People’s Park opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Make UC a Good Neighbor v. Regents of University of California. (Briefs here; oral argument video here.)

The case involves UC Berkeley’s plan to build student housing on the current site of People’s Park. The issues are: (1) Does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA) require public agencies to consider as an environmental impact the increased social noise generated by student parties that a student housing project might bring to a community? (2) Under CEQA, when a lead agency has identified potential sites for future development and redevelopment in a programmatic planning document, is the agency required to revisit alternative locations for a proposed site-specific project within the program? The court granted review in May 2023 and later requested supplemental briefing on the significance of post-review-granted legislation that might resolve the case. More about the case here and here. Horvitz & Levy represents the Regents and other defendants in the Supreme Court.

This will be the first of six opinions for cases argued in April. The opinions in the five other cases are expected by July 1. Additional argued but undecided cases are the nine on the early-May calendar (opinions expected by August 5), the nine on the late-May calendar (opinions expected by August 19, except for the opinion in Castellanos v. State of California, which, because of post-argument briefing, isn’t expected until August 29), and the seven on the just-completed June calendar.

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

Three late-May oral argument videos available

The Supreme Court has posted videos of three of the nine oral arguments that were heard on the court’s late-May calendar two weeks ago. The three cases are Castellanos v. State of California, John’s Grill, Inc. v. The Hartford Financial Services Group, Inc., and Quach v. California Commerce Club.

Videos of the other six arguments should post soon.

Opinions in the late-May cases should file by August 19, except for the Castellanos opinion, which, because of post-argument briefing, isn’t expected until August 29.

The centennial celebration of a school desegregation case

California’s Native American community on Saturday celebrated the 100th anniversary of a state Supreme Court civil rights decision, Piper v. Big Pine School District (1924) 193 Cal. 664. A unanimous court ruled in favor of a 15-year-old Native American girl — Alice Piper — and her parents who were challenging the Big Pine School District’s refusal to admit her and other Native children to its new school. The District unsuccessfully insisted that she was required to attend a separate “Indian school” instead.

The commemorative event took place in Big Pine, located in Inyo County, east of the Sierra Nevada mountains.

I was honored to speak at the ceremony, representing the California Supreme Court Historical Society. I concluded my remarks with this, “There’s a saying that too many people must beat the odds and not enough people are working to change the odds. Well, the Piper family beat the odds in getting a favorable ruling from California’s highest court and, in beating the odds, they changed the odds for children throughout California and the United States.”

I wrote a column about the Piper case last week in the Daily Journal.

Video of the celebration is here.

A resolution making June 2, 2024, Alice Piper Day in California has passed the State Senate and is pending in the Assembly.


“Celebrating the centennial of a civil rights victory”

Renaming Hastings College of Law? A proposal

Hoping to honor a pioneering civil rights plaintiff

Former Justice Cuéllar receives presidential appointment

President Joe Biden has appointed former Supreme Court Justice Mariano-Florentino Cuéllar to be a member of the President’s Intelligence Advisory Board.

The White House news release announcing the appointment says the Board “exists exclusively to assist the President by providing the President with an independent source of advice on the effectiveness with which the intelligence community is meeting the nation’s intelligence needs and the vigor and insight with which the community plans for the future.”

Cuéllar left the court in 2021 to become president of the Carnegie Endowment for International Peace,


Former Justice Cuéllar criticizes SCOTUS “Unwelcome Forays Into Foreign Policy”

Former Justice Cuéllar chosen for foreign policy advisory board

Over a vigorous dissent, Supreme Court decides statutory gang evidence limitation is not retroactive

Resolving a split in Court of Appeal decisions, a 5-2 Supreme Court today holds in People v. Burgos that a statutory change providing for the delay of introducing gang evidence at trial doesn’t apply retroactively. It’s another case involving a part of 2021’s Assembly Bill 333, legislation that has taken up quite a bit of the court’s time.

Among other things, AB 333 added Penal Code section 1109 that requires gang offense charges to be tried separately and similarly allows, on a defendant’s request, the delay of the trial of gang enhancements. The court’s opinion by Chief Justice Patricia Guerrero follows the general rule that, unless the Legislature provides otherwise, statutes apply prospectively, and the opinion doesn’t invoke the corollary of In re Estrada (1965) 63 Cal.2d 740 that an amendment lessening punishment evinces a legislative intent for retroactivity. Unlike other parts of AB 333, the majority states, “the procedures established by section 1109 do not alter the criminality of defendant’s conduct or the severity of punishment,” and thus “the logic of Estrada does not apply.” It also rejects an equal protection challenge to that result.

Justice Kelli Evans writes a dissent, which Justice Goodwin Liu signs. Looking mostly to enacted, but uncodified, statements of legislative intent, Justice Evans contends “the Legislature intended this statute, which was explicitly intended to prevent the conviction of innocent defendants, to have retroactive effect.” She says the Legislature found that introducing evidence relevant to a gang enhancement before the jury has determined guilt or innocence can lead to wrongful convictions and that “this unfairness was borne disproportionately by ‘people of color, creating a racial disparity.’ ”

Justice Evans criticizes the majority for reading the Estrada doctrine too narrowly. She says the “ ‘rationale of Estrada’ ” requires determining “whether the statute ‘by design and function provides a possible ameliorating benefit’ [citation] as to punishment [citation] or as to the issue of guilt or innocence [citation] for an identifiable ‘class of persons’ [citations].” She asserts, “Never before have we denied retroactive effect to a statute that ‘by design and function provides a possible ameliorating benefit for a class of persons’ [citation] — and certainly not when the statute is aimed at preventing the conviction of an innocent defendant. Not even once.”

Justice Joshua Groban, joined by Justice Carol Corrigan, signs the court’s opinion but issues a separate concurrence to emphasize that “[i]t would be preferable for ‘the Legislature, and the electorate with respect to ballot measures, to consider the retroactive application of new laws and to regularly express their intent regarding if and how they should be applied retroactively.’ ” (See: Scolding the Legislature for lack of clarity, Supreme Court rules statute can retroactively reduce probation without negating plea deal.) Because of the lack of such expressions, Justice Groban writes, “In the last 10 years alone, we have been compelled to make a retroactivity determination at least nine times, including the present case” and the Courts of Appeal have done so “well over a dozen [times] in just the last two years.”

The court reverses the Sixth District’s 2-1 published opinion. It also disapproves the Fifth District’s decisions in People v. Montano (2022) 80 Cal.App.5th 82 and People v. Ramos (2022) 77 Cal.App.5th 1116. Review was denied in both Montano and Ramos, but in those cases only the defendants sought review, probably of issues other than the one addressed in today’s opinion.

Some other AB 333 cases:

Supreme Court explains how to prove a gang enhancement

Application of legislation limiting what is a gang crime doesn’t violate state constitution

New legislation requires reversal of gang enhancement

Gang enhancement struck, but death penalty affirmed for torture-robbery-burglary murder

Oral arguments, no conference, this week

Tomorrow and Wednesday, the court will be in Los Angeles to hear the eight oral arguments on its June calendar.

The calendar includes cases involving the Indian Child Welfare Act, youth offender parole, a seven-figure discovery sanction, and an appellate procedure issue.

The arguments will be live streamed. Opinions in the cases should file by August 29.

Because of the oral arguments, the court will not be conferencing (also here) this week and there will be a double conference next week.

Gang enhancements opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Burgos. (Briefs here; oral argument video here.)

The case was a grant-and-hold for a death penalty appeal. When the court unheld the case in October 2022, it limited the issue to: “Does the provision of Penal Code section 1109 governing the bifurcation at trial of gang enhancements from the substantive offense or offenses apply retroactively to cases that are not yet final?” More about the case here.

This will be the last of six opinions for cases argued in March. Additional argued but undecided cases are the six on the April calendar (opinions expected by July 1), the nine on the early-May calendar (opinions expected by August 5), and the nine cases on the late-May calendar (opinions expected by August 19, except for the opinion in Castellanos v. State of California, where submission of the case has been delayed, apparently for responses to amicus curiae briefs).

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

“Celebrating the centennial of a civil rights victory”

I’ve written this column, appearing in today’s Daily Journal.

It begins:

“America recently celebrated the 70th anniversary of Brown v. Board of Education. But there’s another Supreme Court school desegregation decision, one by California’s high court, that is also marking a milestone worth noting. Piper v. Big Pine School District (1924) 193 Cal. 664 is 100 years old this Sunday.”

A centennial celebration will be held Saturday in Big Pine.


Renaming Hastings College of Law? A proposal

Hoping to honor a pioneering civil rights plaintiff

Charges dismissed against octogenarian landlord who rented to an unlicensed cannabis business

In Wheeler v. Appellate Division, the Supreme Court today reinstates a trial court dismissal of misdemeanor charges against a then-85-year-old landlady who, with her co-owner son, rented her property to an unlicensed cannabis business, but who had no knowledge of the covert cannabis activities.

The court’s unanimous opinion by Justice Martin Jenkins discusses in detail the circumstances under which a court may dismiss charges “in furtherance of justice” under Penal Code section 1385. It concludes that “trial courts may, as appropriate, consider the nature of a charged offense and a defendant’s minimal culpability in weighing all the considerations for and against dismissal.” But, the court continues, “[s]ection 1385 dismissals must avoid subjective judgments, a ‘formless’ justice, or the retooling of disfavored statutes based on antipathy for legislative choices.”

In requiring dismissal, the court says, “Though Wheeler has not disputed her technical violations of the municipal laws, we hold that, given the nature of those laws, the trial court had discretion to consider the nature of the alleged violations and Wheeler’s lack of knowledge in weighing all the considerations for and against dismissal in furtherance of justice under section 1385.”

The court reverses the Second District, Division Three, Court of Appeal’s published opinion.

Property transfer triggered tax increase

In Prang v. Amen, the Supreme Court today holds a family corporation’s transfer of two supermarkets to one of its shareholders, a revocable trust, could not escape a property reassessment that led to higher property taxes.

The court’s unanimous opinion by Justice Kelli Evans concludes that there was a reassessment-triggering change in ownership under statutes implementing Proposition 13 limitations on property tax increases because, even though the trust held all the corporation’s voting stock, there was also a small number of individual shareholders who held nonvoting stock. The court rejected the argument that only the voting stock should be considered, which would have made the corporation-to-trust transfer not an ownership change.

The court sides with the county assessor, not the county assessment appeals board that — based on State Board of Equalization guidance — had reversed the assessor’s decision. The opinion finds the Board’s guidance either is “not pertinent, or fails to directly consider the issue presented here, and is therefore unpersuasive.”

The court affirms the divided Second District, Division Five, published opinion.

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