At the Supreme Court’s conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October, actions of note included:

  • Supreme Court turns down pre-election challenge to sports betting initiative.
  • Parts of clemency record will remain sealed.
  • Kidnapping by deception: The court granted the Attorney General’s petition for review in People v. Lewis, where a divided published opinion by the Fourth District, Division Three, Court of Appeal found insufficient evidence to support a charge of kidnapping to commit rape. (The court affirmed the defendant’s conviction of rape by intoxication.) Although inviting legislative evaluation of the issue, the majority holds the law does not provide that “an intoxicated adult victim can be kidnapped without any force, based on deception alone.” The dissent, on the other hand, asserts that “force or fear is not required to satisfy the asportation requirement of kidnapping when, as here, the victim is incapacitated due to intoxication.”
  • Sentence enhancement: Justice Joshua Groban recorded a dissenting vote from the denial of review in People v. Vanhook, where a 2-1 unpublished Third District opinion affirmed the refusal to strike a firearm enhancement, rejecting an argument the superior court didn’t understand its discretion. The dissenter said, “I do not agree that the trial court was necessarily aware of the many options available to it, any of which could have been deployed to fashion an appropriate sentence, as opposed to merely striking or not striking the unstayed enhancements.”
  • Criminal case grant-and-holds: There were seven criminal case grant-and-holds — six more holding for a decision in People v. Strong (see here) and one more holding for People v. Aguayo (see here and here).
  • Disposal of grant-and-holds:  The court removed from its docket eight more cases that had been waiting for last July’s decision in People v. Lewis (2021) 11 Cal.5th 952. Review was dismissed in four of them and the other four were sent back to Courts of Appeal for reconsideration in light of the Lewis opinion and SB 775. By our count, there are 44 other Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)