The Supreme Court granted review in three criminal cases at its conference yesterday. Here’s information about those grants and some other actions:
Resentencing procedure: Six-justice concurring statement about own-motion resentencing procedure.
Resisting an officer with an unloaded gun. The court granted review in People v. Morgan to (probably) decide whether the crime of “resist[ing]” an officer “by the use of force or violence” (Penal Code section 69(a)) can be committed by pointing an unloaded gun at the officer and pulling the trigger if the officer doesn’t know the weapon is not loaded. The First District, Division One, Court of Appeal published opinion said “yes,” rejecting the defendant’s argument that an assault can’t be committed with an unloaded gun, that assault is a necessarily included lesser offense of resistance under section 69, and that he therefore couldn’t be convicted of the greater offense. Division One concluded, “resisting an officer by ‘force or violence’ under section 69, subdivision (a) does not require either a threshold quantum of force or violence, or the use of force or violence ‘upon the person of’ the officer.” We say review was granted “probably,” but not definitely, to decide the resisting-an-officer issue because the appellate court’s opinion also addressed two sentencing issues, including one that is before the court in People v. Wiley (see here). The court hasn’t limited the issues, but we haven’t seen the petition for review, which might have raised only one issue. We should know more tomorrow when we see court staff’s summary of the issue(s).
[October 4 update: Here’s the issue as summarized by court staff — “Is assault (Pen. Code, § 240) a necessarily included lesser offense of resisting an executive officer by force or violence (Pen. Code, § 69, subd. (a))?”]
Scope of resentencing hearing. Another review grant was in People v. Esquivias. Ruling on a habeas corpus petition, the superior court struck firearms sentence enhancements based on the retroactive application of new legislation, but it declined to revisit the defendant’s convictions based on other new statutes, including Assembly Bill No. 333, which narrowed criminal liability for gang-related activities. In a published opinion, the Second District, Division Two, affirmed, concluding that the “[d]efendant’s proffered ‘revisit-any-on-habeas, revisit-all-on-habeas’ rule is inconsistent with . . . fundamental tenets of habeas review, is inconsistent with our Legislature’s express intent to make only certain new laws fully retroactive, and is likely to discourage trial courts from revisiting any part of a sentence on habeas—thereby harming defendants.” The defendant relied on the Supreme Court’s decisions in People v. Padilla (2022) 13 Cal.5th 152 (see here) and People v. Buycks (2018) 5 Cal.5th 857 (see here).
[October 4 update: Here’s the issue as summarized by court staff — “Does the issuance of an order to show cause to review one aspect of a defendant’s sentence in habeas corpus proceedings render applicable all ameliorative laws taking effect after the defendant’s judgment became final?”]
Presentence credits. The court also agreed to hear People v. Cofer to resolve another intra-district split of authority. The Sixth District’s 2-1 published opinion held, “when a defendant is sentenced concurrently at a single hearing to resolve multiple cases that were not previously the subject of a judgment of conviction or probationary disposition, Penal Code section 2900.5 requires the trial court to apply presentence credits for all periods of actual custody toward all of those concurrent sentences.” (Link added.) The ruling is contrary to the earlier Sixth District decision in People v. Jacobs (2013) 220 Cal.App.4th 67, in which the Supreme Court denied review. Unlike other appellate courts that have purported to “overrule” or “disapprove” prior opinions from the same court (see, e.g., here and here), the Cofer opinion only “disagree[s] with Jacobs.” A dissenting justice “disagree[d] . . . with the majority’s conviction that we may bend Penal Code section 2900.5, subdivision (b) to our own sense of what is fair and reasonable—without either legislative action or the California Supreme Court’s reconsideration of its own more restrictive interpretations of the legislative intent.” (Footnote omitted.)
[October 4 update: Here’s the issue as summarized by court staff — “When a defendant is sentenced to concurrent terms on multiple cases jointly resolved at a single hearing, does Penal Code section 2900.5, subdivision (b) entitle the defendant to duplicative presentence custody credits for time spent in custody on one or more of the cases, but not others?”]
Another Racial Justice Act grant-and-transfer. The court granted review in In re Davis and sent the case back to the Second District, Division Five, which had summarily denied the habeas corpus petition in the case. Division Five is to issue an order to show cause, returnable in the superior court, “why the petition does not satisfy the statutory requirements for the disclosure of discovery and the appointment of counsel under the Racial Justice Act (Pen. Code, §§ 745, subd. (d), 1473, subd. (e) [providing for the disclosure of discovery upon a showing of good cause and appointment of counsel for an indigent petitioner who alleges facts that would establish a violation of the Racial Justice Act]), in light of data provided by petitioner demonstrating racial disparities in sentencing under the Three Strikes law.” These RJA grant-and-transfers are becoming regular occurrences. (See here.)
Racial Justice Act OSC. The court issued an order to show cause, returnable in the superior court, in the pro per’s habeas corpus petition in In re Semien. The issue to be decided is whether the petitioner is “entitled to relief under Penal Code section 745, subdivision (a) based on his claims that the prosecutor’s exercise of a peremptory challenge against the sole Black juror on the jury venire, and the prosecutor’s statements justifying the challenge, violated the Racial Justice Act.” (See also Davis, directly above.)
Kill-zone OSC. The court issued an order to show cause, returnable before the Second District, Division Two, in the pro per’s habeas corpus petition in In re Wroten. Cause is to be shown “why relief should not be granted on the ground petitioner’s attempted murder conviction in count five is invalid pursuant to People v. Canizales (2019) 7 Cal.5th 591 and People v. Mumin (2023) 15 Cal.5th 176.” Canizales and Mumin both involved the requirements for liability under what is known as the kill-zone theory, invoked when a defendant is sought to be convicted of attempted murder of someone who was not a primary target. (See here and here.) Division Two summarily denied a Wroten habeas corpus petition a year ago.
Capital habeas dissenting votes. The court denied review in In re Bramit, but Justices Goodwin Liu and Kelli Evans recorded dissenting votes. The Fourth District, Division Two, had dismissed an appeal from a superior court denial of a prisoner’s capital habeas corpus petition. The petition was originally filed in the Supreme Court, but the court transferred the petition to the superior court six years ago under Penal Code section 1509(a), enacted by Proposition 66. (See here and here.) Division Two ruled, “At the time appellant filed his appeal he was no longer in custody pursuant to a judgment of death, so he is not entitled to appeal pursuant to Penal Code section 1509.1.” (Link added.) It is unclear from online dockets why the defendant is no longer under a judgment of death, nor what issue or issues attracted the dissenting votes. Fifteen years ago the Supreme Court affirmed the defendant’s death sentence for a 1994 murder. (People v. Bramit (2009) 46 Cal.4th 1221.)
More dissenting votes for review about youth offender parole denial. Justices Liu and Evans also recorded dissenting votes from the denials of review in People v. Hout and People v. Hughes. Unpublished decisions by Second District Divisions Five and Six, respectively, rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, here, here, and here). It seems unlikely the court will ever grant review in any such case unless a Court of Appeal goes against the tide and adopts a defense cruel-or-unusual argument. (See: The Supreme Court doesn’t decide all important issues.)
Murder resentencing dissenting vote. Justice Evans also dissented from the denial of review in People v. Rodriguez, where a Fifth District unpublished opinion affirmed the denial of a defendant’s petition to be resentenced under Senate Bill 1437, 2018 legislation that limited liability for felony murder and eliminated it for murder under the natural-and-probable-consequences doctrine. The appellate court concluded “substantial evidence supports the [superior] court’s finding that appellant would be found guilty of murder under the aiding and abetting implied malice murder theory.” That opinion said it didn’t matter whether the defendant knew another person was going to shoot and kill the victim because there was evidence that the “appellant knew she was aiding, intended to aid, and did aid a life-endangering act—the violent group beating of one person where dangerous weapons were used—with conscious disregard for human life.” (Related: see here and here.)
ICWA grant-and-transfer. The court granted review in In re J.S. and sent the case back to the Second District, Division Four, for reconsideration in light of the August decision in In re Dezi C. (2024) 16 Cal.5th 1112, where the Supreme Court held an inadequate investigation under the federal Indian Child Welfare Act and complementary California statutes requires automatic reversal and a remand for an appropriate inquiry (see here). The Division Four unpublished opinion, on the other hand, concluded that any failure of inquiry was harmless.
Undisclosed hospital fee grant-and-hold. Salami v. Los Robles Regional Medical Center is another grant-and-hold for Capito v. San Jose Healthcare System (see here and here), which will be argued next week and which is expected to decide whether a hospital has a duty to disclose emergency room fees to patients beyond its statutory duty to make its chargemaster publicly available. In Salami, the Second District, Division Six, belatedly published opinion agreed with and quoted the Fourth District, Division Three, decision in Moran v. Prime Healthcare Management, Inc. (2023) 94 Cal.App.5th 166, also a Capito grant-and-hold (see here), in concluding, “ ‘[a] hospital’s duty to list, post, write down, or discuss fees it may or may not charge an emergency room patient starts and ends with its duty to list prices in the chargemaster.’ ” “It is not up to this court to disturb the balance rulemakers have struck,” the court added.
Criminal case grant-and-holds. There were four criminal case grant-and-holds: one each waiting for decisions in People v. Patton (see here), People v. Lopez (see here), People v. Rhodius (see here), and People v. Montgomery (see here).
Grant-and-hold dispositions (see here). Thirteen former grant-and-holds were disposed of. Five were waiting for the August restitution decision in People v. McCune (2024) 16 Cal.5th 980 (see here) — the court dismissed review in three and returned the other two to the Courts of Appeal for reconsideration in light of McCune. Eight cases on hold for another August decision — People v. Lynch (2024) 16 Cal.5th 730, which concerned the standard of review for sentencing error (see here) — were sent back to the Courts of Appeal for reconsideration in light of Lynch.
