Supreme Court actions of note at its Wednesday conference included:
- As reported yesterday, the court agreed to answer the Ninth Circuit’s question in Vazquez v. Jan-Pro Franchising International, Inc. about whether Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 is retroactive.
- The court granted review in Doe v. Olson, yet another anti-SLAPP case. The issue is whether a plaintiff can make legal claims for sexual assault, harassment, and stalking after promising — in a mediation agreement that ended an earlier restraining order action — “not to disparage” her alleged attacker. The unpublished opinion of the Second District, Division Eight, Court of Appeal concluded that the litigation privilege protected the plaintiff’s filing of an administrative complaint with federal and state housing agencies, but not her filing of a lawsuit. The opinion did not address the impact, if any, of Code of Civil Procedure sections 1001 and 1002.
- The court un-held People v. Aguayo. Action had been deferred pending the court’s August decision in People v. Aledamat. Now, the court wants briefing in Aguayo on these questions: “Is assault by means of force likely to produce great bodily injury a lesser included offense of assault with a deadly weapon? If so, was defendant’s conviction of assault by means of force likely to produce great bodily injury based on the same act or course of conduct as her conviction of assault with a deadly weapon? In briefing the first question, the parties should consider People v. Aledamat (2019) 8 Cal.5th 1, 16, footnote 5.” The partially published opinion of the Fourth District, Division One, rejected the defendant’s argument that her force-likely conviction should be vacated because it is a lesser included offense of assault with a deadly weapon.
- Justice Goodwin Liu recorded votes to grant in three different cases where the court denied petitions for review. In one, People v. Herrera, the Second District, Division Six’s 2-1 unpublished opinion affirmed a murder conviction, finding no Miranda violation or other evidentiary error. On the issue that divided the appellate court, the opinion held the defendant waived his right to a hearing on his ability to pay fees and fines that had been imposed on him. Last week, the high court agreed to decide whether such a right exists at all. It is unclear which issue or issues prompted Liu’s vote.
- The second recorded grant vote by Justice Liu was in People v. Robbins, where the Second District, Division Three, in an unpublished opinion, upheld a conviction on two counts of murder. The appellate court rejected the defendant’s arguments that his Miranda rights were violated by admitting statements he made to an undercover officer posing as a fellow jail inmate, that his counsel was ineffective for conceding guilt, and that he was denied the chance to personally enter a plea of not guilty by reason of insanity. Again, the reason for Liu’s vote is unclear.
- In the third case, In re Santana, Justice Joshua Groban joined Justice Liu in voting to grant review. The Second District, Division Eight, in an unpublished opinion, held the defendant’s lawyer was not constitutionally deficient when he conceded guilt to some counts. There were other issues, too, including the defendant’s right to a hearing on his ability to pay fines and assessments (see Herrera, above), so, again, the reason for the votes is not clear.
- There were three criminal case grant-and-holds, including two more that will be waiting for a decision in People v. Frahs (see here).
- There were two more SB 136 grant-and-transfers. (See here.)
People v. Herrera and and People v. Robbins (I’m Mr. Robbins’ attorney) both involved claims that, because the defendant had invoked his Miranda rights, the use of a police agent to obtain a confession required suppression. And the Court of Appeal’s analysis in each case was essentially the same – under Illinois v. Perkins, there can’t be an interrogation within the meaning of Miranda unless the suspect knows he is speaking with a police agent. The California Courts of Appeal have unanimously adopted that rule but the California Supreme Court has not, nor has it approvingly cited any of the Court of Appeal cases that do.
In Mr. Robbins’ appeal and petition for review, we argued the Courts of Appeal read Perkins too broadly, and that the “no knowledge, no interrogation” rule is inconsistent with U.S. Supreme Court caselaw as well as with how the California Supreme Court has treated this issue. So my guess is that this is the issue on which Justice Liu voted to grant review in Herrera and Robbins.
That could well be right, but we shouldn’t have to guess. See this follow-up post:
http://www.atthelectern.com/when-a-message-votes-message-is-muddled/
Wow… In 2003 there was a case where two gang members were arrested for a gang related murder. The investigating officers got to one of the suspects and got him to agree to talk to his codefendant in a room that the officers would be surreptitiously monitoring. The unsuspecting defendant evoked his right to remain silent but those arresting officers then asked him did he want to speak with his codefendant assuring him that the two could speak privately. However, that was lie. At trial both defendants tried to get their surreptitiously recorded conversation dismissed on grounds that it violated their 4th Amendment right to privacy. They replied on Katz v. United States and People v. Hammons. The court of appeals ducked the constitutional question that this case presented by deeming any error harmless.
But yeah… The police in CA are notorious for their practice of circumventing the 4,5, and 6 amendment rights of accused person’s by not respecting a person’s right to remain silent.