The Court issues two decisions in the criminal context, one affecting the conduct of parole hearings, and the other imposing criminal penalties on arrestees for refusal to allow the taking of a DNA sample.

The Court issued two decisions yesterday. In the first, In re Butler, S237014, the defendant was serving an indeterminate prison sentence (e.g., a minimum number of years to life) for second-degree murder. The Board of Parole Hearings entered into settlement agreement regarding calculation of base terms governing the earliest possible release date for use at initial parole hearing.  The Board later moved to modify settlement agreement. The Court of Appeal denied motion. Board petitioned for review.  In a unanimous decision written by Justice Cuellar, the Court held post-settlement changes in the law, such that “base terms” no longer govern the release dates of inmates serving indeterminate sentences, were sufficiently material so as to require modification of the settlement agreement.  The court also held the Constitution’s “cruel or unusual punishment” clause did not require the Board to continue setting base terms for inmates.

In the second, People v. Buza, S223698, a criminal defendant refused to provide a DNA sample following his arrest for arson and related felonies.  The defendant was later convicted of both the arson-related felonies and a misdemeanor offense under the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (the Act), which makes it a crime to refuse to provide a DNA specimen. The Court of Appeal reversed the conviction.  A divided Supreme Court reversed the Court of Appeal in an opinion authored by Justice Kruger. The Court held the Act’s requirement that the defendant submit a cheek swab DNA sample did not, under the facts of this case violate his Fourth Amendment rights.  The Court also held that Act’s requirements did not violate the defendant’s search and seizure rights under the California Constitution.

Justice Liu authored a dissenting opinion joined by Justice Cuellar and Court of Appeal Justice Dennis Perluss, sitting by designation.  Justice Liu’s dissent focused on whether the defendant “can be convicted of refusing to provide his DNA at booking prior to any judicial determination of whether he was validly arrested.” Justice Cuellar also authored a dissenting opinion, joined by Justices Liu and Perluss, in which he expressed concern about compelling arrestees to surrender DNA before ever being charged with a crime.  Justice Cuellar also noted that the California Constitution plays a role in this context, providing “heightened protections for the privacy rights of individuals, including arrestees.”

More results from last week’s Wednesday conference

At last week’s conference, besides granting review in a pension case and agreeing to answer the Ninth Circuit’s employment law questions in another case, the Supreme Court took these other actions of note:

  • The court granted review in Kim v. Reins International California.  The case raises the issue whether an employee bringing an action under the Private Attorney General Act (Lab. Code, § 1698 et seq.) loses standing to pursue representative claims as an “aggrieved employee” by dismissing his or her individual claims against the employer.  In a published opinion, the Second District, Division Four, Court of Appeal held that the employee does lose standing.
  • Two death penalty habeas corpus petitions were transferred to the superior court for decision.  The court had previously issued an order to show cause in In re Williams to determine whether “the prosecutor exercised peremptory challenges against prospective jurors with racially discriminatory intent.”  We identified that Batson/Wheeler OSC as a de facto transition rehearing The second transferred petition — In re Adcox — involves a jury misconduct claim.
  • The court depublished the Third District Court of Appeal’s opinion in City of Anaheim v. Cohen, which concerned Anaheim’s claim for reimbursement from the Redevelopment Property Tax Trust Fund.
  • A second depublication order was made in Guan v. Hu.  The now-uncitable 2-1 opinion of the Second District Court of Appeal, Division One, involved fraud and breach of contract claims arising from a complex property sales agreement.
  • Justice Goodwin Liu recorded a vote to grant review in People v. Williams, where the Fourth District Court of Appeal, Division Three,  in an unpublished opinion affirmed the denial of a resentencing petition.  The appellate court concluded it was bound to defer to the trial court’s determination that the prisoner poses a danger to public safety, even though, “If it were up to us, we might very well conclude that [the] 60-plus year old arthritic third-striker . . . poses no danger to public safety and thus could be successfully released from prison under the sentencing recall provisions of either Proposition 36 or Proposition 47.”  No other justice recorded a vote to grant review, however.

Unanimous Supreme Court, with 4-justice concurrence: Prop. 47 resentencing possible for drug possession, but not transportation

In People v. Martinez, S231826the Supreme Court held last Thursday that Proposition 47 — the 2014 initiative passed to reduce punishment for certain theft- and drug-related crimes — allows a felon to seek resentencing for a drug possession conviction, but not a drug transportation conviction.  The court’s unanimous opinion concluded this is so even though the Legislature in 2013 — after the defendant’s conviction and before Proposition 47 — narrowed the transportation crime by adding an intent-to-sell element.  The court stated, “We infer that the {Proposition 47] electorate reasonably could have understood that drug possession and drug transportation crimes are distinct and merit different treatment under the proposition.”

Although the court’s opinion was unanimous, four justices also signed a concurring opinion.  The concurring justices suggest Legislative action to give the relief that the court is denying, because, they say, “there is reason to wonder whether excluding individuals like Martinez from the ameliorative scope of Proposition 47 was an oversight.”  Justice Liu, who wrote the court’s opinion, is also the concurrence’s author, and he is joined by Justices Mariano-Florentino Cuéllar and Leondra Kruger and pro tem Justice John Segal.  Majority separate opinions happen sometimes, including as recently as three weeks ago.

The court affirmed the Fourth District, Division Two, Court of Appeal, although it did hold that some of the Court of Appeal’s reasoning is inconsistent with the Supreme Court’s recent opinion in People v. Page.

No conference held the week of December 25, 2017

The Court is holding no conference this week because of the Christmas and New Year’s holidays.  Accordingly, this week no action will be taken on petitions for review and no opinions will be ordered published or depublished.  The Court’s next conference will be on January 10, 2018.

Summary of December 13, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on December 13, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.=

Review Granted


Review Denied (with dissenting justices)



Living Rivers Council v. State Water Resources Control Board, S245303 – Review Denied and Depublished – December 13, 2017

In Living Rivers Council v. State Water Resources Control Board (2017) 15 Cal.App.5th 991, the Court of Appeal, First District, Division Five, affirmed an order denying Living Rivers Council’s petition for writ of mandate to compel the State Water Resources Control Board to rescind its approval of a policy designed to maintain water flows in coastal streams north of San Francisco.  The Board’s Revised Substitute Environmental Document (RSED) concluded that increased groundwater pumping was uncertain or unlikely. The Court of Appeal ruled the RSED was not inconsistent with the Board’s finding that groundwater pumping could have significant effects on the environment because a significant net reduction in flows was unlikely.  Additionally, the Court of Appeal held the RSED adequately described subterranean stream delineations as a potential mitigation measure and sufficiently explained why they were infeasible because the Board appropriately considered that subterranean stream delineations were unlikely to mitigate a potential increase in groundwater pumping.

The Supreme Court denied review and ordered the Court of Appeal’s opinion depublished.

Summary of November 29, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on November 29, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Montrose Chemical Corporation of California v. Superior Court, S244737 – Review Granted – November 29, 2017

In a published decision, Montrose Chemical Corporation of California v. Superior Court (2017) 14 Cal.App.5th 1306, the Court of Appeal, Second District, Division Three, granted in part and denied in part a petition for peremptory writ of mandate.  The trial court had granted a declaratory judgment that an insured corporation could not “electively stack” excess insurance policies—in other words, access any excess policy issued in any policy year as long as the lower-lying policies for the same policy year had been exhausted—but it could “horizontally stack” the policies—thus accessing higher-level excess policies only when lower-level policies had been exhausted for all policy years.  While the Court of Appeal agreed that elective stacking was inconsistent with the policies of at least some of the excess policies at issue and not compelled by California Supreme Court authority, it decided that the insured corporation need not horizontally exhaust the lower-lying policies at each coverage level and for each year before higher-level policies could be accessed.  Rather, the court determined that the sequence in which the policies could be accessed must be decided on a policy-by-policy basis, taking into account the relevant provisions of each policy.

This case presents the following issue: When continuous property damage occurs during several periods for which an insured purchased multiple layers of excess insurance, does the rule of “horizontal exhaustion” require the insured to exhaust excess insurance at lower levels for all periods before obtaining coverage from higher level excess insurance in any period?

OTO, L.L.C. v. Kho, S244630 – Review Granted – November 29, 2017

In a published decision, OTO, L.L.C. v. Kho (017) 14 Cal.App.5th 691, the Court of Appeal, First District, Division One, reversed the trial court’s denial of an employer’s petition to compel arbitration of an employee’s claim for unpaid wages, concluding that the arbitration proceeding outlined by the arbitration agreement satisfied the requirements of affordability and accessibility under Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 (Sonic II) because the employer would pay the costs of arbitration and the proceeding would resemble civil litigation. Thus, although the employer’s arbitration agreement waived the various advantageous provisions of the Labor Code governing the litigation of a wage claim—specifically, a Berman hearing pursuant to Labor Code section 98— the agreement was not substantively unconscionable and was enforceable.

The questions presented are: (1) Was the arbitration remedy at issue in this case sufficiently “affordable and accessible” within the meaning of Sonic II to require the company’s employees to forego the right to an administrative Berman hearing on wage claims? (2) Did the employer waive its right to bypass the Berman hearing by waiting until the morning of that hearing, serving a demand for arbitration, and refusing to participate in the hearing?

Stoetzl v. State of California, S244751 – Review Granted – November 29, 2017

In a published decision, Stoetzl v. State (2017) 14 Cal.App.5th 1256, the Court of Appeal, First District, Division Four, affirmed in part a judgment that the federal standard for determining what constituted compensable “hours worked” governed a coordinated class action by current and former employees.  The Court of Appeal affirmed the judgment as to the subclass of represented employees because the parties had agreed to a memorandum of understanding (MOU) unambiguously providing that employees were working under the federal Fair Labor Standards Act (FLSA) and the Legislature approved and enacted the MOU into law.  However, the court reversed with regard to the subclass of unrepresented employees, holding that California law applied because the employees’ pay scale manual, which contained language from the FLSA, was not a legislative enactment and was superseded by the California Industrial Wage Commission’s Wage Order No. 4.

This case includes the following issue: Does the definition of “hours worked” found in the Industrial Wage Commission’s Wage Order No. 4, as opposed to the definition of that term found in the federal FLSA, constitute the controlling legal standard for determining the compensability of time that correctional employees spend after signing in for duty and before signing out, but before they arrive at and after they leave their actual work posts within a correctional facility?

Review Denied (with dissenting justices)




Summary of November 15, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on November 15, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted v. DoubleVerify, S244157–Review Granted– November 15, 2017

An Internet-based entertainment media provider brought suit against an authentication company for falsely classifying the provider’s websites as “Copyright Infringement-File Sharing” and “Adult Content” in reports to online advertisers who later cancelled their advertising agreements with the media provider. In a published opinion, v. DoubleVerify, Inc. (2017) 13 Cal.App.5th 707, the Court of Appeal, Second District, Division Three, held: (1)  the media provider’s lawsuit was based on the authentication company’s conduct in furtherance of its right of free speech, and (2) the authentication company’s reports concerned an issue of public interest. Thus, the media provider’s action was subject to an anti-SLAPP motion to strike.

The question presented is: In determining whether challenged activity furthers the exercise of constitutional free speech rights on a matter of public interest within the meaning of Code of Civil Procedure section 425.16, should a court take into consideration the commercial nature of that speech, including the identity of the speaker, the identity of the audience, and the intended purpose of the speech?

Review Denied (with dissenting justices)




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