At its Wednesday conference, the Supreme Court declined to review an assumption-of-the-risk decision in favor of an injured baseball game spectator.  It also denied review in two more pandemic docket cases and depublished the opinion in one of them.  Other conference actions of note included:

  • The court agreed to review the divided Fifth District Court of Appeal’s unpublished opinion in People v. Ramirez.  The defendant there was convicted of attempted burglary even though he wasn’t in court on the one day the case was presented to the jury because he went to the emergency room for treatment of a heroin overdose.  The appellate court majority found the record supported the superior court’s finding that defendant voluntarily absented himself from trial.  It didn’t decide whether the superior court’s failure to nonetheless continue the trial for a day was an abuse of discretion because it held any error in not doing so was harmless beyond a reasonable doubt.
  • The court granted review in In re E.F. and it limited the issues to:  “When the prosecution moves for a temporary restraining order in a juvenile wardship proceeding without having given advance notice to the minor, must it be shown that:  (a) ‘great or irreparable injury will result’ before the matter could be heard with proper notice, and (b) the prosecution notified the minor within a reasonable time prior to the hearing regarding when and where the order would be sought, or attempted the notify the minor, or for specified reasons should not have been required to notify the minor?  (See Welf. & Inst. Code, § 213.5, subd. (b); Code of Civ. Proc., § 527, subd. (c).)”  In a published opinion, the Second District, Division Two, disagreed with a Division Six decision — In re L.W. (2020) 44 Cal.App.5th 44 — and held advance notice is not required.  The Supreme Court denied review in L.W., but the petition for review was filed by the juvenile and presumably raised an issue other than the notice issue, on which he had prevailed.
  • The court granted review in and transferred People v. Superior Court (Cal Cartage Transportation Express, LLC) to the Second District, Division Four, which had summarily denied a writ petition.  The appellate court now will issue an opinion on the merits.  According to an Attorney General amicus curiae brief that urged writ review (the writ petition itself was filed by the Los Angeles City Attorney), the issue is whether the Federal Aviation Administration Authorization Act (FAAAA), 49 U.S.C., section 14501(c)(1), preempts Assembly Bill 5, as applied to motor carriers.  AB 5 codified and clarified the Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, which limited employers’ rights to call workers independent contractors.
  • The court denied review in People v. Robbins, but Justices Mariano-Florentino Cuéllar and Leondra Kruger recorded votes to grant.  It is not clear why they wanted the court to hear the case, because the 51-page Fourth District, Division One, unpublished opinion addresses several different issues and the two justices didn’t publicly explain their votes.  (See here.)  The lead issue on appeal was the superior court’s removal of a lone-holdout juror for failing to deliberate and for exhibiting racial bias, based on other jurors’ reports that the one juror had said, “two White people accus[ing] a [B]lack person” is “the way it goes all the time.”
  • The court asked the Attorney General for supplemental briefing in People v. McDaniel, an automatic death penalty appeal.  The brief is to respond to a question “raised in . . . appellant’s Opening Brief:  Do Penal Code section 1042 and article I, section 16 of the California Constitution require that the jury unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict?  If so, was appellant prejudiced by the trial court’s failure to so instruct the jury?”  The defendant will be allowed to reply.
  • The court issued an order to show cause, returnable in the superior court, in In re Colbourn, a pro per habeas corpus petition apparently raising an issue whether prior prison term enhancements should be dismissed under Senate Bill 136 (see here).
  • There were six criminal case grant-and-holds:  three more holding for a decision in People v. Lewis (see here); and one more each holding for People v. Frahs (see here) (which was decided today), People v. Tirado (see here), and People v. Kopp (see here and here).
  • The court shed 20 prior grant-and-holds, either dismissing review or transferring the cases back to the Courts of Appeal for reconsideration in light of the lead case.  The lead case for 18 of the grant-and-holds was People v. Jimenez (see here).  For the other two, the lead case was People v. Bullard (see here).  Jimenez and Bullard were both Proposition 47 cases.