No straight grants again, but a large number of rejected petitions got dissenting votes

Yesterday’s Supreme Court conference — a double one — was the third one in a row with no straight grants of review, but there was an unusual amount of disagreement about the failure to add cases to the docket, as eight different petitions garnered a total of 13 recorded dissenting votes to grant.  The conference actions of note include:

• One petition for review came up just a vote shy of being granted.  Justices Carol Corrigan, Leondra Kruger, and Martin Jenkins said the court should have heard In re A.C., where the Fourth District, Division Two, Court of Appeal’s 2-1 published opinion found harmless error in the superior court’s termination of a father’s parental rights without complying with the federal Indian Child Welfare Act’s requirement of inquiring whether the father had Indian ancestry.  The majority found dispositive that “[t]he father has not claimed — in the juvenile court, in his opening brief, in his reply brief, or at oral argument — that he has any Indian ancestry.”  The dissenting justice (who was a dependency court judge before his appointment to the Court of Appeal) said that the burden should be “on the trial court and the child welfare agency to compile a record showing that their errors were harmless” and that the majority’s decision conflicts with two 2018 opinions by the same Division and is “in tension with” a 2016 Supreme Court opinion, although it is consistent with a 2006 Division Two opinion (which the dissent would decline to follow).
• Justices Corrigan and Goodwin Liu dissented from the denial of review in People v. Villanueva.  Affirming a first-degree, gang-related murder conviction, the Second District, Division One, unpublished opinion addressed several different issues and the dissents are unexplained, so we don’t know what issue or issues Justices Corrigan and Liu were interested in or whether they were even on the same page.  The appellate court held it permissible to admit in evidence statements the defendant made to an undercover jailhouse informant regardless of whether the defendant had invoked his Miranda rights, an issue that previously has drawn dissents from Liu, but not from Corrigan (see here and People v. Saucedo below).  And there were other potential review-worthy issues that could have attracted Corrigan’s and/or Liu’s attention.  Division One also held to be forfeited — and any error to be harmless — a challenge to an instruction on eyewitness testimony the Supreme Court recently criticized in People v. Lemcke (2021) 11 Cal.5th 644 (see here).  It also found to be forfeited a sentence enhancement claim that is before the Supreme Court in People v. Tirado (see here), which will be argued next month.
• Justice Liu dissented from the court’s refusal to hear the State Bar matter in Accusation of Bazelon.  The accusation, filed on behalf of University of San Francisco law professor Lara Bazelon by Jones Day attorneys Neal Stephens and Randy Kay, asked the court to review the Bar’s rejection of a complaint against, as the accusation phrased it, an “unethical prosecutor who cheat[ed] to convict an innocent citizen in a murder trial.”  The First District, Division Two, had reversed the conviction in an unpublished opinion because “the prosecutor committed highly prejudicial misconduct” by making a jury argument that was a “yarn . . . made out of whole cloth.”  On retrial, the defendant was acquitted.  The accusation also charged that the same prosecutor had willfully withheld exculpatory evidence in another murder case.  The Bar denied the complaint as time barred.
• The court denied review in People v. Wilson and People v. Muhammad, both decisions by the First District, Division Five, but Justices Mariano-Florentino Cuéllar and Joshua Groban recorded votes to grant in each.  In Wilson, the appellate court’s published opinion reinstated a residency restriction parole condition that was imposed when the defendant was released with the designation of a “high risk” sex offender.  Interpreting the relevant statute, Division Five concluded the superior court was barred from modifying parole conditions “in the absence of an alleged parole violation or revocation hearing.”  However, the appellate court didn’t like the result and it urged the Legislature to give courts the authority they now lack.  The unpublished four-page opinion in Muhammad said it involved “facts and legal issues nearly identical” to those in Wilson.
• Justice Liu was the only one to want the court to hear People v. Saucedo and the related habeas proceeding in In re Saucedo.  The Second District, Division Two, unpublished opinion dealing with both affirmed a murder and attempted murder conviction, rejecting a claim that the superior court improperly admitted in evidence a confession the defendant made to an undercover jailhouse operative.  (See People v. Villanueva above.)
• Justice Cuéllar dissented from the denial of review in People v. Navarro, where a partially divided Third District unpublished opinion affirmed convictions for kidnapping during a carjacking and robbery.  The court rejected Batson/Wheeler and Miranda arguments, but the dissent disagreed only with the majority’s upholding of certain assessments imposed on the defendant without an ability-to-pay hearing.  The majority disagreed with People v. Dueñas (2019) 30 Cal.App.5th 1157 while the dissent found the decision persuasive.  The assessment issue is pending before the Supreme Court in People v. Kopp.  (See here and here.)
• The court denied review, but depublished the Fourth District, Division One, divided opinion in Certified Tire & Service Centers Wage & Hour Cases.  After its first opinion was a grant-and-hold and was transferred for reconsideration in light of Oman v. Delta Air Lines, Inc. (2020) 9 Cal.5th 762 (see here), the appellate court again affirmed a defense judgment following a bench trial in a class action that challenged a compensation program as violating minimum wage and rest period laws.  The dissent said the defendant “has sought to disguise a commission compensation system as an hourly rate compensation system” and “has done so using a device that, if approved, would effectively eliminate the requirement that employees be paid for all hours worked.”
• The court asked for supplemental briefing in both People v. Duke and People v. Carney to address “the significance, if any, of Senate Bill No. 775 (Stats. 2021, ch. 551) to the issues presented in this case.”  (Link added.)  The legislation, signed by the Governor a few weeks ago, is the one we wrote about that codifies in part and clarifies in part the Supreme Court’s July decision in People v. Lewis (2021) 11 Cal.5th 952.  The court made a similar briefing order last week in People v. Lopez (see here).
• There were 14 criminal case grant-and-holds:  eight more holding for a decision in People v. Strong (see here); two more holding for People v. Lopez (see here); one more holding for People v. Tirado (see here), which will be argued next month; one more holding for People v. Hernandez (see here); one holding for People v. Espinoza (see here); and one more holding for People v. Delgadillo (see here).
• The court rid its docket of 11 former grant-and-holds.  Review was dismissed in one, and another one was transferred for reconsideration, in light of the July decision in People v. Bryant.  The court dismissed review in nine more People v. Lewis grant-and-holds after deciding People v. Lewis (2021) 11 Cal.5th 952 in July.  By our count, there are still 298 Lewis grant-and-holds left to be disposed of.
• There was one criminal case grant-and-transfer after a Court of Appeal summary denial of a writ petition.