figures were 42.86% and 22.22%. In 2012, the halves of the docket switched sides again – 7.14% of the Court’s non-unanimous criminal decisions had a dissent below to 15.79% of the unanimous ones.

In the past three years, dissents below have been concentrated among the Court’s unanimous decisions. In 2013, 23.08% of unanimous decisions had a dissent below. The next year, 14.81% did. In each of those years, none of the non-unanimous decisions had a dissent below. Most recently, in 2015, none of the Court’s decisions, either on the non-unanimous or unanimous side, had a dissent below.

Click here for table.