At its Wednesday conference, in addition to signing off on a Governor Newsom request to commute a 40-year prison sentence, the Supreme Court depublished three Court of Appeal opinions. On average, the court usually wipes off the books only about one or two opinions per month, so three in one week is definitely above the current norm. (See here and here (pages 36 and 37).)
The high court’s actions of note yesterday included:
- The court denied review in People v. Toledano, but, on its own motion, depublished the opinion of the Fourth District, Division Three, which reversed a lawyer’s conviction for conspiracy to commit extortion because of the superior court’s refusal to instruct on the lawyer’s affirmative defense that his actions were protected under the litigation privilege. The opinion said it was addressing the first impression issue of “whether the litigation privilege applies in criminal prosecutions for extortion.”
- The court denied review in Lomeli v. State Department of Health Care Services, but, on its own motion, depublished the opinion of the Second District, Division Eight, which upheld a $267,159.60 Medi-Cal lien on the $4,000,000 settlement of a birth injury medical malpractice lawsuit. Among other things, the appellate court rejected a claim that federal law bars the lien, following the majority opinion in a divided Third Circuit decision.
- The court denied review in Oxford Preparatory Academy v. Chino Valley Unified School District, but it granted requests to depublish the opinion of the Fourth District, Division One. The superior court had refused to overturn a school district’s denial of a petition to renew a charter school. The appellate court reversed, concluding the lower court had applied too deferential a standard of review of the district’s decision. In the process, it criticized a 2015 opinion by the First District, Division Four.
- The court retained jurisdiction (it didn’t have to) and issued an order to show cause in a capital habeas corpus proceeding, In re Romero, raising questions about (1) the condemned inmate’s actual innocence of murders committed 25 years ago, (2) false evidence, and (3) newly discovered evidence. Evidentiary hearings will be held in the superior court. The Supreme Court affirmed Romero’s death sentence 11 years ago.
- There were two criminal case grant-and-holds.
- The court transferred back to the Court of Appeal 34 former grant-and-hold cases with directions to reconsider in light of the Supreme Court’s August decision in In re Ricardo P., which limited requiring submission to warrantless searches of a defendant’s electronic devices as a condition of probation. It also granted-and-transferred a case for Ricardo P. reconsideration. Last week, the court transferred three dozen other former Ricardo P. grant-and-holds.
- The court also transferred Dhillon v. Anheuser-Busch, which had been on hold for the July decision in Noel v. Thrifty Payless, Inc.
- The court granted-and-transferred one criminal case in which the Court of Appeal had summarily denied a writ petition.