September 9, 2014

October’s calendar is five sixths criminal

The Supreme Court today announced its October calendar.  There are six cases on it, five of them criminal, including a death penalty case that is being argued for a second time.  Each case will have a different pro tem.  Not double counting the reargued case, in which the pro tem justice who participated in the first argument will return for the second round, October will bring to 39 the number of cases with pro tems since Justice Kennard left the court in April.

On October 7, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Packer v. Superior Court:  Did the trial court abuse its discretion by denying a motion for recusal of a prosecutor without an evidentiary hearing on the grounds that defendant failed to make a prima facie showing that recusal was warranted?   (Second District, Division Seven, Court of Appeal Justice Fred Woods is the pro tem.)

People v. Centeno:  Did the prosecutor commit misconduct during closing argument by misstating the state’s burden of proof?  (Second District, Division Three, Court of Appeal Justice Richard Aldrich is the pro tem.)

People v. Grimes: [This is an automatic appeal from a January 1999 judgment of death.  The court’s website does not list issues for such appeals.] (Second District, Division Seven, Justice Laurie Zelon is the pro tem.)  [Note:  for this second argument, following supplemental briefing, the court has limited each side to 15 minutes this time.  Argument in death penalty cases can be up to 45 minutes per side.)

Rashidi v. Moser:  If a jury awards the plaintiff in a medical malpractice action non-economic damages against a healthcare provider defendant, does Civil Code section 3333.2 entitle that defendant to a setoff based on the amount of a pretrial settlement entered into by another healthcare provider that is attributable to non-economic losses or does the statutory rule that liability for non-economic damages is several only (not joint and several) bar such a setoff?  (Fifth District Court of Appeal Justice Jennifer Detjen is the pro tem.)

People v. Lavender:  Did the Court of Appeal err by reversing defendants’ convictions for juror misconduct and remanding for a new trial rather than remanding for an evidentiary hearing into the misconduct?  (First District, Division One, Justice Robert Dondero is the pro tem.)

People v. Smith:  Was defendant properly convicted of murder under the natural and probable consequences theory of aiding and abetting?  Four months ago, the court asked for supplemental briefing with this order:  The trial court’s instructions to the jury included the following sentence:  “If the murder or voluntary manslaughter was committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery, then the commission of murder or voluntary manslaughter was not a natural and probable consequence of disturbing the peace or assault or battery.”  (RT 8283; see CALCRIM No. 402.)  The parties are requested to brief the following questions:  (1) Does this sentence correctly state the law?  (2) If so, is there evidence in the record to support a jury finding that the murders in this case were not committed for a reason independent of the common plan to commit the disturbing the peace or assault or battery?  (Sixth District Court of Appeal Justice Patricia Bamattre-Manoukian is the pro tem.)

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