It had been a month since a straight grant came out of a Supreme Court conference, but the court made up for it this week, adding five new cases for briefing, argument, and opinion.  Besides giving Governor Gavin Newsom permission to issue two pardons, the court’s actions of note included:

  • The court granted review in People v. Kopp, and it limited the issues to:  “Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments?  If so, which party bears the burden of proof regarding defendant’s inability to pay?”  The 2-1 published opinion of the Fourth District, Division One, Court of Appeal, based in part on an Attorney General concession, requires the superior court to conduct a due process determination of the criminal defendants’ ability to pay certain assessments, but holds that the imposition of punitive fines is to be analyzed under the Eighth Amendment’s excessive fines clause.  Mandating a due process ability-to-pay hearing follows from People v. Dueñas (2019) 30 Cal.App.5th 1157, a Second District, Division Seven, decision that has recently come under considerable attack from other Courts of Appeal.  There was no petition for review in Dueñas and the Supreme Court in March denied a depublication request, but Justice Carol Corrigan recorded a vote to grant review on the court’s own motion.  It’s a good bet that the decisions critical of Dueñas will soon end up as grant-and-holds.
  • The court granted review in People v. Lopez, another case concerning Senate Bill 1437, the new felony-murder legislation, but it is still apparently not ready to address the legislation’s constitutionality.  (See here, here, here, here, and here.)  Instead, the court limited the issues to:  “(1) Does Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to attempted murder liability under the natural and probable consequences doctrine?  (2) In order to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense?  In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States (2013) 50 U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155?”  The partially published opinion of the Second District, Division Seven, followed a remand from the Supreme Court to reconsider in light of SB 1437.  The appellate court concluded that “SB 1437 does not affect [the defendants’] convictions for attempted premeditated murder under the natural and probable consequences doctrine.”
  • The court granted review in People v. Brown, without an affirmative vote from Justice Ming Chin.  It limited the issues to:  “1. Did the trial court err in instructing the jury on the elements of first degree murder by poison (see People v. Steger (1976) 16 Cal.3d 539, 544-546; People v. Mattison (1971) 4 Cal.3d 177, 183-184, 186)?  2. Was any such instructional error prejudicial?”  The Third District’s unpublished opinion, after a rare rehearing grant, affirmed a murder-by-poison conviction for a mother whose baby died five days after birth.  According to the opinion, “During her pregnancy, and then while she fed breast milk to her baby, defendant used heroin, methamphetamine, and marijuana.  She chose to give birth in a hotel because she knew that if she had the baby in a hospital, authorities would take the baby from her.  She ignored warnings from her midwife and others to get help for the baby girl.”
  • The court granted review in Sheen v. Wells Fargo Bank, where the published opinion of the Second District, Division Eight, held that a bank could not breach a tort duty during negotiations to modify a mortgage.  The appellate court said whether such a duty exists is one that “has divided California courts for years” and that the “California Supreme Court has yet to resolve.”
  • The court granted review in People v. Tirado.  There the Fifth District, in a published opinion, rejected the defendant’s challenge to a 25-years-to-life sentence enhancement for the use of a firearm.  The defendant unsuccessfully argued that the superior court had the authority to impose a lesser firearms enhancement under Senate Bill 620, enacted in 2017 to allow courts to “strike or dismiss” firearms enhancements.  Disagreeing with a 2019 decision of the First District, Division Five, the Fifth District held that, under the new legislation, “the court can choose to dismiss a charge or enhancement in the interest of justice, or it can choose to take no action,” but it cannot “change, modify, or substitute a charge or enhancement.”  The Supreme Court depublished a different SB 620 opinion last month.
  • The court denied review in People v. Hernandez, but depublished the 2-1 opinion of the Fourth District, Division Two, that requires resentencing under Proposition 47.  The appellate court held that the superior court should have reduced a felony burglary conviction to misdemeanor shoplifting.
  • The court denied review in Ortega v. Superior Court, but depublished the opinion of the First District, Division Five, which rejected the petitioner-defendant’s challenge to a murder count in an indictment.  The petitioner claimed “the grand jury heard evidence and received instructions on two theories of murder that were subsequently invalidated under Senate Bill 1437.”  (See above regarding SB 1437.)  The appellate court concluded the murder count stands because “the evidence and instructions supported petitioner’s indictment on a still-valid theory of murder.”
  • The court granted and held in Quidel Corporation v. Superior Court.  The case is waiting for a decision in Ixchel Pharma v. Biogen, where the court agreed in September to answer these questions for the Ninth Circuit:  “[1] Does section 16600 of the California Business and Professions Code void a contract by which a business is restrained from engaging in a lawful trade or business with another business?  [Link added.]  [2] Is a plaintiff required to plead an independently wrongful act in order to state a claim for intentional interference with a contract that can be terminated by a party at any time, or does that requirement apply only to at-will employment contracts?”  In Quidel, the published opinion of the Fourth District, Division One, held the trial court had incorrectly concluded that a provision in a contract between two companies was an invalid restraint on trade in violation of section 16600.  The appellate court found that “the per se ban on noncompetition clauses outlined in [an earlier Supreme Court opinion] is limited to employment agreements.”  [Disclosure:  Horvitz & Levy represents Quidel, which prevailed in the Court of Appeal.]
  • The court denied review in People v. Meza, but Justices Ming Chin and Corrigan recorded votes to grant.  The Fourth District, Division Two, 2-1 published opinion in the case reversed as time barred a conviction for misdemeanor child endangerment, rejecting the argument that the defendant’s attorney forfeited the statute of limitations issue by agreeing to the prosecution’s request for an instruction on the lesser included misdemeanor offense.  The majority rejected dicta in a 1999 decision by the First District, Division Two.
  • There were seven criminal case grant-and-holds, including one on hold pending a decision in Lopez (see above).  The other six join a long list of cases waiting for an opinion in People v. Frahs, in which review was granted under unusual circumstances.
  • There were six criminal case grant-and-transfers, all but one of them requiring reconsideration in light of Senate Bill 136, one-month-old legislation that concerns sentence enhancements for prior prison terms served for convictions of a sexually violent offense.
  • The court disposed of two cases that had been on hold pending ZB, N.A. v. Superior Court, which was decided in September.  Review was dismissed in one and the other was returned to the Court of Appeal for reconsideration.