It was a busy Wednesday conference for the Supreme Court yesterday.  Notable actions include:

  • The court granted review in B.B. v. County of Los Angeles.  In a published opinion, the Second District, Division Three, Court of Appeal mostly rejected challenges to an $8 million judgment for the family of a man who died during an arrest by Los Angeles County Sheriff’s deputies.  There are many issues, including one where the appellate court disagrees with another about the applicability of the Tom Bane Civil Rights Act to an intentional unlawful arrest.  Other issues include plaintiffs’ counsel’s misconduct by — during jury deliberations — attending one juror’s musical performance at “a relatively intimate banquet hall,” evidence of one officer’s membership in a long-publicized “deputy gang,” and the apportionment of noneconomic damages in an intentional tort case.  It’s possible the Supreme Court will later use its rule 8.516 power to limit the issues to be briefed and decided.
  • The court also granted review in two criminal cases with unpublished Court of Appeal opinions:
  1. People v. Rudd is an eyewitness identification case in the shadow of the court’s 2016 death penalty decision in People v. Sánchez and Justice Goodwin Liu’s concurrence in that case.  (See also here.)  The Fourth District, Division Three, affirmed Rudd’s robbery and aggravated assault conviction.  Based on prior Supreme Court decisions, the appellate court rejected an attack on a form jury instruction about eyewitness identifications, but presciently said this might be a case for the high court to reexamine its past precedents.
  2. In People v. Frazier, a murder case, the court limited the issue to whether the trial court’s failure to instruct the jury that the special circumstance required the aider and abettor harbor the intent to kill was prejudicial.  The opinion by the Second District, Division Five, held the omission was error but harmless beyond a reasonable doubt.
  • The court exercised its discretion under a provision added by Proposition 66 to transfer to various superior courts 33 habeas corpus petitions filed by death row inmates.  (See, e.g., here.)  The court just this week mentioned that discretion in a year-in-review report.  Proposition 66 was designed to speed up executions in California, but it might have the opposite effect because, instead of habeas proceedings starting directly in the Supreme Court, lower court review is now required before the petitions make their way to the Supreme Court.
  • Using its deferential standard of review, the court approved three more gubernatorial clemency recommendation requests:  for Julian Blouin to commute a 35-years-to-life sentence for burglary and two prior felony enhancements, Alfredo Perez, Jr. to commute a 27-years-to-life sentence for assault by means likely to produce great bodily injury, and Earlonne Woods to commute a 31-years-to-life sentence for attempted robbery, a firearm enhancement, and a prior felony enhancement.  The Perez recommendation proves how deferential the Supreme Court’s review really is — Perez had been re-sentenced and released from prison, but the court reversed the sentence reduction; now the court is allowing the Governor to commute Perez’s sentence.
  • The court denied review in L.G v. M.B., but Justice Mariano-Florentino Cuéllar recorded a vote to grant.  The Second District, Division Two, published opinion in the case concerns the anti-SLAPP statute and the “divorce proviso” exception to the litigation privilege.
  • The court made grant-and-hold orders in three criminal cases and dumped 16 cases that had been grant-and-holds.