Author: David Ettinger

Chief Justice Patricia Guerrero said “we would take action” if there are “any attempts . . . to prevent people from accessing the court,” including attempts by federal immigration agents during the next administration beginning tomorrow. Responding to questions last week at her second annual meeting with a number of reporters, a meeting attended by At The Lectern, the Chief Justice sounded less combative on the issue than her predecessor, but was firm in stating her intent to thwart actions that would “disrupt” the public’s right to physically attend judicial proceedings.

During the previous federal administration, then-Chief Justice Tani Cantil-Sakauye was a frequent critic of federal immigration actions in California’s courthouses that she said interfered with the administration of justice. Among many other public statements, Cantil-Sakauye wrote to the U.S. Attorney General and Secretary of Homeland Security accusing immigration agents of “stalking undocumented immigrants in our courthouses to make arrests” and asserting that the courts “should not be used as bait.” Courthouse immigration arrests “not only compromise our core value of fairness,” the letter stated, “but they undermine the judiciary’s ability to provide equal access to justice.” (See also here, here, here, here, here, and here.)

Chief Justice Guerrero said that immigration issues “are top of mind for anyone who watches the news” and that “certainly we’re aware of the surrounding events,” but also that “it’s difficult to predict what may happen even looking at past practices.” She knows that the other branches of state government have already acted to counter anticipated adverse federal actions, but said “Trump-proof” “is not a term that I would use for the judicial branch.” Guerrero claimed that she is “not trying to pick fights with anybody” and that “we don’t seek to interfere in terms of federal enforcement.” Nonetheless, she stated, “we need to be prepared for any interruptions in court proceedings,” and she assured, “I am responsible for the administration of the courts and insuring that the public has the ability — whether you’re a witness, a victim, [or] one of the parties — to be able to freely go into court.”

In 2019, the Legislature — invoking California’s “reserved power under the Tenth Amendment to protect their proceedings, as well as the obligation under the United States Constitution to preserve California’s republican form of government” (Assembly Bill 668) — added a statute (Civ. Code section 43.54) providing, “A person shall not be subject to civil arrest in a courthouse while attending a court proceeding or having legal business in the courthouse,” other than “arrests made pursuant to a valid judicial warrant.” (See here.)

Additionally, a federal district court issued a temporary restraining order prohibiting officers from making civil immigration arrests at the federal courthouse. (Velazquez-Hernandez v. U.S. Immigration and Customs Enforcement (S.D. Cal. 2020) 500 F.Supp.3d 1132.) The court said the arrests “deter[ ] parties and witnesses from coming to court, instill[ ] fear, [are] inconsistent with the decorum of the court, and degrade[ ] the administration of justice.”

Guerrero mentioned both the legislation and the federal decision.

Other Issues. During her hour-long session, also attended by Judicial Council Administrative Director Shelley Curran, the Chief Justice answered questions on a variety of other topics, including:

Remote work at the Supreme Court

Guerrero disclosed that some justices — including she herself — sometimes participate remotely at the Supreme Court’s regular conferences to decide what cases the court will hear. She admitted she likes to see everyone in person, but said that all justices “are actively involved whether they’re in person or on the phone or on video conference” and that she doesn’t think remote conferencing “impairs the dialogue that we have.”

Remote conferencing gives the justices “flexibility,” the Chief Justice said, and “we give our staff the same [remote work] flexibility.” She said that each justice runs their own individual chambers, but noted the court has a policy of expecting staff to be in person for at least two days a week.

The Los Angeles fires and emergency preparedness

Noting that a “significant” number “of judicial officers and court staff . . . have lost their homes [in the recent Los Angeles-area fires], [both] on the trial court and the appellate court,” Guerrero said “our heart goes out to all of our court family that’s been impacted by this.”

The Chief Justice also noted that emergency preparedness in general “is something that Shelley and I have discussed from day one.” She specified “physical safety for our judicial officers” and “cyber security issues” as some areas of concern, but said “it’s difficult to predict all of the bad things that could happen.”

Criticism of the courts

Guerrero said “it’s important for the public to be able to criticize the work of all branches of government, including the judiciary,” but she doesn’t like politicizing the criticism, such as when judges are associated with the governor or president who has appointed them “in a way that suggests that the decision will automatically reflect a certain outcome.” She thinks that people might not “understand fully that we’re not here to make policy and make decisions based on what we think the outcome should be or should not be based on our own political preferences.”

Update:

Media coverage of the Chief Justice’s meeting includes:

Chief Justice won’t ‘pick a fight’ with Trump, would act if courts affected, by Malcolm Maclachlan in the Daily Journal

California’s Chief Justice Starts Third Year With Questions About Fires, Trump and AI, by Cheryl Miller in The Recorder

California Chief Justice Says Social Media Harms Civic Discourse, by Isaiah Poritz for Bloomberg

Calif.’s Chief Justice On Preparing For Trump, AI, by Bonnie Eslinger for Law360

Fire Aid for L.A. Judges Is Limited Under Ethics Rules on Gifts, by Maia Spoto for Bloomberg

Monday is a state and judicial holiday — Dr. Martin Luther King, Jr. Day. The Supreme Court and all other state courts will be closed.

The Supreme Court today denied review in In re Cole with no recorded dissents, but Justice Goodwin Liu filed a separate concurring statement, which Justice Kelli Evans signed.

The First District, Division Three, published opinion held a person committed as someone with developmental disabilities who is a danger to himself or others was not entitled to release pending trial of a recommitment petition even though the petition was filed too late for a trial to take place before the one-year commitment period expired. The petitioner claimed he was denied equal protection rights because a late filing without good cause under other commitment schemes requires a release pending trial.

Justice Liu writes, “there is a good argument that any confinement while awaiting trial on a [developmental disabilities] recommitment petition . . . must occur within, not beyond, the one-year commitment period.” He concludes, “Further percolation may prompt us to take up this issue in a future case. In the meantime, the Legislature may wish to clarify whether [Welfare and Institutions Code] section 6500 committees may be confined beyond one year in the manner that Cole was here.” (Related: Wait for it: issue percolation, right vehicles, and legislative inaction.)

The Supreme Court today barely denied review in In re Banks, with Justices Goodwin Liu, Leondra Kruger, and Kelli Evans voting to grant and send the case to the Court of Appeal for issuance of an order to show cause on a pro per’s habeas corpus petition seeking relief under the California Racial Justice Act (here and here). Additionally, Justice Liu issued a separate statement, which Justice Evans joined but Justice Kruger did not.

Justice Liu’s statement relates that the petitioner Banks, “who is Black and was 25 years old when he committed the underlying offense, alleges he was disparately charged with felony-murder special circumstances and sentenced to life without the possibility of parole (LWOP) due to his race, ethnicity, or national origin in violation of the [RJA]. In support of his habeas corpus petition, Banks presented uncontroverted statewide data showing significant racial disparities in sentencing Black defendants to LWOP, along with data showing even greater disparities in sentencing Black youth to LWOP.”

Banks’s petition, which the Fifth District summarily denied, seeks discovery and appointment of counsel under the RJA. The dissenting statement says “Banks has established sufficient justification” for that relief.

The Banks case is similar to In re Mendoza, where Justice Liu (also joined by Justice Evans) last month filed a dissenting statement from the denial of review in an RJA counsel/discovery habeas matter. (See here.) Today’s dissent mentions Mendoza. As in Mendoza, Liu writes in Banks that “denying Banks and similar petitioners access to discovery puts them in a catch-22: Their petitions are deemed inadequate for lack of the very data they seek counsel and discovery under the RJA to obtain.”

Also like Mendoza, the court today says the denial of review is “without prejudice to any relief to which petitioner might be entitled after this court decides In re Montgomery.”  The court last month agreed to hear Montgomery (see here), with 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))?”

Discussing the Mendoza order, we said that, under a nearly 10-year-old policy change, we would have expected Mendoza to be a grant-and-hold for Montgomery instead of a without-prejudice denial. The same is true for the Banks disposition.

One minor difference between Banks and Mendoza is that the dissenters in Banks want the matter transferred to the Court of Appeal for that court to issue an order to show cause, while the Mendoza dissenters wanted the Supreme Court itself to issue the OSC. The cause of the discrepancy might be Justices Liu and Evans wanting to be on the same page as Justice Kruger, who dissents in Banks, but didn’t in Mendoza.

The Supreme Court today announced it will hear only four cases next month. With over half of the term’s calendars concluded or scheduled, the court is on track to issue just 38 or 39 opinions, which would be an historic low. (See here.) However, the court also started last term slowly and picked up the pace later, ending with 58 opinions.

On Wednesday, February 5, in Sacramento, the court will hear the following cases (with the issue or issues presented as summarized by court staff or limited by the court itself):

Whitehead v. City of Oakland: Does a liability release agreement between a bicyclist and the organizer of a recreational bicycle ride extend to the alleged negligent maintenance of a public road by a municipality named in the agreement but not a party to it? In November, the court asked for supplemental briefing 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’].)” The court granted review just last May. The last supplemental brief was filed only yesterday. More about the case here and here.

New England Country Foods v. Vanlaw Food Products: The court agreed in February 2024 to answer this question for the Ninth Circuit, “Is a contractual clause that substantially limits damages for an intentional wrong but does not entirely exempt a party from liability for all possible damages valid under California Civil Code Section 1668?” The court sent its oral argument letter just seven days ago. More about the case here and here.

People v. Antonelli: (1) Is defendant entitled to resentencing pursuant to Penal Code section 1172.6 on the ground that malice could be imputed to the defendant under the provocative act theory of murder for convictions occurring before 2009 (see Sen. Bill No. 775 (2021-2022 Reg. Sess.); People v. Concha (2009) 47 Cal.4th 653)? (2) Did the trial court err by not considering the jury instructions in determining defendant was ineligible for resentencing as a matter of law for a provocative act murder? The court granted review in October 2023. More about the case here.

People v. Oyler: This is an automatic direct appeal from a June 2009 judgment of death. The court’s website does not list issues for death penalty appeals. Counsel was appointed in July 2013. Initial briefing was completed in November 2018. In December 2023, the court issued its routine order for supplemental briefing “[i]f appellant contends any changes in the law (including any ameliorative statute) since the filing of the reply brief are relevant to this appeal.” After numerous extensions, the defendant filed a 32-page supplemental brief in October 2024. The Attorney General filed his supplemental brief in November and the defendant filed a reply on December 31.

Briefs for the cases will soon be posted here. The arguments will be live streamed. Opinions in the cases should file by May 5.

[January 17 update: This will be the first Supreme Court oral argument session in Sacramento in five years. Merrill Balassone gives details in a California Courts news release. (See also here, here, and here.)]

The Supreme Court yesterday granted one petitioner’s briefing extension application “due to the California wildfire emergency,” but “d[id] not find sufficient cause to extend the time for [the second] petitioner” in the case. The case is being briefed more quickly than most.

In Snap, Inc. v. Superior Court, where a criminal defendant subpoenaed the murder victim’s Facebook, Instagram, and Snapchat posts and communications (see here), the two petitioners — Snap and Meta Platforms — initially requested an extra 30 days to file their reply briefs on the merits. The defendant, who had filed his answer brief without an extension, opposed the petitioners’ application. The court granted only a 10-day extension — until January 17 — and said, “No further extensions will be contemplated.” Then came the application — by Snap — that was granted yesterday; it sought just a seven-day extension.

In People v. Ollo (2021) 11 Cal.5th 682, the Supreme Court drew a distinction between providing illegal drugs and administering those drugs, concluding illegally furnishing drugs that cause injury to a person who voluntarily ingests them does not automatically require imposing a sentence enhancement for “[a]ny person who personally inflicts great bodily injury.” (See here.) It “depends on the facts of the particular case,” the unanimous opinion said. (Id. at p. 685.)

That precedent has been nullified by Proposition 36, according to an information bulletin provided by California Attorney General Rob Bonta’s office to the state’s law enforcement agencies.

Among many other things, the initiative, which was approved by the voters in November, amended the sentence enhancement statute (Penal Code section 12022.7) to provide, “a person who sells, furnishes, administers, or gives away a controlled substance is deemed to have personally inflicted great bodily injury when the person to whom the substance was sold, furnished, administered, or given suffers a significant or substantial physical injury from using the substance.”

The bulletin says, “This new language abrogates the California Supreme Court’s decision in People v. Ollo (2021) 11 Cal.5th 682, which held that furnishing a drug that causes death does not necessarily qualify as personal infliction of great bodily injury.”

In the Ollo case itself, the Attorney General (then Xavier Becerra) agreed with the court’s “it depends” approach. In his brief, the Attorney General argued, “Voluntary ingestion is but one factor for the jury to consider in determining whether a defendant personally inflicted great bodily injury; it neither mandates such a finding by itself nor precludes the finding.”