Supreme Court agrees to hear three more cases

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

• Justices OK commutation of three-strikes sentence and partially open another clemency file.
• SVPA trial time. The court granted review — for a second time — in Camacho v. Superior Court after a Fifth District Court of Appeal unpublished opinion upheld the denial of a motion to dismiss a civil commitment petition under the Sexually Violent Predators Act. The Fifth District had previously summarily denied writ relief, but the Supreme Court granted-and-transferred last August with instructions to decide the merits. The opinion holds that not having any trial for over 15 years after the petitioner’s commitment did not violate his due process rights because “the record shows the delay was at [the petitioner’s] request or agreement.” The appellate court concluded it was not an appropriate case to apply the rule that “ ‘ “[d]elay resulting from a systemic ‘breakdown in the public defender system,’ [citation], could be charged to the State.” ’ ”
• Gang sentencing enhancement. The court will also hear People v. Cooper, with the issue limited to: “Must any of defendant’s sentencing enhancements be vacated due to recent statutory changes requiring that the offenses necessary to establish a ‘ “pattern of criminal gang activity” . . . commonly benefited a criminal street gang, and the common benefit from the offense is more than reputational’ (Pen. Code, § 186.22, subd. (e)(1), as amended by Stats. 2021, ch. 699, § 3)?” (Link added.) In an unpublished opinion, the Second District, Division Six, applied the amendments retroactively, but held “[t]here is no reasonable doubt that the jury would have found the gang enhancement true had it been instructed with the amendments to section 186.22.”
• Dissuading a witness. The court granted the Attorney General’s petition for review in People v. Reynoza, where the Sixth District’s published opinion reversed a conviction under Penal Code section 136.1, subdivision (b)(2), which makes illegal an attempt to prevent or dissuade a witness from “[c]ausing a complaint . . . to be sought and prosecuted, and assisting in the prosecution thereof.” (Emphasis added.) The appellate court concluded, “If the defendant knows a complaint has already been filed and does not attempt to prevent or dissuade the witness from causing any further or amended complaint to be filed, an essential element of the offense is missing.” It disagreed with the Second District, Division Four, decision in People v. Velazquez (2011) 201 Cal.App.4th 219, which the Sixth District said “misconstrued the term ‘and’ to mean ‘or’, thereby eliminating that required filing element.” The Supreme Court denied review in Velazquez.
• (Un)candid briefing. The court denied the petition for review in People v. Williams, but depublished the Second District, Division Five, opinion. Counsel, appointed to represent a criminal defendant who appealed in pro per from the denial of a petition to modify his sentence, filed a brief stating the defendant had filed a notice of appeal from the denial as an order after judgment affecting substantial rights and reported there were no arguable issues for reversal. The brief asked the Court of Appeal to follow a procedure of informing the defendant that he may file his own brief. Division Five dismissed the appeal, but only after scolding counsel for not citing 30-year-old case authority that the superior court’s ruling was not appealable — “An attorney who prosecutes an appeal while failing to cite known authority that this court has no jurisdiction to entertain it violates the attorney’s duty of candor.”
• Trust amendment. Balistreri v. Balistreri is a grant-and-hold, with action deferred pending a decision in Haggerty v. Thornton. The court granted review in Haggerty this past December and is expected to address in that case whether a trust can be modified according to the statutory procedures for revocation of a trust (Prob. Code, § 15401) if the trust instrument itself sets forth identical procedures for modification and revocation. In Balistreri, the First District, Division Three, published opinion held a trust amendment was invalid, disagreeing with the Haggerty Court of Appeal decision and concluding, “when a trust specifies a method of amendment — regardless of whether the method of amendment is exclusive or permissive, and regardless of whether the trust provides for identical or different methods of amendment and revocation — section 15402 provides no basis for validating an amendment that was not executed in compliance with that method.”
• Attorney fees. Another grant-and-hold is Melendez v. Westlake Services, LLC, which will now be back-burnered until the court decides Pulliam v. HNL Automotive Inc. Pulliam — argued in March (briefs here; oral argument video here) — should decide whether the word “recovery” as used in the Holder Rule (16 C.F.R. § 433.2) includes attorney fees. The Rule gives consumers relief from loans used to purchase what turn out to be defective goods, but limits consumers’ recovery. In a published opinion, the Second District, Division Eight, agreed with the Pulliam appellate court opinion and held the rule’s “limitation [on recovery] does not preclude recovery of attorney fees.”
• Vote for LWOP review?. Over the dissenting recorded vote of Justice Goodwin Liu, the court denied the defendant’s petition for review in People v. Acuna. The defendant lost on four separate issues and Justice Liu’s vote is unexplained, so it’s unclear what issue or issues attracted his attention. As stated in the unpublished opinion of the Fourth District, Division One, the four defense arguments that failed are: “(1) the trial court prejudicially erred by refusing a proposed pinpoint instruction on the duration of the crime of burglary for the purpose of the escape rule as it relates to felony murder; (2) the trial court prejudicially erred by allowing the People to present evidence that the murder victim was a member of the United States Navy; (3) because he was a youthful offender at the time of the murder, Acuna’s constitutional right to equal protection was violated by the imposition of an LWOP sentence; (4) the order requiring Acuna to pay certain fines and fees should be vacated because he does not have the ability to pay them.” Justice Liu has shown a continuing interest in the LWOP issue. (See here.)
• Juvenile commitment. Justice Liu also dissented from the denial of review in In re J.B., where a 2-1 Sixth District published opinion held the superior court had discretion to commit a defendant — who admitted to a second degree murder when he was a minor — to state custody by dismissing other adjudicated petitions that would have precluded commitment and required his release.
• New-legislation grant-and-transfer. The court granted review and transferred a case back to the Court of Appeal for reconsideration in light of Senate Bill 567.
• Criminal case grant-and-holds. There were nine criminal case grant-and-holds. All are now waiting for a decision in People v. Strong (see here), which will be argued in 12 days.