At the Supreme Court’s conference yesterday, actions of note included:
- SVPA expert witness. The court granted a district attorney’s petition for review in Needham v. Superior Court. The 2-1 published opinion of the Fourth District, Division Three, Court of Appeal held the State is not allowed to call a privately retained psychological expert in a proceeding under the Sexually Violent Predator Act to determine whether a person is a sexually violent predator who is to be subject to involuntary civil commitment and treatment at the conclusion of their prison term. The appellate court wrote that the SVPA is “an extraordinary deprivation of a person’s liberty” because “it enables the state to indefinitely detain a person, not for a crime actually committed, but for a crime that may be committed in the future.” It concluded that the Legislature created “a one-sided right,” allowing a defendant, but not a prosecutor, to hire an expert and that the prosecution must be content with the up to eight independent experts provided for in the SVPA. One justice dissented, although he said the issue “is a close one.”
- Wage claims. The court granted review in Seviour-Iloff v. LaPaille and it limited the issues to: “1. Must an employer demonstrate that it affirmatively took steps to ascertain whether its pay practices comply with the Labor Code and Industrial Welfare Commission Wage Orders to establish a good faith defense to liquidated damages under Labor Code section 1194.2, subdivision (b)? 2. May a wage claimant prosecute a paid sick leave claim under section 248.5, subdivision (b) of the Healthy Workplaces, Healthy Families Act of 2014 (Lab. Code, § 245 et seq.) in a de novo wage claim trial conducted pursuant to Labor Code section 98.2?” (Links added.) Concluding section 1194.2 “giv[es] the trial court considerable latitude to exercise its discretion and requir[es] only that the employer demonstrate good faith and reasonableness ‘to the satisfaction of the court,’ ” the First District, Division One, published opinion upheld a superior court decision declining to award liquidated damages. It also concluded “there is no private right of action to seek administrative penalties under section 248.5.”
- Restitution jurisdiction. The court also agreed to hear People v. McCune, where the First District, Division Five, published opinion held the superior court could set the amount a defendant was required to pay in restitution to a crime victim even though the defendant’s parole had been terminated. Division Five reached the same conclusion as had the Fourth District, Division One, in People v. Zuniga (2022) 79 Cal.App.5th 870, a case Division Five concluded was “on all fours with our case,” but it found to be “somewhat unsatisfying” and as “leav[ing] the law muddled” an analysis in Zuniga distinguishing rather than disagreeing with a First District, Division One, opinion (People v. Waters (2015) 241 Cal.App.4th 822) and one by the Second District, Division Three (Hilton v. Superior Court (2014) 239 Cal.App.4th 766). The Supreme Court granted-and-held in Hilton, dismissed review after the lead case was decided, and later granted a request to republish the appellate court’s opinion. (This was before the Supreme Court changed the rule that a grant of review automatically depublished the Court of Appeal opinion.) The Supreme Court denied review in Zuniga. There was no petition for review in Waters.
- Girardi State Bar files disclosure. In Los Angeles Times Communications v. State Bar of California, the court accepted the Bar’s concession in an original writ proceeding the court agreed to hear (see here). According to the order, the Bar “intends ‘to release information about past disciplinary investigations concerning Mr. Girardi’ to the extent it believes it is permitted to do so [by statute].” The court said, “we expect that [the Bar] will disclose the information . . . to the petitioner as soon as possible, and no later than November 7, 2022.” It also directed the parties to meet and confer and quickly file briefs, apparently to determine whether the case should continue. The order states that the LA Times responded to the Bar’s concession by “contending this case continues to present issues ‘of public significance’ for which ‘there is a need for clarification of the law.’ ” Justice Leondra Kruger was recused.
- Creative expression evidence. In People v. Venable, the Fourth District, Division Two, unpublished opinion mostly affirmed a conviction for first degree murder with gang enhancements, including rejecting an argument that the superior court erred in allowing evidence of a rap video in which the defendant appeared. The appellate court was partially divided, but not on the rap video evidence. The Supreme Court granted review and remanded for Division Two to reconsider in light of Assembly Bill 2799, enacted last month with the Legislature’s stated purpose “to provide a framework by which courts can ensure that the use of an accused person’s creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.” Only five justices voted to grant review; Justices Carol Corrigan and Kruger did not.
- Dependency mootness. The court granted-and-held in In re V.G., which is now another case waiting for the court’s decision in In re D.P. Review was granted in D.P. in in May 2021 and the issues were limited to: “(1) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she has been or will be stigmatized by the finding? (2) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she may be barred from challenging a current or future placement on the Child Abuse Central Index as a result of the finding?” Without opinion, the Second District, Division Six, dismissed a father’s appeal in V.G.
- Prisoner medical needs. The court issued an order to show cause in a pro per’s habeas corpus petition, In re Garcia, returnable in the superior court, directing a hearing on whether “[a county’s] [j]ail officials have demonstrated deliberate indifference to petitioner’s medical needs within the meaning of Fourteenth Amendment.”
- Criminal case grant-and-holds. There were two criminal case grant-and-holds: one more holding for People v. Delgadillo (see here), which was argued at the beginning of the month, and one more waiting for People v. Lynch (see here).
- Grant-and-hold disposals. There were many. This post will be updated with details. [Update: The court dumped 41 grant-and-holds. 39 had been on hold for August’s decision in People v. Strong (2022) 13 Cal.5th 698; 32 were transferred to the Courts of Appeal for reconsideration in light of the Strong opinion and review was dismissed in the remaining seven. One case was still on hold for last year’s decision in People v. Lewis (2021) 11 Cal.5th 952; it was transferred for reconsideration in light of Lewis. (The case is the oldest of this week’s former grant-and-holds — the court granted review almost two years ago and the notice of appeal was filed in September 2019.) And one case, waiting for both Lewis and Strong was transferred for reconsideration in light of Lewis and Strong.]