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  The unpublished opinion of the Second District, Division Eight, Court of Appeal concluded that the litigation privilege protected the plaintiff’s filing of an administrative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  In one, People v. Herrera, the Second District, Division Six’s 2-1 unpublished opinion affirmed a murder conviction, finding no Miranda violation or other evidentiary error.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.)