This is a relatively unremarkable opinion. Except for one thing.

Defendant moved for mental health diversion, claiming that his illness was a substantial cause of his criminal acts (which were longstanding and extensive). The trial court found, as a factual matter, that the psychologist’s opinion was not credible, and that the defendant’s mental health issues did not play a factor in his decision to commit the crimes at issue.

Not surprisingly, the Court of Appeal affirms. The trial court made a factual finding. That’s super hard to reverse. There’s substantial evidence to support the trial court’s decision, so that’s that. As a result, the Court of Appeal resolved the appeal in five pages. It’s that easy.

The thing that’s remarkable, though, is Justice Yegan’s four-paragraph concurrence. To his own opinion, no less.

The concurrence cites a recent case from the 4/3 — People v. Cabalar. That opinion isn’t cited anywhere in today’s opinion by the 2/6. It doesn’t need to be, since the present appeal simply involves a case-specific factual inquiry, not a dispute about the law.

Justice Yegan’s concurrence nonetheless reaches out to let the 4/3 know that he thinks that Cabalar was wrongly decided. He’s not shy about it, either:

“Cabalar [] is wrong. I disagree
with its result and rationale. It does not seem to follow
traditional and time-honored rules on appeal. In fact, it seems to
retry the facts, and seems to ignore the doctrine of implied
findings. (People v. Francis (2002) 98 Cal.App.4th 873, 878.) It
also seems to draw inferences away from the order under review.
It then substitutes its discretion for that of the trial court and
eviscerates the concept of “residual discretion.” . . . .

Cabalar is a convicted felon. His possession of a firearm
and ammunition makes it difficult to imagine that he does not
pose a risk of danger to public safety. And his participation in an
uncharged conspiracy to commit grand theft of $175,000 worth of
jewelry from a department store jewelry case in a “smash and grab,” hardly inspires a finding that he is not a risk to the
public’s safety. These two observations support the trial court’s
exercise of “residual discretion.””

It’s not every day you see a justice reach out to let everyone know that a recent opinion from a different district involving different facts is (allegedly) spot on wrong.

As my kids would say: Shots fired, Justice Delaney.