It was a light Supreme Court conference yesterday, with the court ruling on only 64 matters. But there were some notable actions, including:
Statements made to undercover police agent.
The court agreed to hear People v. Allen and, uncommonly, it added an issue to be briefed besides “the issue presented in the petition for review.” (Rule 8.516(b)(2) [“The court may decide an issue that is neither raised nor fairly included in the petition or answer if the case presents the issue and the court has given the parties reasonable notice and opportunity to brief and argue it”].) The Second District, Division One, Court of Appeal’s unpublished opinion found “persuasive” the Second District, Division Two, decision in People v. Orozco (2019) 32 Cal.App.5th 802 and held to be admissible a jailed defendant’s statements that were made — after the defendant had invoked his Miranda right to remain silent — to a police agent posing as a fellow inmate.
The U.S. and California supreme courts have held Miranda warnings are not necessary before a defendant speaks to an undercover agent, but neither has decided whether that so-called Perkins operation (Illinois v. Perkins (1990) 496 U.S. 292) is OK after the defendant has said he doesn’t want to be questioned. Justice Goodwin Liu has been targeting the issue for review for some time, including filing two separate statements on review denials. (See here, here, here, here, here, and here.) Now might finally be its time. (See Wait for it: issue percolation, right vehicles, and legislative inaction.) The Supreme Court denied review in Orozco with no recorded dissents.
The issue only “might” be addressed because the court directed the parties to also brief, “What effect, if any, does the fact that the interrogating officer continued questioning after petitioner invoked his Fifth Amendment right to silence have upon the admissibility of the statements subsequently obtained during the Perkins operation?” In the superior court, the defendant argued the statements made to the undercover agent were the fruit of the poisonous tree, the poisonous tree being the officer’s earlier illegal questioning. If the Supreme Court goes with the defendant on this additional issue, it might avoid deciding the Perkins issue.
[November 22 update: Here is the issue as summarized by court staff (see here) — “(1) If a defendant has invoked his right to remain silent while being interrogated by a law enforcement officer, are incriminating statements obtained through a subsequent Perkins operation (i.e., the use of an undercover agent to question a jailed defendant) admissible as substantive proof of the defendant’s guilt at trial? (See Illinois v. Perkins (1990) 496 U.S. 292; Miranda v. Arizona (1966) 384 U.S. 436.) (2) What effect, if any, does the fact that the interrogating officer continued questioning after petitioner invoked his Fifth Amendment right to silence have upon the admissibility of the statements subsequently obtained during the Perkins operation?”]
Warrantless search dissenting votes?: Over the recorded dissenting votes of Justices Liu and Kelli Evans, the court denied review in People v. Bridgette. The Fourth District, Division Three, unpublished opinion rejected three arguments for reversing a conviction of two different sexual assaults: “1) the trial court erred in failing to suppress incriminating evidence that was seized during a warrantless search of his home, 2) the trial court erred in denying his request for a separate trial as to each victim, and 3) the jury instruction on the use of propensity evidence was fundamentally unfair.” The dissenting votes are not explained, so we don’t know which issue or issues the two justices wanted to hear. (There’s a fairly simple cure for that: When a message vote’s message is muddled.) On the first issue, Division Three held that, even if police officers didn’t have lawful consent to enter the defendant’s home, exigent circumstances justified the officers’ entry.
More dissenting votes for review about youth offender parole denial. Justices Liu and Evans also recorded dissenting votes from the denial of review in People v. Scott. The Second District, Division Eight, unpublished opinion rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, here, here, here, here, here, and here). It seems unlikely the court will ever grant review in any such case unless a Court of Appeal goes against the tide and adopts a defense cruel-or-unusual argument. (See: The Supreme Court doesn’t decide all important issues.)
[November 22 update:
Release of liability supplemental briefing. The court requested supplemental briefing in Whitehead v. City of Oakland (see here) on this issue: “Does the release in this case extend to a claim that the City of Oakland violated Government Code section 835 et seq., in light of Civil Code section 1668, which provides in relevant part that ‘[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own . . . violation of law, whether willful or negligent, are against the policy of the law’? (Cf. City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 763 [Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 ‘found a release of liability for future ordinary negligence void on public policy grounds other than those set forth in section 1668‘].)”]
Criminal case grant-and-holds. There were four criminal case grant-and-holds: one more waiting for a decision in People v. Mitchell (see here and here), another two holding for People v. Rhodius (see here), and one more on hold for People v. Superior Court (Guevara) (see here and here).