Tag: Weekly conference reports

Yes, there was a lot of action at this week’s Supreme Court conference, a double one. This is the third and final part of a summary of some highlights. Parts I and II are here and here.

DUI murder dissenting vote. The court denied review in People v. Woodfill, but Justice Goodwin Liu recorded a vote to hear the case. The Fourth District, Division One, unpublished opinion affirmed a second degree murder conviction of the defendant for killing a pedestrian while drunk driving. The defendant unsuccessfully advanced three points as prejudicial error: (1) the refusal to modify a jury instruction about implied malice, (2) the failure to sua sponte instruct on either vehicular manslaughter or involuntary manslaughter as a lesser included offense, and (3) allowing the People to show the jury a photograph of the victim while she was alive. Justice Liu didn’t explain his vote, so it’s not clear which issue or issues attracted his attention. (There’s a fairly simple cure for that: When a message vote’s message is muddled.) If I had to guess, I’d say it was issue number one. In October, Justice Liu signed on to an extended concurring statement by Justice Evans when the court denied review in another vehicular homicide case involving implied malice murder. The issue continues to percolate below. (See: Wait for it: issue percolation, right vehicles, and legislative inaction.)

More dissenting votes for review about youth offender parole denial.  As in People v. Celis (reported about in Part II), Justices Liu and Evans recorded dissenting votes from the denial of review in People v. Perez, another unpublished opinion — this one by the Second District, Division Seven — rejecting constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26.

COVID vaccine refusal. The court denied review in Bedard v. City of Los Angeles. The Second District, Division Three, published opinion upheld the firing of a police officer for refusing to comply with a 2021 requirement that all city employees be vaccinated against COVID or apply for a medical or religious exemption. The opinion stated that the plaintiff’s “refusal to become vaccinated placed the public and her coworkers at risk of harm on a daily basis.”

Due mainly to attending and traveling back from the Chief Justice’s meeting with the media yesterday (a separate blog post about that to come), I previously reported on only some of the highlights of this week’s Supreme Court conference, a double one. Here’s part II. There will be a Part III as well.

Refiling charges that could cause deportation; depublication. The court dismissed the defendant’s petition for review, but granted his request to depublish the Sixth District Court of Appeal’s opinion in Martinez v. Superior Court. After having his conviction vacated and his plea withdrawn for error “damaging [his] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence” (Pen. Code section 1473.7(a)(1)), the defendant unsuccessfully moved to dismiss the charges against him. The Sixth District held the motion denial was not appealable, but, exercising its discretion to treat the appeal as a writ petition, concluded the superior court had properly denied the motion. Its opinion said that section 1473.7 didn’t authorize a dismissal and that, even though the defendant had successfully completed his probation, the People could still refile the charges because “the state may have an interest in ensuring that Martinez remains subject to certain collateral consequences of those offenses, including but not limited to Martinez’s possible deportation.”

Another forum selection grant-and-hold.  Lathrop v. Thor Motor Coach is another grant-and-hold for EpicentRx, Inc. v. Superior Court (see here), which is expected to decide whether a forum selection clause is enforceable when a party’s right under California state law to a jury trial for their civil claims would not apply in the exclusive forum identified by the clause. In a published opinion, the Second District, Division Seven, found it was insufficient to enforce a forum selection clause that the defendant had offered to stipulate the substantive provisions of California’s lemon law, Consumer Legal Remedies Act, and “ ‘all other unwaivable California substantive rights,’ ” would apply in the court of the selected forum. The appellate court concluded that the “proposed stipulation would violate California public policy and that, even if it didn’t, [the] proposed stipulation was insufficient to protect the [plaintiffs’] unwaivable statutory rights.” Horvitz & Levy is appellate counsel for the defendants.

DA v. AG in child molester release case. The court granted review in Gray v. Superior Court and directed the Fifth District to vacate its summary denial of a writ petition and decide the matter on the merits. The courts’ dockets don’t say what the case is about, but an article by Joe Cortez in the Turlock Journal explains that the writ petition challenges a superior court order blocking the release of a convicted child molester to a house next door to a house operating as a home school. Likely at issue is whether Penal Code section 3003.5’s prohibition against registered sex offenders “resid[ing] within 2000 feet of any public or private school” applies to a home school. From the article and the two courts’ online dockets, it appears the Stanislaus County District Attorney is supporting the superior court order while the Attorney General is aligned with the to-be-released sex offender in opposition.

Racial Justice Act dissenting votes. The court denied review in People v. Corbi over the recorded dissenting votes of Justices Goodwin Liu and Kelli Evans. The published portion of the Fourth District, Division One, partially published opinion rejected the argument by the Mexican-American defendant that the prosecutor violated the California Racial Justice Act (here and here) during closing arguments by referencing the defendant’s interest in white women. Even finding the defendant’s “point [to be] well taken,” Division One concluded the issue was forfeited by counsel’s failure to specifically reference the RJA in objecting to the prosecutor’s remarks. The opinion “express[ed] no opinion on whether [the defendant] should pursue his claim(s) by means of a habeas petition.” At the same conference, Justices Liu and Evans, joined by Justice Leondra Kruger, also dissented from the denial of review in a different RJA case.

More dissenting votes for review about youth offender parole denial.  Justices Liu and Evans also recorded dissenting votes from the denial of review in People v. Celis. The Second District, Division Five, unpublished opinion rejected a constitutional challenge to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed. (See here and recently here.) The Celis defendant made an equal protection argument different than the unsuccesful one in Hardin.

Another dissenting vote. Justice Liu also recorded a dissenting vote in People v. Leiva. The Fifth District’s unpublished opinion rejected arguments that (1) evidence should have been suppressed because there was no reasonable cause for the traffic stop that led to the defendant’s arrest and (2) the excusal of an African-American prospective juror for cause was motivated by racial bias. Justice Liu didn’t explain his vote, so it’s not clear which issue or issues attracted his attention. There’s a fairly simple cure for that: When a message vote’s message is muddled.

Criminal case grant-and-holds. There were 11 criminal case grant-and-holds:  one more waiting for a decision in People v. Patton (see here), which was argued last month; eight more on hold for People v. Rhodius (see here); one more waiting for People v. Morris (see here); and one holding for In re Montgomery (see here).

Grant-and-hold dispositions (see here).  The court sent five cases back to the Courts of Appeal for reconsideration in light of the August decision in People v. Lynch (2024) 16 Cal.5th 730 (see here) and the November 2023 opinion in People v. Salazar (2023) 15 Cal.5th 416 (see here). One was a grant-and-hold for just Lynch, one was waiting for only Salazar, and the other three were waiting for decisions in both Lynch and Salazar.

The first conference of 2025, a double one, was a busy one. This is the first of a two-part summary of some of the highlights. The second part probably won’t appear until Friday.

Racial Justice Act dissents. See: Another Racial Justice Act dissenting statement.

Civil commitment percolation. See: Separate statement in civil commitment review denial.

Murder resentencing. Taking yet another case involving Senate Bill 1437, legislation that limited criminal liability for felony murder and eliminated it for murder under the natural-and-probable-consequences doctrine, the court granted review in People v. Lopez. It limited the issue to: “Does Penal Code section 1172.6, subdivision (a)(3), which requires defendants to allege that they ‘could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019,’ render ineligible for relief petitioners who could have raised their challenges to imputed malice on prior direct appeal?” The unpublished Fifth District Court of Appeal opinion said “yes.”

Section 998 offers. The court also agreed to review the Second District, Division Two, 2-1 published opinion in Gorobets v. Jaguar Land Rover North America. Division Two framed threshold issues this way: “(1) Is a [Code of Civil Procedure section] 998 offer sufficiently certain if it consists of two offers made at the same time to the same party and leaves it to the offeree which offer to accept; and (2) Is a 998 offer sufficiently certain if it promises to pay the offeree for the categories of damages to which the offeree is statutorily entitled (plus some categories to which it is not), agrees to immediately pay any undisputed amounts for those categories, and shunts any disputed amounts to a third-party mechanism for resolution?” It answered “no” to both questions. However, the opinion also held that only one of the two offers “was itself invalid” and that rejection of the valid offer operated to limit the offeree’s pre-offer costs and attorney fees and to award the offeror post-offer costs. Thus, the appellate court also answered “no” to the question, “When an offeree makes two simultaneous offers, one of which is invalid and the other valid, is that really simultaneous offers that render the independently valid offer ineffective?” The dissent asserted that the analysis should have ended with the conclusion that the “simultaneous offers . . . were ineffective under section 998.” The Supreme Court heard argument in another section 998 case — Madrigal v. Hyundai Motor America — just last week.

[January 17 update: Here is the issue as summarized by court staff (see here) — “Is a settlement offer under Code of Civil Procedure section 998 that contains two options inherently invalid, presumptively invalid, or invalid or partially or entirely valid depending on a separate and independent evaluation of each option?”]

After its two previous conferences yielded a total of nine straight grants (here, here, and here), the Supreme Court at this week’s (early) conference, a double one, made no straight-grant orders. It was a busy conference, however, the court ruling on 176 matters. Here are some of the notable actions.

Another forum selection grant-and-hold.  Acrisure of California, LLC v. Superior Court is another grant-and-hold for EpicentRx, Inc. v. Superior Court (see here), which is expected to decide whether a forum selection clause is enforceable when a party’s right under California state law to a jury trial for their civil claims would not apply in the exclusive forum identified by the clause.  The Acrisure writ petition was summarily denied by the Fourth District, Division One, Court of Appeal. Another pending review-granted case about forum selection clauses is Zhang v. Superior Court (see here).

Double punishment OSC. The court issued an order to show cause in In re Uriostegui, a pro per’s habeas corpus petition. The OSC is returnable in the superior court and is to decide whether “the concurrent term imposed for the active participation in a criminal street gang conviction (Pen. Code, § 186.22, subd. (a)) . . . violate[s] Penal Code section 654 and People v. Mesa (2012) 54 Cal.4th 191, as conceded by the Attorney General in his informal response filed with this court.” (Links added.)

More dissenting votes for review about youth offender parole denial.  Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denial of review in People v. Gary. The unpublished opinion by the Second District, Division Two, rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed. (See here and recently here.)

Parole related dissenting votes. Justices Liu and Evans also recorded dissenting votes to issue an order to show cause in In re Thompson. It was a pro per’s habeas corpus petition filed directly in the Supreme Court. There is little information about the petition on the docket other than a request for an informal response asking for “a copy of the 2021 parole suitability hearing transcript and the risk assessment.” So, it’s not clear why the dissenters thought the petition should be heard. There’s a fairly simple cure for that:  When a message vote’s message is muddled.

Writ petition dissenting vote. Justice Liu recorded a dissenting vote to grant review in Ramirez v. Superior Court. The Second District, Division Six, had summarily denied the writ petition in the matter. Because neither the Supreme Court nor the Court of Appeal docket indicates what the case is about, it’s not clear what issue or issues piqued Justice Liu’s interest. There’s a fairly simple cure for that:  When a message vote’s message is muddled.

Criminal case grant-and-holds. There were eight criminal case grant-and-holds:  one more waiting for a decision in People v. Mitchell (see here and here); two more on hold for People v. Patton (see here), which was argued last month; two more holding for People v. Emanuel (see here); two more waiting for People v. Rhodius (see here); and one more on hold for People v. Wiley (see here).

Here’s the second part of the report on yesterday’s conference. Part I, discussing two of the four straight grants and other things, is here.

Warrantless car search.

The court granted review in Sellers v. Superior Court and it limited the issues to: “1. Does the presence of 0.36 grams of loose marijuana on the floor of a vehicle constitute an open container violation under Health & Safety Code, section 11362.3, subdivision (a)(4)? 2. Does the answer to this question affect whether there was probable cause for a warrantless vehicle search under the totality of the circumstances, such that remand would be required for reconsideration of the Court of Appeal’s alternative analysis, Sellers v. Superior Court (2024) 104 Cal.App.5th 468, 478-479?” (Link added.)

A 2-1 Third District published opinion upheld a warrantless search, relying on an argument the prosecution had abandoned. Section 11362.3 prohibits a driver from “[p]ossess[ing] an open container or open package of cannabis or cannabis products” (emphasis added), but the majority held, “we construe the statute, consistent with its apparent purpose, to prohibit any person from possessing marijuana that is not in a closed package or container while driving” (original emphasis). Alternatively, the opinion said, “even if we were to conclude the loose marijuana was not contraband, we are persuaded that the totality of the circumstances observed by the police officers gave probable cause to search the vehicle.”

The dissent noted the search followed “what was clearly a targeted traffic stop of a car that appears to have contained African-American and Hispanic individuals.” The justice also wrote, “I agree with the Attorney General’s concession at oral argument that scattered marijuana on a car’s floorboards does not constitute an open container of marijuana” and she stated her disagreement with the majority’s conclusion that the “totality of the circumstances” justified the warrantless search.

CEQA exemption for oil well project. The court will also hear Sunflower Alliance v. California Department of Conservation and it limited the issues to: “(1) May an agency claim a categorical exemption from environmental review under [the California Environmental Quality Act] while also adopting conditions of approval relating to potential environmental effects? (2) Does the term ‘negligible’ in the California Environmental Quality Act’s Class 1 existing facilities exemption (Cal. Code Regs., tit. 14, § 15301) pertain to a negligible change in use or to a change that presents a negligible risk of environmental harm?” As described in the First District, Division Five, published opinion, the case involves “a project to convert an oil well, which formerly pumped oil and water from an aquifer, into an injection well, which would pump excess water back into the aquifer.” Division Five held the project was exempt from CEQA under the Act’s guidelines — “any expansion of the well’s use is negligible because, under the facts here, the environmental risks of injecting the water are negligible.”

Expert testimony gatekeeper depublication. The court granted the People’s request to depublish the First District, Division Three, opinion in People v. Tidd. There was no petition for review. Division Three reversed a conviction for assault with a firearm and discharge of a firearm from a motor vehicle because it found “no sufficient basis for [the] opinion” of a firearms toolmark analyst “that a cartridge case recovered from a crime scene had been fired from a particular gun.” The appellate court concluded the problem was, “The People introduced no studies to support the assumptions on which [the expert’s] forensic technique relies, and no evidence that [his] admittedly subjective assessment was in any way reliable.”

Racial Justice Act OSC. The court issued an order to show cause, returnable in the superior court, in the pro per’s habeas corpus petition in In re Petty. The issue is whether the petitioner is “entitled to relief based on his claim the prosecutor’s comparison of petitioner to a Bengal tiger during closing argument violated the Racial Justice Act. (See Pen. Code, § 745, subds. (a)(2), (h)(4).)”

Another vehicle sales arbitration grant-and-hold. Rivera v. Superior Court is another grant-and-hold for the Ford Motor Warranty Cases (see here), where the court limited the issue to: “Do manufacturers’ express or implied warranties that accompany a vehicle at the time of sale [by a dealer] constitute obligations arising from the sale contract [between the dealer and a buyer], permitting manufacturers to enforce an arbitration agreement in the contract pursuant to equitable estoppel?” The Second District, Division Six, published opinion, held that the car manufacturer in the case “is not a third party beneficiary of the sale contract and petitioners are not estopped from objecting to arbitration.”

Another forum selection grant-and-hold. Lockton Companies, LLC – Pacific Series v. Superior Court (McClave) is another grant-and-hold for EpicentRx, Inc. v. Superior Court (see here), which is expected to decide whether a forum selection clause is enforceable when a party’s right under California state law to a jury trial for their civil claims would not apply in the exclusive forum identified by the clause. The McClave writ petition was summarily denied by the Second District, Division Three. There are a bunch more Lockton Companies grant-and-holds. (See here, here, and here.) Also, another pending review-granted case about forum selection clauses is Zhang v. Superior Court (see here).

Plea bargains and resentencing. In May, the court granted the People’s petition for review in People v. Montgomery to resolve a conflict in Court of Appeal decisions concerning whether the prosecution is entitled to rescind a plea agreement when a defendant receives a full resentencing under Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). (See here.) Yesterday, with the answer brief having been filed two months ago, the court granted the defendant’s motion to transfer the case back to the First District, Division Three, with directions to reconsider the cause in light of Assembly Bill No. 2483 (Stats. 2024, ch. 964). The new law says the legislation is intended to “[c]reat[e] uniform resentencing procedures.”

Murder resentencing dissenting votes. The court denied review in People v. Gomez, but Justices Goodwin Liu and Kelli Evans recorded votes to hear the case. In an unpublished opinion, the Second District, Division Seven, affirmed the denial of the defendant’s petition for resentencing under statutory changes limiting murder liability for accomplices. The defendant didn’t contend there was a lack of substantial evidence to support the superior court’s findings on which the denial was based, but he claimed error in failing to consider his youth (he was 23 years old at the time of the crime; “on the older end of the youthful offender spectrum,” the opinion noted) in determining whether he acted with the requisite mental state for second degree murder. Division Seven held that “[a]ny error . . . was harmless” because it was not reasonably probable that considering his youth would have led to a more favorable result.

Another murder resentencing dissenting vote. Justice Evans alone dissented from the denial of review in People v. Zavala. The Third District published opinion affirmed the denial of the defendant’s petition for resentencing under statutory changes limiting murder liability for accomplices. The appellate court rejected the argument the trial court erroneously admitted statements defendant made during a parole risk assessment interview and testimony from the parole hearing. The opinion stated, “defendant has not shown that . . . his statements . . . were involuntary or coerced.”

More dissenting votes for review about youth offender parole denial.  Justices Liu and Evans also recorded dissenting votes from the denial of review in People v. Blanche and People v. Johnson. Unpublished opinions by the Second District, Division Seven, in Blanche and by the Second District, Division Four, in Johnson rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed. (See here and recently here.)

Criminal case grant-and-holds. There were three criminal case grant-and-holds: one more waiting for a decision in People v. Patton (see here), which was argued two weeks ago (video here); one more holding for People v. Rhodius (see here); and one more on hold for People v. Superior Court (Guevara) (see here and here).

Grant-and-hold dispositions (see here). The court dismissed review in two cases — Dhital v. Nissan North America (see here) and Kia America, Inc. v. Superior Court (see here) — that had been waiting for the August economic-loss-rule decision in Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1 (see here). It also dismissed review in a case that was on hold for People v. Montgomery (see above).

After agreeing to hear five new cases last week, the Supreme Court took on another four at yesterday’s conference. Two in particular are potentially momentous. In the first of two parts, we discuss those two grants and some other highlights. [December 20 update: Part II is here.]

Undocumented student employment. See: Supreme Court orders Court of Appeal to decide whether undocumented UC students can be hired for campus work [Updated with links to court filings].

Racial Justice Act dissenting statement. See: Racial Justice Act catch-22 is claimed by separate statement dissenting from a somewhat puzzling order denying review.

Discriminatory jury selection.

The court granted review in People v. SanMiguel to write what should be its first opinion about Assembly Bill 3070, by which the Legislature added Code of Civil Procedure section 231.7 “to put into place an effective procedure for eliminating the unfair exclusion of potential jurors based on race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, through the exercise of peremptory challenges.” The court limited the issue to, “Did the trial court properly overrule defendant’s Code of Civil Procedure section 231.7 objection to the People’s peremptory challenge of a prospective juror?”

The Second District, Division Six, in a 2-1 partially published opinion, affirmed an attempted murder and assault with a deadly weapon conviction, rejecting an argument that section 231.7 required reversal because of the prosecution’s peremptory challenge of an Hispanic prospective juror. A concurring justice wrote that subdivision (j) of the statute, detailing how appellate review is to be conducted of the denial of a section 231.7 objection, should be held to be unconstitutional as a separation of powers violation. He called for the “overrul[ing]” of the Division Six decision in People v. Uriostegui (2024) 101 Cal.App.5th 271, which reversed a burglary conviction based on section 231.7. (There was no petition for review in Uriostegui, but the Supreme Court did deny a district attorney’s request to depublish the opinion. (See here.)) The dissenting justice in SanMiguel “disagree[d] . . . with the majority’s conclusion that the presumption of invalidity [established by section 231.7] was overcome.”

Justice Goodwin Liu consulted with legislators about AB 3070 when it was pending before the Legislature in 2020 and, because of that involvement, an officer of the California District Attorneys Association said at the time that prosecutors might seek Justice Liu’s recusal in cases challenging a juror’s removal.  (Here.)

Papering judges to be limited?.

The court will also hear J.O. v. Superior Court, in which the petition for review directly attacks the court’s 6-1 decision in Solberg v. Superior Court (1977) 19 Cal.3d 182. (Uncommonly, there was no Court of Appeal opinion in the case; the Third District summarily denied a writ petition, as it did in several other cases that are now grant-and-holds for J.O. (See below.))

The Solberg court upheld a deputy district attorney’s disqualification of a judge under Code of Civil Procedure section 170.6, a statute allowing a party to disqualify a judge based on a declaration, without any supporting showing, that the judge is prejudiced against the party or their attorney. The Solberg dissenter — Justice Mathew Tobriner — wrote that “the use of ‘blanket’ challenges under section 170.6 to disqualify a judge because of his judicial philosophy or his prior rulings on questions of law seriously undermines the principle of judicial independence and distorts the appearance, if not the reality, of judicial impartiality.” In J.O., the petitioner claims the County Counsel has been filing blanket section 170.6 motions against a particular judge in all County Counsel mental health cases.

Eight years ago, when the Fourth District, Division Three, “question[e]d the wisdom of the Solberg holding” and “urge[d] the Supreme Court to revisit the issue of blanket papering” (People v. Superior Court (Tejeda) (2016) 1 Cal.App.5th 892, 896), the Supreme Court barely denied review, with Justices Kathryn Werdegar, Goodwin Liu, and Mariano-Florentino Cuéllar recording votes to hear the case. (Here.)

[December 20 update: Here is the issue as summarized by court staff (see here) — “Should this court’s decision in Solberg v. Superior Court (1977) 19 Cal.3d 182 be overruled or limited insofar as it allowed a public agency to bring ‘blanket challenges’ against particular judges under Code of Civil Procedure section 170.6?”]

Papering judges grant-and-holds. Besides agreeing to hear J.O. v. Superior Court apparently to revisit its Solberg decision (see above), the court issued grant-and-hold orders in the similar cases of J.L. v. Superior Court, I.P. v. Superior Court, C.R. v. Superior Court, and J.R. v. Superior Court, all following summary denials of writ petitions by the Third District.

One blog post alone could not do justice to all the notable actions the Supreme Court took at its conference yesterday. Part I is here. Here’s Part II.

Racial Justice Act depublication. The court denied review in People v. Vigil, yet another case concerning the Racial Justice Act (see Montgomery, Naddi, and Avalos in Part I), but it depublished the Fifth District’s opinion in the case and it said the review denial was “without prejudice to defendant filing a petition for writ of habeas corpus in the Tulare County Superior Court.” The opinion dismissed an appeal from an order denying the defendant RJA relief, stating the order was void because, “under the RJA’s phased-in retroactivity provisions, defendant’s motion was prematurely filed.”

Lemon Law depublication. The court also denied review and depublished the Court of Appeal opinion in Valdovinos v. Kia Motors America. The Second District, Division Two, interpreted California’s Song-Beverly Consumer Warranty Act, commonly known as the Lemon Law, as it applied to the plaintiff’s purchase of a new 2014 Kia Optima. The appellate court answered “no” to these questions: “is a consumer entitled to recover as ‘restitution’ amounts paid to a third party for a service contract on the vehicle? Second, is a consumer entitled to recover as ‘restitution’ all insurance premiums paid on the vehicle should the consumer continue to drive it (as opposed to only those premiums attributable to coverage against property damage)? Third, is a manufacturer’s, distributor’s, or retailer’s violation of the Act willful [allowing for a civil penalty up to twice the amount of the ‘restitution’ award] as a matter of law if the violation was negligent or if it adequately investigated but could not confirm the existence of a defect yet nevertheless offered to buy back the vehicle on terms that were reasonable at the time the offer was made?”  Horvitz & Levy represented the defendant and opposed the petition for review and the depublication requests.

Two pardon recommendations. The court granted Governor Gavin Newsom’s July requests for constitutionally required recommendations that allows him to pardon Mark Borovitz (for 1980, 1981, and 1984 convictions of non-sufficient funds and a 1987 conviction of grand theft auto) and Joseph Crocker (for a 1995 conviction of taking a vehicle without the owner’s consent and a 1996 conviction of possession of a controlled substance for sale). Newsom has a nearly perfect clemency record: he withdrew one request before a ruling, but the court — applying a deferential standard (see here and here) — has approved all 70 of his other requests. That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants. The denial of a request implies that a clemency grant would be an abuse of power.

Dissenting vote in youth offender parole/Three Strikes case. Over the recorded dissenting vote of Justice Kelli Evans, the court denied review in People v. Mason. The Second District, Division Two, partially published opinion rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. That was the unpublished part, on an issue that has consistently drawn dissenting votes — and one separate statement — from Justices Evans and Goodwin Liu. (See here, here, here, here, here, here, here, here, here, here, here, and here). The published portion “overrule[d]” Division Two’s decision in People v. Hardy (1999) 73 Cal.App.4th 1429 and followed what it said is the majority of Court of Appeal opinions, with the appellate court now concluding that the Three Strikes Law doesn’t allow for the doubling of an LWOP sentence. Justice Evans didn’t issue a separate statement explaining her recorded vote, so it’s not clear which issue or issues attracted her attention. There’s a fairly simple cure for that: When a message vote’s message is muddled. It’s also unclear why Justice Liu didn’t vote for review on the youth offender parole issue.

Another dissenting vote in a youth offender parole case. Justice Evans also dissented from the denial of review in People v. Ralls. Unlike in Mason (see above), it seems clear that the dissenting vote concerned the issue whether it is cruel or unusual punishment under the California Constitution for a statute to prevent parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. The First District, Division Four, unpublished opinion rejects the constitutional challenge to the statute. As in Mason, it’s unclear why Justice Liu didn’t join Justice Evans in voting to grant review. The Ralls opinion notes Justice Evans’s separate dissenting statement (signed by Justice Liu) in People v. Powell (see here) advocating for review of the cruel-or-unusual-punishment issue, but says, “Perhaps the calls made by Justices Evans and Liu in Powell will be heeded by their colleagues at some point, but it is above our pay grade to do so.”

Grant-and-hold dispositions (see here). The court shed 14 cases that had been grant-and-holds for the August decision in People v. Lynch (2024) 16 Cal.5th 730 (see here). All are returned to the Courts of Appeal for reconsideration, eight in light of both Lynch and Erlinger v. United States (2024) 602 U.S. 821 and six in light of just Lynch.

At its conference yesterday, a double one, the Supreme Court backed up Chief Justice Patricia Guerrero’s recent pledge that a decline in straight grants would be temporary. It issued straight grant orders in five cases. We can’t remember the last time the court at one conference agreed to hear that many cases. The conference was so eventful, we’re reporting on it in two parts. Here’s the first part. [Update: The Supreme Court’s eventful conference — Part II.]

.Judge removed. Supreme Court lets stand order removing superior court judge from the bench.

Racial Justice Act procedure. In June we wrote the California Racial Justice Act (here and here) “is a good candidate to be the next big thing on the court’s docket. Chief Justice Patricia Guerrero has already identified it as legislation that is ‘impacting [the court’s] workflow.’ (See, e.g., here, here, here, here, and here.)” (See also Naddi and Avalos below.) The court addressed a procedural issue in two death penalty appeals in August. (See here and here.) Still nibbling around the edges of the consequential statutory scheme, the court yesterday granted review in In re Montgomery to decide the appealability of an order denying a motion for discovery made in connection with a summarily denied postjudgment habeas corpus petition seeking relief for alleged RJA violations. The Fourth District, Division One, published opinion in the case held the order was not appealable and dismissed the appeal. Division One said “the RJA does not authorize a freestanding motion for discovery; it only authorizes discovery in a pending proceeding in which the defendant has alleged a[n] [RJA] violation.” [Sic: the opinion should read “only authorizes discovery only in a pending proceeding . . . .”] The appellate court advised the defendant to file a new habeas petition in the Court of Appeal or the Supreme Court. A concurring justice wrote, among other things, that RJA discovery “should not be precluded by a trial court’s finding that a defendant has not (yet) made the requisite prima facie showing [of an RJA violation].”

[December 13 update: It looks like the issue is broader than just appealability. Here is the issue as summarized by court staff (see here) — “Must a petitioner allege a prima facie case for relief under the Racial Justice Act (Pen. Code, § 745; RJA) before the trial court can consider a discovery request for disclosure of evidence under the RJA (id., subd. (d))?”]

Conservatorship renewal trial. The court agreed to hear Conservatorship of E.A. after an unpublished opinion by the First District, Division One. Agreeing with the recent First District, Division Two, decision in Conservatorship of T.B. (2024) 99 Cal.App.5th 1361 and analogizing to the Supreme Court’s opinion in Camacho v. Superior Court (2023) 15 Cal.5th 354 about commitments under the Sexually Violent Predator Act (see here), Division One held a long delay in bringing to trial a petition to renew an involuntary commitment under the Lanterman-Petris-Short Act was not prejudicial. The appellate court justices did write, however, “We are dismayed by the trial court’s inability to hear the 2022 petition for over a year, involving as it does ‘ “a massive curtailment of liberty” ’ for E.A.” The Supreme Court denied review in T.B.

[December 13 update: Here is the issue as summarized by court staff (see here) — “Must a conservatee demonstrate prejudice to establish that a 362-day delay in initiating a trial in a Lanterman-Petris-Short Act conservatorship proceeding violates due process and equal protection?”]

Kidnapping. Review was also granted in People v. Hughey. The Second District, Division Six, in a published opinion, affirmed kidnapping convictions, finding sufficient evidence supported the factual finding that the two defendants moved the victims in a store robbery a “substantial distance.” Division Six said that the movement “must be . . . more than incidental to the offense” and that “the measure of ‘incidental’ varies with the facts.” It disagreed with the 2-1 opinion in People v. Hall (2024) 104 Cal.App.5th 1077 because it said the Hall majority “did not consider the [home invasion] victim’s evidence of the increasing emotional harm the robbers caused and their gratuitous violent behavior.” The Supreme Court denied a defendant’s petition for review in Hall.

[December 13 update: Here is the issue as summarized by court staff (see here) — “Was there sufficient evidence of asportation to support defendants’ convictions for kidnapping (Pen. Code, § 207, subd. (a))?”]

Workers’ compensation procedure. The court will hear Mayor v. Workers’ Compensation Appeals Board. In a published opinion, the First District, Division Four, held granting reconsideration of a permanent disability award exceeded the Board’s jurisdiction. The order granting the reconsideration petition was made more than 60 days after the petition’s filing, and the then-governing statute provided a petition “is deemed to have been denied . . . unless it is acted upon within 60 days from the date of filing.” Finding the deadline mandatory and not directory, Division Four followed the Second District, Division Seven, decision in Zurich American Ins. Co. v. Workers’ Comp. Appeals Bd. (2023) 97 Cal.App.5th 1213, which had disagreed with the Fourth District, Division Three, decision in Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104. There was no petition for review in Zurich American or Shipley. The Supreme Court’s order limits the issues to those “raised in the petition for review,” presumably declining to pass on any issues raised in the worker’s answer to the Board’s petition for review.

[December 13 update: Here are the issues as summarized by court staff (see here) — “(1) May the Workers’ Compensation Appeals Board apply equitable tolling to act upon a petition for reconsideration beyond the 60-day period provided in Labor Code section 5909, when the Appeals Board did not receive the petition for reconsideration until after the 60-day period has elapsed? (2) Did the Court of Appeal act in excess of its jurisdiction in granting relief under traditional mandate (Code Civ. Proc., § 1085), where petitioner did not file a timely petition for writ of review pursuant to Labor Code section 5909?”]

Excess insurance. The court granted review in Fox Paine & Co. v. Twin City Fire Insurance Co. The First District, Division Two, published opinion held in favor of two excess insurance companies because underlying insurance had not yet been exhausted. Division Two reasoned that “burdening the excess insurers with prematurely litigating coverage issues before exhaustion upsets insurers’ settled expectations.” In doing so, it dismissed as “pure dictum” a statement in the Sixth District decision in Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592 that, for declaratory relief purposes, “Exhaustion of underlying limits, while necessary to entitle the insured to recover on the excess policy, is not necessary to create actual controversy. Exhaustion is merely an issue of proof and entitlement to recovery, not of pleading.” (Id. at p. 606.) There was no petition for review in Ludgate.

[December 13 update: Here are the issues as summarized by court staff (see here) — “(1) Where an insurance policyholder alleges loss sufficient to reach an excess policy, but that insurer’s obligation to pay is not yet triggered because underlying layers are not yet exhausted, may the policyholder nevertheless seek declaratory relief against the insurer? (2) Can a policyholder ever state a claim against an excess insurer for “bad faith” conduct if the underlying policy layers are not yet exhausted?”]

Racial Justice Act OSC. In another case involving the Racial Justice Act (see Montgomery above and Avalos below), the court issued an order to show cause, returnable in the superior court, in In re Naddi, a pro per’s habeas corpus petition. The Supreme Court had asked for an informal response concerning “whether petitioner has set forth a prima facie case for relief on his claim under the Racial Justice Act.” The OSC requires a showing “why petitioner has not satisfied the requirements for the appointment of counsel pursuant to Penal Code, section 1473, subdivision (e)).” (Link added.)

Racial Justice Act denial with reasons stated. The court denied the pro per’s habeas corpus petition in In re Avalos regarding the Racial Justice Act (see Montgomery and Naddi above). Uncommonly, the denial order is an extended one explaining why the petition “fails to make a prima facie showing of entitlement to relief under the Racial Justice Act.” Among other rejected claims, the order says “the petition fails to allege particularized facts that support a claim that petitioner was charged, convicted, or sentenced in a more severe manner than similarly situated individuals of other races, ethnicities, or national origins.”

Bond voting grant-and-hold. City of Oxnard v. Howard Jarvis Taxpayers Association is another grant-and-hold for City of San José v. Howard Jarvis Taxpayers Association (see here), where the court limited the issue to: “Is the issuance of pension obligation bonds to finance unfunded pension liability subject to the voter-approval requirement of article XVI, section 18, subdivision (a) of the California Constitution?” (Link added.)  The Second District, Division Six, unpublished opinion followed the Sixth District’s decision in the San José case and held voter approval is not required, concluding that the pension obligation bonds in issue “will merely convert existing, unfunded pension liability into debt in the form of bonds. No new debt will be created.”

Continuance to allow summary judgment motion. The court granted review in Berry v. Superior Court and sent the case back to the Fifth District, which had summarily denied the writ petition in the case. The Supreme Court directed the appellate court to issue an alternative writ. The Fifth District docket characterized the writ petition as one challenging an “order to continue trial to March 2025 to allow defendant to file a motion for summary judgment.” That court then asked for a preliminary opposition addressing “whether the superior court abused its discretion by . . . continuing the trial . . . after having previously granted trial preference under Code of Civil Procedure section 36.” Its summary denial order stated, “Petitioner’s claims appear to be based upon a health provider’s alleged professional negligence. Therefore, the nine-month deadline for setting trial under Code of Civil Procedure section 36, subdivision (g), applies, rather than the shorter 120-day deadline contained in subdivision (f). As the trial court set a trial date before the nine-month deadline, petitioner has not presented a prima facie claim for relief.”

Late notice of appeal. The court granted review in People v. Parks and sent the case back to the Second District, Division Five, “with directions to vacate its denial order and reconsider the application for relief from default in light of the Attorney General’s concession that petitioner is entitled to fil[e] a constructive notice of appeal. (Cal. Rules of Court, rule 8.528(d); see In re Benoit (1973) 10 Cal.3d 72.)” Division Five had denied a request for relief from default for failure to timely file a notice of appeal.

Criminal case grant-and-holds. There were 20 criminal case grant-and-holds:  six more waiting for a decision in People v. Patton (see here), which was argued last week; one more holding for People v. Emanuel (see here); one more waiting for People v. Lopez (see here), which was argued in November; and 12 more on hold for People v. Rhodius (see here).

The day-early, Thanksgiving week conference didn’t produce many highlights. Here are some, mostly involving Senate Bill 1437, legislation that limited criminal liability for felony murder and eliminated it for murder under the natural-and-probable-consequences doctrine:

Pardon recommendation. The court granted Governor Gavin Newsom’s July request for a constitutionally required recommendation that allows him to pardon David Anguiano for 2007 convictions of possessing a dangerous weapon and transporting a controlled substance. Newsom has a nearly perfect clemency record: he withdrew one request before a ruling, but the court — applying a deferential standard (see here and here) — has approved all 68 of his other requests (not counting two that are pending). That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants. The denial of a request implies that a clemency grant would be an abuse of power.

Murder resentencing dissents. Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denial of review in People v. Chavarria. (The conference results list reports they dissented, but the case’s online docket does not.) The Fourth District, Division Two, Court of Appeal’s unpublished opinion affirmed the denial of the defendant’s resentencing petition under SB 1437. The opinion states, “The trial court issued an order to show cause and, after the evidentiary hearing, denied the petition, concluding that defendant was a major participant in the kidnapping and acted with reckless indifference to human life.”

Habeas grant and transfer. The court granted review in In re Lee and sent the case back to the Second District, Division Four, with directions to issue an order to show cause. Division Four had summarily denied the habeas corpus petition stating, “The petition is untimely and petitioner has failed to establish justification for the substantial delay. (In re Robbins (1998) 18 Cal.4th 770, 780, 789.) In addition, petitioner fails to demonstrate a prima facie case warranting habeas relief.” The Supreme Court and Court of Appeal dockets don’t indicate what is in issue, but Division Four had four years ago affirmed, in an unpublished opinion, a superior court order summarily denying the defendant’s resentencing petition under SB1437.

Criminal case grant-and-holds. There were just two criminal case grant-and-holds:  one more waiting for a decision in People v. Patton (see here), which will be argued next week; and one more on hold for People v. Morris (see here). Patton and Morris are both SB 1437 cases.

It was a light Supreme Court conference yesterday, with the court ruling on only 64 matters. But there were some notable actions, including:

Statements made to undercover police agent.

The court agreed to hear People v. Allen and, uncommonly, it added an issue to be briefed besides “the issue presented in the petition for review.” (Rule 8.516(b)(2) [“The court may decide an issue that is neither raised nor fairly included in the petition or answer if the case presents the issue and the court has given the parties reasonable notice and opportunity to brief and argue it”].) The Second District, Division One, Court of Appeal’s unpublished opinion found “persuasive” the Second District, Division Two, decision in People v. Orozco (2019) 32 Cal.App.5th 802 and held to be admissible a jailed defendant’s statements that were made — after the defendant had invoked his Miranda right to remain silent — to a police agent posing as a fellow inmate.

The U.S. and California supreme courts have held Miranda warnings are not necessary before a defendant speaks to an undercover agent, but neither has decided whether that so-called Perkins operation (Illinois v. Perkins (1990) 496 U.S. 292) is OK after the defendant has said he doesn’t want to be questioned. Justice Goodwin Liu has been targeting the issue for review for some time, including filing two separate statements on review denials. (See here, here, here, here, here, and here.) Now might finally be its time. (See Wait for it: issue percolation, right vehicles, and legislative inaction.) The Supreme Court denied review in Orozco with no recorded dissents.

The issue only “might” be addressed because the court directed the parties to also brief, “What effect, if any, does the fact that the interrogating officer continued questioning after petitioner invoked his Fifth Amendment right to silence have upon the admissibility of the statements subsequently obtained during the Perkins operation?” In the superior court, the defendant argued the statements made to the undercover agent were the fruit of the poisonous tree, the poisonous tree being the officer’s earlier illegal questioning. If the Supreme Court goes with the defendant on this additional issue, it might avoid deciding the Perkins issue.

[November 22 update: Here is the issue as summarized by court staff (see here) — “(1) If a defendant has invoked his right to remain silent while being interrogated by a law enforcement officer, are incriminating statements obtained through a subsequent Perkins operation (i.e., the use of an undercover agent to question a jailed defendant) admissible as substantive proof of the defendant’s guilt at trial? (See Illinois v. Perkins (1990) 496 U.S. 292; Miranda v. Arizona (1966) 384 U.S. 436.) (2) What effect, if any, does the fact that the interrogating officer continued questioning after petitioner invoked his Fifth Amendment right to silence have upon the admissibility of the statements subsequently obtained during the Perkins operation?”]

Warrantless search dissenting votes?: Over the recorded dissenting votes of Justices Liu and Kelli Evans, the court denied review in People v. Bridgette. The Fourth District, Division Three, unpublished opinion rejected three arguments for reversing a conviction of two different sexual assaults: “1) the trial court erred in failing to suppress incriminating evidence that was seized during a warrantless search of his home, 2) the trial court erred in denying his request for a separate trial as to each victim, and 3) the jury instruction on the use of propensity evidence was fundamentally unfair.” The dissenting votes are not explained, so we don’t know which issue or issues the two justices wanted to hear. (There’s a fairly simple cure for that: When a message vote’s message is muddled.) On the first issue, Division Three held that, even if police officers didn’t have lawful consent to enter the defendant’s home, exigent circumstances justified the officers’ entry.

More dissenting votes for review about youth offender parole denial.  Justices Liu and Evans also recorded dissenting votes from the denial of review in People v. Scott. The Second District, Division Eight, unpublished opinion rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, here, here, here, here, here, and here). It seems unlikely the court will ever grant review in any such case unless a Court of Appeal goes against the tide and adopts a defense cruel-or-unusual argument. (See: The Supreme Court doesn’t decide all important issues.)

[November 22 update:

Release of liability supplemental briefing. The court requested supplemental briefing in Whitehead v. City of Oakland (see here) on this issue: “Does the release in this case extend to a claim that the City of Oakland violated Government Code section 835 et seq., in light of Civil Code section 1668, which provides in relevant part that ‘[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own . . . violation of law, whether willful or negligent, are against the policy of the law’? (Cf. City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 763 [Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 ‘found a release of liability for future ordinary negligence void on public policy grounds other than those set forth in section 1668‘].)”]

Criminal case grant-and-holds. There were four criminal case grant-and-holds:  one more waiting for a decision in People v. Mitchell (see here and here), another two holding for People v. Rhodius (see here), and one more on hold for People v. Superior Court (Guevara) (see here and here).