Three more review grants at this week’s Wednesday conference

At the Supreme Court’s conference yesterday — a double one, and with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October — actions of note included:

  • Supreme Court recommends pardon.
  • Dependency: The court granted review in Michael G. v. Superior Court, a dependency case. The Fourth District, Division Three, Court of Appeal, in a published opinion, affirmed an order ending reunification services even though the superior court had found that reasonable services were not provided in the most recent review period. The appellate court conceded it “is a difficult issue” and recognized a split of authority on the question. Four years ago, when the Supreme Court denied review in another case raising the issue, Justice Goodwin Liu said in a separate statement, “there appears to be a substantial tension in the statutory scheme,” but he concluded the particular case was “not a proper vehicle” and he recommended, “The Legislature seems the best forum for studying and resolving these issues in the first instance.” (See here.)
  • Sixth Amendment: Another review grant was in People v. Catarino, with this limited issue: “Does Penal Code section 667.6, subdivision (d), which requires that a ‘full, separate, and consecutive term’ must be imposed for certain offenses if the sentencing court finds that the crimes ‘involve[d] the same victim on separate occasions,’ comply with the Sixth Amendment to the U.S. Constitution?” In an unpublished opinion, the Fourth District, Division One, found no constitutional violation. It concluded U.S. Supreme Court case law requiring a jury to make certain punishment-increasing findings “do[es] not apply to the court’s determination of whether to impose consecutive sentences for convictions of multiple criminal offenses.” California’s Supreme Court last month granted review in In re Cabrera (see here) to decide a related Sixth Amendment issue.
  • Harmless instructional error: The court also agreed to hear People v. Schuller. The Third District’s published opinion affirmed a first-degree murder conviction of a defendant who pleaded not guilty by reason of insanity. The appellate court held the superior court erred in refusing to instruct the jury on voluntary manslaughter based on imperfect self-defense (“While defendant’s testimony included evidence of delusion, his account pertaining to the actual shooting was not entirely delusional and thus provided substantial evidence of an actual but unreasonable belief in the need for self-defense”), but it concluded the error was harmless. Although finding the error harmless under any standard, it rejected the defendant’s argument that the error had to be shown to have been harmless beyond a reasonable doubt. In so doing, the opinion seems to conflict with a recent Fourth District, Division One, decision, People v. Dominguez (2021) 66 Cal.App.5th 163, 183–184, in which no petition for review was filed.
  • Recorded vote: The court denied review in D.C. v. Superior Court, but Justice Goodwin Liu recorded a vote to grant. The partially published opinion of the First District, Division Five, upheld a superior court order transferring the defendant to adult criminal court for a murder he allegedly committed when he was 16. Justice Liu’s vote is unexplained, so it’s not certain which of several issues in the case attracted his attention. But the published portions of the opinion found no error in the superior court considering various evidence: (1) conduct taking place after the alleged offense, (2) conduct not resulting in a delinquency petition, and (3) defendant’s expressive writings, which the appellate court said the superior court regarded “as evidence of Petitioner’s ‘continued attraction to violence.’ ”
  • Recorded vote: Justice Joshua Groban recorded a dissenting vote from the court’s denial of review in Dosouqi v. Superior Court. As with Justice Liu’s vote in D.C. (see above), there is no explanation for the vote and the issue of interest is thus unclear. Also, the petition for review followed the summary denial by the First District, Division Two, of a writ petition and neither the Supreme Court’s nor the Court of Appeal’s docket discloses why the writ petition was filed.
  • What about the reply brief?: In People v. Rubio, the court granted review and transferred the case back to the Second District, Division Eight, “with directions to vacate its decision and reconsider the matter in light of appellant’s reply brief.” In an unpublished opinion, the appellate court rejected an ineffective assistance of counsel claim and affirmed a conviction of two first-degree murders with special circumstances.
  • New-Legislation Grant-and-Transfers: The court granted review and transferred four more cases back to the Courts of Appeal for reconsideration in light of new legislation: two more for Senate Bill 567, one more for SB 567 and Assembly Bill 124, and one more for Senate Bill 775 (see here and here).
  • Grant-and-holds: There were eight criminal case grant-and-holds: five more holding for a decision in People v. Strong (see here); two more holding for People v. Delgadillo (see here); and one more holding for  People v. Tirado (see here), which was decided today.
  • Habeas OSC: Speaking of Tirado, in In re Weisner, the court issued an order to show cause, returnable in the superior court, why a pro per should not be granted habeas corpus relief “on the ground that petitioner is entitled to resentencing under Senate Bill No. 620 (Stats. 2017, ch. 682).” SB 620 is the legislation the court construed today in its Tirado opinion. (See here.)
  • Disposal of grant-and-holds:  The court got rid of some more criminal grant-and-hold cases, but only nine this week, as opposed to between 58 and 80 at each of the previous three conference. Review was dismissed in seven cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952. In two cases that had been on hold for both Lewis and People v. Lopez (Lopez was transferred in November to the Court of Appeal for reconsideration in light of SB 775), the court transferred the matters to the Court of Appeal for reconsideration in light of Lewis and SB 775. By our count, there are 127 Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)
  • Proposition 66 transfer: The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.)

Tags: Weekly conference reports

Supreme Court agrees to hear three cases

At the Supreme Court’s first conference of 2022, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October, actions of note included:

  • Medicare Preemption: The court granted review of an unpublished opinion, in Quishenberry v. UnitedHealthcare, Inc., where the Second District, Division Seven, Court of Appeal held that a preemption clause in federal Medicare statutes preempted an action for negligence, elder abuse, and wrongful death against a private Medicare Advantage health care plan insurer and the plan’s health care provider. When a Medicare beneficiary elects an Advantage plan, the government pays the plan’s administrator to provide all Medicare benefits for that beneficiary. The plaintiff claims his father died after being prematurely discharged from a skilled nursing facility. Division Seven disagreed with the Fifth District opinion in Yarick v. PacifiCare of California (2009) 179 Cal.App.4th 1158 and the Fourth District, Division Three, opinion in Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437. It agreed with the Second District, Division Two, decision in Roberts v. United Healthcare Services, Inc. (2016) 2 Cal.App.5th 132. The Supreme Court denied review in Yarick and Cotton, with Justice Kathryn Werdegar recording a vote to grant in Cotton. There was no petition for review in Roberts.
  • PAGA Intervention: The court agreed to hear Turrieta v. Lyft, Inc., and it limited the issue to: “Does a plaintiff in a representative action filed under the Private Attorneys General Act (Lab. Code, § 2698, et seq.) (PAGA) have the right to intervene, or object to, or move to vacate, a judgment in a related action that purports to settle the claims that plaintiff has brought on behalf of the State?” The Second District, Division Four, published opinion said “no.” Five weeks ago, in Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 122-123, the First District, Division Four, disagreed with the Turrieta opinion. Horvitz & Levy is Lyft’s appellate counsel in Turrieta.
  • Competency Restoration: The court also granted review in Rodriguez v. Superior Court. The Sixth District’s published opinion rejected the claims of a defendant who had been found not competent to stand trial that the time had passed for a competency restoration hearing and that criminal cases against him should therefore be dismissed. It concluded the Legislature “intended the two-year [competency commitment] period [limit] to cover only the time the defendant actually receives treatment to restore his or her competence, not to the entire period before the trial court’s approval of the certification of restoration to competence.” The Sixth District “decline[d] to adopt [the] reasoning” of the First District, Division Three, decision in People v. Carr (2021) 59 Cal.App.5th 1136. There was no petition for review in Carr, but the Supreme Court denied a depublication request by the San Diego District Attorney.
  • Recorded Vote — Youthful Offender Parole: The court denied review in People v. Sanchez-Gomez, but Justice Goodwin Liu recorded a vote to grant. In an unpublished opinion, the First District, Division Three, rejected an argument by a defendant, who was sentenced to life without parole for a murder committed when he was 24, that a statute denying him a youth offender parole hearing violates equal protection because an LWOP convict who was under 18 at the time of the crime is allowed such hearings. There were a bunch of other issues also decided and the recorded vote is unexplained, so the reason for Justice Liu’s dissent is not certain, but he has shown a recurring interest in youth offender parole ineligibility issues. (See here.)
  • Recorded Vote: Justice Liu also recorded a dissenting vote from the denial of review in In re Clarke. As in Sanchez-Gomez (above), the vote is probably related to an unsuccessful claim that a statute denying a youth offender parole hearing denies equal protection of the law. Details are sparse because the Second District, Division Three, in a brief order, summarily denied the part of a habeas corpus petition relating to that issue.
  • Pro Per Habeas OSC: In In re Stone, a pro per’s habeas corpus petition, the court issued an order to show cause in the superior court “why petitioner is not entitled to relief on the grounds staff at Kern Valley State Prison pose an ongoing threat of violence to, and retaliation against, petitioner in violation of the Eighth Amendment to the United States Constitution.”
  • New-Legislation Grant-and-Transfers: The court granted review and transferred six more cases back to the Courts of Appeal for reconsideration in light of new legislation: one more for Senate Bill 567, one for SB 567 and Assembly Bill 333, one for AB 333 and Assembly Bill 518, one more for just AB 518, one more for Assembly Bill 124, and one for AB 124, SB 567, Senate Bill 483, and Assembly Bill 1869.
  • Disposal of grant-and-holds: The court continued to shed a bunch of criminal grant-and-hold cases. There were 58 cases dumped last week and 80 the week before. This week there were 59: 27 more cases that had been grant-and-holds for People v. Lopez — which was transferred in November to the Court of Appeal for reconsideration in light of new Senate Bill 775 (see here and here) — were themselves transferred for the same reason. Review was dismissed in 32 cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952. By our count, there are 136 Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)
  • Grant-and-holds: There were seven criminal case grant-and-holds: four more holding for a decision in People v. Strong (see here), one more holding for In re Vaquera (see here), one more holding for People v. Delgadillo (see here), and one holding for People v. Prudholme (see here).

One review grant and lots more cases dumped at the Wednesday conference

At the Supreme Court’s last conference of the year, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October, actions of note included:

  • Supreme Court will hear child immigrant’s case.
  • In In re Gates, a habeas corpus proceeding, the court granted review and directed issuance of an order to show cause in the superior court. The Fourth District, Division One, Court of Appeal had summarily denied the habeas petition, although its denial order stated detailed reasons, including that the petition — which raises ineffective counsel claims — was untimely and successive.
  • The court continued to dispose of a bunch of criminal grant-and-hold cases; 58 this time as opposed to 80 last week. Review was dismissed in six cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952; two others were transferred to Courts of Appeal for reconsideration in light of Lewis. By our count, there are 168 Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)  28 more cases that had been grant-and-holds for People v. Lopez — which was transferred last month to the Court of Appeal for reconsideration in light of new Senate Bill 775 (see here and here) — were themselves transferred for the same reason. The court dismissed review in 20 cases that were on hold for the August decision in People v. Raybon (2021) 11 Cal.5th 1056, and it transferred two other cases to Courts of Appeal for reconsideration in light of Raybon.
  • The court granted review and transferred three more cases back to the Courts of Appeal for reconsideration in light of new legislation:  one more for Assembly Bill 333 and two more for SB 775 (see here,  here, and above).
  • There were just two grant-and-holds, both in criminal cases: one more holding for a decision in People v. Strong (see here) and one more holding for People v. Hendrix (see here).

The Supreme Court does a docket cleanse

At the Supreme Court’s conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October, the court granted two petitions for review, but also removed a large number of cases from its docket.  The actions of note included:

  • Supreme Court allows commutation of three-strikes sentence
  • Granting review in People v. Brown, the court agreed to resolve a conflict about whether a superior court can deny a prosecution motion for continuance of a suppression motion hearing when the denial will foreseeably result in the prosecution’s dismissal.  In Brown, the Sixth District Court of Appeal’s published opinion said the trial court can do that and it disagreed with the contrary view by the First District, Division Five, in People v. Ferrer (2010) 184 Cal.App.4th 873.  It’s a statutory construction issue.  The Supreme Court denied review in Ferrer, with Justice Joyce Kennard recording a vote to grant.
  • The Supreme Court also agreed to hear Haggerty v. Thornton, where the Fourth District, Division One, in a published opinion, held that a trust was validly amended under Probate Code section 15402, which provides, “Unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for revocation.”  The appellate court concluded the trust’s reservation of the right to amend “by an acknowledged instrument” “[did] not appear” to intend “to bind [the settlor] to the specific method described in the trust agreement, to the exclusion of other permissible methods.”  Although distinguishing the Fifth District’s divided decision in King v. Lynch (2012) 204 Cal.App.4th 1186 and declining to address whether the King result was correct, the Haggerty opinion said, “as a general matter, we conclude the King dissent more accurately captures the meaning of section 15402 than the majority opinion.”  The Supreme Court denied review in King.
  • The court granted-and-held in County of Fresno v. Superior Court.  The case is another one now waiting for a decision in Tansavatdi v. City of Rancho Palos Verdes, in which the issue was limited to:  “Can a public entity be held liable under Government Code section 830.8 for failure to warn of an allegedly dangerous design of public property that is subject to Government Code section 830.6 design immunity?”  (See here and here.)  A divided Fifth District summarily denied the County’s writ petition in the new grant-and-hold matter, the dissenting justice contending that, as a matter of law, there could be no liability for a driver’s death because “becoming inattentive to unobscured traffic controls at an unobscured intersection is inconsistent with the exercise of due care,” even though the plaintiff’s expert found a stop sign and a warning of a stop sign insufficient due to “inattentional blindness.”
  • The court denied review in People v. Gonzalez, but Justice Goodwin Liu recorded a vote to grant.  The unpublished opinion by the Fourth District, Division Two, rejected arguments by a defendant who was sentenced to life without parole for a murder he committed when he was 18 that (1) a statute denying him a youth offender parole hearing violates equal protection and (2) the sentence was unconstitutionally cruel and unusual.  Justice Liu has shown a recurring interest in youth offender parole ineligibility issues.  (See hereherehere, here, and here.)  He did not record a dissenting vote, however, from the court’s denial of review yesterday in People v. Sands, where the First District, Division Five, in a published opinion, rejected an equal protection argument similar to the one in Gonzalez.
  • The court disposed of 80 criminal grant-and-hold cases.  Review was dismissed in 11 cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952.  By our count, there are 176 Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)  32 cases that had been grant-and-holds for People v. Lopez — which was recently transferred to the Court of Appeal for reconsideration in light of new Senate Bill 775 (see here and here) — were themselves transferred for the same reason.  One case that was on hold for both Lewis and Lopez was also transferred for an SB 775 reconsideration.  Like Lopez, People v. Duke was transferred last month for reconsideration in light of SB 775, and yesterday 16 Duke grant-and-holds were similarly transferred.  The court dismissed review in 20 cases that were on hold for the August decision in People v. Raybon (2021) 11 Cal.5th 1056.
  •  The court granted review and transferred another 10 cases back to the Courts of Appeal for reconsideration in light of various pieces of new legislation:  one more for Assembly Bill 333; seven more for SB 775 (see here and here, and above); one more for Assembly Bill 1540; and one for AB 1540, Assembly Bill 124, and Senate Bill 567.
  • After having granted review in January and receiving full briefing on the merits, the court transferred People v. Hernandez for reconsideration in light of newly enacted Senate Bill 483.  In October, the court asked for supplemental briefing on the legislation’s “significance, if any,” to the case.
  • The court might be considering another transfer of a review-granted case in light of new legislation.  It asked for supplemental briefing in In re Lopez to answer, “What effect, if any, does Assembly Bill No. 333 (Stats. 2021, ch. 699) have on the issues presented in this case?”  (Link added.)  The court granted review in January 2020, and the case is otherwise fully briefed.
  • In People v. Prudholme, a grant-and-hold for People v. Hernandez (which was transferred yesterday (see above)), the court ordered briefing on these questions, “Does Assembly Bill No. 1950 (Stats. 2020, ch. 328) apply retroactively under In re Estrada (1965) 63 Cal.2d 740?  If so, does the remand procedure of People v. Stamps (2020) 9 Cal.5th 685 apply [see here]?”  (Link added.)  It’s unclear whether this is an un-hold order that will lead to full briefing, oral argument, and an opinion, or if the court is deciding an appropriate disposition for the case (e.g., a transfer or a dismissal of review) now that Hernandez is no longer on the docket.
  • There were eight criminal case grant-and-holds:  seven more holding for a decision in People v. Strong (see here) and one more holding for In re Vaquera (see here).

Reposting: Supreme Court agrees to decide an Apprendi issue

Originally posted on December 16

At the Supreme Court’s double conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement over six weeks ago, actions of note included:

  • Writ petition against redistricting commission fails
  • Supreme Court won’t require remote public access to Los Angeles Superior Court proceedings
  • Clemency for two approved
  • The court granted review in In re Cabrera, and it limited the issue to:  “Did the sentencing court err by finding petitioner’s conviction for battery with serious bodily injury (Pen. Code, § 243, subd. (d)) was a serious felony (id., §§ 667, subd. (a)(1), 1192.7, subd. (c)(8)), despite the jury’s failure to reach a verdict on the attached allegation that petitioner personally inflicted great bodily injury (id., § 12022.7, subd. (a))?  (See Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. 270.)”  In an unpublished opinion, the Third District Court of Appeal held that a jury finding of great bodily injury was unnecessary to impose a sentence enhancement because the superior court correctly applied the “ ‘usual assumption’ ” that a serious bodily injury finding is “equivalent” to a great bodily injury finding.  This was the second grant of review in the case — after the appellate court had summarily denied the habeas corpus petition, the Supreme Court over two years ago granted review and directed the superior court to assess the Apprendi/Blakely/Cunningham issue.  Unusually, yesterday’s grant of review was not unanimous; Justice Martin Jenkins didn’t vote to hear the case.
  • The court issued an order to show cause, returnable in the superior court, in In re James, a habeas corpus petition relating to a non-capital first degree murder case.  The issue to be determined is whether “trial counsel rendered ineffective assistance by failing to retain the services of an expert on Post-Traumatic Stress Disorder and to present such evidence at the trial.”
  • There were seven criminal case grant-and-holds:  five more holding for a decision in People v. Strong (see here), one more holding for People v. Delgadillo (see here), and one more holding for People v. Espinoza (see here).
  • The court granted review and transferred 10 cases back to the Courts of Appeal for reconsideration in light of various pieces of new legislation:  three more for Assembly Bill 333, two more for Senate Bill 775 (see here and here), one more for Senate Bill 567, one more for both SB 567 and Assembly Bill 124, two more for Assembly Bill 518, and one more for Assembly Bill 1540.
  • The court dismissed review in nine more cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952.  By our count, there are 188 Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)
  • The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.)

No straight grants at the Wednesday conference

At the Supreme Court’s conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement a month ago, there were no straight grants of review, but there were some actions of note, including:

  • The court granted-and-held in X.M. v. Superior Court.  The case will wait for a decision in Los Angeles Unified School District v. Superior Court, where review was granted in September to decide if Government Code section 818, which bars punitive damages against government defendants, precludes recovery under Code of Civil Procedure section 340.1, subdivision (b), which permits an award of up to treble damages after a child is sexually abused as a result of a cover up.  In X.M., the Fourth District, Division Two, Court of Appeal’s published opinion agreed with the Second District, Division Three, opinion in the lead LAUSD case, concluding that section 818 does preclude recovery of additional damages under section 340.1.
  • The court granted-and-held in two cases — In re Destiny V. and In re N.N. — that will wait for the court’s decision in In re D.P.  Review was granted in D.P. in May and the issues were limited to:  “(1) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she has been or will be stigmatized by the finding?  (2) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she may be barred from challenging a current or future placement on the Child Abuse Central Index as a result of the finding?”  The Second District, Division Eight, unpublished opinion in Destiny V. declined to address a father’s challenge to a jurisdictional finding and concluded, “Neither issue raised by the case pending in the California Supreme Court is presented here.”  Apparently, the Supreme Court disagrees.  Similarly, in dismissing as moot a mother’s appeal from a jurisdiction order, the Fifth District’s unpublished N.N. opinion also unsuccessfully attempted to distinguish the issues involved in D.P.
  • The court denied review in People v. Moore, but Justice Goodwin Liu recorded a vote to grant.  In a published opinion, the Second District, Division Two, affirmed the denial of a petition for a youth offender evidence preservation proceeding under People v. Franklin (2016) 63 Cal.4th 261 (see here), a proceeding relevant to a later youth offender parole hearing.  The statute providing for those parole hearings, however, excludes third-strike offenders such as the defendant, who unsuccessfully argued the exclusion violated his equal protection rights.  Justice Liu has shown a recurring interest in youth offender parole ineligibility issues.  (See here, here, here, and here.)
  • The court was thinking about granting-and-transferring in In re Camarillo after the Sixth District summarily denied a habeas corpus petition, but it ended up denying review.  However, Justices Liu and Martin Jenkins recorded votes to grant review (and presumably also to transfer).  Because the dissenting votes are unexplained, and because the Supreme Court and Court of Appeal dockets don’t specify what the issues are, the reasons for the dissenting votes are unclear.
  • Responding to a motion to unseal the record of a Governor Gavin Newsom clemency recommendation request, the court sent the record back to Newsom with instructions to resubmit it and justify keeping parts of it confidential.  If September rulings are an indication, the record — concerning a possible commutation of Howard Ford‘s sentence for first degree murder and robbery (see here) — will in part be opened up to the public.
  • There were 10 criminal case grant-and-holds:  four more holding for a decision in People v. Strong (see here); five more holding for People v. Delgadillo (see here), and one more holding for People v. Padilla and People v. Federico (see here).
  • The court granted review and transferred six cases back to the Courts of Appeal for reconsideration in light of various pieces of new legislation:  two more for Senate Bill 775 (see here and here), one for Senate Bill 567, one for both SB 567 and Assembly Bill 124, one for Assembly Bill 518, and one for Assembly Bill 333.
  • The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.)
  • The court dismissed review in 13 more cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952.  One Lewis grant-and-hold was sent back to the Court of Appeal for reconsideration in light of the decision.  By our count, there are 197 Lewis grant-and-holds still pending.
  • The court transferred back to the Court of Appeal for reconsideration a grant-and-hold case that had been waiting for the August decision in Walker v. Superior Court (2021) 12 Cal.5th 177.

SB 775 causes another case dump

There were no straight grants at the Supreme Court’s conference yesterday, atypically on a Tuesday and with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement last month.  But new legislation regarding criminal liability for murder continued to impact the court’s docket.  Conference actions of note included:

  • Supreme Court allows Governor to commute third-strike sentence.
  • After granting review and full briefing, the court transferred People v. Duke back to the Court of Appeal for reconsideration in light of Senate Bill 775.  The legislation, which was signed by Governor Gavin Newson last month, refines Senate Bill 1437.  (See here.)  SB 1437 was enacted in 2018 to limit criminal liability for felony murder or murder under the natural-and-probable-consequences doctrine.  Two weeks ago, the court made a similar transfer order in the fully briefed People v. Lopez case.  (See here.)
  • The Courts of Appeal will also be evaluating SB 775 in three other cases, where the Supreme Court yesterday granted review, vacated the appellate court decisions, and transferred for reconsideration in light of the new legislation.  There have been earlier, similar grant-and-transfer orders.  (See herehere, here, and here.)
  • The court denied review in People v. Omega, but did so “without prejudice to defendant filing a [resentencing] petition in the superior court pursuant to Penal Code section 1170.95” (link added), a statute added by SB 1437 (see above).  That wasn’t enough for Justices Goodwin Liu and Joshua Groban, who recorded votes to grant review.  The Third District’s unpublished opinion affirming a first degree murder conviction came after the Supreme Court had vacated the appellate court’s earlier affirmance in the case and remanded for reconsideration in light of People v. Gentile (2020) 10 Cal.5th 830 (see here).  Like the Supreme Court’s order, the Third District’s opinion noted the availability of a resentencing petition under section 1170.95.
  • The court granted and transferred in another case to require Court of Appeal reconsideration in light of recent legislation, this time year-old Assembly Bill 1869, which makes “unenforceable and uncollectible” various court-imposed costs.
  • The court granted-and-held in Rodas v. Department of Transportation.  The case is back-burnered for Tansavatdi v. City of Rancho Palos Verdes, in which the issue was limited to:  “Can a public entity be held liable under Government Code section 830.8 for failure to warn of an allegedly dangerous design of public property that is subject to Government Code section 830.6 design immunity?”  (See here and here.)  In Rodas, the Fourth District, Division One, unpublished opinion reversed a $24,188,847 personal injury judgment against Caltrans, in the process concluding there is no liability for a failure to warn of a hidden trap when the trap is part of a dangerous condition subject to design immunity.  The Supreme Court had transferred the appeal from the Sixth District in February after briefing had been complete for over five months.  (Related:  here and here.)
  • In another governmental immunity case, the court denied review in City of Chico v. Superior Court, where the Third District, in a published opinion, ordered a defense summary judgment be entered in a jogger’s lawsuit for injuries caused by a falling tree branch in a city park.  The appellate court concluded the city was immune under Government Code section 831.2, which precludes a public entity’s liability “for an injury caused by a natural condition of any unimproved public property.”
  • After the Third District’s summary denial of a habeas corpus petition, the Supreme Court in In re Stevens granted review and transferred the case back to the Court of Appeal to decide the merits of whether “the trial court improperly considered the pretrial services report and other information before the court at the bail review hearing held on April 13, 2021, and [whether] the information constituted insufficient evidence to deny bail.  (See In re White (2020) 9 Cal.5th 455, 462-464 [see here].)”
  • There were three criminal case grant-and-holds:  one more holding for a decision in People v. Strong (see here); one more holding for People v. Tirado (see here), which was argued three weeks ago; and one more holding for People v. Padilla and People v. Federico (see here).
  • The court dismissed review in four more cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952.  By our count, there are 211 Lewis grant-and-holds still pending.

Supreme Court will hear case on reimbursements to Medi-Cal service providers

At the Supreme Court’s conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement last month, actions of note included:

  • The court granted review in Family Health Centers of San Diego v. State Department of Health Care Services, to again delve into federal public benefits law.  (Related:  here and here.)  The issue concerns allowable reimbursements to healthcare providers who serve low income patients under the Medicaid/Medi-Cal program.  Some operating costs, including some advertising expenses, are reimbursable, but the Third District Court of Appeal, in an unpublished opinion, held a health center’s $78,000 outreach expenses were not among those that could be recouped, even though the appellate court acknowledged that federal law requires the outreach activities.  The court concluded, “requiring plaintiff to perform such services . . . does not automatically make the associated costs reimbursable under Medicare (or Medi-Cal), even if they provide a benefit for the recipient.”
  • In Guerrero v. Superior Court, the court denied review “without prejudice to petitioner’s filing a petition for a writ of habeas corpus addressing the issue of his mental competence at the time of entry of his guilty plea, as well as any other appropriate claims.”  However, Justice Goodwin Liu recorded a vote to grant.
  • There were other significant denials of review.  One was in City and County of San Francisco v. All Persons Interested in the Matter of Proposition G, where the First District, Division Four, in a published opinion, held an initiative imposing a parcel tax for schools needed only a majority vote, not two-thirds, to go into effect.  Whether a supermajority is necessary to approve a tax increase by an initiative rather than by a governmental body is a question left open by the 2017 5-2 decision in California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924.  The Courts of Appeal have thus far, like Division Four, extrapolated from the California Cannabis opinion that there is no supermajority requirement and the Supreme Court has consistently declined to review those decisions.  (See here, here, and here.)  (Related:  The Supreme Court doesn’t decide all important issues.)
  • The court also denied review in Pilliod v. Monsanto Company, where a partially divided First District, Division Two, published opinion affirmed an award of about $86,000,000, including about $70,000,000 in punitive damages, to a couple who claimed they both developed non-Hodgkin’s lymphoma from an herbicide they sprayed on their property.  The partial dissent found the punitive damages to be “grossly excessive.”  Horvitz & Levy represented the defendant in the Court of Appeal and filed the petition for review.
  • There were just two criminal case grant-and-holds, both holding for a decision in People v. Strong (see here).
  • The court acted in 30 more cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952.  Two were sent back to the Courts of Appeal for reconsideration in light of the Lewis opinion.  (One of those two cases is also to be reconsidered in light of new legislation, Senate Bill 775.  (See also here).)  16 cases were kept on hold, with the lead case now being People v. Strong (see here).  Review was dismissed in 12 others.  By our count, there are 215 Lewis grant-and-holds still pending.
  • Besides the actions in 30 Lewis grant-and-holds (see directly above), the court also granted review in a new case — People v. Lopez — and transferred the matter back to the Court of Appeal for reconsideration in light of the Lewis opinion and SB 775.  However, the unpublished Lopez opinion by the Second District, Division Four, already did discuss Lewis.
  • The court granted-and-transferred in two cases, directing the Courts of Appeal to reconsider in light of newly enacted Assembly Bill 1540.  The court also explained why the cases weren’t being retained as grant-and-holds:  “This case does not raise the issue presented in People v. Federico [see here], review granted August 26, 2020, S263082, because petitioner[‘s] . . . sentence was not recalled under Penal Code section 1170, subdivision (d).”

Four straight grants of review at Wednesday’s conference

At its conference yesterday, a double one, and with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement less than two weeks ago, the Supreme Court straight granted four petitions for review.  Those, and other actions of note, were:

  • Supreme Court will decide constitutionality of LGBT rights legislation.
  • Four-justice separate statement, citing amicus letters, urges legislative action on vessel speed limit statute.
  • Supreme Court signs off on two more clemency grants.
  • The court granted review in People v. Mumin and it limited the issues to:  “Did the trial court err by providing a kill zone instruction?  Did the Court of Appeal apply the proper standard of review under People v. Canizales (2019) 7 Cal.5th 591 [see here] in holding the trial court did not err in providing the kill zone instruction?”  The Fourth District, Division One, Court of Appeal, in a published opinion, affirmed a conviction of, among many other things, two counts of premeditated attempted murder of a peace officer.  It concluded a kill zone instruction is OK if “the evidence supports a reasonable inference that the defendant had the requisite intent [i.e., the intent to kill everyone in the zone of fatal harm], even if our review of the evidence indicates the opposite inference would also be reasonable.”  The appellate court criticized a 2020 opinion by the Second District, Division Seven.
  • The court also agreed to hear Law Finance Group, LLC v. Key, where the published opinion of the Second District, Division Two, reinstated an arbitration award the superior court had vacated, concluding that the defendant had untimely challenged the award and that estoppel or waiver did not excuse the lateness.  The appellate court did not reach the underlying merits, which concern whether a loan to finance a probate lawsuit was a commercial loan or was governed by the California Financing Law applicable to consumer loans.  The Supreme Court has not limited the issues on review, at least not yet.  It’s possible the petition for review and the answer — which we haven’t seen — already did the limiting.
  • A fourth straight grant was in Turner v. Victoria, where the Fourth District, Division One, published opinion framed the issue this way:  “whether a director of a nonprofit public benefit corporation who brings an action on behalf of the nonprofit public benefit corporation can lose standing to pursue its claims if the director is not reelected during the litigation.”  Relying on statutes and “public policy considerations,” the appellate court held that the director does lose standing under those circumstances, but that the corporation can be protected by the Attorney General, “who may pursue any necessary action either directly or by granting an individual relator status.”
  • The court granted the request of the Family Violence Appellate Project and 16 other organizations and individuals to depublish the opinion of the Fourth District, Division One, in Marriage of L.R. and K.A.  The appellate court reversed a domestic violence restraining order against a mother and in favor of a father and the parents’ 10-year-old daughter.  The court — with one justice concurring in the result only — concluded that the mother’s “conduct — although demonstrating poor co-parenting — did not rise to the level of destroying Father’s mental and emotional calm to constitute abuse within the meaning of the Domestic Violence Prevention Act.”
  • The court denied review in In re Jones, but Justice Goodwin Liu recorded a vote to grant.  The First District, Division Four, in a 2-1 unpublished opinion (2021 WL 3260322), followed its People v. Morales (2021) 67 Cal.App.5th 326 decision that a parole eligibility statute applicable to minors — but not to young adult offenders — sentenced to life without parole doesn’t violate equal protection principles.  Justice Liu (along with Justice Cuéllar) also dissented when the Supreme Court denied review in Morales last month.  Earlier, he twice issued separate statements on that constitutional issue.  (See here and here.)
  • Justice Liu recorded another dissenting vote from the denial of review in In re Murray.  It’s the same issue as in Jones and Morales (see directly above).  The published opinion of the First District, Division Two, held “there is a rational basis for distinguishing between juvenile and youthful LWOP offenders” regarding parole eligibility.
  • Justice Liu also dissented from the denial of review in People v. Nolasco, where the published opinion of the Second District, Division Two, found no equal protection violation in using one of two different statutory procedures for detaining persons who are incompetent to stand trial for a felony that entails a threat of bodily harm and who continue to pose a danger to others.
  • Newly enacted Senate Bill 775 (Stats. 2021, ch. 551) (see also here) continues to impact the docket.  (See here.)  The legislation expands the category of defendants who are covered by statutory resentencing provisions.  Two years ago, the court granted review (for a second time) in People v. Lopez.  (The notice of appeal was filed more than five and a half years ago!)  It had been fully briefed since March until the court asked for supplemental briefing last month about “the significance, if any,” of SB 775.  There apparently is some significance, because the court has now remanded the case to the Court of Appeal for reconsideration in light of the new legislation.  Besides Lopez, the court also granted review in three other cases and immediately transferred them back to the Courts of Appeal for reconsideration in light of SB 775.
  • Other recent legislation led to one further grant-and-transfer order.  The case was sent back for reconsideration in light of Assembly Bill 333 (Stats. 2021, ch. 699).  The bill narrows the potential liability for criminal street gang activities.
  • The court denied review in Leavitt v. Johnson & Johnson, where the First District, Division Five, in an unpublished opinion affirmed a nearly $30,000,000 judgment after a jury found that Johnson’s Baby Powder was contaminated with asbestos and caused the plaintiff’s mesothelioma.
  • There were 10 criminal case grant-and-holds:  five more holding for a decision in People v. Strong (see here), one more holding for People v. Delgadillo (see here), two more holding for In re Vaquera (see here); one more holding for People v. Hernandez (see here and here), and one more holding for People v. Braden (see here).
  • The court took action in eight more Lewis grant-and-holds following its July decision in People v. Lewis (2021) 11 Cal.5th 952.  Six cases were kept on hold for People v. Strong (see here), and review was dismissed in two others.  By our count, there are 245 Lewis grant-and-holds still pending.

Supreme Court grants late-filed petition for review

At yesterday’s conference, Justice Mariano-Florentino Cuéllar’s last before his retirement from the court this weekend, the Supreme Court straight-granted review for the first time since September 15.  Actions of note included:

  • After allowing the filing of a petition for review that was 10 days late (related:  here), the court agreed to hear In re F.M.  The Sixth District Court of Appeal excused a juvenile court’s failure to comply with the Welfare and Institutions Code section 702 requirement to “declare [whether a minor’s] offense [is] a misdemeanor or felony,” because, according to the appellate court’s unpublished opinion, “the juvenile court was both aware of and exercised its discretion to treat the sustained allegations as felonies.”
  • The court also granted review — on a pro per’s petition — in People v. Reyes, yet another case involving the Legislature’s actions in Senate Bill No. 1437 to limit criminal liability for felony murder or murder under the natural-and-probable-consequences doctrine.  The Fourth District, Division Three, in an unpublished opinion, affirmed the denial of a resentencing petition by a defendant who, despite not having shot the victim, was convicted of second degree murder.  The appellate court found there was substantial evidence to support the superior court’s conclusion that the prosecution proved a valid theory of murder beyond a reasonable doubt.
  • Speaking of limiting murder liability under SB 1437, the court granted review in People v. King and transferred the case back to the Second District, Division Five, which had held in an unpublished opinion that the legislation does not allow for resentencing of a defendant convicted of manslaughter.  The Supreme Court directed reconsideration in light of Senate Bill No. 775 (Stats. 2021, ch. 551) (see also here)  and People v. Lewis (2021) 11 Cal.5th 952 (see here).  The new legislation expands the category of defendants who are covered by statutory resentencing provisions.
  • The court directed supplemental briefing in People v. Hernandez (see here) “on the significance, if any, of Senate Bill No. 483 (Stats. 2021, ch. 728)” (link added) to the case.
  • The court had granted review in People v. Arnold in July, but has now sent the case back to the Court of Appeal for reconsideration in light of Assembly Bill No. 1540 (Stats. 2021, ch. 719).  The court also made the same transfer order for a case that had been a grant-and-hold for Arnold.
  • The court denied review in People v. Aguirre over the recorded dissenting votes of Justices Cuéllar and Joshua Groban.  In a divided unpublished opinion, the Third District addressed a number of different issues, but the dissent disagreed only with the majority’s failure to remand the case for the possible discretionary striking of one defendant’s sentence enhancements.
  • Justice Cuéllar dissented from the denial of review in Ayala v. Superior Court.  The court had previously directed the First District, Division Three, to address the merits of a writ petition the appellate court had summarily denied.  In a published opinion, the appellate court again denied the petition, concluding the defendant could be charged with making a criminal threat against a person even though the threatened bodily harm was to only “a member of that person’s immediate family.”
  • Justice Goodwin Liu dissented from the denial of review in Jeffrey P. v. Superior Court.  The Second District, Division Six, had summarily denied a writ petition and Justice Liu’s vote is unexplained, so the reason for the vote is unclear.  However, there was a dissent in the appellate court, the justice there asserting the matter should have been remanded to the juvenile court “for a hearing on petitioner’s motion to exclude and, following that ruling, a determination of whether a new transfer hearing is necessary.”
  • There were nine criminal case grant-and-holds:  three more holding for a decision in People v. Strong (see here), two more holding for People v. Delgadillo (see here), two more holding for People v. Duke (see here), one more holding for People v. Espinoza (see here), and one more holding for People v. Aguayo (see here and here).
  • The court took action in 29 Lewis grant-and-holds following its July decision in People v. Lewis (2021) 11 Cal.5th 952.  17 cases were kept on hold for different cases, nine for People v. Strong (see here) and eight for People v. Delgadillo (see here), and review was dismissed in a dozen cases.  By our count, there are 251 Lewis grant-and-holds still pending.
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