Asking again for clemency

A prisoner whom the Supreme Court three years ago blocked from having his sentence commuted is making a second go at it. Or, rather, a different governor is making a second request on his behalf.

In 2018, then-Governor Jerry Brown asked the court for permission to commute Howard Ford’s sentence of life without parole plus 13 years for murder, robbery, and firearm and prior felony enhancements. A Governor is constitutionally required to get the court’s recommendation before he can grant clemency to anyone, like Ford, who has been “twice convicted of a felony.”

Ford’s was one of 10 Brown recommendation requests that the court turned down without explanation. (See here and here.) Under the deferential standard of review announced by the court (see here and here), the denials were essentially court determinations that the clemency grants would have been abuses of gubernatorial powers.

The court’s negative vote on the Ford request was likely 4-3. There was then a vacancy on the court and, although only Justice Goodwin Liu publicly dissented, a pro tem justice was assigned to the matter, indicating the six permanent justices were evenly divided and needed a temporary justice to be the tie breaker. (See here.)

After Brown left office, Justice Liu issued a separate statement when the court granted Governor Gavin Newsom’s first clemency recommendation request. In the statement, Liu noted that “[s]ome instances of renewed application appear in the historical records of our clemency docket, publicly accessible in this court.” He also asked these questions: “in what circumstances may the Governor submit a renewed application on behalf of an individual for whom the court previously declined to issue a favorable recommendation?  And what standards should guide this court’s evaluation of any such submission?”

Those questions apparently left the realm of the hypothetical when Newsom in October asked the court for permission to commute Ford’s sentence, which would make Ford eligible for a parole suitability hearing.

Consideration of the Ford request has been delayed because, in response to a third-party motion to unseal the clemency record, the court on December 1 sent the record back to Newsom with instructions to resubmit it and justify keeping parts of it confidential. (See here.) On December 30, Newsom filed a motion to seal the record and filed a proposed redacted and unredacted record on January 5.

Cuéllar resignation seen as part of unfortunate California trend

Joe Mathews has this piece in the San Francisco Chronicle, “California politics doesn’t reward competence. That’s why talent keeps leaving.” He asks, “If you want to serve the people of California, is public office the best place for you?” Answering the question, he says, “Over generations, California has constructed a complicated governing system that prizes limiting the power of our public officials.”

Mathews cites Lorena Gonzalez’s recent decision to leave the state Assembly to lead the California Labor Federation, where Mathews says “[s]he will have more power to shape California’s future in the labor movement than in the Legislature.”

But, he adds, “For me, the most noteworthy resignation came last fall, when California Supreme Court Justice Tino Cuéllar departed.” (Link added.) “Why leave a seat on a court seen as second in influence only to the U.S. Supreme Court?,” Mathews asks.

Mathews says that Cuéllar’s new job as president of the Carnegie Endowment for International Peace “offers not just higher pay than state service, but the possibility of making a greater impact. A state supreme court is limited to the California cases that come before it. At Carnegie, Cuéllar can work to address a tsunami of global challenges crashing down on all of humanity — from climate change to economic inequality, and from mass migration to technological disruption. And he doesn’t even have to leave California to do it. Carnegie is opening a Silicon Valley office.”

Pro tems announced for February calendar

There is a vacancy on the Supreme Court because of Justice Mariano-Florentino Cuéllar’s October retirement. (He announced his retirement 127 days ago.)  Until a replacement is appointed, confirmed, and sworn in, the court will enlist Court of Appeal justices to sit pro tem.

The court yesterday announced the pro tems — assigned on a mostly alphabetical basis — for the three-case February calendar. This will be the fifth straight oral argument session with only six permanent justices.

The February pro tems are:

Conservatorship of the Person and Estate of Eric B.: Fourth District, Division Three, Justice Eileen Moore.

In re Christopher L.: Fifth District Justice Rosendo Peña, Jr.

People v. Bloom: First District, Division One, Justice Sandra Margulies.

Three more review grants at this week’s Wednesday conference

At the Supreme Court’s conference yesterday — a double one, and with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October — actions of note included:

  • Supreme Court recommends pardon.
  • Dependency: The court granted review in Michael G. v. Superior Court, a dependency case. The Fourth District, Division Three, Court of Appeal, in a published opinion, affirmed an order ending reunification services even though the superior court had found that reasonable services were not provided in the most recent review period. The appellate court conceded it “is a difficult issue” and recognized a split of authority on the question. Four years ago, when the Supreme Court denied review in another case raising the issue, Justice Goodwin Liu said in a separate statement, “there appears to be a substantial tension in the statutory scheme,” but he concluded the particular case was “not a proper vehicle” and he recommended, “The Legislature seems the best forum for studying and resolving these issues in the first instance.” (See here.)
  • Sixth Amendment: Another review grant was in People v. Catarino, with this limited issue: “Does Penal Code section 667.6, subdivision (d), which requires that a ‘full, separate, and consecutive term’ must be imposed for certain offenses if the sentencing court finds that the crimes ‘involve[d] the same victim on separate occasions,’ comply with the Sixth Amendment to the U.S. Constitution?” In an unpublished opinion, the Fourth District, Division One, found no constitutional violation. It concluded U.S. Supreme Court case law requiring a jury to make certain punishment-increasing findings “do[es] not apply to the court’s determination of whether to impose consecutive sentences for convictions of multiple criminal offenses.” California’s Supreme Court last month granted review in In re Cabrera (see here) to decide a related Sixth Amendment issue.
  • Harmless instructional error: The court also agreed to hear People v. Schuller. The Third District’s published opinion affirmed a first-degree murder conviction of a defendant who pleaded not guilty by reason of insanity. The appellate court held the superior court erred in refusing to instruct the jury on voluntary manslaughter based on imperfect self-defense (“While defendant’s testimony included evidence of delusion, his account pertaining to the actual shooting was not entirely delusional and thus provided substantial evidence of an actual but unreasonable belief in the need for self-defense”), but it concluded the error was harmless. Although finding the error harmless under any standard, it rejected the defendant’s argument that the error had to be shown to have been harmless beyond a reasonable doubt. In so doing, the opinion seems to conflict with a recent Fourth District, Division One, decision, People v. Dominguez (2021) 66 Cal.App.5th 163, 183–184, in which no petition for review was filed.
  • Recorded vote: The court denied review in D.C. v. Superior Court, but Justice Goodwin Liu recorded a vote to grant. The partially published opinion of the First District, Division Five, upheld a superior court order transferring the defendant to adult criminal court for a murder he allegedly committed when he was 16. Justice Liu’s vote is unexplained, so it’s not certain which of several issues in the case attracted his attention. But the published portions of the opinion found no error in the superior court considering various evidence: (1) conduct taking place after the alleged offense, (2) conduct not resulting in a delinquency petition, and (3) defendant’s expressive writings, which the appellate court said the superior court regarded “as evidence of Petitioner’s ‘continued attraction to violence.’ ”
  • Recorded vote: Justice Joshua Groban recorded a dissenting vote from the court’s denial of review in Dosouqi v. Superior Court. As with Justice Liu’s vote in D.C. (see above), there is no explanation for the vote and the issue of interest is thus unclear. Also, the petition for review followed the summary denial by the First District, Division Two, of a writ petition and neither the Supreme Court’s nor the Court of Appeal’s docket discloses why the writ petition was filed.
  • What about the reply brief?: In People v. Rubio, the court granted review and transferred the case back to the Second District, Division Eight, “with directions to vacate its decision and reconsider the matter in light of appellant’s reply brief.” In an unpublished opinion, the appellate court rejected an ineffective assistance of counsel claim and affirmed a conviction of two first-degree murders with special circumstances.
  • New-Legislation Grant-and-Transfers: The court granted review and transferred four more cases back to the Courts of Appeal for reconsideration in light of new legislation: two more for Senate Bill 567, one more for SB 567 and Assembly Bill 124, and one more for Senate Bill 775 (see here and here).
  • Grant-and-holds: There were eight criminal case grant-and-holds: five more holding for a decision in People v. Strong (see here); two more holding for People v. Delgadillo (see here); and one more holding for  People v. Tirado (see here), which was decided today.
  • Habeas OSC: Speaking of Tirado, in In re Weisner, the court issued an order to show cause, returnable in the superior court, why a pro per should not be granted habeas corpus relief “on the ground that petitioner is entitled to resentencing under Senate Bill No. 620 (Stats. 2017, ch. 682).” SB 620 is the legislation the court construed today in its Tirado opinion. (See here.)
  • Disposal of grant-and-holds:  The court got rid of some more criminal grant-and-hold cases, but only nine this week, as opposed to between 58 and 80 at each of the previous three conference. Review was dismissed in seven cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952. In two cases that had been on hold for both Lewis and People v. Lopez (Lopez was transferred in November to the Court of Appeal for reconsideration in light of SB 775), the court transferred the matters to the Court of Appeal for reconsideration in light of Lewis and SB 775. By our count, there are 127 Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)
  • Proposition 66 transfer: The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.)

Tags: Weekly conference reports

Sentencing courts given flexibility to downgrade enhancements

In People v. Tirado, the Supreme Court today holds a statute gives superior courts the choice not only to strike or not strike a sentencing enhancement, but also to impose a lesser enhancement in a stricken one’s place, even if the prosecution never charged the lesser enhancement.

The court’s unanimous opinion by Justice Carol Corrigan concludes that, in enacting a 2017 bill to allow courts to “strike or dismiss” firearms enhancements, the Legislature intended “to retain the core characteristics” of an earlier harsh sentencing scheme, but also to grant courts “the flexibility to impose lighter sentences in appropriate circumstances.” And that flexibility applies regardless whether a lighter enhancement has been charged because, the court says, “The prosecution cannot control the court’s authority to select from the legislatively authorized sentencing options.”

Resolving a conflict in the case law, the court reverses the Fifth District Court of Appeal, which held in a published opinion that a sentencing 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 Fifth District disagreed with a 2019 decision of the First District, Division Five, of which the Supreme Court approves.

Supreme Court recommends pardon

At Governor Gavin Newsom’s request, the Supreme Court today recommended that Royal Ramey be pardoned for convictions of second degree robbery and false imprisonment in 2008 and first degree robbery in 2010.

The Governor is constitutionally required to get the court’s recommendation before he can grant clemency to anyone, like Ramey, who has been “twice convicted of a felony.”  The court has said it reviews requests for clemency recommendations under a deferential standard. (See here and here.)

Today’s action maintains Newsom’s nearly perfect record of clemency recommendation requests.  Newsom withdrew one request before a ruling, but the court has approved all 42 of the requests it has decided.  That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants.

Newsom made the recommendation request for Ramey last month.

Sentencing opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Tirado. (Briefs here; oral argument video here.) Tirado was argued in November. Opinions in the other two undecided November cases will probably file by January 31.

Pro tem justices are sitting on the November calendar cases in place of Justice Mariano-Florentino Cuéllar, who left the court at the end of October.

In Tirado, the court will address whether the trial court can impose an enhancement under Penal Code section 12022.53, subdivision (b), for personal use of a firearm, or under section 12022.53, subdivision (c), for personal and intentional discharge of a firearm, as part of its authority under section 1385 and subdivision (h) of section 12022.53 to strike an enhancement under subdivision (d) for personal and intentional discharge of a firearm resulting in death or great bodily injury, even if the lesser enhancements were not charged in the information or indictment and were not submitted to the jury.  The court granted review in November 2019. More about the case here. Second District, Division Seven, Presiding Justice Dennis Perluss is the pro tem.

The opinion can be viewed tomorrow starting at 10:00 a.m.

Ninth Circuit vacates death sentence Supreme Court had upheld

Thirty-one years ago, a 5-2 Supreme Court affirmed Ronald Sanders’s death sentence for a murder committed a decade earlier. (People v. Sanders (1990) 51 Cal.3d 471.) Twenty-two years ago, the court denied Sanders’s main habeas corpus petition, and summarily denied two later habeas petitions (here and here), with a dissent on each of the three denials.

On Thursday, a divided Ninth Circuit panel reversed the denial of Sanders’s federal habeas corpus petition in Sanders v. Davis, because of ineffective assistance of counsel at the penalty phase of Sanders’s trial. The ruling comes after a prior Ninth Circuit ruling — also reversing the denial of the habeas petition, but finding a different deficiency in the death sentence — was overturned by a 5-4 U.S. Supreme Court in Brown v. Sanders (2006) 546 U.S. 212.

Last week’s Ninth Circuit panel majority held that, although Sanders had elected not to present any mitigating evidence at his trial’s penalty phase (a decision the California Supreme Court majority concluded was “knowing and voluntary” (Sanders, supra, 51 Cal.3d at p. 527)), counsel was ineffective in not investigating mitigating evidence so as to properly advise Sanders whether to forego a penalty phase defense. The dissent agreed counsel was deficient and the mitigating evidence might have convinced at least one juror to vote against the death penalty, but asserted, “Simply investigating mitigating evidence would not have made any difference if Sanders did not want that evidence to be presented to the jury.”

Because of the age of the federal habeas petition, the strict standard of review of the federal Antiterrorism and Effective Death Penalty Act of 1996 didn’t apply. (Related: “From the bench, an ‘impotent silence’.”)

The Ninth Circuit usually, but not always, refuses to overturn Supreme Court death penalty affirmances.

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