Supreme Court takes two more gang cases, including one about AB 333’s constitutionality

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

• AB 333 constitutionality. The court granted review in People v. Rojas, limiting the issue to: “Does Assembly Bill No. 333 (Stats. 2021, ch. 699) unconstitutionally amend Proposition 21, if applied to the gang-murder special circumstance (Pen. Code, § 190.2, subd. (a)(22))?” (Links added.) A 2-1 Fifth District Court of Appeal partially published opinion said it does. Proposition 21 added gang-related murder to the list of special circumstances making offenders eligible for the death penalty. The initiative incorporated the definition of “criminal street gang” from another statute, a definition that AB 333 narrowed while generally limiting the applicability of sentence enhancements for gang-related felonies. The Supreme Court might not have granted review had the Fifth District upheld AB 333’s applicability to the gang-murder special circumstance. (See here regarding the court’s agreeing to decide the constitutionality of SB 1391 but not of SB 1437.) Rojas already has its own grant-and-holds. (See below.)
• AB 333 application. The court will also hear People v. Clark, and it limited the issue there to: “Can the People meet their burden of establishing a ‘pattern of criminal gang activity’ under Penal Code section 186.22 as amended by Assembly Bill No. 333 (Stats. 2021, ch. 699) by presenting evidence of individual gang members committing separate predicate offenses, or must the People provide evidence of two or more gang members working in concert with each other during each predicate offense?” The Fourth District, Division Two, partially published opinion held it to be the former and it disagreed with the Second District, Division Seven, decision in People v. Delgado (2022) 74 Cal.App.5th 1067, and the Second District, Division Eight, opinion in People v. Lopez (2021) 73 Cal.App.5th 327. The Supreme Court denied review in Delgado and in Lopez. In addition to Rojas (see above) and Clark, the court has other AB 333 cases on its docket. (See here and here.)
• Late petitions for review granted. The petitions for review in Mendoza v. Superior Court (People) and Morrissette v. Superior Court (People) were submitted six days late, but the court permitted their filing. It then granted the petitions, transferred the cases back to the Fifth District (which had summarily denied petitions (here and here)), and directed the appellate court to decide the writ petitions on their merits. The dockets do not indicate what the issues are. (Related: Getting relief for a late petition for review might not be a hopeless cause, and here and here.)
• Sentencing abuse. The court denied review in People v. Beasley over the recorded dissenting vote of Justice Joshua Groban. The published opinion of the Fourth District, Division Three, said “[t]he Three Strikes law has come in for its fair share of well-deserved criticism,” but it held the superior court abused its discretion in striking a defendant’s prior strike convictions and in sentencing him to the low term of two years in prison for first degree robbery with the use of a knife.
• Habeas denial. Justice Groban also recorded a dissent from the denial of review in In re Thompkins. The First District, Division Two, unpublished opinion denied a habeas corpus petition that asserted ineffective assistance of counsel by both the defendant’s trial and appellate lawyers. Trial counsel was claimed to have been ineffective in allowing expert testimony on the rarity of false allegations of molestation and the frequency of recantation from child victims. Appellate counsel was allegedly ineffective in briefing the issue of vindictive prosecution. The Supreme Court had denied review of the defendant’s appeal of his conviction “without prejudice to the right to seek relief by way of petition for writ of habeas corpus as to ineffective assistance of counsel and ineffective assistance of appellate counsel.”
• Criminal case grant-and-holds. There were three criminal case grant-and-holds: one more holding for People v. Reyes (see here), one holding for People v. Rojas (see above), and one holding for both Rojas and People v. Burgos (see here).
• Grant-and-hold disposals. The court rid its docket of 42 grant-and-holds. 37 cases on hold for August’s decision in People v. Strong (2022) 13 Cal.5th 698 were transferred to the Courts of Appeal, 36 of them for reconsideration in light of the Strong opinion and one for reconsideration in light of Senate Bill 775 (see here). Two cases on hold for Strong and People v. Lopez (which was itself transferred last year) were sent back for reconsideration in light of Strong and SB 775. Two of the many cases waiting for last year’s decision in People v. Lewis (2021) 11 Cal.5th 952 were transferred, one for reconsideration in light of Lewis and one for reconsideration in light of Lewis and Strong. And one case that was on hold for Lopez, Lewis, and Strong, was sent back for reconsideration in light of Strong, Lewis, and SB 775.
• Proposition 66 transfer. The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.) The petition was filed 12 years ago.