Here are some of the notable actions at yesterday’s Supreme Court conference, a double one:

Striking a strike. The court granted review in People v. Dain, and it limited the issue to: “Did the Court of Appeal err in remanding the case with directions to reinstate the strike finding and to resentence defendant as a person who has suffered a prior strike conviction under the Three Strikes Law? (See People v. Williams (1998) 17 Cal.4th 148, 164, fn. 7; see also People v. McGlothin (1998) 67 Cal.App.4th 468, 478; People v. Humphrey (1997) 58 Cal.App.4th 809, 814; but see People v. Mayfield (2020) 50 Cal.App.5th 1096, 1109; People v. Strong (2001) 87 Cal.App.4th 328, 347.)” In a published opinion, the First District, Division Two, Court of Appeal held the superior court’s ruling that struck the strike was an abuse of discretion and had erroneously taken into account Penal Code section 1385(c), which specifies various “mitigating circumstances” a court is to consider when deciding whether to “dismiss an enhancement.” Section 1385 was inapplicable, Division Two said, because “ ‘the Three Strikes law is not an enhancement.’ ” The appellate court also found inapplicable the Legislature’s intent statement in newly enacted Assembly Bill 600 that, in resentencing proceedings under section 1172.1, which the bill amended, “courts have full discretion . . . to reconsider past decisions to impose prior strikes” and that “[c]ourts should consider Section 1385.” Division Two brushed off the statement as “an uncodified declaration in a subsequent law amending a different statute” (cf. People v. Montgomery below) and said that, in any event, neither the addition of section 1385(c) nor AB 600 could amend the Three Strikes Law because they were not passed by the requisite two-thirds legislative vote.

Plea bargain withdrawal. The court decided to also hear People v. Montgomery. The First District, Division Three, published opinion accepted the Attorney General’s concession that, when the superior court struck an enhancement — imposed under a plea bargain — under 2021’s Senate Bill 483, the court wrongly failed to hold a full resentencing hearing. It also ruled against the Attorney General, concluding the prosecution wouldn’t be able to withdraw from the plea bargain because of any sentence reductions at the resentencing hearing. Unlike Division Two in Dain (see above), Division Three did find compelling an uncodified declaration of legislative intent, this one in SB 483. Agreeing with the Fourth District, Division One, decision in People v. Carter (2023) 97 Cal.App.5th 960, but disagreeing with the First District, Division One, decision in People v. Coddington (2023) 96 Cal.App.5th 562, Division Three said, “the Legislature intended to prohibit the prosecutor from withdrawing from a plea bargain for any reduction to a sentence, even if the reduction resulted from a code provision other than those enacted by Sen. Bill 483.” There was no petition for review in Carter. The court denied a depublication request in Coddington, but Justice Kelli Evans voted to grant review on the court’s own motion. (See here.)

[June 6 update: Here’s the issue as summarized by court staff — “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements (Pen. Code, § 667.5, subd. (b))?”]

Double jeopardy vote to grant. The court denied review in People v. Superior Court (Woodward) over Justice Evans’s recorded dissenting vote. The Sixth District’s published opinion vacated the dismissal of a refiled murder case. There had been two prior hung juries and, after the second one, the trial court dismissed the case “in the furtherance of justice for insufficiency of the evidence.” The appellate court held that, under the Supreme Court’s decision in People v. Hatch (2000) 22 Cal.4th 260, double jeopardy principles didn’t bar the refiling. Hatch stated, “[w]here a court merely ‘disagrees with a jury’s resolution of conflicting evidence and concludes that a guilty verdict is against the weight of the evidence,’ [ ] a reversal or dismissal on that ground does not bar retrial.” Quoting Hatch, the Sixth District relied on the “default presumption”: “unless the record clearly indicates the court applied the substantial evidence standard in deciding the evidence was legally insufficient to prove guilt beyond a reasonable doubt, ‘we will assume the court did not intend to dismiss for legal insufficiency and foreclose reprosecution.’ ” A concurring justice agreed that a reversal was compelled by Hatch, but otherwise would have concluded the “dismissal here [after the second mistrial] is an acquittal that bars retrial” under later U.S. Supreme Court decisions that “ ‘erode the analytical foundations’ of Hatch,” and the justice “respectfully urge[d] the California Supreme Court to reexamine the continuing vitality of Hatch’s narrow definition of an acquittal under federal double jeopardy principles.” The urging went unheeded, except for Justice Evans.

Another vehicle sales arbitration grant-and-hold.  Davis v. Nissan North America is another grant-and-hold for the Ford Motor Warranty Cases (see here), where the court limited the issue to: “Do manufacturers’ express or implied warranties that accompany a vehicle at the time of sale [by a dealer] constitute obligations arising from the sale contract [between the dealer and a buyer], permitting manufacturers to enforce an arbitration agreement in the contract pursuant to equitable estoppel?” In Davis, the Fourth District, Division One, in a 2-1 published opinion, answered “no.” (See also here.)

Another ICWA grant-and-hold. In re Ryder S. is another grant-and-hold for In re Dezi C. (see here), where the court agreed to decide what constitutes reversible error when a child welfare agency fails to make the required inquiry under the federal Indian Child Welfare Act and state statutory law concerning a child’s potential Indian ancestry. Dezi C. will be argued next week. The unpublished Second District, Division Four, opinion in Ryder S. applied the test in the Dezi C. Court of Appeal opinion in finding harmless failures in initial inquiry duties.

COVID speedy trial claim.  The court denied review in People v. Osborne, where a Fourth District, Division Two, unpublished opinion affirmed the dismissal of a burglary case because of a violation of the defendant’s right to a speedy trial. Division Two rejected the prosecution claim that the COVID pandemic was an exceptional circumstance creating good cause for the delay in bringing the case to trial. It said, “While the pandemic was an ongoing circumstance in October 2022 [when the defendant moved to dismiss the charges filed in June 2019], to describe anything that has been going on for two and one-half years as ‘exceptional’ would undermine the word ‘exceptional.’ In other words, anything lasting for two and one-half years tends to become more ordinary than exceptional.” Chief Justice Patricia Guerrero and Justice Carol Corrigan were recused, probably because they are, respectively, the chair and a member of the Judicial Council, which issued jury-trial-suspension orders during the pandemic. In Raju v. Superior Court, the court will decide whether taxpayers have standing to sue a superior court for improper pandemic-related delays in bringing criminal cases to trial. (See here.)

Criminal case grant-and-holds. There were eight criminal case grant-and-holds:  one more holding for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here); two more waiting for People v. McCune (see here), which was argued last week; another one on hold for People v. Lopez (see here); two more waiting for In re Hernandez (see here); one more holding for People v. Rhodius (see here); and one more on hold for People v. Superior Court (Guevara) (see here).

Grant-and-hold dispositions (see here). The court rid its docket of two cases that had been waiting for the February gang-enhancement opinion in People v. Clark (2024) 15 Cal.5th 743 (see here). One was transferred to the Court of Appeal for reconsideration in light of Clark and People v. Cooper (2023) 14 Cal.5th 735 (see here). The other was transferred for reconsideration in light of only Clark.