Top Supreme Court attorney is retiring [Updated]

The Supreme Court’s Chief Supervising Attorney announced last week that he is retiring. Jake Dear, whose duties include heading Chief Justice Tani Cantil-Sakauye’s legal staff, has worked at the court for 40 years and has been in the top position since 2007.

In an email to the justices and court staff, Dear said that, “with [Cantil-Sakauye’s] impending departure to undertake new challenges [see here], it seems the right time for me to retire at the end of this year.” He said, “It’s been an honor and a privilege to work, for 40 years, with the justices of this court and so many dedicated and talented court colleagues from all parts of this institution,” and he commented that he’s “comforted knowing that the court and its staff will continue to set a ‘good civics’ example by tackling contentious issues in a rigorous and yet civilized manner, with fidelity to the law as the primary guide.”

Dear began his Supreme Court career as an extern to Justice Stanley Mosk in 1982 and was then a Mosk annual clerk. He later worked as a staff attorney for, in succession, Justice Joseph Grodin and Chief Justices Malcolm Lucas and Ronald George. He became the Chief Supervising Attorney while with George and stayed in that position under Cantil-Sakauye.

Dear’s email reported that he “plan[s] to remain a friend of the court.” His predecessor, Hal Cohen, stayed for some years on the court staff as a unpaid volunteer.  (See here, here, and here.)

[November 23 update: Douglas Saunders Sr. in the Daily Journal — “Chief supervising attorney at California Supreme Court to retire.” (The article mentions At The Lectern.)]

Justice Arguelles to be remembered at December oral argument session

The Supreme Court will begin its December calendar with a memorial for former Justice John Arguelles, who died in April. Arguelles, who served on the court for two years starting in 1987, was 94.

The court has now posted the calendar. (There had been some tech problems with the court’s website.) The calendar includes just the four cases we mentioned yesterday.

The justices and counsel are back in the courtroom for the second month in a row. (See here.) The arguments will be live streamed, as all arguments have been since May 2016.

On Wednesday, December 7, in San Francisco, the court will hear the following cases (with the issue presented as summarized by court staff or limited by the court itself):

People v. McWilliams: (1) Is the discovery of a parole or probation search condition an intervening circumstance that removes the taint of an illegal detention under the attenuation doctrine? (2) What constitutes purposeful and flagrant police misconduct under the attenuation doctrine analysis? The court granted review in July 2021.

In re Cabrera: When the court granted review in December 2021, it limited the issues to: “Did the sentencing court err by finding petitioner’s conviction for battery with serious bodily injury (Pen. Code, § 243, subd. (d)) was a serious felony (id., §§ 667, subd. (a)(1), 1192.7, subd. (c)(8)), despite the jury’s failure to reach a verdict on the attached allegation that petitioner personally inflicted great bodily injury (id., § 12022.7, subd. (a))?  (See Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. 270.)”

Travis v. Brand: Must a prevailing defendant in an action under the Political Reform Act of 1974 (Gov. Code, § 81000 et seq.) show that the case was frivolous, unreasonable, or without foundation in order to recover attorney fees? The court granted review in June 2021.

People v. Brown: See here. The court limited the issues to: “1. Did the trial court err in instructing the jury on the elements of first degree murder by poison (see People v. Steger (1976) 16 Cal.3d 539, 544-546; People v. Mattison (1971) 4 Cal.3d 177, 183-184, 186)?  2. Was any such instructional error prejudicial?” The poisoning murder was a mother’s use of drugs while pregnant and nursing her baby, who died five days after birth. Review was granted in November 2019. Two months ago, and eight months after sending its oral argument letter, the court ordered supplemental briefing on three questions.

December calendar will include murder-by-poison conviction of mother who used drugs during pregnancy and while nursing

The Supreme Court hasn’t published its December calendar yet (there are some technical problems with the court’s website), but, from email notifications, we know four of the cases that will be argued next month.

One of the cases involves a mother convicted of murder for using drugs while pregnant and nursing her baby, who died five days after birth. According to the Court of Appeal opinion affirming the murder conviction in the case, “During her pregnancy, and then while she fed breast milk to her baby, defendant used heroin, methamphetamine, and marijuana.”

The case — People v. Brown — hasn’t garnered much media attention, unlike a case where a woman was being prosecuted for murdering her fetus because of drug use during her pregnancy (see here).

When the court granted review in Brown, it limited the issues to: “1. Did the trial court err in instructing the jury on the elements of first degree murder by poison (see People v. Steger (1976) 16 Cal.3d 539, 544-546; People v. Mattison (1971) 4 Cal.3d 177, 183-184, 186)?  2. Was any such instructional error prejudicial?”

Review was granted three years ago and has been fully briefed since June 2020. (The notice of appeal was filed five years ago; the defendant was sentenced in November 2017.) Just two months ago, and eight months after sending its oral argument letter, the court ordered supplemental briefing on three questions.

The delay in deciding the case and the request for more briefs suggest the court might be struggling with Brown.

The other cases — that we know of — to be argued in December (with the issue presented as summarized by court staff or limited by the court itself) are:

Travis v. Brand: Must a prevailing defendant in an action under the Political Reform Act of 1974 (Gov. Code, § 81000 et seq.) show that the case was frivolous, unreasonable, or without foundation in order to recover attorney fees? The court granted review in June 2021.

People v. McWilliams: (1) Is the discovery of a parole or probation search condition an intervening circumstance that removes the taint of an illegal detention under the attenuation doctrine? (2) What constitutes purposeful and flagrant police misconduct under the attenuation doctrine analysis? The court granted review in July 2021.

In re Cabrera: When the court granted review in December 2021, it limited the issues to: “Did the sentencing court err by finding petitioner’s conviction for battery with serious bodily injury (Pen. Code, § 243, subd. (d)) was a serious felony (id., §§ 667, subd. (a)(1), 1192.7, subd. (c)(8)), despite the jury’s failure to reach a verdict on the attached allegation that petitioner personally inflicted great bodily injury (id., § 12022.7, subd. (a))?  (See Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. 270.)”

Interpreting unclear initiative language, Supreme Court holds trial courts still have discretion to impose concurrent sentences in some “Three Strikes” cases

In People v. Henderson, the Supreme Court today holds that a 2012 initiative did not eliminate superior courts’ discretion to impose concurrent, instead of consecutive, sentences under the “Three Strikes” law for felonies committed on the same occasion or that arose from the same set of operative facts.

The court’s unanimous opinion by Justice Carol Corrigan is forced to deal with shoddy initiative drafting. The court, of course, puts it more politely, saying that there is “disparate amendatory treatment” and, a bit more bluntly, that, “[a]t the end of the day, the language of the initiative is simply unclear.” (Related: Chief Justice Tani Cantil-Sakauye stating two years ago, “I haven’t seen clear language in an initiative, ever.”)

The court does, however, find clarity in the electorate’s overall intent, i.e., “to mitigate some of the more stringent applications of the Three Strikes scheme while retaining rigorous penalties for those offenders whose criminal history reveals they remain a significant threat to public safety.”

The court reverses the Second District, Division Seven, Court of Appeal’s published opinion that disagreed with four other Court of Appeal decisions.

Supreme Court rejects Miranda claim and affirms death penalty

The Supreme Court today affirms the death sentence in People v. Miranda-Guerrero for a defendant convicted of murder, kidnapping to commit rape, attempted carjacking, assault with intent to commit rape, and receiving stolen property in 1999 and 2000.

The court’s unanimous opinion by Justice Goodwin Liu addresses numerous appellate arguments the defendant makes, but uses 17 of its 42 pages analyzing his Miranda-violation claim. Among other things, the court finds an on-the-fly Spanish translation of the defendant’s rights was “suboptimal” and is unsure why officers didn’t use a printed card with a proper translation. It nonetheless concludes “the Spanish admonition adequately informed [the defendant] of his rights,” even though the court says it’s “a closer question” whether there was a sufficient advisement of the right to consult with an attorney prior to, and have an attorney present during, an interrogation.

The court also rejects the claim that, because the defendant — a Mexican national — wasn’t advised of his right to the assistance of the Mexican consulate, there should be a “ ‘comprehensive judicial “review and reconsideration” of his conviction and sentence.’ ” However, the opinion is not conclusive on the issue — “Any matters outside the record suggesting that Miranda-Guerrero was prejudiced may be raised in a petition for habeas corpus; we express no view here on the validity of such a claim.” (Related: here.)

Supreme Court finds possible insurance coverage for lawsuits alleging illegal robotexts

In Yahoo! Inc. v. National Union Fire Insurance Co., the Supreme Court today concludes an insurance policy covering “injuries ‘arising out of . . . [o]ral or written publication, in any manner, of material that violates a person’s right of privacy” might protect an insured being sued for sending unsolicited text messages that violate the federal Telephone Consumer Protection Act. Not definitively answering a question posed by the Ninth Circuit, the court includes the caveat that the law it states is “assuming such coverage is consistent with the insured’s reasonable expectations,” an issue the court doesn’t reach.

The court’s unanimous opinion by Justice Martin Jenkins interprets the policy language as possibly covering a “publication” violating a privacy right of seclusion, not just publication of “material” that violates a privacy right of secrecy. The court acknowledges that “the inclusion of the word ‘material’ implies that the policy does not cover right-of-seclusion liability,” but says the policy provision is ambiguous and “must be interpreted in a way that fulfills Yahoo!’s objectively reasonable expectations, which must be determined in further litigation” in federal court. If the “reasonable expectations” can’t be found, the opinion states the ambiguous language should be interpreted against the insurer as the policy provision’s drafter.

The court also doesn’t consider potentially applicable exclusions in the policy because, the court says, the Ninth Circuit didn’t ask about them.

In finding possible coverage, the opinion “reach[es] a different conclusion” than in a Second District, Division Four, Court of Appeal opinion (State Farm General Ins. Co. v. JT’s Frames, Inc. (2010) 181 Cal.App.4th 429) and a decision by the Second District, Division Three (ACS Systems, Inc. v. St. Paul Fire & Marine Ins. Co. (2007) 147 Cal.App.4th 137).

Horvitz & Levy is appellate counsel for the defendant insurer in the case.

Supreme Court will hear an arbitration case

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

  • Agreement to arbitrate. The court granted review in Logan v. Country Oaks Partners, LLC to resolve a conflict whether a person designated in an advance health care directive as someone’s health care agent and attorney-in-fact is authorized to sign an arbitration agreement binding on the designator. The published opinion of the Second District, Division Four, Court of Appeal said “no” in a case where a designatee-nephew signed both an arbitration agreement and an agreement admitting his designator-uncle to a skilled nursing facility. It disagreed with the Second District, Division Five, opinion in Garrison v. Superior Court (2005) 132 Cal.App.4th 253. The Fourth District, Division Three, agreed with Garrison in Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259, but the Sixth District in Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122 did not. The Supreme Court denied review in Garrison with two justices recording votes to hear the case. There was no petition for review in Hogan or Young.
  • PAGA intervention. After granting relief to file a petition for review that was submitted 17 days late (related: Getting relief for a late petition for review might not be a hopeless cause; and see here), the court granted-and-held in Porras v. Chipotle Services, LLC, which will now wait for a decision in Turrieta v. Lyft, Inc. In Turrieta, the court limited the issue to: “Does a plaintiff in a representative action filed under the Private Attorneys General Act (Lab. Code, § 2698, et seq.) (PAGA) have the right to intervene, or object to, or move to vacate, a judgment in a related action that purports to settle the claims that plaintiff has brought on behalf of the State?” The Fifth District’s unpublished opinion in Porras affirmed the denial of a motion to vacate the judgment in a related PAGA action.
  • Creative expression evidence. The court granted review in People v. Wilson and sent the case back to the Third District to reconsider in light of Assembly Bill 2799, enacted in September with the Legislature’s stated purpose “to provide a framework by which courts can ensure that the use of an accused person’s creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.” The Third District’s unpublished opinion affirmed a murder conviction, finding no error in the admission of a rap video made by the defendant because “the rap lyrics were used specifically as evidence of defendant’s premeditation and deliberation.” The Supreme Court made a similar grant-and-transfer order three weeks ago. (See here.)
  • Criminal case grant-and-holds. There were six criminal case grant-and-holds:  three more waiting for People v. Lynch (see here), one more holding for People v. Faial (see here), one holding for People v. Salazar (see here), and one waiting for People v. Rojas (see here).
  • Grant-and-hold disposals. The court shed 45 criminal case grant-and-holds. Eighteen were holding for both the August decision in People v. Strong (2022) 13 Cal.5th 698 and last year’s decision in People v. Lewis (2021) 11 Cal.5th 952 — 11 were sent back to the Courts of Appeal for reconsideration in light of Strong and Lewis, one is to be reconsidered in light of just Strong, one will be reconsidered in light of only Lewis, and review was dismissed in the other five. Twelve were waiting just for the Strong opinion — five will be reconsidered in light of Strong, one will be reconsidered in light of Strong and People v. Rogers (2006) 39 Cal.4th 826, 892, and review was dismissed in six. Five were on hold for the August decision in People v. Aguayo (2022) 13 Cal.5th 974 — one is to be reconsidered in light of Aguayo and the court dismissed review in four. Ten were waiting for People v. Renteria (2022) 13 Cal.5th 951, also decided in August — nine were returned for reconsideration in light of Renteria and Assembly Bill 333, and one will be reconsidered in light of Renteria, AB 333, and Assembly Bill 518.

3-filing torrent tomorrow will end opinion drought

We just yesterday noted that the Supreme Court hadn’t filed an opinion since the end of August, and also why that gap wasn’t unusual. Well, the drought ends tomorrow when the court will decide three cases — Yahoo! Inc. v. National Union Fire Insurance Co., People v. Henderson, and People v. Miranda-Guerrero. (Briefs here (maybe); oral argument videos here, here, and here.) Three opinions in one day is a lot; it’s not unprecedented, but it is unusual.

These opinions will decide half of the court’s September calendar. Opinions in the other three September-argued cases should file by December 5.

In March 2019, the court agreed in Yahoo! to answer a Ninth Circuit question, which the court restated: “Does a commercial general liability insurance policy that provides coverage for personal injury, defined as injury arising out of oral or written publication, in any manner, of material that violates a person’s right of privacy, and that has been modified by endorsement with regard to advertising injuries, trigger the insurer’s duty to defend the insured against a claim that the insured violated the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227) by sending unsolicited text message advertisements that did not reveal any private information?” Horvitz & Levy is counsel for the defendant.

In Henderson, the court limited the issue to, “Does the Three Strikes law (Pen. Code, §§ 667, subd. (c)(6) & (7), 1170.12, subd. (a)(6) & (7)) require consecutive terms on multiple current violent or serious felony convictions, regardless of whether the offenses occurred on the same occasion or arose from the same set of operative facts?” The court granted review in December 2020.

Miranda-Guerrero is an automatic direct appeal from an August 2003 judgment of death. The court’s website does not list issues for death penalty appeals. Counsel was appointed in December 2007. Briefing was completed in October 2015.

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

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