Another no-straight-grant conference

For a second week, the Supreme Court didn’t straight grant any cases at its conference yesterday, and the number of other highlights was small.

Workers’ compensation grant-and-hold. Tristar Risk Management v. W.C.A.B. is a grant-and-hold for Mayor v. Workers’ Compensation Appeals Board (see here). The Mayor issues, as summarized by court staff (see here), are: “(1) May the Workers’ Compensation Appeals Board apply equitable tolling to act upon a petition for reconsideration beyond the 60-day period provided in Labor Code section 5909, when the Appeals Board did not receive the petition for reconsideration until after the 60-day period has elapsed? (2) Did the Court of Appeal act in excess of its jurisdiction in granting relief under traditional mandate (Code Civ. Proc., § 1085), where petitioner did not file a timely petition for writ of review pursuant to Labor Code section 5909?” In Tristar, the First District, Division Two, Court of Appeal summarily denied a writ of review.

Racial Justice Act dissenting votes. Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denial of review in In re Pettus. The Fourth District, Division Two, summarily denied a pro per’s habeas corpus petition seeking relief for alleged violations of the California Racial Justice Act (here and here). Division Two’s order stated, “the petition and record do not support a finding that the Act was violated, as petitioner’s claims are either conclusory, unsupported by the evidence presented, or demonstrably contradicted by the court’s own records. As such, petitioner’s claims fail to state a prima facie case for relief”; it also said “The request for discovery . . . is not supported by good cause.” The Supreme Court said its denial was “without prejudice to any relief to which petitioner might be entitled after this court decides In re Montgomery [see here].” Justices Liu and Evans wanted to transfer the case to the Court of Appeal for issuance of an order to show cause. They dissented in two other RJA denials, but in those Justice Liu (joined by Justice Evans) issued separate statements explaining his votes. (Here and here.)

Criminal case grant-and-holds. There were eight criminal case grant-and-holds:  one more waiting for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here) (Hin was argued in November and an opinion should file next week); three more holding for People v. Rhodius (see here); one more waiting for People v. Superior Court (Guevara) (see here and here); one more on hold for People v. Morris (see here); and two waiting for People v. Lopez (see here).

Grant-and-hold dispositions (see here).

Williams v. FCA US LLC, which was a grant-and-hold (see here) waiting for the March 2024 decision in Niedermeier v. FCA US LLC (2024) 15 Cal.5th 792 (see here) and the October 2024 decision in Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189 (see here) (both Lemon Law opinions, but dealing with different issues), was remanded to the Court of Appeal for reconsideration in light of just Rodriguez. Rodriguez was an opinion supporting a vehicle manufacturer, while Niedermeier‘s ruling favored a vehicle buyer. The Supreme Court made a similar remand order last week in Stiles v. Kia Motors America, Inc. (See here.) Horvitz & Levy is appellate counsel for the defendants in Williams and Stiles, and was the same in Rodriguez.

Here’s something unusual. Two cases that were holding for the August youth offender parole decision in People v. Williams (2024) 17 Cal.5th 99 (see here) were returned to the Courts of Appeal “with directions to conduct further proceedings as may be necessary to address appellant’s entitlement to the benefit of ameliorative legislation that became effective while review was pending in this court.” Most often, either review is dismissed in grant-and-holds or they are sent back with directions to reconsider in light of a recent Supreme Court opinion, usually the opinion in the case for which the grant-and-hold case was holding. (See, e.g., here for other, more common Williams grant-and-hold dispositions.)

Governor asks Supreme Court to OK posthumous pardon for Medal of Honor recipient

Governor Gavin Newsom has asked the Supreme Court to approve a posthumous pardon for Richard Penry. A court recommendation is constitutionally required before a governor can grant clemency to anyone who has been “twice convicted of a felony.” (The request was made three weeks ago, but only today appeared on the court’s docket.)

Penry received the nation’s highest military accolade, the Medal of Honor, for his heroics in 1970 during the Vietnam War. He died in 1994 at age 45. (See also Andrew Graham’s report for The Press Democrat.)

The letter to the court from Newsom’s Deputy Legal Affairs Secretary relates that Penry was convicted in 1974 for transporting or sale of a controlled substance and then again in 1984, in federal court. It also says, “After his military service, Sgt. Penry returned to California at a time when there were few resources for veterans. Like many other veterans, Sgt. Penry struggled with reentry to civilian life. He self-medicated to manage his untreated Post-Traumatic Stress Disorder, which was the context for his convictions.”

The court has said it reviews clemency recommendation requests under a deferential standard. (See here and here.) And Newsom has a nearly perfect record — he withdrew one request before a ruling, but the court has approved all 70 of his other requests. That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants. The denial of a request implies that a clemency grant would be an abuse of power.

The Governor’s request was filed under seal. It will remain shielded from the public unless someone moves to unseal the records. If a motion is filed, which seems unlikely, the court would probably require Newsom to justify keeping all or part of the records under wraps and would then probably make redacted records available for viewing. (See here and here.)

“Trump administration lifts courthouse raid ban, testing California’s sanctuary law”

Malcolm Maclachlan has an extended report in today’s Daily Journal that begins:

“California Chief Justice Patricia Guerrero told reporters last week that she would not ‘pick a fight’ with the new administration of President Donald Trump. But Trump may have just picked one with her.

“On Wednesday, the administration lifted a ban on conducting immigration enforcement raids in courthouses, schools and other ‘sensitive areas’ where they had been barred under President Joe Biden’s administration. If Immigration and Customs Enforcement officials follow through and begin entering state courthouses, it would effectively cross a line Guerrero laid out during her annual sit-down meeting with reporters on Jan. 16.”

The article says that the Chief Justice declined to comment yesterday.

Related:

Chief Justice pledges to protect court access against disruptive federal immigration actions and addresses a wide range of other issues at her annual meeting with the media

Supreme Court amends its policies and payment guidelines for counsel it appoints in capital and other criminal cases

A California Courts news release by Merrill Balassone reports on Supreme Court changes to its policies and payment guidelines for appointed counsel in death penalty litigation, including direct appeals and habeas corpus proceedings, and payment guidelines for appointed counsel in all criminal cases.

The news release says the changes “account for developments relevant to the representation of capital inmates before the California Supreme Court, including the passage of Proposition 66, the Death Penalty Reform and Savings Act of 2016, and the enactment of the California Racial Justice Act of 2020.” It looks like the policies and payment guidelines also apply to Supreme Court-appointed counsel representing criminal defendants in the superior court.

The revised “Supreme Court Policies Regarding Cases Arising from Judgments of Death” are here and the amended “Payment Guidelines for Counsel Appointed by the Supreme Court Representing Indigent Capital Appellants in California Courts” and “Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and Capital Habeas Corpus Proceedings in California Courts” are here.

Supreme Court expands retroactive application of ameliorative legislation

In People v. Lopez, the Supreme Court today holds a defendant convicted of first degree murder, whose sentence was increased by a jury’s finding that he committed the crimes for the benefit of a criminal street gang, can challenge the gang enhancement under Assembly Bill No. 333, which limited imposition of the enhancement and was enacted after his conviction. The decision concerns whether the defendant could invoke the ameliorative legislation, legislation which case law says is constitutionally required to have been effective before his judgment became final.

The court’s unanimous opinion by Justice Goodwin Liu notes that “[t]he meaning of finality in the [retroactivity] context is distinct from the issue of whether a judgment is final for purposes of appealability.” In the case before it, the Court of Appeal had remanded the matter for resentencing concerning enhancements other than the gang enhancement and the defendant was awaiting resentencing when the Legislature enacted AB 333.

The court rejects the argument that AB 333 can’t retroactively apply to the defendant because his judgment of conviction and the gang enhancement were final before the statutory changes took effect. “A criminal case is only reduced to a singular, final judgment following the conclusion of the entire criminal case or prosecution,” the court finds, and, “[t]hus, a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for [retroactivity] purposes.”

For good measure, the court says the defendant “[o]n remand . . . may renew his arguments that he is entitled to resentencing under [other later-enacted legislation] in light of our recent decisions in People v. Lynch (2024) 16 Cal.5th 730 [see here] and People v. Walker (2024) 16 Cal.5th 1024 [see here].”

The court reverses the Fourth District, Division Two, Court of Appeal’s 2-1, partially published opinion. Division Two had disagreed with the Fourth District, Division Three, decision in People v. Salgado (2022) 82 Cal.App.5th 376.

Property wasn’t legally subdivided, Supreme Court rules

In Cox v. City of Oakland, the Supreme Court today interprets the Subdivision Map Act as applied to an old land conveyance of multiple lots.

The court’s unanimous opinion by Chief Justice Patricia Guerrero holds the description of different lots in a single 1944 conveyance didn’t give separate legal status to each lot despite the conveyance occurring before a 1972 statutory change that now requires local government approval of subdivisions of land into even a small number of lots. “[A] conveyance does not ‘create[ ]’ multiple parcels [under the Act] merely by referring separately to lots of the contiguous property being conveyed,” the court concludes. Instead, the pre-1972 conveyance must have “alienate[d] one portion of an original parcel, . . . creat[ing] a single new parcel comprised of the conveyed portion of property.”

The court says its “interpretation . . . advances the Act’s goals of encouraging orderly community development and preventing undue burdens on the public.”

The court reverses the First District, Division One, belatedly published opinion.

No straight grants this week at this week’s conference, but some interesting actions nonetheless

The Supreme Court didn’t straight grant any cases at yesterday’s conference, but there were some notable rulings, including:

Murder resentencing grant-and-transfer.

The court granted review in another Senate Bill 1437 case, People v. Gray, vacated the unpublished opinion of the Second District, Division One, Court of Appeal, and sent the matter back to the appellate court to reconsider its affirmance of a resentencing petition’s denial “in light of People v. Curiel (2023) 15 Cal.5th 433, 451-452.” (Regarding Curiel, see here.) The defendant was sentenced over 40 years ago to life without parole for felony murder after a jury’s true finding of felony-murder special circumstances. The 2018 legislation narrowed felony murder liability and allows for resentencing.

The People conceded in the superior court that the defendant should be resentenced, but the trial judge rejected the concession and Division One, brushing aside the concession, held the special circumstances finding necessarily established the jury had concluded the defendant harbored the intent to kill, a necessary element for felony murder under SB 1437. The Curiel pages cited in the Supreme Court’s order explain what is necessary for a special circumstance finding to have preclusive effect in an SB 1437 resentencing proceeding.

It’s unusual for the Supreme Court to grant-and-transfer for reconsideration in light of authority that was available to the Court of Appeal. Division One’s opinion mentioned Curiel once, concerning a point different than issue preclusion.

Racial Justice Act OSC. The court issued an order to show cause, returnable in the superior court, on a pro per’s habeas corpus petition (filed as a petition for review, but considered a habeas petition by the Supreme Court) in Mitchell v. Superior Court. Cause is to be shown “why the petition does not satisfy the statutory requirements for the appointment of counsel under the Racial Justice Act [see here and here]. (Pen. Code, § 1473, subd. (e) [providing for the appointment of counsel for an indigent petitioner who alleges facts constituting a violation of the Racial Justice Act].)” The Second District, Division Three, had summarily denied the writ of mandate petition the pro per had filed, concluding he “has not made a prima facie showing that he was charged or convicted of a more serious offense or had a longer or more severe sentence imposed as a result of his race, ethnicity, or national origin.”

Fee waiver denial OSC.

The court granted review in Mockett v. Superior Court and sent the case back to the Fourth District, Division Two (which had summarily denied Mockett’s writ petition) with directions to have “the respondent superior court . . . show cause why the relief sought in the petition should not be granted.”

The petition for review argued the superior court improperly denied Mockett’s application to waive fees, payable to that court, for his appeal (see rules 8.100(b), 8.122(c)) of an adverse civil judgment. The petition quoted the superior court’s reason for the denial, “Attorney can advance fees and costs.” Requiring an indigent litigant’s attorney to advance fees seems contrary to the Supreme Court’s decision in Isrin v. Superior Court (1965) 63 Cal.2d 153, 164–165. The petition didn’t mention Isrin.

The Supreme Court’s order doesn’t mention its Isrin opinion, either, but it does say, “The response to the order to show cause should address the application of Government Code section 68632, subdivision (a)(3).” (Link added.) That statute provides a fee waiver application “shall be granted” to persons “receiving public benefits” under any of a variety of different federal and state programs, including food stamps, which Mockett said he receives.

When Mockett submitted his petition for review to the Supreme Court, the court granted his concurrently submitted application for waiver of that court’s fees. That just might be a hint of how the court wants the writ petition to be decided.

Capitol renovation green light. The court denied review in Save Our Capitol! v. Department of General Services. The Third District’s published opinion affirmed the rejection of a challenge to an environmental impact report on proposed substantial changes to California’s capitol. The appellate court based its decision on action taken by the capitol building’s occupants: “after two adverse appellate decisions, and with this third appeal pending, the Legislature decided to exempt the project from further CEQA review.” The exempting legislation “dictates the result in this appeal,” the opinion stated. There’s also considerable discussion about budget bills, trailer bills, and urgency legislation in determining that the exemption doesn’t violate a state constitutional section limiting legislative actions that would authorize certain changes to the capitol.

Criminal case grant-and-holds. There were eight criminal case grant-and-holds:  two more waiting for a decision in People v. Patton (see here), which was argued last month; one more holding for People v. Fletcher (see here); two more waiting for People v. Lopez (see here), the opinion in which was filed today; one more holding for In re Hernandez (see here); and two more on hold for People v. Rhodius (see here).

Grant-and-hold dispositions (see here).

Stiles v. Kia Motors America, Inc., which was a grant-and-hold (see here) waiting for the October Lemon Law decision in Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189 (see here), was returned to the Court of Appeal for reconsideration in light of Rodriguez. Horvitz & Levy represented the prevailing defendant in Rodriguez and represents the defendant in Stiles.

The court disposed of 10 cases that were holding for the August youth offender parole decision in People v. Williams (2024) 17 Cal.5th 99 (see here). Review was dismissed in six and four were sent back to the Courts of Appeal for reconsideration in light of the Williams opinion. And one case that was on hold for decisions in Williams, In re Vaquera (2024) 15 Cal.5th 706 (see here), and People v. Hardin (2024) 15 Cal.5th 834 (see here), was returned to the Court of Appeal for reconsideration in light of just Vaquera.

“California High Court Braces for Deportation-Related Turmoil”

Maia Spoto has this detailed piece for Bloomberg Law.

It begins, “California’s Supreme Court is ready to intervene again if the federal government sends immigration enforcement agents to state courthouses. The state judiciary is preparing to defend itself, Chief Justice Patricia Guerrero said, by reviewing ‘what has happened in the past,’ which includes high-profile clashes between former Chief Justice Tani Cantil-Sakauye and President Donald Trump’s prior administration over access to justice for migrants.”

But the article is about potential federal-state conflicts in more areas than immigration. It identifies types of cases in which California courts might offer more protection than the feds, such as those with issues in privacy, civil rights, consumer protection, education, and criminal law (including the death penalty).

I’m quoted in the article.

Related:

Chief Justice pledges to protect court access against disruptive federal immigration actions and addresses a wide range of other issues at her annual meeting with the media

Gang enhancement, Subdivision Map Act opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in two-thirds of the cases argued in November. That might sound like a lot, but there were only three cases on that month’s calendar. Tomorrow’s opinions will be in People v. Lopez and Cox v. City of Oakland (née Crescent Trust v. City of Oakland). (Briefs here; oral argument videos here and here.)

When the court granted review in Lopez in November 2023, it limited the issue to: “Is defendant entitled to retroactive application of Assembly Bill No. 333 (2021-2022 Reg. Sess.) where he appeals for a second time after his judgment was conditionally reversed and the Court of Appeal issued a limited remand to the trial court to address sentencing issues?” More about the case here.

The Cox opinion is expected to address whether a pre-1972 conveyance by a single deed of a group of fewer than five contiguous lots that are separately described in the deed by reference to lot numbers on a pre-1893 survey map is a “division” of land that “creates” an individual lawful lot for each of the separately described lots in the single deed under the conclusive presumption set forth in Government Code section 66412.6, subdivision (a), of the Subdivision Map Act? The court granted review in July 2023. More about the case here.

These will be the first opinions in the November calendar cases. The opinion in the last case — the death penalty appeal in People v. Hin — should file by February 6. Other argued but undecided cases are the four on the December calendar (opinions due by March 3, except for the death penalty appeal in People v. McGhee, in which the opinion isn’t due until April 3 because of post-argument briefing) and the three on the January calendar (opinions due by April 7, although there’s a pending motion in People v. Jasso to pause the 90-day clock for additional briefing).

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

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