At the Supreme Court’s double conference yesterday (“double” because the court didn’t conference last week when it was hearing oral arguments), actions of note included:

  • As discussed yesterday, Justice Goodwin Liu filed a separate statement explaining why he thinks the court wrongly declined to hear a Miranda-rights case.
  • As also discussed, the court responded positively to two Governor Gavin Newsom requests for clemency recommendations.
  • The court granted review for a second time, and depublished the Third District Court of Appeal’s opinion, in County of Butte v. Department of Water Resources, and it limited the issues to:  “1. To what extent does the Federal Power Act preempt application of the California Environmental Quality Act when the state is acting on its own behalf, and exercising its discretion, in deciding to pursue licensing for a hydroelectric dam project? 2. Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act to comply with the federal water quality certification under section 401 of the federal Clean Water Act?”  A year ago, the appellate court held that, under the Federal Power Act, it was the Federal Energy Regulatory Commission, not California courts, that had jurisdiction to review the environmental sufficiency of a state department’s federal application to extend its license to operate Oroville Dam and its facilities as a hydroelectric dam.  The Supreme Court granted review and sent the case back with directions to reconsider in light of its 2017 decision in Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677 (certiorari denied), which held that federal law does not preclude state public entity compliance with CEQA regarding a railroad project that the state owns.  After a second look, the Court of Appeal didn’t change its mind, because, the court said, “the Interstate Commerce Commission Termination Act (ICCTA), at issue in Eel River, is materially distinguishable from the [Federal Power Act].”
  • The court denied review and a depublication request in People v. Aviles, one of a number of published opinions disagreeing with People v. Dueñas (2019) 30 Cal.App.5th 1157, in which no petition for review was filed.  Last month, the court agreed to resolve the conflict between Dueñas and the other cases when it granted review in People v. Kopp and limited the issues to:  “Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments?  If so, which party bears the burden of proof regarding defendant’s inability to pay?”  It also later granted-and-held in People v. Hicks, another published opinion disagreeing with Dueñas.  Does the decision not to also grant-and-hold in Aviles and not to depublish the Aviles opinion indicate the court will overrule Dueñas?  Maybe.  What it definitely does do is leave the Aviles opinion on an equal precedential footing with Dueñas, allowing trial courts around the state — while Kopp is pending — to choose to follow either one.  A trial court could not choose Hicks over Dueñas, however, because of the grant of review in Hicks.  This is explained by the 2016 rule change about the precedential effect of review-granted opinions.
  • The court granted the Attorney General’s request to depublish the opinion of the Second District, Division One, in People v. Cadena.  (The AG didn’t petition for review.)  The appellate court held that a 30-years-to-life sentence under the “One Strike” law (related) for convictions of multiple child molestations “violates California’s constitutional prohibition against cruel or unusual punishment.”  The court also reversed convictions on two of six counts because, it said, “testimony by the [two victims] that defendant touched each of them two or three times is certain as to only two instances of unlawful conduct, not three.”
  • There were seven grant-and transfers, including two civil cases, three more Senate Bill 136 transfers (related:  here, here, and here), and one more In re Ricardo P. transfer (related:  here and here).
  • There were three criminal case grant-and-holds.