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 The Fourth District, Division One, unpublished opinion affirmed a second degree murder conviction of the defendant for killing a pedestrian while drunk driving.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in Part II), Justices Liu and Evans recorded dissenting votes from the denial of review in People v. Perez, another unpublished opinion — this one by the Second District, Division Seven — rejecting constitutional challenges to the statute that prevents parole hearings for defendants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?”]