No straight grants at the Wednesday conference

At the Supreme Court’s conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement a month ago, there were no straight grants of review, but there were some actions of note, including:

• The court granted-and-held in X.M. v. Superior Court.  The case will wait for a decision in Los Angeles Unified School District v. Superior Court, where review was granted in September to decide if Government Code section 818, which bars punitive damages against government defendants, precludes recovery under Code of Civil Procedure section 340.1, subdivision (b), which permits an award of up to treble damages after a child is sexually abused as a result of a cover up.  In X.M., the Fourth District, Division Two, Court of Appeal’s published opinion agreed with the Second District, Division Three, opinion in the lead LAUSD case, concluding that section 818 does preclude recovery of additional damages under section 340.1.
• The court granted-and-held in two cases — In re Destiny V. and In re N.N. — that will wait for the court’s decision in In re D.P.  Review was granted in D.P. in May and the issues were limited to:  “(1) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she has been or will be stigmatized by the finding?  (2) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she may be barred from challenging a current or future placement on the Child Abuse Central Index as a result of the finding?”  The Second District, Division Eight, unpublished opinion in Destiny V. declined to address a father’s challenge to a jurisdictional finding and concluded, “Neither issue raised by the case pending in the California Supreme Court is presented here.”  Apparently, the Supreme Court disagrees.  Similarly, in dismissing as moot a mother’s appeal from a jurisdiction order, the Fifth District’s unpublished N.N. opinion also unsuccessfully attempted to distinguish the issues involved in D.P.
• The court denied review in People v. Moore, but Justice Goodwin Liu recorded a vote to grant.  In a published opinion, the Second District, Division Two, affirmed the denial of a petition for a youth offender evidence preservation proceeding under People v. Franklin (2016) 63 Cal.4th 261 (see here), a proceeding relevant to a later youth offender parole hearing.  The statute providing for those parole hearings, however, excludes third-strike offenders such as the defendant, who unsuccessfully argued the exclusion violated his equal protection rights.  Justice Liu has shown a recurring interest in youth offender parole ineligibility issues.  (See here, here, here, and here.)
• The court was thinking about granting-and-transferring in In re Camarillo after the Sixth District summarily denied a habeas corpus petition, but it ended up denying review.  However, Justices Liu and Martin Jenkins recorded votes to grant review (and presumably also to transfer).  Because the dissenting votes are unexplained, and because the Supreme Court and Court of Appeal dockets don’t specify what the issues are, the reasons for the dissenting votes are unclear.
• Responding to a motion to unseal the record of a Governor Gavin Newsom clemency recommendation request, the court sent the record back to Newsom with instructions to resubmit it and justify keeping parts of it confidential.  If September rulings are an indication, the record — concerning a possible commutation of Howard Ford‘s sentence for first degree murder and robbery (see here) — will in part be opened up to the public.
• There were 10 criminal case grant-and-holds:  four more holding for a decision in People v. Strong (see here); five more holding for People v. Delgadillo (see here), and one more holding for People v. Padilla and People v. Federico (see here).
• The court granted review and transferred six cases back to the Courts of Appeal for reconsideration in light of various pieces of new legislation:  two more for Senate Bill 775 (see here and here), one for Senate Bill 567, one for both SB 567 and Assembly Bill 124, one for Assembly Bill 518, and one for Assembly Bill 333.
• The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.)
• The court dismissed review in 13 more cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952.  One Lewis grant-and-hold was sent back to the Court of Appeal for reconsideration in light of the decision.  By our count, there are 197 Lewis grant-and-holds still pending.
• The court transferred back to the Court of Appeal for reconsideration a grant-and-hold case that had been waiting for the August decision in Walker v. Superior Court (2021) 12 Cal.5th 177.