In People v. Curiel, the Supreme Court today holds that a defendant serving a life-without-parole sentence for a murder committed by another should have had an evidentiary hearing to determine his eligibility for resentencing under post-conviction legislation that restricted vicarious murder liability. The trial court improperly ruled the defendant had failed to make a prima facie showing of entitlement to relief.
The court’s unanimous opinion by Chief Justice Patricia Guerrero concludes that a jury’s true finding of a gang-murder special circumstance allegation — which established the defendant’s intent to kill — had preclusive effect in the resentencing proceeding, but the effect wasn’t enough to conclusively establish the mens rea or actus reus elements for aider and abettor murder required by the new legislation, Senate Bill 1437. Other parts of the jury’s verdict in this particular case also “do not reflect all of the factual findings necessary to support a murder conviction under current law.”
Even if an aider and abettor intends to kill and “knows and intends to aid the direct perpetrator in certain conduct,” there is no murder liability if he “does not subjectively appreciate that the conduct is dangerous to human life . . . because the aider and abettor has not sufficiently concerned himself with that murder.” “The aider and abettor must know the direct perpetrator intends to commit the murder or life-endangering act and intend to aid the direct perpetrator in its commission.”
A substantial portion of the opinion is about issue preclusion. It includes an extended discussion why the court’s post-conviction decision in People v. Sanchez (2016) 63 Cal.4th 665 limiting expert testimony (see here) was not a change in the law preventing applying the special circumstance finding to the case. There is “no reasonable likelihood that the jury’s substantive finding in this case would have been different if Sanchez had been the law during Curiel’s trial,” the court says.
The court affirms the Fourth District, Division Three, Court of Appeal’s unpublished opinion, although on different grounds. It also disapproves another Division Three opinion — People v. Gonzalez (2021) 65 Cal.App.5th 420 — regarding issue preclusion principles. Gonzalez was a grant-and-hold for People v. Strong (2022) 13 Cal.5th 698 (see here) and People v. Lewis (2021) 11 Cal.5th 952 (see here), and review was dismissed after Strong and Lewis were decided (see here).
Retired California Senior Assistant Attorney General Ron Matthias criticized Governor Gavin Newsom in the California Globe this past August. Specifically, Matthias took issue with Newsom’s method of seeking the constitutionally required Supreme Court approval to grant clemency to anyone who has been “twice convicted of a felony.” (See here and here.)
The article noted that the Governor has asked the court for permission to commute the sentences of 13 murderers, including 10 who were sentenced to life without parole. (I count 12 LWOP commutations.) Matthias wrote, “Whatever might be the wisdom of Newsom’s actions, the manner in which he goes about securing clemency for those murderers—the first step toward releasing them on parole—is plainly calculated to dampen the public’s understanding of his efforts.”
Newsom does this in two ways, it was claimed. First, “by filing an innocuous form letter with the court that says little beyond naming the prisoner’s crimes in generic terms and reciting that ‘the Governor is contemplating a commutation of sentence’ in order to make them ‘eligible for a parole suitability hearing.’ ” Second, by submitting all documents other than the letter under seal, which shields the clemency file from public view unless an outsider timely files a motion to unseal the record. “Newsom’s unrelenting efforts to keep the public in the dark,” Matthias wrote, “have forced crime victims, the media, and prosecutors to file motions to unseal just to keep themselves and the public minimally informed about what he and (indirectly) the court are up to.”
Here are some actions of note at yesterday’s relatively light pre-Thanksgiving Supreme Court conference, the only conference of the year held on a Tuesday:
Intra-division split on criminal appellate procedure. The court granted review in People v. Superior Court (Mitchell) and limited the issues to: “(1) Does Penal Code section 1238 authorize an appeal by the People from a superior court’s post-preliminary hearing, prejudgment order reducing a felony ‘wobbler’ offense to a misdemeanor? (2) If not, may the People obtain review of the order by petition for extraordinary writ?” The Second District, Division Six, Court of Appeal published opinion answered the first question, “yes,” finding appealability because the superior court order “is unauthorized and tantamount to a dismissal of the felony offense.” This case presents yet another intra-division split. (See here, here, here, and here.) In People v. Bartholomew (2022) 85 Cal.App.5th 775, which the Mitchell opinion “disapprove[s],” a 2-1 Division Six panel dismissed as unauthorized an appeal from a wobbler-reduction order. The dissenting justice in Bartholomew authored the unanimous Mitchell opinion. One justice signed both the majority opinion in Bartholomew and the contrary Mitchell opinion. There was no petition for review in Bartholomew. Ironically, the affirmative appealability ruling in Mitchell arises from a prosecution writ petition (a petition that was filed instead of an appeal likely because of the Bartholomew precedent) and Division Six granted the petition and dismissed the appeal as moot.
CEQA grant-and-hold. West Adams Heritage Association v. City of Los Angeles is a grant-and-hold for Make UC a Good Neighbor v. Regents of University of California (see here), which raises these issues: (1) Does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) require public agencies to consider as an environmental impact the increased social noise generated by student parties that a student housing project might bring to a community? (2) Under CEQA, when a lead agency has identified potential sites for future development and redevelopment in a programmatic planning document, is the agency required to revisit alternative locations for a proposed site-specific project within the program? In Make UC, the Supreme Court has requested supplemental briefing on the significance of post-review-granted legislation that might resolve the case. (See here.) The Second District, Division One, unpublished opinion in West Adams held Los Angeles City improperly found a proposed housing development near USC was exempt from CEQA review by “rel[ying] on mitigation measures when concluding the project’s rooftop decks would not cause significant noise impacts.”
Another ICWA grant-and-hold. Speaking of intra-division splits (see Mitchell above), In re G.H. is another grant-and-hold for In re Ja.O. (see here), which is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. G.H. is from the Fourth District, Division Two (as is Ja.O.) and shows the continued disagreement in that court on the issue. (See here and here.) The 2-1 unpublished G.H.opinion held there was no duty. The dissent says the distinction made by the majority (and some earlier Division Two decisions) “does not make sense and is not what the Legislature intended.”
Release from negligence. Over the recorded dissenting vote of Justice Joshua Groban, the court denied review in Browne v. Foxfield Riding School. A divided unpublished opinion by the Second District, Division Six (again, see Mitchell above), reversed a defense judgment in a case seeking damages for a student’s horseback-riding accident. The trial court had granted a nonsuit on the plaintiffs’ ordinary negligence claim based on a release signed by the student’s mother. (A jury found for the defendants on a gross negligence claim.) The majority held, “The express language of the release here does not ‘clear[ly], unambiguous[ly], and explicit[ly]’ relieve Defendants of liability resulting from their own negligence or for conduct that increased the risks inherent in horseback riding.” The dissent said that the release was clear enough and that “[t]he riding school had a reasonable expectation that it would not be the subject of a lawsuit based on a claim of negligence.”
Taxation by initiative. The court also declined to hear (there were five separate unsuccessful petitions for review) Alliance San Diego v. City of San Diego, where the Fourth District, Division One, published opinion held that an initiative to raise occupancy taxes on overnight lodging facilities needed only a majority vote to pass (if it was a citizens’ initiative, an issue Division One directed the trial court to determine on remand), even though ballot materials and the initiative ordinance itself stated a two-thirds vote was required. The Supreme Court has regularly denied review in other cases that, extrapolating from California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924 (see here), found only simple majority votes were necessary to increase taxes by citizens’ initiatives. (See here, here, here, and here.) And it asked for preliminary oppositions to a still-pending writ petition filed by California’s Legislature and its Governor seeking to prevent next year’s November ballot from including an initiative that would counter the simple-majority-vote law stated by numerous opinions, including California Cannabis. (See here.)
This will be the last opinion in the three cases argued on the September calendar. Three cases were also argued in October and have opinions due by December 28.
Curiel is expected to answer whether a jury’s true finding on a gang-murder special circumstance (Pen. Code, § 190.2, subd. (a)(22)) precludes a defendant from making a prima facie showing of eligibility for resentencing under Penal Code section 1170.95. It is one of many cases that are or have been on the Supreme Court’s docket concerning Senate Bill No. 1437, 2018 legislation that allows resentencing of some defendants convicted of felony murder or murder under a natural-and-probable-consequences theory. The court granted the Attorney General’s petition for review in Curiel in January 2022.
The opinion can be viewed Monday starting at 10:00 a.m.
The Ninth Circuit asked the Supreme Court whether a class action could proceed that alleges utility Pacific Gas and Electric Company’s negligence in maintaining its power grid led to emergency, wildfire-preventing blackouts that caused, among other things, “ ‘loss of food items in [class members’] refrigerators.’ ” (The action also alleges compensation is owed for “ ‘loss of habitability of their dwellings, . . . , expenses for alternative means of lighting and power, . . . loss of cell phone connectivity, dangerous dark conditions, lack of running water, and loss of productivity and business.’ ”) Today, in Gantner v. PG&E Corp., the Supreme Court says Public Utilities Code section 1759 precludes the lawsuit.
Horvitz & Levy represents PG&E in the Supreme Court.
The court’s unanimous opinion by Justice Goodwin Liu holds that section 1759 bars the class action because “allowing suit here would interfere with the [California Public Utilities Commission’s] comprehensive regulatory and supervisory authority over [Public Safety Power Shutoffs].” It’s important that there’s no allegation of “negligence in the decision to shut off power or in PSPS implementation.” “PG&E cannot be liable for implementing PSPS events that, as far as the complaint alleges, fully complied with PUC guidelines,” the court concludes. The result might be different, the court says, in “[a] suit alleging that a utility implemented PSPS events in violation of PUC guidelines.”
The court assures, “ ‘section 1759 does not leave plaintiffs without a remedy’ for utility negligence. [Citation.] It simply means that the ‘remedy lies before the commission rather than in . . . court.’ ” But it also acknowledges that “the PUC does not and cannot award tort damages to customers affected by the negligence of utilities,” and it directs disagreements with that limitation to the Legislature.
When it found the trial court didn’t need to reevaluate the defendant’s sentence in People v. Salazar under legislation enacted after the sentencing, the Court of Appeal said, “The Goddess of justice is not wearing a black arm-band today weeping for the California Constitution. [Citation.] Instead, she is, perhaps, applauding our application of it where there has been no miscarriage of justice in the Superior Court.” (People v. Salazar (2022) 80 Cal.App.5th 453, 456.)
Today, the Supreme Court finds resentencing is in fact necessary under the 2021 legislation, which requires reduced prison terms in some cases when “psychological, physical, or childhood trauma” was “a contributing factor in the commission of the offense,” “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.”
The court concludes in a unanimous opinion by Justice Joshua Groban that, unlike the Court of Appeal, “We find no clear indication in the record that the sentencing court would have imposed the same sentence had it been aware of ‘ “the scope of its discretionary powers” ’ under the current [Penal Code] section 1170.” [Link added.] “[W]hen the applicable law governing the defendant’s sentence has substantively changed after sentencing,” the court explains, “it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.” The opinion says the change in section 1170 was “dramatic[ ]” and “a marked departure from the prior law.”
The court reverses the 2-1 Second District, Division Six, published opinion.
Every Supreme Court conference this year is on a Wednesday, except for this week. Because of Thanksgiving, the conference will take place on Tuesday. (Court calendar here; next year there will be three Tuesday conferences.)
In March, the Supreme Court depublished the Fifth District Court of Appeal’s opinion in People v. Velez that had interpreted the U.S. Supreme Court’s Second Amendment decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. _ [142 S.Ct. 2111] as making “clearly unconstitutional” one part of California’s statutory scheme for issuing concealed-carry firearms. We speculated the depublication might have been an instance of throwing shade at the U.S. Supreme Court.
At this week’s conference, however, the court denied review but did not depublish the opinion in In re T.F.-G., where the Sixth District similarly said that “California’s ‘good cause’ licensing requirement is undisputedly unconstitutional under Bruen.” And the Supreme Court had grounds to depublish T.F.-G.
The Sixth District didn’t need to comment on the validity of the “good cause” licensing requirement, because, as in Velez, the finding of a flaw in that part of the statute didn’t help the defendant. (The appellate court found it dispositive that “California law continues to authorize the denial of license applications on statutory grounds not implicated by Bruen.”) Thus, instead of branding that requirement as constitutionally infirm, it could have simply said the defendant loses whether or not the requirement is valid.
The Sixth District also didn’t need to reach the defendant’s argument at all since the defendant hadn’t raised a constitutional challenge below. The appellate court nonetheless went ahead anyway “because it presents a pure question of law subject to de novo review.”
In fact, one justice separately concurred saying the court shouldn’t have decided the issue. He noted the Bruen court had analyzed whether a “restriction is ‘consistent with the Nation’s historical tradition of firearm regulation’ ” and found it significant that “T.F.-G. has not offered any historical materials or analysis in support of his Second Amendment challenge.” The dissenter concluded, “In addition to placing the government at an unfair disadvantage on appeal, and depriving this court of the trial court’s views, the failure to supply historical materials or analysis makes it difficult for this court to engage in the historical determination that the Supreme Court now appears to require.”
No review or depublication of opinions finding no Second Amendment infirmities. (Here and here.)
Gantner and Salazar were both argued in September. There’s one more undecided case from that calendar, People v. Curiel; an opinion in that matter is expected by December 4.
The court in Gantner agreed in June 2022 to answer these questions asked by the Ninth Circuit: “(1) Does California Public Utilities Code section 1759 preempt a plaintiff’s claim of negligence brought against a utility if the alleged negligent acts were not approved by the California Public Utilities Commission (‘CPUC’), but those acts foreseeably resulted in the utility having to take subsequent action (here, a Public Safety Power Shutoff), pursuant to CPUC guidelines, and that subsequent action caused the plaintiff’s alleged injury? (2) Does PG&E’s Electric Rule Number 14 shield PG&E from liability for an interruption in its services that PG&E determines is necessary for the safety of the public at large, even if the need for that interruption arises from PG&E’s own negligence?” Justice Leondra Kruger is recused. Fourth District, Division One, Court of Appeal Justice Terry O’Rourke is sitting pro tem in her place. Horvitz & Levy represents PG&E in the Supreme Court.
In Salazar, when the court granted review in October 2022, it limited the issue to, “Did the Court of Appeal err by finding the record clearly indicates the trial court would not have imposed a low term sentence if it had been fully aware of its discretion under newly-added subdivision (b)(6) of Penal Code section 1170? (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)”
The opinions can be viewed Monday starting at 10:00 a.m.
At yesterday’s Supreme Court conference, a double one, actions of note included:
AB 333 retroactivity. The court agreed to hear People v. Lopez, limiting the issue to: “Is defendant entitled to retroactive application of Assembly Bill No. 333 (2021-2022 Reg. Sess.) where he appeals for a second time after his judgment was conditionally reversed and the Court of Appeal issued a limited remand to the trial court to address sentencing issues?” (Link added.) The legislation amended the law regarding gang enhancements. Disagreeing with the Fourth District, Division Three, Court of Appeal decision in People v. Salgado (2022) 82 Cal.App.5th 376, the Fourth District, Division Two, in a 2-1 partially published opinion, held that, even though AB 333 applies retroactively, because the earlier appellate reversal and remand only concerned enhancements other than gang enhancements, “the trial court did not have jurisdiction to reconsider the [defendant’s] gang enhancement.” The dissent says the prior appeal doesn’t preclude application of AB 333 to the defendant — “this case has not reached a final judgment, so A.B. 333 applies retroactively to it.” There was no petition for review in Salgado. The Supreme Court heard argument last month in People v. Rojas, regarding AB 333’s constitutionality, and next month it will hear People v. Clark about the legislation’s application. Lopez already has its own grant-and-hold. (See below.)
Discouraging union membership. The court wants a Court of Appeal opinion on the constitutionality of a state statute barring public employers from discouraging union membership. After the Second District, Division Two, summarily denied a writ petition, the Supreme Court granted review in Alliance Marc & Eva Stern Math & Science High School v. Public Employment Relations Board and directed Division Two to issue an order to show cause to the PERB. The petition asserts that Government Code section 3550 — providing, “A public employer shall not deter or discourage public employees or applicants to be public employees from becoming or remaining members of an employee organization” — violates free speech protections under the federal and state constitutions.
California Racial Justice Act. The court granted review in People v. Lashon, vacated the First District, Division Three, decision (which depublished the appellate court’s opinion (see here)), and remanded the case for reconsideration in light of Assembly Bill 1118, which was enacted last month. The defendant challenged her murder convictions on appeal claiming implicit bias by the trial judge in violation of the California Racial Justice Act. Division Three held that, under the Act as then written, the claim was forfeited by not filing a motion in the trial court before judgment. AB 1118 changes the Act to allow a claim to be raised “on direct appeal from the conviction or sentence” and to permit a motion “to stay the appeal and request remand to the superior court to file a motion.” Division Three didn’t consider the then-pending bill because, it said, “we cannot consider amendments that may or may not be made at a future date.”
Vehicle sales arbitration grant-and-hold. Yeh v. Superior Court is another grant-and-hold for Ford Motor Warranty Cases (see here and here), where the court limited the issue to: “Do manufacturers’ express or implied warranties that accompany a vehicle at the time of sale [by a dealer] constitute obligations arising from the sale contract [between the dealer and a buyer], permitting manufacturers to enforce an arbitration agreement in the contract pursuant to equitable estoppel?” In Yeh, the First District, Division Four, picking sides in a split of authorities (see here), answered “no” in a published opinion.
More ICWA grant-and-holds. In re Andres R. and In re Ashton C. are additional grant-and-holds for In re Ja.O. (see here), which is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. Andres R. and Ashton C., both from the Fourth District, Division Two (as is Ja.O.), show the continued disagreement in that court on the issue. (See here and here.) Both Andres R. (in a partially published opinion) and Ashton C. (in an unpublished opinion) said “no,” but both panels were divided.
Second Amendment. The court denied review in People v. Ceja. A Fourth District, Division Three, published opinion rejected a defendant’s constitutional challenge to his conviction of being a felon in possession of ammunition. He argued that the statute criminalizing his conduct violates the Second Amendment. Division Three, agreeing with and quoting the Fourth District, Division Two, decision in People v. Alexander (2023) 91 Cal.App.5th 469, held, “California’s laws prohibiting felons from possessing firearms and ammunition do not violate the Constitution because ‘only law-abiding citizens are included among “the people” whose right to bear arms is protected by the Second Amendment.’ ” The Supreme Court denied review in Alexander, too. (See here.) (Related: Throwing shade at SCOTUS?)
Michael Jackson. The court also denied review in Safechuck v. MJJ Productions, Inc. The Second District, Division Eight, published opinion reversed the sustaining of a demurrer and a summary judgment grant. The appellate court framed the issue this way: “whether two corporations, wholly owned by the late entertainer Michael Jackson, had a legal duty to protect plaintiffs from sexual abuse Jackson is alleged to have inflicted on them for many years while they were children.” Based on Brown v. USA Taekwondo (2021) 11 Cal.5th 204 (see here), Division Eight concluded, “a corporation that facilitates the sexual abuse of children by one of its employees is not excused from an affirmative duty to protect those children merely because it is solely owned by the perpetrator of the abuse.”