Supreme Court will decide sentencing enhancement issue and it depublishes a belatedly published CEQA opinion

At the Supreme Court’s conference, actions of note included:

  • Enhancement dismissal. The court agreed to hear People v. Walker and it limited the issue to: “Does the amendment to Penal Code section 1385, subdivision (c) that requires trial courts to ‘afford great weight’ to enumerated mitigating circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of dismissing an enhancement unless the trial court finds dismissal would endanger public safety?” (Links added.) The Second District, Division Two, Court of Appeal’s partially published opinion answered “yes.” However, it concluded that, even under the defendant-friendly standard, the superior court did not abuse its discretion in denying the defendant’s motion to dismiss two sentence enhancements.
  • CEQA depublication. The court granted a request to depublish the First District, Division Four, opinion — originally unpublished — in Saint Ignatius Neighborhood Association v. City and County of San Francisco. There was no petition for review. Division Four held San Francisco erroneously concluded a high school’s proposal to install four 90-foot light standards in the school’s athletic stadium was exempt from review under the California Environmental Quality Act.
  • More ICWA grant-and-holds.  In re An. L. and In re Athena R. are two more grant-and-holds for In re Dezi C., where the court agreed last September to decide what constitutes reversible error when a child welfare agency fails to make the required inquiry under the federal Indian Child Welfare Act and state statutory law concerning a child’s potential Indian ancestry. An. L. comes after an unpublished opinion from the Second District, Division Eight, which found the child protection agency and the juvenile court both violated state law, but found the errors harmless. In Athena R., the Second District, Division One, unpublished opinion similarly found harmless any error by the agency in failing to comply with state law.
  • Criminal case grant-and-holds. There were five criminal case grant-and-holds: two more waiting for a decision in People v. Lynch (see here); one more holding for In re Vaquera (see here), which has been fully briefed for almost three years; one more holding for People v. McDavid (see here); and one more waiting for People v. Mitchell (see here).
  • Grant-and-hold disposals. The court offloaded 15 grant-and-holds that had been waiting for the December decision in People v. Delgadillo (2022) 14 Cal.5th 216. Review was dismissed in one. Fourteen were transferred to the Courts of Appeal with orders saying, the “matter is transferred to the Court of Appeal . . . with directions to vacate its decision and reconsider whether to exercise its discretion to conduct an independent review of the record or provide any other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216, 232-233 & fn. 6.” The chambers of Justice Joshua Groban, Delgadillo‘s author and the one responsible for recommending dispositions of the grant-and-holds (see here), is apparently working its way through the held cases alphabetically; today’s orders came in cases titled People v. Aguilar through People v. Faumui.

Former Chief Justice to join ADR firm, will be available for mediations and appellate consultations [Updated]

Tani Cantil-Sakauye, who retired as California’s Chief Justice at the beginning of the year and became president and CEO of the Public Policy Institute of California, has agreed to join ADR Services, Inc. She will start there April 24 while also remaining as the head of PPIC.

At ADR, Cantil-Sakauye will do mediations, but not arbitrations. She will also “be available to handle appellate consultations, including case evaluations and moot courts,” Theresa Nguyen, ADR’s business manager, said in an email.

In a phone interview, Cantil-Sakauye said she learned from retired Justice Ming Chin, her former court colleague who is currently an ADR Services neutral, that the consultations can include not just moot courting a case, but, earlier in the process, while briefing is being developed, consulting “on the nature of the case and the strength of the arguments that are being made at the appellate level” to evaluate “what might be more successful to emphasize.”

Before leaving the bench, the former Chief Justice expressed reservations about private alternative dispute resolution systems. At her final meeting with the press, she said cases are going to mediation or arbitration, or are not being filed at all, because of a “justice gap,” which she characterized as “firmly rooted in social inequity, in racial, gender, [and] economic classifications and proxies.” Diverting cases to private resolution services impedes the “[development of] the rule of law,” Cantil-Sakauye said then, and she wondered whether the courts in the future will see mostly cases where the litigants can’t afford alternative forums.

While she was chief justice, Cantil-Sakauye started a program to make retired judges available to serve as mediators in civil cases at no cost to litigants.

In the interview today, Cantil-Sakauye said that she continues to have “reservations about the oversights, or potentially lack thereof, of mediation services” and that she still believes “there ought to be robust oversight through the State Bar of mediation services for the public because it must be futile and exasperating for people who are seeking mediation and have no recourse and have serious complaints.”

Despite leading PPIC, Cantil-Sakauye assured she still has “a lot of energy” and “the time” to be involved with matters through ADR. She thinks it will be a good fit because, even though she is no longer a judge, she “gravitate[s] towards reading the cases and finding out what’s happening and following up on certain issues out of curiosity as to how they’re developing.”


Cheryl Miller in The Recorder.

David Houston in the Daily Journal.

The end of the Cantil-Sakauye court

[March 28 update: Kevin Rector in the Los Angeles Times — “Former California chief justice joins private mediation firm after criticizing industry“]

Supreme Court directs State Bar to revise system to avoid conflicts of interest

In a letter from the Supreme Court’s Clerk and Executive Officer Jorge Navarrete, the court today told the State Bar it must amend rules about vetting applicants for State Bar Court judges and for the Bar’s board of trustees (see here and here) to prevent conflicts of interest.

The letter says: “At a minimum, these amendments should: (1) require candidates to disclose financial and nonfinancial interests that might affect, or might be affected by, the candidate’s service in the State Bar office in question; (2) require candidates to provide a list of attorneys whom the candidate would identify as creating a conflict in any future service with the State Bar; and (3) require the committees to review this information and evaluate whether it might disqualify a candidate or reduce a candidate’s rating.”


Matt Hamilton and Harriet Ryan in the Los Angeles Times: “Tom Girardi gave $1 million in payments, gifts to top State Bar investigator, corruption probe finds

“ ‘Shocking’ Tom Girardi scandal shows need for legal reforms, California chief justice says”

“A conversation with California Supreme Court Justice Groban”

Toni Momberger writes for Follow Our Courts about a program featuring Justice Joshua Groban in conversation with Riverside County Superior Judge — and former appellate attorney — Kira Klatchko and Desert Bar Association President Lori Sanford. He “talk[ed] about his time with Gov. Edmund G. ‘Jerry’ Brown, the experience of sharing a name with a multiplatinum singer-songwriter, and his commitment to social justice.”

Asked about the best part of being a Supreme Court justice, “Groban said he was blown away by the intelligence and collegiality of the other justices.” The worst part? “ ‘Staring at a statute and thinking, “Boy the Legislature really screwed this up.” ’ ”

He also spoke about the other Josh Groban, saying “people often confuse him with the music artist, who not only tweeted Justice Groban to congratulate him on his Supreme Court appointment, but showed up to a party in the justice’s honor that night.” (Link added.)

Thanks to Ben Shatz’s blog Southern California Appellate News for alerting us to the interview.

Homebodies . . . at least for a while longer

The Supreme Court normally travels around a bit for its oral arguments. While about half the argument sessions are in San Francisco, the court goes to Los Angeles or Sacramento for the others. (See here.) But not much has been normal since the COVID pandemic hit, which caused the court to begin remote arguments in April 2020.

Even though in-person arguments resumed in November, the court has yet to venture from its home base. There haven’t been oral arguments outside of San Francisco since the February 2020 calendar in Sacramento. The April calendar, typically conducted in Los Angeles, will remain in San Francisco this term.

Why is the court still stuck at its San Francisco home? Well, although in-court arguments are back, attorneys still have the option to appear remotely, and the Los Angeles and Sacramento courtrooms need some technical upgrades to accommodate that system.

Cathal Conneely, Judicial Council Public Affairs Director, said in an email that the non-San Francisco courtrooms “need to be updated to support hybrid or remote appearances.” He added that the court is “working with the California Department of General Services” and there is “no confirmed timing right now” for arguments beyond the Bay Area. “The court is working calendar to calendar,” he said.

The court is also considering “other options including remote hearings or outreach sessions,” Conneely mentioned. The outreach “could be a visit to another location,” such as a trial court, Court of Appeal, or university, and could be “combined with student participation (law school/K-12)—possibly Q&A with the justices; pre- and post-argument case review with attorneys/educators; and/or a visit to the ‘courtroom.’ ”

The Chief Justice is one of USA Today’s Women of the Year

USA Today has named Chief Justice Patricia Guerrero as one its women of the year. The newspaper’s California honoree, she is profiled in “Patricia Guerrero brings parents’ lessons of ‘sharing your voice’ to California Supreme Court.”

The article includes this: “Intersectional identities meant breaking through a holistically thick glass ceiling. While Guerrero said there’s room for improvement, she’s ‘thankful’ the prevalence of gender-based harassment is waning and more women justices and judges of color are sitting on the bench.”

Former Chief Justice to discuss her old and new careers at San Francisco program on Tuesday

Retired Chief Justice Tani Cantil-Sakauye will be in San Francisco on Tuesday evening to discuss “the transition from her role as [California’s] chief justice to being a leader in research and polling, and what are her vision and priorities for [the Public Policy Institute of California] and California.” Cantil-Sakauye became PPIC’s president when her term expired as head of the state’s judiciary.

The March 21 program — “From Chief Justice to PPIC President: Tani Cantil-Sakauye’s New Challenge” — begins at 6:00 p.m. at the Commonwealth Club of California. David Wilson, Dean and Professor of Public Policy at UC Berkeley’s Goldman School of Public Policy, will moderate.

Supreme Court will answer teed-up bail questions and decide felony-murder resentencing issue; it depublishes arbitration opinion

At yesterday’s Supreme Court conference, a double one, actions of note included:

  • Court allows clemency for one, returns files to be redacted for four others.
  • Bail. The court agreed to hear In re Kowalczyk and limited the issues to: “(1) Which constitutional provision governs the denial of bail in noncapital cases – article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution – or, in the alternative, can these provisions be reconciled? (2) May a superior court ever set pretrial bail above an arrestee’s ability to pay?” In its landmark In re Humphrey (2021) 11 Cal.5th 135 decision (see here), the court declined to address the first issue (id. at p. 155, fn. 7), but it later teed up the issue by granting review in Kowalczyk and sending it back with directions to answer the unresolved question. The resulting First District, Division Three, published opinion holds the two constitutional provisions can be reconciled and “both sections govern bail determinations in noncapital cases.” The court further concluded, “This means that section 12’s general right to bail in noncapital cases remains intact, while full effect must be given to section 28(f)(3)’s mandate that the rights of crime victims be respected in all bail and OR release determinations. In so concluding, we reject any suggestion that section 12 guarantees an unqualified right to pretrial release or that it necessarily requires courts to set bail at an amount a defendant can afford.” In other words, although Humphrey held “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” setting unaffordable bail is appropriate when pretrial detention is warranted. Division Three disagreed with the Second District, Division Seven, opinion in In re Brown (2022) 76 Cal.App.5th 296, of which the Supreme Court considered granting review on its own motion, but decided not to (see here).
  • Resentencing. The court granted the Attorney General’s petition for review in People v. Arellano to resolve a conflict between the Sixth District’s published opinion in the case and the First District, Division Five’s opinion in People v. Howard (2020) 50 Cal.App.5th 727. The cases concern resentencing a defendant whose felony-murder conviction is tossed under subsequent legislation narrowing the felony-murder rule. Specifically, the issue is whether a court, when resentencing for the felony underlying the vacated felony-murder conviction, can include an enhancement related to the underlying felony. The Sixth District said “no” (concluding that the pertinent statute’s plain language “does not authorize enhancements to be attached to the redesignated conviction for resentencing”), but the Howard court said “yes.” The Supreme Court denied the defendant’s petition for review in Howard.
  • PAGA arbitration. The court granted a depublication request in Lewis v. Simplified Labor Staffing Solutions, Inc. There was no petition for review. The Second District, Division Eight, opinion side-stepped an issue pending before the Supreme Court in Adolph v. Uber Technologies, Inc., i.e., “Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable.” (See here, here, and here.) After accepting the parties’ agreement that the plaintiff employee’s individual PAGA claims must be arbitrated, Division Eight said, “We need not decide whether an arbitration agreement can require that non-individual PAGA claims be arbitrated because the arbitrator must decide whether the . . . arbitration agreement calls for such arbitration at all.”
  • Government immunity. Conway v. San Diego City Employees’ Retirement System is a grant-and-hold for Leon v. County of Riverside, which will be argued next month. Leon is expected to answer, is immunity under Government Code section 821.6 limited to actions for malicious prosecution? (See Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710.) The Fourth District, Division One, unpublished Conway opinion held a retirement system was immune from liability — under section 821.6 and other statutes — for taking away a retired police officer’s disability benefits after he took another job based on alleged assurances that doing so wouldn’t jeopardize his benefits.
  • Appeal timeliness: Following an Attorney General concession in the habeas corpus proceeding In re Harper, the court granted “petitioner’s request for constructive filing of his late notice of appeal from the denial of his resentencing petition” and directed the Fourth District, Division One, “to consider the merits of petitioner’s appeal as though a timely notice of appeal had been filed in the first instance. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7; Cal. Rules of Court, rule 8.528(d); In re Benoit (1973) 10 Cal.3d 72.)” In an unpublished opinion, Division One had dismissed the appeal because the petitioner “did not diligently seek constructive filing of a notice of appeal.”
  • New evidence. In In re Johnson, the court issued an order to show cause, returnable in the superior court, “why relief should not be granted on the ground the petitioner has presented newly discovered evidence of such decisive force and value that it would have more likely than not changed the outcome at trial. (Pen. Code, § 1473, subd. (b)(3)(A).)” The Second District, Division Four, had summarily denied an earlier habeas petition in an order stating that the petitioner’s claims had been “raised and rejected on appeal as well as in a prior habeas petition” and that the petitioner had “present[ed] no evidence that fundamentally undermines the entire prosecution case and points unerringly to innocence or reduced culpability. (In re Bell (2007) 42 Cal.4th 630, 637.)”
  • Jury trial waiver. The court denied review in Conservatorship of C.O. over the recorded dissenting vote of Justice Goodwin Liu. In an unpublished opinion (Conservatorship of C.O. (Dec. 15, 2022, No. H048150) 2022 WL 17687411), the Sixth District dismissed as moot an appeal from an order renewing a since-concluded conservatorship under the Lanterman-Petris-Short Act. The appellate court noted it had previously published an opinion — Conservatorship of C.O. (2021) 71 Cal.App.5th 894 — rejecting the same arguments the conservatee had made in challenging an earlier conservatorship renewal, holding that a failure to personally advise the conservatee of his right to a jury trial was harmless error and that a conservatee’s attorney can waive a jury trial on the conservatee’s behalf.
  • Criminal case grant-and-holds. There were six criminal case grant-and-holds: three more waiting for a decision in People v. Lynch (see here); one more holding for People v. Williams (see here), in which party briefing was completed in July 2021; one more waiting for Camacho v. Superior Court (which is technically a civil case, involving a civil commitment under the Sexually Violent Predators Act (see here)); and one more on hold for People v. Faial (see here).
  • Delgadillo transfers. The court granted review in People v. Grissom and People v. Vinson, and sent the cases back to the Courts of Appeal “with directions to vacate its decision and reconsider whether to exercise its discretion to conduct an independent review of the record or provide any other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216, 232-233 & fn. 6.” (See here.)
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