Two straight grants, three review denials with a dissent or two, and more at yesterday’s Supreme Court conference. Here are some highlights:

Two victims, two strikes? The court agreed to hear People v. Shaw and it limited the issue to: “May two prior convictions arising out of a single act that harms multiple victims constitute two strikes under the Three Strikes law? (People v. Vargas (2014) 59 Cal.4th 635; People v. Williams (1998) 17 Cal.4th 148.)” The Vargas court held “two prior convictions arising out of a single act against a single victim [cannot] constitute two strikes under the Three Strikes law.” (Emphasis added.) The Third District Court of Appeal unpublished opinion in Shaw, following the Fourth District, Division One, decision in People v. Rusconi (2015) 236 Cal.App.4th 273, concluded two 2002 convictions for a drunk driving accident that killed a young mother and her baby can count as two strikes. The Third District said, “While the convictions may have occurred due to [the defendant’s] singular action, the offenses had the catastrophic impact of ending the lives of two different victims.” The Supreme Court denied review in Rusconi.

New trial motion remand? The court also granted review in TRC Operating Company v. Chevron USA and limited the issue to: “Does Code of Civil Procedure section 660 preclude remand for further proceedings in the trial court on a motion for new trial?” (Link added.) Justice Carol Corrigan was recused. Horvitz & Levy represented Chevron in the Court of Appeal and filed the successful petition for review. The Fifth District published opinion reinstated a $120,000,000 judgment against Chevron, reversing a new trial order that had been based on juror misconduct. The appellate court agreed there was juror misconduct, but held the trial court used the wrong legal standard for determining whether the misconduct was prejudicial. The Fifth District said it “is normally the preferred course” to “remand[ ] to the trial court for redetermination based on a correct understanding of the law,” but concluded that the Supreme Court’s Mercer v. Perez (1968) 68 Cal.2d 104 decision “foreclos[es] this option.” “[S]ection 660 is . . . meant to be jurisdictional,” the opinion stated, “and once the time limit [for ruling on a new trial motion] set forth there has expired, the matter may not be revisited by the trial court.” It disagreed with the Second District, Division Eight, opinion in Barrese v. Murray (2011) 198 Cal.App.4th 494. There was no petition for review in Barrese.

Racial Justice Act grant-and-transfer. The court granted a pro per’s petition for review in In re Jones and sent the case back to the Fourth District, Division Two, which had summarily denied the pro per’s habeas corpus petition. Division Two is to issue an order to show cause, returnable in the superior court, “why petitioner is not entitled to appointment of counsel pursuant to Penal Code section 1473, subdivision (e), in light of data provided by petitioner demonstrating racial disparities in charging special circumstance murder in Riverside County.” (Link added.) Section 1473(e) allows habeas petitions for violations of section 745(a), which is part of California’s Racial Justice Act (see here) and which provides, “The state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” The court made a similar order last month. (See here.)

Murder ineffective assistance OSC. The court issued an order to show cause in In re Tillman, returnable in the Court of Appeal, “why petitioner is not entitled to relief based on his claim that trial and appellate counsel rendered ineffective assistance by failing to argue that the jury instructions erroneously allowed the jury to find the drive-by shooting special circumstance true based either on an intent to kill or a reckless disregard for human life.” Last year, the Fourth District, Division Two, held in an unpublished opinion that the superior court properly denied Tillman’s resentencing petition regarding a 1996 murder committed by a passenger in the car Tillman was driving. Resentencing was sought under Senate Bill 1437, 2018 legislation that limited criminal liability for felony murder, eliminated it for murder under the natural-and-probable-consequences doctrine, and allowed possible resentencing for those convicted under pre-SB 1437 law.

More dissenting votes for review about youth offender parole denial. Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denials of review in People v. Munoz and People v. Roberts. Unpublished decisions by the Second District, Division Two, and the Fourth District, Division Three, respectively, rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, here, and here). It seems unlikely the court will ever grant review in any such case unless a Court of Appeal goes against the tide and adopts a defense cruel-or-unusual argument. (See: The Supreme Court doesn’t decide all important issues.)

Imperfect self-defense dissenting vote. Speaking of regular dissenting votes (see Munoz and Roberts above), Justice Liu also recorded a dissenting vote from the denial of review in People v. Ruvalcaba. The Fourth District, Division Two, unpublished opinion addressed a few different issues, so it’s not clear what attracted Justice Liu’s vote, but it was likely the appellate court feeling itself bound by the holding in People v. Elmore (2014) 59 Cal.4th 121 that imperfect self-defense cannot be based on a purely delusional belief of the need to defend oneself. Justice Liu signed a concurring and dissenting opinion by Justice Joyce Kennard in Elmore and he again criticized Elmore in a concurring opinion last year in People v. Schuller (2023) 15 Cal.5th 237 (see here). Justice Liu dissented from a review denial in a similar case just two weeks ago. (See here.)

Court attorney pension denial. The court turned down a former superior court research attorney’s petition for review in Morell v. Board of Retirement. The Second District, Division One, published opinion held a retirement board correctly calculated the attorney’s compensation — excluding payments made under an “Optional Benefit Program” — as part of its determination of the amount of his pension. He had prevailed in the superior court. (The attorney had worked for the Orange County Superior Court and he filed his lawsuit in that court, but the case was transferred to the superior court in Los Angeles.)

Criminal case grant-and-holds. There were seven criminal case grant-and-holds:  one more waiting for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here), two more on hold for People v. Patton (see here), two more holding for People v. Lopez (see here), another one waiting for In re Hernandez (see here), and one more on hold for People v. Rhodius (see here).

Grant-and-hold disposition (see here). Richmond Shoreline Alliance v. City of Richmond, which was a grant-and-hold (see here) for the July time-to-appeal opinion in Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th 643 (see here), was returned to the Court of Appeal for reconsideration in light of Meinhardt.

At its conference yesterday, the Supreme Court agreed to hear two more cases. Here’s information about those and other actions:

Clemency grant. Supreme Court approves pardon for host of Pulitzer Prize nominated podcast.

Discovery of social media info in criminal cases. The court granted review in Snap, Inc. v. Superior Court. The Fourth District, Division One, Court of Appeal, in a published opinion, upheld a murder defendant’s subpoena of two years’ worth of the victim’s Facebook, Instagram, and Snapchat posts and communications, although disclosure is to be made first to the superior court for an in camera relevancy hearing. The victim was the defendant’s brother and the defendant claimed the social media publications could show his brother’s violent character. The social media companies relied on the federal Stored Communications Act for protection, but Division One concluded that because the companies’ “business models . . . provide them with the ability to access and use the information sought by [the defendant], the SCA does not foreclose production of th[e] information.” The appellate court also said the evidence supported the superior court’s finding of good cause for discovery. The Snap case will be a follow-up to the Supreme Court’s Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329 decision (see here), which stated a “good cause” standard, but deferred answering questions about the SCA. Regarding the SCA, Division One in particular examined Chief Justice Tani Cantil-Sakauye’s extended concurrence in Touchstone.

[September 20 update: Here’s the issue as summarized by court staff — “(1) Does the federal Stored Communications Act (18 U.S.C. § 2701 et seq.) bar a social media company from disclosing an individual’s account information in response to a criminal defendant’s subpoena? (2) Did the trial court abuse its discretion by finding that good cause supported the subpoena for third-party discovery?”]

City ordinance enforcement. The court also agreed to hear Cohen v. Superior Court and it limited the issue to: “Does Government Code section 36900, subdivision (a) confer upon private citizens a right to redress violations of municipal ordinances?” The statute makes it a misdemeanor or an infraction to violate a city ordinance and says a violation “may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.” The Second District, Division Four, published opinion concluded, “the Legislature only intended section 36900 to grant city authorities—not all private parties—the right to redress violations of municipal ordinances via either criminal prosecution or civil action.” (Writing nit note: shouldn’t “only” go between “grant” and “city” instead of where it is?) In doing so, Division Four “overrule[d] . . . and disavow[ed]” one of its prior decisions, Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599, 607. (Jurisdiction nit note: can a Court of Appeal overrule one of its opinions or can it do no more than disagree?) The Supreme Court denied review in Riley.

[Update: about that jurisdiction nit, I just noticed that Court of Appeal Justice Michael Raphael has a Daily Journal column today discussing the issue of whether a Court Appeal can overrule one of its own opinions. Justice Raphael mentions two instances, in 1977 and 1980, when his court — Division Two of the Fourth District — “overruled” its earlier decisions. He could have also mentioned the Division Two opinion in People v. Thompson (1981) 178 Cal.Rptr. 735 that overruled People v. Barrick (1981) 177 Cal.Rptr. 532. The Supreme Court granted a hearing (what “review” was called back then) in both cases and decided that the “overruled” Barrick decision reached the right result. (People v. Barrick (1982) 33 Cal.3d 115.) The only reason I know that trivia is because I was the research attorney for the overruled Barrick opinion’s author.]

John’s Grill grant-and-hold dispositions (see here). The court removed from its docket three cases that were holding for last month’s decision in John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. (2024) 16 Cal.5th 1003 (see here). French Laundry Partners, LLP v. Hartford Fire Insurance Co. had been sent by the Ninth Circuit for the Supreme Court to answer a question of California law; after having made the case a grant-and-hold, the court “dismiss[ed] consideration of the question” because John’s Grill makes “resolution of the question posed by the . . . Ninth Circuit . . . no longer ‘necessary . . . to settle an important question of law.’ ” (See here and here.) Similarly, the court dismissed review in Showa Hospitality, LLC v. Sentinel Insurance Co. (see here). Brooklyn Restaurants, Inc. v. Sentinel Ins. Co., Ltd. (see here) was sent back to the Fourth District, Division One, for reconsideration in light of John’s Grill.

Pre-trial detention grant-and-transfer. The court granted review in In re Munoz and transferred the case to the Third District, which had summarily denied a habeas corpus petition. The Court of Appeal is to issue an order to show cause “why petitioner is not entitled to relief on the grounds that, at the detention hearings held on June 26 and July 2, 2024, the San Joaquin County Superior Court failed to address the feasibility of less restrictive alternatives to detention and to articulate the factual basis for its findings — made pursuant to article I, section 12, subdivision (b) of the California Constitution — with sufficient specificity to facilitate review of its detention orders. (In re Humphrey (2021) 11 Cal.5th 135, 154-156 [see here].)” (Links added.)

More dissenting votes for review about youth offender parole denial. Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denials of review in People v. Cisneros, People v. Sedillo, and People v. Watson. Unpublished opinions by the Sixth District and Divisions Three and Four of the Second District, respectively, rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed between the ages of 18 and 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, and here).

Habeas corpus dissenting vote. Justice Liu also voted to hear In re Sanchez. The court denied review after the Fourth District, Division Two, summarily denied an “emergency” habeas corpus petition. The Supreme Court’s and Division Two’s dockets don’t indicate what the petition was about, so we don’t know what issue or issues were of interest to Justice Liu. There’s a remedy for that lack of information.

Proposition 66 transfer. The court transferred another capital habeas corpus petition to the superior court under Penal Code section 1509(a), enacted by Proposition 66.  (See here and here.) This petition was filed by a pro per.

Criminal case grant-and-holds. There were four criminal case grant-and-holds:  one more waiting for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here), another one on hold for People v. Rhodius (see here), and one more holding for People v. Morris (see here).