December 11, 2014

“New” Supreme Court to hear 6 cases on January calendar

When the Supreme Court convenes for its January calendar, announced today, it probably will have two new faces.  Leondra Kruger should be confirmed and then sworn in on December 22 and Mariano-Florentino Cuéllar should be sworn in on January 5.  It will be the first oral argument session without Justice Marvin Baxter in a quarter century.  It will also be the first one since April with no Court of Appeal justices sitting on the court by assignment.

The January calendar might have been trickier than usual to put together.  The court normally doesn’t schedule an oral argument in a case until a majority of the justices concur in a “calendar memorandum” written by one of the justices.  (See page 6 of the court’s internal operating practices and procedures.)  I’m just guessing here, but I’m thinking that Justice Baxter and future Justices Kruger and Cuéllar did not have any input on the calendar memoranda for the January cases and that those cases all have calendar memoranda that have been concurred in by 4 of the 5 current justices who will still be on the court when the cases are argued next month.  Requiring concurrences of 4 out of 5 justices instead of 4 out of 7 could have limited the cases available to be heard in January.

Two days after Cuéllar officially joins the court, the court will hear the following cases in San Francisco (with the issue presented as stated on the court’s website):

Tract 19051 Homeowners Association v. Kemp:  Is a prevailing homeowner entitled to attorney fees under Civil Code section 1354 in an action by a homeowners association to enforce its governing documents as those of a common interest development when the homeowner prevailed because it was later determined that the subdivision was not such a development and its governing documents had not been properly reenacted?

Coffey v. Shiomoto:  (1) Can circumstantial evidence other than the results of chemical tests be used to prove that a driver’s blood-alcohol content at the time of driving was the same as, or greater than, the results of a blood-alcohol test taken approximately an hour after driving?  (2) Is the decision of the Court of Appeal consistent with the requirements of Evidence Code section 604 for proof of an initially presumed fact after the presumption has been rebutted?

People v. Loper:  (1) Is a trial court’s order denying the recall of a sentence under section 1170, subdivision (e) appealable?  (2) Assuming such an order is appealable, what is the proper standard of review on appeal?  (3) Was the trial court’s order denying the recall of defendant’s sentence correct in this case?

People v. Diaz:  (1) Did the trial court err by failing to instruct the jury sua sponte that it must consider defendant’s extrajudicial, oral statements with caution when the statements constituted the criminal act?  (2) If so, did the Court of Appeal correctly conclude that the trial court’s failure to instruct was harmless error?

As noted, the Supreme Court has indicated it might use Diaz to overturn some of its past precedent.  A year ago, the court ordered supplemental briefing on these issues:  (1) Are there grounds for this court to reconsider precedent holding that a cautionary instruction concerning a defendant’s extra-judicial statements must be given sua sponte, even in the absence of a statute mandating that the instruction be given?  (See, e.g., People v. Beagle (1972) 6 Cal.3d 441, 455-456 and fn. 4; People v. Carpenter (1997) 15 Cal.4th 312, 392.)  (2) What rationale exists for requiring the cautionary instruction to be given sua sponte, in light of other available instructions, including the general instructions on witness credibility that are routinely given in every case?  (See, e.g., CALCRIM No. 226.)  (3) If a cautionary instruction is not required sua sponte in every case in which a defendant’s extrajudicial statements tending to prove guilt are admitted, under what circumstances, if any, should it be given upon request?  (4) If the rule requiring the court to give the cautionary instruction sua sponte is changed, should the new rule apply retroactively to defendant’s case?  (5) What effect, if any, does the Legislature’s adoption of Penal Code section 859.5, subdivision (e)(3), effective January 1, 2014, have on these issues?

People v. Cook:  Does Penal Code section 12022.7, subdivision (g), which provides that the great bodily injury enhancement of this section “shall not apply to murder or manslaughter . . . ,” allow an enhancement on a manslaughter conviction for the great bodily injury inflicted on another victim who was the subject of a separate manslaughter conviction?

Less than five months ago, the court requested supplemental briefing concerning whether any great bodily injury enhancement was proper

People v. Scott:  [This is an automatic appeal from a September 1997 judgment of death.  The court’s website does not list issues for such appeals.]



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