At its conference yesterday, the Supreme Court’s actions of note included:

  • Whistleblower. The court granted review in Brown v. City of Inglewood and limited the issue to: “Are elected officials employees for purposes of whistleblower protection under Labor Code section 1102.5, subdivision (b)?” (Link added.) In an unpublished opinion, the Second District, Division One, Court of Appeal, ruled that retaliation claims by a city’s elected treasurer should have been dismissed under the anti-SLAPP statute. It concluded that elected officials are not protected by the whistleblower statute because the Legislature has “unambiguously include[d] ‘elected officials’ in the definition of ‘employee’ for purposes of workers’ compensation, but not within the definition of ‘employee’ for purposes of section 1102.5.”
  • Gang enhancements. The court also agreed to hear, with limited issues, People v. Fletcher. The issues are: “(1) Does Assembly Bill No. 333 amend the requirements for a true finding on a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)), or is that determination made on ‘the date of that prior conviction’? (See Pen. Code, §§ 667, subd. (d)(1) & 1170.12, subd. (b)(1).) (2) Does Assembly Bill No. 333 (Stats. 2021, ch. 699), which modified the criminal street gang statute (Pen. Code, § 186.22), unconstitutionally amend Proposition 21 and Proposition 36, if applied to strike convictions and serious felony convictions?” (Link added.) A Fourth District, Division Two, partially published opinion held that “Assembly Bill 333 does not alter the definition of a serious felony or strike prior; to the extent it can be construed to do so, it runs afoul of constitutional requirements regarding legislative amendment of ballot initiatives.” Last year, the court granted review in People v. Rojas (see here) and limited the issue there to: “Does Assembly Bill No. 333 (Stats. 2021, ch. 699) unconstitutionally amend Proposition 21, if applied to the gang-murder special circumstance (Pen. Code, § 190.2, subd. (a)(22))?” Rojas will be argued next month. Fletcher already has its own grant-and-holds. (See below.)
  • Intra-division ICWA conflict. In re Delila D. is a grant-and-hold case concerning the federal Indian Child Welfare Act. It’s waiting for a decision in In re Ja.O. (see here), which is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. In Delila D., the Fourth District, Division Two, 2-1 published opinion held “there is only one duty of initial inquiry, and that duty encompasses available extended family members no matter how the child is initially removed from home.” It creates an unusual intra-division split (but those splits happen sometimes), concluding that an earlier Division Two decision — In re Robert F. — is “contrary to both the letter and spirit” of California legislation implementing ICWA. Robert F. is also a Ja.O. grant-and-hold. (See here.) Ja.O. is yet another Division Two opinion and it followed Robert F. The Delila D. dissenter — who concurred in the Robert F. opinion — said, “I see no reason to depart from the reasoning of our previous cases of Robert F. and Ja.O.” Neither of the justices in the Delila D. majority sat on the Robert F. or Ja.O. cases.
  • One-justice appeal dismissal. The court denied review in Kleidman v. Court of Appeal. The Fourth District, Division One, held in an unpublished opinion that the Second District’s administrative presiding justice “acting alone had authority to dismiss [an earlier appeal by the plaintiff] as untimely.” The Supreme Court transferred the case to the Fourth District from the Second District. (See here; related: Transferring cases from one Court of Appeal to another.)
  • Covid-related speedy trial violation. The court denied review in People v. Superior Court (Tapia), where a Fourth District, Division Two, published opinion affirmed the dismissal of a defendant’s assault-by-machete charge because the case against him was not brought within the statutorily required time and there wasn’t good cause to extend the deadline. Division Two held the trial court did not abuse its discretion in finding no good cause “because the unavailability of a judge and courtroom to try [the defendant’s] case, although ‘related to COVID,’ was caused mainly by the court’s chronic backlog predating the pandemic.” The Supreme Court has shown little interest in addressing the merits of pandemic-related trial-delay claims, but it has agreed to decide in Raju v. Superior Court whether taxpayers have standing to challenge alleged failures to expedite and prioritize criminal cases. (See here.) In Tapia, 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.
  • Criminal case grant-and-holds. There were four criminal case grant-and-holds:  Two are waiting for a decision in People v. Fletcher (see above) and two are on hold for People v. Emanuel (see here).
  • Capital habeas transfer. The court transferred a death row prisoner’s habeas corpus petition in In re Thomas to the superior court under Proposition 66 (see here and here). The court had unanimously affirmed the prisoner’s death sentence on direct appeal in People v. Thomas (2012) 53 Cal.4th 771.