July 21, 2016

Supreme Court clears way for state testing for possible Delta water project

In Property Reserve, Inc. v. Superior Court, the Supreme Court today holds that the Department of Water Resources can use precondemnation judicial procedures instead of a classic condemnation action to get authority to conduct environmental and geological testing of private property.  The opinion by Chief Justice Tani Cantil-Sakauye — for six members of the court — will allow the Department to proceed with its investigation into the feasibility of building a new tunnel or canal in the Sacramento-San Joaquin Delta to deliver water from the North to Central and Southern California.  The court concludes that “the procedure established by the precondemnation entry and testing statutes satisfies the requirements of the California takings clause when the procedure is reformed to comply with the jury trial requirement of that clause,” meaning that property owners have the right to a jury determination of damages caused by the testing.

Justice Goodwin Liu writes a concurring opinion because he is “not persuaded by the court’s reasoning and would reach [the same result] on different grounds.”

The Supreme Court reverses the Third District Court of Appeal.

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July 21, 2016

Trial court has discretion to strike gang enhancement

In People v. Fuentes, the Supreme Court today holds that trial courts have the discretion to strike sentencing enhancement allegations for gang-related offenses.  Resolving a conflict in the case law, the court’s unanimous opinion by Justice Ming Chin interprets the relationship between a specific statute and a general statute, and discusses the meaning of the phrase “notwithstanding any other law” in the specific statute.

The court affirms the Fourth District, Division Three, Court of Appeal.  It disapproves a 2011 decision of the Fourth District, Division One.

July 20, 2016

When to submit letters supporting petitions for review

When a party petitions the Supreme Court for review, non-parties can submit letters to the court in support of review.  (Rule 8.500(g).)  Those letters can be effective.  (See here and here).

The rules specify when a petition must be filed, but there is no fixed deadline for a supporting letter.  We usually advise getting the letter on file before the court’s staff starts work on the conference memo regarding the petition, a time we used to estimate to be around 20 days after the petition’s filing, which is when the answer to the petition is due.  That’s probably still good advice, but we now understand that taking a bit longer on the letter — even up to five weeks after the petition is filed — might not hurt.

Our current understanding is that, when a petition is filed, the case is assigned to an initial conference that will occur about five weeks later.  (The court conferences on petitions for review most Wednesdays.)  However, a petition is often not submitted at the initial conference to which it is assigned, but is continued to a later conference, usually for logistical reasons that are unrelated to the significance or merits of the issue presented.  (Occasionally, a justice will have a petition continued after she or he reads the conference memo (see next paragraph), but the more common reason for a continuance is that there are older petitions that have to be considered first.)

Court central staff prepares conference memos for each petition.  Those memos are typically distributed to the justices and their staffs about a week before the conference at which the petition will be considered.  Central staff will typically start work on the conference memo about a week before that.

The critical factor about when work will start on a conference memo — our rule-of-thumb deadline for submitting a letter in support of review — thus seems to be whether the petition for review will be continued to a later conference.  But, because the logistical reasons for a possible continuance are unknowable outside the court, three weeks after the petition for review is filed appears to still be the safest target date.

We are also informed that even last-minute supporting letters are considered, generally causing preparation of a supplemental conference memo, but we don’t recommend waiting until the last minute.  We would rather have our client’s supporting letter — or letters by others supporting our client’s petition for review — in the central staff attorney’s hands before that attorney is working on the conference memo.

Finally, don’t be concerned if, whenever supporting letters are submitted, they don’t appear on the court’s online docket.  They just don’t.

July 20, 2016

Eminent domain, gang enhancement opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in Property Reserve, Inc. v. Superior Court and People v. Fuentes, which were both argued on the early-May calendar.

The court limited review in Property Reserve to these issues:  (1) Do the geological testing activities proposed by the Department of Water Resources constitute a taking?  (2) Do the environmental testing activities set forth in the February 22, 2011, entry order constitute a taking?  (3) If so, do the precondemnation entry statutes (Code Civ. Proc., §§ 1245.010-1245.060) provide a constitutionally valid eminent domain proceeding for the taking?

In Fuentes, the court will address whether the trial court has the power under Penal Code section 1385 to dismiss a Penal Code section 186.22 enhancement for gang-related crimes, or whether the court is limited to striking the punishment for the enhancement in accordance with subdivision (g) of section 186.22.

The opinions can be viewed tomorrow starting at 10:00 a.m.

July 18, 2016

Supreme Court unanimously affirms death sentence

In People v. Simon, the Supreme Court today affirms the death sentence for a 1995 double murder in Riverside County.  The unanimous opinion is authored by Justice Mariano-Florentino Cuéllar.

July 15, 2016

Death penalty opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Simon, an automatic appeal from a November 2001 judgment of death.  Simon was argued on the late-May calendar.  This will be the first opinion for cases from that calendar.

The opinion can be viewed Monday starting at 10:00 a.m.

July 14, 2016

Supreme Court’s order to hear another Batson case suggests earlier death penalty affirmance is at risk

In a habeas corpus proceeding (In re Williams), the Supreme Court yesterday issued an order to show cause why relief should not be granted “on the ground that the prosecutor exercised peremptory challenges against prospective jurors with racially discriminatory intent.”  The order is significant not only because Batson issues have divided the court before, but also because the court three years ago rejected the same prisoner’s Batson claims in his direct appeal from a death penalty judgment.

In People v. Williams (2013) 56 Cal.4th 630, the court affirmed the death sentence, finding no error in the trial court’s denial of objections to the prosecution’s peremptory challenges of 5 African-American women prospective jurors, despite the judge saying, “I have found that the black women are very reluctant to impose the death penalty.”  Justices Kathryn Werdegar and Goodwin Liu dissented, Justice Liu stating that the majority’s “deference [to the trial court] in these circumstances all but drains the constitutional protection against discrimination in jury selection of any meaningful application.”

Two of the four members of the People v. Williams majority — Justices Joyce Kennard and Marvin Baxter — have since retired.  If their replacements — Justices Mariano-Florentino Cuéllar and Leondra Kruger — agree with Justices Werdegar and Liu on the Batson issue, yesterday’s order to show cause could be considered a de facto transition rehearing grant, similar to when Justices Cuéllar and Kruger voted with Werdegar and Liu to grant rehearing in People v. Grimes.

July 14, 2016

You can still cite these four opinions, although the precedential effect of one of them is uncertain

Yesterday was the first Supreme Court conference since the effective date of the new rule that ended the automatic depublication of published Court of Appeal opinions when the Supreme Court grants review.  At the conference, the court granted review of 4 published Court of Appeal opinions, all of which now remain citeable.

There are some caveats, however.  First, because of the grants of review, the opinions (except for one, perhaps (see below)) no longer have “binding or precedential effect, and may be cited for potentially persuasive value only.”  (Rule 8.1115(e)(1).)  Second, “Any citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court.”  (Ibid.; see also rule 8.1105(e)(1)(B) [“any such Court of Appeal opinion, whether officially published in hard copy or electronically, must be accompanied by a prominent notation advising that review by the Supreme Court has been granted”].)

Here is the very first batch of published opinions that are staying on the books despite the grant of review:  People v. Gonzalez, People v. Davis, People v. Johnston, and People v. Valdez.

Valdez presents an interesting situation regarding the new rule.  The Supreme Court there denied the petition for review, but granted review on its own motion at the Court of Appeal’s request, and transferred the case back to the Court of Appeal with directions to vacate its decision and to reconsider the cause, including the People’s motion to abate the proceedings in light of the defendant’s death.  Under the new rule, the grant of review doesn’t depublish the Court of Appeal’s opinion, but the opinion’s precedential effect is unclear.

Rule 8.1115(e) describes the precedential effect only of opinions (1) “[p]ending review and filing of the Supreme Court’s opinion” and (2) “[a]fter decision on review by the Supreme Court,” but neither provision applies in Valdez because there will be no Supreme Court opinion and there has been no Supreme Court decision (see rule 8.528(d) [“After ordering review, the Supreme Court may transfer the cause to a Court of Appeal without decision but with instructions to conduct such proceedings as the Supreme Court orders” (emphasis added)]).  Also, the Supreme Court can’t use in Valdez its power under the new rule 8.1115(e)(3) to order that an opinion is not citable or to specify the precedential effect of an opinion, because that power applies only to “an opinion covered by (1) or (2),” and the Valdez opinion is not one of those.

The only way for the court to eliminate the uncertainty whether superior courts are bound by the Valdez opinion might be to depublish the opinion on its own motion under rules 8.1105(e)(2) and 8.1125(c)(2).  That would be an ironic disposition for one of the first opinions covered by the new anti-automatic-depublication rule.

July 14, 2016

Supreme Court invalidates one court rule, upholds another, regarding the Indian Child Welfare Act

In In re Abbigail A., the Supreme Court today holds invalid a state court rule that requires juvenile courts to treat a child “as . . . an Indian child” under the federal Indian Child Welfare Act if the child is simply eligible for tribal membership, even if he or she is not an Indian child under the Act.  The unanimous opinion by Justice Kathryn Werdegar concludes the rule “conflicts with the [California] Legislature’s intent to enforce ICWA by codifying its provisions.”

The court has no problem with a related rule, however, one which, among other things, requires affirmative steps be taken to secure tribal membership for a minor who is in fact an Indian child.  The court notes that “[t]ribal membership offers significant benefits to an Indian child, including the opportunity to develop a political, cultural, and social relationship with the tribe, and access to federally funded programs.”

The court reverses in part the Third District Court of Appeal, which had found both rules to be invalid.

July 13, 2016

A Trekkie on the court?

The San Diego Comic-Con is advertising that Justice Mariano-Florentino Cuéllar will participate next Thursday afternoon in a program titled, “Star Trek: Where Lawyers Boldly Go.”  Here’s the program description:Star Trek

California Supreme Court Justice Mariano-Florentino Cuéllar, former judge Paul Grewal (now vice president and general counsel of litigation for Facebook) and attorneys Neel Chatterjee (lead trial counsel for Facebook in the lawsuit depicted in the film The Social Network), Joshua Gilliland (The Legal Geeks), Jessica Mederson (The Legal Geeks), Christine Peek, and Megan Hitchcock will boldly go across the top legal issues in Star Trek.  This panel will focus on specific episodes from all of the Star Trek series that highlight the best legal issues, from positively showing women in the practice of law to civil rights, trial advocacy, and due process.

July 13, 2016

Another Indian Child Welfare Act opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in In re Abbigail A., which was argued on the early-May calendar.

Abbigail A. raises an issue under the Indian Child Welfare Act and follows last week’s decision in In re Isaiah W., where the court held a parent could delay challenging a juvenile court’s determination that no notice need be given under the Act.

Abbigail A. is expected to answer whether rules 5.482(c) and 5.484(c)(2) of the California Rules of Court conflict with Welfare and Institutions Code section 224.1, subdivision (a), by requiring the juvenile court to apply the provision of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) to a child found by a tribe to be eligible for tribal membership if the child has not yet obtained formal enrollment.

As in Isaiah W., the United States is an amicus curiae in Abbigail A., but the court specifically solicited the amicus brief in Abbigail A.  The court asked the federal government to discuss “whether rules 5.482(c) and 5.484(c)(2) of the California Rules of Court are preempted to the extent those rules purport to require California courts to apply the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) in child custody proceedings involving a minor who is not an ‘Indian child’ as defined in ICWA.  (See 25 U.S.C. § 1903(4); cf. id., §§ 1902 & 1921.)”

The Abbigail A. opinion can be viewed tomorrow starting at 10:00 a.m.

July 12, 2016

California Academy of Appellate Lawyers opposes Prop. 66

The California Academy of Appellate Lawyers has issued a statement opposing Proposition 66, the November ballot measure designed to speed up California’s death penalty process.  (A competing initiative — Proposition 62 — would eliminate the death penalty in the state altogether.)  [Disclosures:  I’m an Academy member and past president; other Horvitz & Levy attorneys are also members; the current president is “of counsel” to the firm.]

Stating that it “neither supports nor opposes the death penalty or reasonable measures to clear the backlog of death penalty appeals,” the Academy calls the initiative an “ill-considered proposition” that “would impose crushing burdens on California’s Supreme Court and intermediate appellate courts, disrupting and delaying thousands of other cases for years to come.”

I have previously written that “[t]he disruption to the state’s judicial system if th[e] initiative became law cannot be overstated.”

July 11, 2016

Death penalty unanimously reversed because of dismissal of one prospective juror

The Supreme Court today affirms the conviction, but reverses the death penalty, in People v. Zaragoza.  The unanimous opinion by Justice Mariano-Florentino Cuéllar holds the trial court erred in the death qualification of the jury — one prospective juror was improperly excused for cause based on what the Supreme Court concludes were ambiguous jury questionnaire answers concerning whether she could vote for a death penalty verdict.  The prospective juror’s “written responses did not clearly reveal personal views that would interfere with her ability to judge the penalty based on the evidence presented.”

July 11, 2016

Supreme Court upholds conviction of self-represented, absentee defendant

Saying that a defendant “has no one but himself to blame for any failure to present a defense,” the Supreme Court today in People v. Espinoza holds a trial court acted properly in proceeding with a trial in the defendant’s voluntary absence after allowing the defendant to be his own lawyer.  In a unanimous opinion by Chief Justice Tani Cantil-Sakauye, the court also finds no problem with the denial of a one-day continuance when the defendant was still represented by a public defender.

The court reverses the Sixth District Court of Appeal.

July 8, 2016

No conference held the week of July 4, 2016

The Court held no conference this week.  Accordingly, no action was taken on petitions for review and no opinions were ordered published or depublished.

July 8, 2016

Insurance questions from the East — and maybe another one from the Ninth Circuit — for the Supreme Court

Rule 8.548 allows many different non-California courts to ask the California Supreme Court for help on state law questions.  A request can come from “the United States Supreme Court, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth.”  Almost always, it’s the Ninth Circuit that uses rule 8.548 (see, most recently, here), but the D.C. Circuit has invoked the procedure at least twice.

Now, however, the Second Circuit wants the Supreme Court to answer a question.  A three-judge panel in Migdal Insurance Company Ltd. v. The Insurance Company of the State of Pennsylvania, yesterday said it wants the court to resolve these issues:  “(a) Where the insurance policies of two insurance companies (identified in this question as A and B) cover the same risk, the policy of company A is primary and contains no ‘other insurance’ clause, and the policy of company B, which is also primary, contains an ‘other insurance’ clause stating, ‘This insurance is excess over: . . . Any of the other insurance or your self-insurance plan that that [sic] covers a loss on the same basis,” is company A entitled under California law to equitable contribution from company B?,” and “(b) Under the circumstances described above and where the amount Company A paid to settle a case exceeds the policy limit of Company B’s policy, is a clause in the insurance policy of company B stating, ‘All payments made under any local policy issued to you by us or any other insurance company will reduce the Limits of Insurance of this policy’ enforceable under California law?”  (Footnotes omitted.)

Interestingly, both sides in the Migdal Insurance case opposed sending the case to the Supreme Court.  The Second Circuit, however, said the parties’ arguments that California law is “clear in favor of their opposing positions . . . reinforce our
view that California law is not clear on the questions we have certified.”

Meanwhile, another insurance law question might soon be headed the Supreme Court’s way from the usual source.  The Ninth Circuit last month entered an order in Liberty Surplus Insurance Corporation v. Ledesma and Meyer Construction Company, Inc., asking the parties to address at oral argument if the Supreme Court should be asked to answer “whether there is an ‘occurrence’ under a commercial general liability policy when claims for negligent supervision, hiring, or retention are made against an employer and the underlying injury is caused by the intentional act of an employee.”

Unlike in Migdal Insurance, the parties in Liberty Surplus are split about whether the Supreme Court should be asked to resolve the issue.  At the Liberty Surplus argument earlier this week, the insured’s attorney encouraged the referral and the insurance carrier’s counsel said the law was clear.  The Ninth Circuit seems to be leaning towards asking for help.  One member of that court’s panel — Judge Paul Watford — said he had read five or ten times a “but see” cite in an earlier Supreme Court decision and confessed, “I can’t for the life of me figure out what [the court was] trying to signal to the outside world.”

July 8, 2016

Self-represented defendant, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in People v. Espinoza and People v. Zaragoza, which were both argued on the early-May calendar.

Espinoza raises these issues:  (1) Did the trial court err in continuing trial in defendant’s absence without a valid waiver of his trial rights or appointment of counsel after defendant, who was out of custody and representing himself, voluntarily failed to appear for his ongoing trial?  (2) Was reversal required because the trial court refused to grant defendant a one-day continuance after it granted his motion during jury selection to represent himself?

Zaragoza is an automatic appeal from a May 2001 judgment of death.

Both opinions can be viewed Monday starting at 10:00 a.m.

July 7, 2016

Supreme Court expands ability to challenge lack of Indian Child Welfare Act notice

In In re Isaiah W., the Supreme Court today allows parents to delay challenging a court’s determination that no notice need be given under the Indian Child Welfare Act, which requires notification to an Indian child’s tribe of pending foster care placement or parental rights termination proceedings.  The 6-1 opinion by Justice Goodwin Liu holds that a mother did not waive objecting to a no-notice finding by failing to appeal from a ruling — made after the finding — that removed her child and placed him in foster care.  Instead, the mother could raise that issue on an appeal from a later order terminating her parental rights.  The court so rules because the Act “imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child.”  The court concludes that “the federal and state statutes were clearly written to protect the integrity and stability of Indian tribes despite the potential for delay in placing a child.”

Justice Ming Chin dissents, criticizing the court’s better-later-than-never approach.  He says the majority is improperly “carv[ing] out an exception for ICWA issues to the general California rule in dependency matters requiring an issue to be raised on appeal at the first opportunity.”  Justice Chin laments that the child in this case “is paying a high price, and other children will continue to pay a high price, due to the majority’s permitting mother to make this delayed ICWA claim.”

The court’s opinion reverses the Second District, Division Three, Court of Appeal.  The Supreme Court also disapproves a 1995 Fifth District opinion, but is in agreement with a 2009 decision by the First District, Division One, a 2002 decision by the Fourth District, Division One, and a 2001 Third District decision.

July 7, 2016

Summary of June 29, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, June 29, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

California Cannabis Coalition v. City of Upland, S234148 – Review Granted – June 29, 2016

This case presents the following question: Is a proposed initiative measure that would impose a tax subject to the requirement of California Constitution, article XIII C, section 2 that taxes “imposed by local government” be placed on the ballot at a general election instead of a special election?

The Court of Appeal, Fourth District, Division Two, held in a published decision, California Cannabis Coalition v. City of Upland (2016) 245 Cal.App.4th 970, that (1) Article XIII C, section 2 does not apply to the California Cannabis Coalition’s (CCC) initiative, which would adopt regulations for the operation of medical marijuana dispensaries in Upland, including requiring dispensaries to pay an annual licensing and inspection fee.  The court reasoned that Article XIII C applies only to taxes imposed by a local government and is silent as to taxes imposed by initiatives.

Review Denied (with dissenting justices)

None.

Depublished

None.

July 6, 2016

Indian Child Welfare Act opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in In re Isaiah W., which was argued on the early-May calendar.

The case raises the issue whether a parent’s failure to appeal from a juvenile court order finding that notice under the Indian Child Welfare Act was unnecessary precludes the parent from subsequently challenging that finding more than a year later in the course of appealing an order terminating parental rights.  The United States is one of three amici curiae in this case.

The opinion can be viewed tomorrow starting at 10:00 a.m.

June 30, 2016

Summary of June 22, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, June 22, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Hernandez v. Restoration Hardware, Inc., S233983 – Review Granted – June 22, 2016

This case presents the following question: Must an unnamed class member intervene in the litigation in order to have standing to appeal? (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199.)

After a bench trial in a class action against a retailer under the Song–Beverly Credit Card Act, class representatives requested that the court order an attorney fees award of one quarter of the total maximum fund created by the judgment to be payable to class counsel from the fund. The defendant agreed not to contest that request. Muller, a class member, requested the court order notice of the attorney fee motion be sent to all class members. The court denied Muller’s request, granted the attorney fee motion, and entered judgment. Muller appealed from the judgment. The Court of Appeal, Fourth District, Division One, held in a published decision, Hernandez v. Restoration Hardware, Inc. (2016) 245 Cal.App.4th 651, that the customer who was not a class representative was not a “party of record,” and thus could not appeal.

Cushfield Maintenance West v. Superior Court (Hall), S234604 – Review Granted & Held – June 22, 2016

The court granted review and deferred further action pending disposition of Williams v. Superior Court, S227228, which raises the issues:  (1) Is the plaintiff in a representative action under the Labor Code’s Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) entitled to discovery of the names and contact information of other “aggrieved employees” at the beginning of the proceeding or is the plaintiff first required to show good cause in order to have access to such information?  (2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed?  (See Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360.)

Review Denied (with dissenting justices)

None.

Depublished

None.

June 30, 2016

Sixth Amendment limits experts’ ability to relate hearsay

In People v. Sanchez, the Supreme Court today holds that the Sixth Amendment, as interpreted by the U.S. Supreme Court in Crawford v. Washington (2004) 541 U.S. 36, precluded a prosecution expert from relating “case-specific statements . . . concerning [the] defendant’s gang membership.”  The comprehensive unanimous opinion by Justice Carol Corrigan reverses jury findings that supported street gang enhancements.  The court disapproves a line of its previous decisions on experts and hearsay.Galenus

The court’s opinion includes extended general discussions about hearsay and the permissible scope of expert testimony.  Here’s one statement that is likely to be quoted often in future appellate opinions and briefs:  explaining that experts may testify to some second-hand information, the court says, “A physician is not required to personally replicate all medical experiments dating back to the time of Galen in order to relate generally accepted medical knowledge that will assist the jury in deciding the case at hand.”

The court reverses the Fourth District, Division Three, Court of Appeal.  Actually, the Supreme Court doesn’t reverse the Court of Appeal, it reverses the true findings on the street gang enhancements, but the Court of Appeal did affirm the gang enhancements that the Supreme Court reverses.  “[T]he Supreme Court normally will affirm, reverse, or modify the judgment of the Court of Appeal, but may order another disposition.”  (Rule 8.528(a).)  This is one of those other dispositions.

June 30, 2016

Supreme Court limits retroactivity of Three Strikes Reform Act

In People v. Conley, the Supreme Court today holds that defendants sentenced under a superseded Three Strikes law and whose judgments were not final as of the date the 2012, voter-approved Three Strikes Reform Act (Proposition 36) took effect are not entitled to automatic resentencing under the Reform Act’s resentencing provision.  The unanimous opinion by Justice Leondra Kruger also concludes, however, that those defendants may petition for a recall of their sentences.  This means that those defendants’ resentencing depends on a trial court determination whether resentencing would pose an unreasonable risk of danger to public safety.

Justice Kathryn Werdegar signs the court’s opinion, but writes separately to “explain [the] significance” of an earlier retroactivity opinion she authored for the court.  Justices Goodwin Liu and Mariano-Florentino Cuéllar sign Justice Werdegar’s concurring opinion.

The court affirms the Third District Court of Appeal.  The opinion states that the Supreme Court granted review “to resolve a conflict in the Court of Appeal,” but it does not identify any cases it is disapproving.  Not being Proposition 36 experts, we’re not sure why that is, but it could be that the conflict exists in unpublished and/or depublished-by-review opinions.

June 29, 2016

Confrontation clause, Three Strikes opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in People v. Sanchez  and People v. Conley, which were both argued on the April calendar.  It’s the last regular filing day before the 90-day deadline for April cases.

In Sanchez, the court will decide whether defendant’s Sixth Amendment right to confrontation was violated by a gang expert’s reliance on testimonial hearsay (Crawford v. Washington (2004) 541 U.S. 36).

Conley raises the issue:  Does the Three Strikes Reform Act of 2012 (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C)), which reduces punishment for certain non-violent third-strike offenders, apply retroactively to a defendant who was sentenced before the Act’s effective date but whose judgment was not final until after that date?

The opinions can be viewed tomorrow starting at 10:00 a.m.

June 28, 2016

Historical Society previews its history of the Supreme Court book

The California Supreme Court Historical Society [disclosure:  I serve on the Society’s board] just published its spring/summer newsletter.  This newsletter is devoted entirely to a preview of the Society’s comprehensive history of the court — “Constitutional Governance and Judicial Power” — which is scheduled to be published next month.  The newsletter includes extended excerpts from each of the book’s seven chapters:CSCHS-2016-Newsletter-Spring-Summer_Page_01

Chapter one:
Pioneers on the Bench 1849–1879
Charles J. McClain

Chapter Two:
Creating a Court System 1880–1910
Gordon Morris Bakken

Chapter Three:
The Age of Reform 1910–1940
Lucy E. Salyer

Chapter Four:
The Gibson Era 1940–1964
Charles J. McClain

Chapter Five:
The Liberal Court:  Ascendency and Crisis 1964–1987
Harry N. Scheiber

Chapter Six:
The Lucas Years 1987–1996
Bob Egelko

Chapter Seven:
Defining a Branch, Finding the Center:  The George Court 1996–2010
Molly Selvin

June 27, 2016

Supreme Court affirms one death sentence, reverses another

The Supreme Court today issues opinions in two direct death penalty appeals, reversing in one and affirming the other.  Both decisions are unanimous.

The reversal comes in People v. Becerra.  Possibly setting a brevity record for a death penalty case, the court’s 11-page opinion by Justice Carol Corrigan finds Faretta error, holding the trial court erroneously terminated the defendant’s right to self-representation.

People v. Clark is the opposite of Becerra, both in length and result.  The court’s 162-page opinion by Justice Mariano-Florentino Cuéllar affirms the death sentence, although it does reverse two of five special circumstance findings.

June 24, 2016

Temporary archive of May and June oral argument live streams

The Supreme Court today announced a temporary archive of the live-streamed oral arguments from the early-May, late-May, and June calendars.  The court reports over 7,000 live views of those arguments.

According to the announcement, a permanent archive will be established at the time of the court’s next calendar, in September.

June 24, 2016

Two death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in People v. Becerra and People v. Clark, which were both argued on the April calendar.

Becerra is an automatic appeal from an October 1997 judgment of death.  Prior to oral argument, the court sent a focus letter stating it would concentrate primarily on the issue whether the trial court arbitrarily revoked the defendant’s self-representation in violation of the 6th and 14th amendments.

Clark is an automatic appeal from a December 1997 judgment of death.

Opinions in the other two undecided April calendar cases — People v. Sanchez (a Sixth Amendment right to confrontation case) and People v. Conley (a Three Strikes Reform Act case) — should be filing on Thursday, because that’s the last regular filing day before the 90-day deadline for decisions in those cases.

The Becerra and Clark opinions can be viewed Monday starting at 10:00 a.m.

June 23, 2016

Supreme Court limits component parts doctrine defense

In Ramos v. Brenntag Specialties, Inc., the Supreme Court today holds a foundry worker can continue with his lawsuit against companies that supplied products for use in the foundry’s manufacturing process, where participating in that process allegedly sickened the worker.  [Disclosure:  Horvitz & Levy is counsel for one of the defendants and filed the merits briefs in which the other defendants joined.]  The unanimous opinion by Chief Justice Tani Cantil-Sakauye concludes that the suppliers could not assert the component parts doctrine as a defense because the doctrine “does not apply when the product supplied has not been incorporated into a different finished or end product but instead, as here, itself allegedly causes injury when used in the manner intended by the product supplier.”

The court stresses, however, that, although the component parts doctrine is inapplicable to the case, the worker still has remaining obstacles to establishing liability.  The opinion expressly does “not address the applicability or scope of other products liability doctrines that may be implicated.”

The court affirms the Second District, Division Four, Court of Appeal, which had reversed an order sustaining the defendants’ demurrer.  It disapproves a 2012 decision by the Second District, Division Three.

June 23, 2016

Supreme Court affirms death sentence, with a concurring opinion about a Batson issue

The Supreme Court today unanimously affirms the death sentence in People v. Sánchez.  The death penalty was imposed for, among other things, the murder of a police officer.  As is typical of decisions in these automatic direct appeals, the court’s opinion — by Justice Ming Chin for himself and five others — rejects a host of arguments, although it does reverse the conviction on one of 26 robbery counts.

Justice Goodwin Liu writes a separate concurring opinion, about two issues he says “are ripe for reconsideration by this court” — the way to evaluate allegations based on Batson that the prosecution racially discriminated in jury selection and instructing the jury about the reliability of eyewitness identification evidence.  Justice Liu has expressed his differences about Batson issues before.

June 22, 2016

Products liability, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in People v. Sánchez, which was argued on the April calendar, and in Ramos v. Brenntag Specialties, Inc., which was argued on the early-May calendar.

Ramos will decide whether negligence and strict liability claims by an employee of a processing company against a supplier of raw materials for injuries allegedly suffered in the course of processing those materials are barred by the component parts doctrine.
[Disclosure:  Horvitz & Levy is counsel for one of the defendants and filed the merits briefs in which the other defendants joined.]

Sánchez is an automatic appeal from a March 1995 judgment of death.

Multiple opinion filing days are likely to continue next week.  After Ramos and Sánchez file tomorrow, there will still be four opinion-less cases from the April calendar, and next Monday and Thursday are the last regular filing days before the 90-day deadline for decisions in those cases.

The opinions can be viewed tomorrow starting at 10:00 a.m.

June 17, 2016

Summary of June 15, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, June 15, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Rubinstein v Doe 1, S234269—Review Granted—June 15, 2016

This case presents the following questions: (1) Does the delayed discovery rule in Code of Civil Procedure section 340.1 apply to the accrual of a cause of action against a public entity for purposes of determining the time within which a claim under the Government Claims Act must be made? (2) Does Government Code section 905, subdivision (m), apply to childhood sexual abuse causes of action based on conduct occurring before January 1, 2009?

The Court of Appeal, Fourth District, Division One, held in a published decision, Rubinstein v. Doe 1 (2016) 245 Cal.App.4th 1037, that: (1) a delayed discovery rule applies to determine accrual of a cause of action against a public entity, (2) former student was not required to refile certificates of merit after the trial court granted her petition for relief from claims presentation requirements; (3) certificates were not required to be filed under penalty of perjury; (4) former student should have been granted leave to amend to include supporting facts in the certificates of merit; (5) former student should have been granted leave to amend to clarify allegations against fictitiously named individual defendants; and (6) erroneous service of complaint on public entity before obtaining in camera review of certificates of merit was not a proper ground for dismissal.

Dismissal in case presenting certified question of state law

Gradillas v. Lincoln General Insurance Company, S227632—Matter Dismissed—June 15, 2016

Pursuant to California Rules of Court, rule 8.548, the Supreme Court previously agreed to decide a question of California law certified by the U.S. Court of Appeals for the Ninth Circuit.  The Supreme Court had phrased the question presented as follows: “For purposes of coverage under an automobile insurance policy, what is the proper test for determining whether an injury arises out of the ‘use’ of a vehicle?”  This week, the Supreme Court dismissed the matter after the Ninth Circuit case was dismissed following a settlement.

A passenger who was sexually assaulted on an insured party bus brought action against the insurer of the party bus company, alleging the insurer breached its duty to defend and indemnify its insured.  In a published decision, Gradillas v. Lincoln Gen. Ins. Co. (9th Cir. 2015) 792 F.3d 1050, a three-judge panel of the Ninth Circuit issued an order certifying the following question of California law to the Supreme Court: “When determining whether an injury arises out of the ‘use’ of a vehicle for purposes of determining coverage under an automobile insurance policy and an insurance company’s duty to defend, is the appropriate test whether the vehicle was a ‘predominating cause/substantial factor’ or whether there was a ‘minimal causal connection’ between the vehicle and the injury?”

Review Denied (with dissenting justices)

None.

Depublished

None.

June 16, 2016

No reduction of parole time for person resentenced under Prop. 47

In its first interpretation of an initiative enacted two years ago that converts certain felony offenses to misdemeanors, the Supreme Court today holds that a person resentenced under the new law cannot use credit for time served on a felony conviction to reduce a one-year parole required by the ballot measure.  The court’s unanimous opinion in People v. Morales, authored by Justice Ming Chin, concludes that the electorate who approved Prop. 47 “was informed, and it intended, that a person who benefitted from the new legislation by receiving a reduced sentence would be placed on parole for one year after completion of the reduced sentence, subject to the court’s discretion to release the person from that parole.”

The court reverses the Fourth District, Division Three, Court of Appeal.

June 16, 2016

Supreme Court reinstates conviction of former school official

In People v. Hubbard, the Supreme Court today reinstates the conviction — for misappropriation of public funds — of a former superintendent of the Beverly Hills Unified School District.  The Court of Appeal had reversed the conviction (in an unpublished opinion) because it concluded the defendant did not come within the statutory definition of those who can be liable for misappropriation — “Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys.”

The Supreme Court’s unanimous opinion by Justice Mariano-Florentino Cuéllar concludes the statute doesn’t apply to all public officers, but only to those “charged with the receipt, safekeeping, transfer, or disbursement of public moneys.”  (There’s an extended discussion on this point, with lots of useful statutory construction tidbits.)  Unlike the Court of Appeal, however, the Supreme Court holds that the defendant was one of those “public officers imbued with such responsibility over public moneys.”  This was so because of the defendant’s “explicit contractual responsibilities to oversee the ‘budget and business affairs’ of the District, testimony that superintendents like [the defendant] owe a duty to safeguard school district funds, and [the defendant’s] responsibility to ensure such public funds were spent in accordance with the law.”

The court reverses the Second District, Division One, Court of Appeal.

June 15, 2016

Re-sentencing, misappropriation of public funds opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in People v. Hubbard, which was argued on the April calendar, and in People v. Morales, which was argued on the early-May calendar.

Hubbard involves the conviction — for misappropriation of public funds — of a former superintendent of the Beverly Hills Unified School District.  The case includes the issue:  Does Penal Code section 424 apply only to public officers who are charged with the receipt, safekeeping, transfer, or disbursement of public moneys, or does the statute apply to a public officer who authorizes the disbursement of public funds even if the actual authority to approve the disbursement lies elsewhere?

Morales, one of many cases on the Supreme Court’s docket raising Proposition 47 issues, will decide whether excess custody credits can be used to reduce or eliminate the one-year parole period required by Penal Code section 1170.18, subdivision (d), upon resentencing under Proposition 47.

The opinions can be viewed tomorrow starting at 10:00 a.m.

June 10, 2016

Summary of June 8, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, June 8, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

T.H. v. Novartis Pharmaceuticals Corp., S233898—Review Granted—June 8, 2016

The Court limited review to the following issue: May the brand name manufacturer of a pharmaceutical drug that divested all ownership interest in the drug be held liable for injuries caused years later by another manufacturer’s generic version of that drug?

Minors injured in utero through their mothers’ use of generic asthma medication brought action against the former manufacturer of a brand name medication and other drug companies, physicians, and hospital, alleging negligence, concealment, intentional misrepresentation, and negligent misrepresentation. The trial court sustained the former manufacturer’s demurrer without leave to amend, and the minors appealed.

Under the rationale of Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, the Court of Appeal, Fourth District, Division One, held in a published decision that the minors provided sufficient additional information on appeal to demonstrate they may amend their complaint to state a claim for negligent failure to warn and negligent misrepresentation based on acts or omissions by the former manufacturer before 2001, which allegedly caused or contributed to the minors’ injuries in 2007.  The Court rejected both the former manufacturer’s invitation to follow other states’ authorities (which have held a brand-name manufacturer cannot be liable for an injury caused by a product other than its own), and the contention that Conte is no longer viable after the Supreme Court decision in O’Neil v. Crane Co. (2012) 53 Cal.4th 335.  The court reversed and remanded with directions to enter a new order sustaining the demurrer with leave to amend the negligence and negligent misrepresentation causes of action.

Sweetwater Union School District v. Gilbane Building Company, S233526—Review Granted—June 8, 2016

This anti-SLAPP case presents the following issues: (1) Is testimony given in a criminal case by persons who are not parties in a subsequent civil action admissible in that action to oppose a special motion to strike? (2) Is such testimony subject to the conditions in Evidence Code section 1290 et seq. for receiving former testimony in evidence?

The Court of Appeal, Fourth District, Division One, held in a published decision that: (1) when considering anti-SLAPP motion, trial court is permitted to consider plea forms entered by individuals who were criminally prosecuted in connection with contracts ; (2) trial court was also permitted to consider grand jury exhibits and transcripts; (3) the plaintiff school district’s complaint arose from protected activity, thereby triggering the anti-SLAPP statute; (4) the defendant contractors did not concede the illegality of conduct alleged in complaint, and thus conduct did not lose protection of the anti-SLAPP statute on that basis; (5) evidence did not conclusively establish that the conduct at issue was illegal as a matter of law; but (6) the plaintiff district demonstrated a probability of prevailing against the defendant contractors, thereby defeating their anti-SLAPP motion.

Original Proceedings

Ayers v. Commission on Judicial Performance, S233333.  The petitioner in this case is Ventura County Superior Court Judge Nancy Ayers.  She challenged a decision by the Commission on Judicial Performance to issue an advisory letter—colloquially known as a “stinger” letter—to her for keeping a service dog she was training in her courtroom.  The Supreme Court issued an alternative writ of mandate directing the Commission to withdraw the advisory letter or to show cause why the relief sought in the petition should not be granted.

Review Denied (with dissenting justices)

None.

Depublished

None.

June 10, 2016

With Supreme Court’s permission, Legislature places new anti-Citizens United measure on the ballot

The Legislature approved placing a measure on the 2014 ballot that was to ask voters for their non-binding opinion whether the United States constitution should be amended to overturn the United States Supreme Court’s 2010 Citizens United decision.  The California Supreme Court removed the measure from that ballot so the court could decide whether the Legislature had the authority to use a ballot measure for that purpose.

Five months ago, the court held the Legislature’s 2014 measure was in fact proper, but it also ruled that new legislation was necessary to put an advisory question on the 2016 ballot.  The Legislature has now passed that legislation, which became law yesterday without Governor Jerry Brown’s signature.  (The Governor did the same thing with the 2014 legislation, stating that, although he disagreed with the Citizens United opinion, “we should not make it a habit to clutter our ballots with nonbinding measures as citizens rightfully assume that their votes are meant to have legal effect.”)

Not that it should matter to the validity of the Legislature’s action, but the question for the 2016 ballot is a bit broader than the one that the voters would have faced in 2014.  The 2014 version asked whether Congress should propose and the California Legislature ratify a constitutional amendment to overturn Citizens United.  In five months, however, the voters will weigh in on whether “California’s elected officials [should] use all of their constitutional authority, including, but not limited to, proposing and ratifying one or more amendments to the United States Constitution” to overturn Citizens United.  (Emphasis added.)  This would presumably encourage California’s Legislature not just to wait for Congress to propose a constitutional amendment, but also to affirmatively call for a constitutional convention to propose an amendment.

June 9, 2016

Court-awarded attorney fees properly considered when determining constitutionality of punitive damage judgment

When determining if a jury’s punitive damage verdict exceeds constitutional limits — including whether the ratio of punitive to compensatory damages is appropriate — a court may consider as part of the compensatory damages those attorney fees that are awarded as damages, even if the trial court rather than the jury decided the amount of fees to award.  That is the Supreme Court’s holding today in Nickerson v. Stonebridge Life Insurance Company.  The unanimous opinion by Justice Leondra Kruger concludes that an examination of the punitive-to-compensatory-damages ratio is part of a process “designed to govern postverdict judicial review of the amount of a jury’s award, not the adequacy of the jury’s deliberative process,” and, thus, “there is no apparent reason why a court . . . may not consider a postverdict compensatory damages award in its constitutional calculus.”

A fuller analysis of Nickerson will be available on Horvitz & Levy’s other blog, California Punitive Damages — An Exemplary Blog.

The Supreme Court reverses the Second District, Division Three, Court of Appeal.  It also disapproves a 2010 opinion by the Second District, Division Two.

June 8, 2016

Insurance bad faith punitive damage opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Nickerson v. Stonebridge Life Insurance Company, which was argued on the April calendar.  The court limited the issue in the case to whether an award of attorney fees under Brandt v. Superior Court (1985) 37 Cal.3d 813 is properly included as compensatory damages where the fees are awarded by the jury, but excluded from compensatory damages when they are awarded by the trial court after the jury has rendered its verdict.

The opinion can be viewed tomorrow starting at 10:00 a.m.

June 6, 2016

Supreme Court clears path for Governor’s criminal justice initiative

Construing a two-year old change to the initiative qualification process, the Supreme Court today overturns a superior court order that would have prevented an initiative sponsored by Governor Jerry Brown from appearing on this November’s ballot.  In Brown v. Superior Court, the court’s 6-1 opinion by Justice Carol Corrigan holds that the Governor and others properly utilized a new procedure allowing proponents to amend a proposed initiative during a public review period and before the initiative is circulated for signatures.  If it has enough signatures and if the voters approve it, the initiative — as amended — will change the law regarding parole reviews and the transferring of minors to adult criminal court.

Under the new initiative process law, any amendment to a proposed initiative must be “reasonably germane to the theme, purpose, or subject of the initiative measure as originally proposed.”  The superior court — on the writ petition of the California District Attorneys Association — ruled the Governor’s amendments were not “reasonably germane.”  The Supreme Court disagrees, even while acknowledging that the changes “were, in certain respects, quite extensive.”

The court concludes that “[t]he proponents of an initiative measure are captains of the ship when it comes to deciding which provisions to take on board” and that “the Legislature has granted them substantial leeway to make amendments before the measure is presented to the public for signatures.  The statute permits even sweeping changes, so long as they are reasonably germane to the theme, purpose, or subject of the original proposal.”

Justice Ming Chin dissents.  He says the case is about whether the new initiative process “can function as a true reform to achieve its intended purpose, or if it is an empty shell — just another rule that can easily be evaded with a little imagination.”  Justice Chin sees it as the latter.  Under the majority’s approach, he believes, “future initiative proponents can evade the period of public review . . . [by] merely . . . hijack[ing] a vaguely similar measure that was in the process of qualifying.”

June 3, 2016

No conference held the week of May 30, 2016

The Court held no conference this week because it heard oral argument in Los Angeles. Accordingly, no action was taken on petitions for review and no opinions were ordered published or depublished.

June 3, 2016

Supreme Court to rule Monday on Governor’s criminal justice initiative

On Monday morning, the Supreme Court will file its opinion in Brown v. Superior Court, which was argued — with just six days’ notice — on the early-May calendar.

Brown is a high-profile case.  It concerns whether Governor Jerry Brown’s criminal justice initiative is eligible to qualify for the November ballot, and was called by the Los Angeles Times one that “carries high stakes for the state’s criminal justice system and Gov. Jerry Brown’s political legacy.”

The initiative is now pending signature verification by the Secretary of State.  However, even if there are enough valid signatures, the measure will not go to the voters if the Supreme Court affirms a superior court ruling that the initiative was improperly amended under recent legislation changing the initiative qualification procedure.

The opinion can be viewed Monday starting at 10:00 a.m.

June 2, 2016

Supreme Court reverses conviction for carrying open Swiss Army knife

In People v. Castillolopez, the Supreme Court today holds a defendant cannot be convicted of carrying a concealed “dirk or dagger” for having in his pocket a Swiss Army knife with one of the blades fully extended.  The applicable statute defines “dirk or dagger” as including a knife “that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death” and provides that “a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed and locked into position.”

The unanimous opinion by Justice Leondra Kruger concludes, “Although a blade might be held open in a particular position by means of friction, a blade that can be closed simply by applying pressure to the back of the blade . . . is not ‘locked into position’ as the term is ordinarily understood.”  Justice Kruger writes, “the essential difference between a nonlocking folding knife and a locking folding knife has been understood to be whether the exposed knife blade[ ] is immobile, thereby preventing accidental collapse while the knife is in use.”

The Supreme Court affirms the Fourth District, Division One, Court of Appeal.

June 1, 2016

Published Court of Appeal opinions will no longer be automatically depublished by the grant of Supreme Court review

The Supreme Court today announced adoption of rule changes that will end the automatic depublication of published Court of Appeal opinions when the Supreme Court grants review.  The changes, which were subject to extended comment and consideration periods, take effect on July 1.

The current, soon-to-be-replaced system provides that a published Court of Appeal opinion is depublished — and thus no longer citeable — when the Supreme Court grants review in the case, but allows the court to order the opinion published again at any time after review is granted.

Under the new rule, a published Court of Appeal opinion will remain published pending review unless the Supreme Court affirmatively orders the opinion depublished.  Because it is published, the opinion will be citeable while the Supreme Court decides whether it was correct or not.  But the new rule also specifically addresses the precedential effect of the opinion.

The Supreme Court opted for the so-called “Alternative B” regarding precedential effect.  Thus, while the case is on review, unless the Supreme Court orders otherwise, a published Court of Appeal opinion will have “no binding or precedential effect, and may be cited for potentially persuasive value only.”  That means superior courts throughout the state can, but will not be required to, follow the law stated in the opinion.

Alternative B was the better choice.  Under the other alternative — having the opinion remain binding precedent pending review — if the Supreme Court ends up reversing the Court of Appeal, superior courts would be making flawed rulings in the interim under the compulsion of the still-published (and binding) Court of Appeal opinion.

Of course, Alternative B can cause problems if the opinion under review creates a conflict with an earlier, unreviewed published opinion and the Supreme Court ultimately decides to disapprove the earlier case law.  In that situation, the superior courts will have necessarily been following the law stated in the opinion that is later disapproved.  As the new rule’s comment states, “when a decision that is pending review conflicts with another published Court of Appeal decision that is not under review, only that other published decision will continue to have binding or precedential effect on the superior court.”

The rule will further provide that, once the Supreme Court issues its decision, and unless the court orders otherwise, the Court of Appeal opinion again becomes “citable and has binding or precedential effect,” but only “to the extent it is [not] inconsistent with the decision of the Supreme Court or is disapproved by that court.”  This will revive the Court of Appeal opinion’s impact on those issues it decided that were not reviewed by the Supreme Court.

The new rule also requires that, when citing an opinion pending review, the citation “note the grant of review and any subsequent action by the Supreme Court.”

June 1, 2016

Successful livestreaming continues in audio only for today’s and tomorrow’s Los Angeles arguments

The livestreaming of all Supreme Court oral arguments, which started last month, continues today with the June calendar, beginning in just a few hours.  However, although you could watch the early-May and late-May calendars held in San Francisco, the June arguments in Los Angeles will be audio only.

The May livestreaming was excellent.  The video had real-time captioning below it, and next to it on the screen was the court’s calendar and links to the argued cases’ docket and briefs.  The video itself was good quality, with multiple cameras used to switch between views of the attorneys, the court as a whole, and individual justices when asking questions.  The only quibble is that the justices’ voices sometimes came through a bit softer than the attorneys’.

June 1, 2016

Concealed pocketknife opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Castillolopez, which was argued on the April calendar.

The issue in Castillolopez is whether defendant’s possession of a concealed and opened pocketknife with the blade in its fully extended position was sufficient to sustain his conviction for carrying a concealed dirk or dagger in violation of Penal Code section 21310.  The case attracted amicus briefs from the Knife Rights Foundation, the America Knife & Tool Institute, and the Second Amendment Foundation.

The opinion can be viewed tomorrow starting at 10:00 a.m.

May 29, 2016

Summary of May 25, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, May 25, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Bianka M. v. Superior Court, S233757—Review Granted—May 25, 2016

The petitioner is a teenage girl from Honduras who entered the United States without documentation in 2013.  She was briefly detained by federal immigration authorities, then resettled in Los Angeles where she now lives with her mother.  The petitioner’s mother and biological father never married.  He resides in Honduras. The question presented is whether the trial court erred in denying the juvenile petitioner’s request for an order making findings concerning Special Immigrant Juvenile status (8 U.S.C. § 1101(a)(27)(J); see Code Civ. Proc., § 155) and placing her in her mother’s sole legal and physical custody.

The Second District Court of Appeal, Division Three, held in a published decision, Bianka M. v. Superior Court (2016) 245 Cal.App.4th 406, that (1) as a matter of first impression, abandonment, as used under the Special Immigrant Juvenile statute (SIJ), means leaving a child without provision for reasonable and necessary care or supervision;(2) as a matter of first impression, SIJ findings are to be made after or in connection with a judicial custody determination after a full and fair evidentiary hearing; (3) as a matter of first impression, a parentage action is not a bona fide custody proceeding, as required for the trial court to make SIJ findings; (4) the trial court did not abuse its discretion by requiring the father’s joinder; (5) the trial court did not abuse its discretion by considering due process in making joinder decision; (6) the fact that trial court had subject matter jurisdiction over the child custody proceeding did not indicate that court necessarily had authority to issue a custody order; and (7) the juvenile was required to provide her father with notice of the specific SIJ findings she sought.

Review Denied (with dissenting justices)

None.

Depublished

None.

May 26, 2016

Supreme Court follows Legislature’s lead, grants habeas relief it had previously denied

In In re Richards, the Supreme Court today grants habeas corpus relief to, and vacates the murder conviction of, a defendant whose habeas corpus petition a 4-3 court rejected four years ago.  The unanimous opinion by Chief Justice Tani Cantil-Sakauye states that the reason for the opposite result now is the intervening action of the Legislature in amending a statute to overrule the court’s first decision.  The opinion recognizes “it is apparent that the Legislature agreed with the dissent’s conclusion in” the court’s first Richards opinion.

The court originally held the defendant was not entitled to habeas corpus relief from a murder conviction that had been based in part on bite-mark testimony by a dental expert that, post-conviction, had been recanted by the expert himself and discredited by other experts based on newly available computer technology.  (In re Richards (2012) 55 Cal.4th 948.)  The majority concluded the incriminating expert testimony was not “false evidence” within the meaning of the habeas corpus statute.  Two years later, the Legislature changed the definition of “false evidence” to “include opinions of experts that have either been repudiated by the expert who originally provided the opinion at a hearing or trial or that have been undermined by later scientific research or technological advances.”

Justice Goodwin Liu writes a concurring opinion and Justice Carol Corrigan writes a separate concurring opinion to critique Justice Liu’s opinion.  Justice Liu states that, in evaluating the importance of the bite-mark testimony, “it is also relevant that two previous juries were unable to reach a verdict without this evidence.”  Justice Corrigan responds that “it is very difficult to read any significance into the fact that two other juries hung in this case.  Juries fail to agree for a variety of reasons and the rules of evidence prohibit inquiry into the jurors’ subjective reasoning process.”

The court reverses the Fourth District, Division Two, Court of Appeal, which had reversed the superior court’s grant of habeas corpus relief.  In the first Richards opinion, of course, the Supreme Court affirmed the Court of Appeal.

May 26, 2016

Murder committed by juvenile cannot be automatically punished by functional equivalent of life without parole; additional sentencing hearing established

In People v. Franklin, the Supreme Court affirms a sentence of 25 years to life for murder committed by a juvenile.  In the process, however, the court extends a constitutional protection for certain defendants convicted of crimes committed when they were minors and establishes a new right to a sentencing hearing even when a particular constitutionally appropriate sentence is mandatory.

Based on U.S. Supreme Court precedent that precludes automatic life-without-parole sentences for juvenile crimes, the state high court held four years ago that the constitution also proscribes mandatory sentences for nonhomicide offenses that are the “functional equivalent” of life without parole, like the 110-years-to-life term imposed in the case that was before it.  Today, in a 6-1 opinion authored by Justice Goodwin Liu, the court holds that the “functional equivalent” rule applies to homicide offenses as well.

The Franklin defendant’s original mandatory sentence made him ineligible for parole for 50 years, but the court doesn’t analyze that sentence under the “functional equivalent” test because intervening legislation reduced his parole eligibility to 25 years.  The court does conclude, however, that delaying parole eligibility for 25 years, when the defendant is 41 years old, is not functionally equivalent to life without parole.  It does so even though the defendant did not argue to the contrary.

Besides having his sentence reduced according to the new legislation, the defendant receives some additional relief.  The legislation provides that the Board of Parole Hearings “shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity.”  The court remands the case to the trial court “for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.”

Justice Kathryn Werdegar writes a concurring and dissenting opinion, disagreeing with the majority’s remand decision.  She objects to imposing “a new, judicially created, extra statutory procedure entitling [youthful] offenders to a type of penalty phase trial, replete with opposing experts and family members and friends, subject to cross-examination, testifying to the offender’s youthful immaturity.”

The court mostly affirms a decision by the First District, Division Three, Court of Appeal.  (The Court of Appeal had affirmed the legislatively reduced 25-years-to-life sentence, but did not afford the possibility of an additional hearing to make a better record for a future parole hearing.)

May 26, 2016

Supreme Court affirms death sentence, upholding use of prior juvenile murder conviction to support special circumstance

The Supreme Court today affirms the death sentence in People v. Salazar.  In a unanimous opinion by Justice Carol Corrigan, the court holds that a conviction for a prior murder committed when the defendant was a minor can support a special circumstance finding, which is a prerequisite to eligibility for the death penalty.  Among other arguments, the defendant claimed that using the prior conviction for that purpose violates the constitutional bar against imposing the death penalty for crimes committed by juveniles.  The court concludes, however, that “[t]he punishment is not imposed for the juvenile offense, but for the crime committed as an adult, considered in light of the defendant’s criminal history.”

Justice Mariano-Florentino Cuéllar signs the court’s opinion, but also writes separately to explain why he believes it is a difficult question whether a prior juvenile murder conviction can make a defendant eligible for the death penalty.