At its Wednesday conference, which some justices attended by teleconference, the Supreme Court’s actions of note included:

  • The court granted review in People v. Lewis, limiting the issues to:  “(1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95?  (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)?”  The Second District, Division One, Court of Appeal, in a published opinion, interpreted Senate Bill 1437, the new felony-murder legislation, as not affording resentencing relief to a defendant whose first-degree-murder conviction the appellate court had previously affirmed before the legislation’s enactment.  That court concluded its prior affirmance opinion conclusively established the defendant could not make a prima facie case that the law as changed would have saved him from his first-degree murder conviction.  The court has other SB 1437 cases before it, but so far none involves the law’s constitutionality.  (See here.)  The court also yesterday granted-and-held three cases for Lewis.  (See below.)
  • The court also agreed to hear People v. Ollo, where the partially published opinion of the Second District, Division Two, picked sides in an existing split of authority regarding whether a drug user’s voluntary (and fatal) ingestion of drugs shields the person who provided the drugs from criminal liability for personally inflicting great bodily injury.  The appellate court held the drug provider can be liable because both the furnishing and the taking of the drugs are “concurrent direct causes” of the death.  The Supreme Court has not limited the issues — at least not yet — so it might also be interested in either or both of the two sentencing issues in the unpublished portion of the opinion, one of which concerns an issue already before the court in People v. Kopp (see here and here).
  • The court denied review in Albritten v. Department of Forestry and Fire Protection, but Justices Ming Chin and Goodwin Liu recorded votes to grant.  In an unpublished opinion, the Third District affirmed a summary judgment in a case alleging racial discrimination and retaliation under the California Fair Employment and Housing Act.  The appellate court rejected the African-American plaintiff’s claim that a co-worker harassed her because of her race when, among other things, the co-worker said to her, “if you don’t know, now you know,” which are lyrics from a famous Notorious B.I.G. rap song that includes the N-word directly after the quoted phrase.  The court concluded, “the inference that [the co-worker] intended the lyric to impliedly refer to plaintiff by a racial slur is speculative and insufficient to establish harassment.”
  • In Elijah J. v. Superior Court, the Second District, Division Three, had summarily denied a writ petition challenging a superior court order requiring a juvenile’s shackling during court appearances, although one justice said he’d ask for a preliminary opposition.  The Supreme Court issued a stay order, requested an answer to the petition for review, and yesterday granted review and ordered the appellate court to issue an alternative writ.
  • After the Fourth District, Division Two, summarily denied a pro per habeas corpus petition, the Supreme Court granted review in In re Campbell and sent the case back to the appellate court to decide whether the petitioner is entitled to relief because there was insufficient evidence to support the robbery-murder special circumstance finding, citing People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, 609-623.
  • There were 10 criminal case grant-and-holds:  three holding for a decision in People v. Lewis (see above); one more holding for O.G. v. Superior Court (see here); two more holding for People v. Lopez (see here), which is another SB 1437 case; two more holding for People v. Frahs (see here), which will be argued next month; one more holding for People v. Orozco (see here), which was argued in January; and one for In re Vaquera (see here).