Supreme Court will resolve conflict about co-tenancy leasing requirements (and about punctuation?) [Updated]

At the Supreme Court’s Wednesday conference, a double one, actions of note included:

• Retail lease. The court agreed to hear JJD-HOV Elk Grove, LLC v. Jo-Ann Stores, LLC, where the Third District Court of Appeal’s published opinion framed the issue as “whether a co-tenancy provision in a retail lease for space in a shopping center is enforceable.” (The opinion even explains why it hyphenates “co-tenancy”: “because that is how the parties spell it.”) Under the provision, which the Third District upheld, the store-tenant pays a reduced rent to its shopping center-landlord if the shopping center does not have either three anchor tenants or 60 percent of the space leased. The appellate court disagreed with the Fifth District’s decision in Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332. Besides not hyphenating “cotenancy,” Grand Prospect found a rent abatement provision to be an unenforceable penalty. We assume the Supreme Court granted review to resolve the issue conflict, not the punctuation conflict. Review was denied in Grand Prospect.
• Sentencing harmlessness. The court also granted review in People v. Salazar and it there limited the issue to: “Did the Court of Appeal err by finding the record clearly indicates the trial court would not have imposed a low term sentence if it had been fully aware of its discretion under newly-added subdivision (b)(6) of Penal Code section 1170? (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)” (Link added.) The legislative change came after the superior court sentenced the defendant. Assuring that “[t]he Goddess of justice is not wearing a black armband today weeping for the California Constitution,” a 2-1 Second District, Division Six, published opinion said “[i]t is our Constitutional obligation to affirm a judgment, where a more favorable outcome will not result upon reversal.” The dissent criticized the majority for improperly “substituting its judgment for that of the trial court.”
• Gang enhancements. The court unheld People v. Burgos and limited briefing to: “Does the provision of Penal Code section 1109 governing the bifurcation at trial of gang enhancements from the substantive offense or offenses apply retroactively to cases that are not yet final?” Burgos was one of a number of cases waiting for a part of the August death penalty opinion in People v. Tran (2022) 13 Cal.5th 1169 concerning 2021’s Assembly Bill 333 (see here), but the opinion declined to resolve a split in Court of Appeal authority whether one part of the new law — Penal Code section 1109, which requires an enhancement charge to be tried only after a jury finds the defendant guilty of the underlying offense — is retroactive. The Sixth District’s 2-1 published Burgos opinion held the statute is retroactive and reversed second degree robbery convictions. The dissent claimed “section 1109 is not an ameliorative statute . . . and therefore it is subject to the general rule that Penal Code provisions are presumed to be prospective only.” The Supreme Court also acted on 16 other Tran grant-and-holds, converting seven of them to Burgos grant-and-holds and dismissing review in the remaining nine.
• ICWA grant-and-holds: The court granted-and-held in In re G.A. (Third District published opinion here), In re M.M. (the 2-1 Second District, Division Eight, published opinion here), and In re R.T. (the 2-1 Second District, Division Eight, unpublished opinion here). They are now all back-burnered pending a decision in In re Dezi C., where the court granted review last month 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. All three opinions found harmless error.
• Nunc pro tunc juvenile commitment: The court denied review in In re Jason V., but it depublished the First District, Division Two, opinion. Division Two held the superior court had ordered an impermissible maximum term of confinement for a minor’s commission of numerous robberies, but concluded the superior court could correct the error by a nunc pro tunc order, stating, “the category of error that may be viewed as ‘clerical’ for purposes of determining the validity of a nunc pro tunc order, is not limited to scrivener-type errors.” The issue was important because of intervening legislative action. The original order permissibly committed the minor to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (albeit for the wrong term), but the nunc pro tunc order was entered after legislation had taken effect barring that commitment — the new law shifted from the State to counties the responsibility for youths adjudged wards of the court.
• Mentally disabled parent. In a dependency case, Justice Joshua Groban recorded a dissenting vote from the denial of review in In re K.R., where a divided Fourth District, Division Two, unpublished opinion upheld the denial of reunification services to a mother based on a finding that she suffers from a mental illness making her incapable of utilizing the services. The disagreement among the Division Two justices focused in part on the interpretation in the Third District’s divided Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470 decision of statutes requiring evidence by two experts to bypass services. The dissent would decline to follow Curtis F., while the majority said that, although Curtis F. “reached a debatable conclusion,” it was “an established interpretation of the statute” because “the case has been cited many times in the ensuing decades, with no case declining to follow it and without the Legislature amending the statute to abrogate it.”
• Undercover jail conversations. Justice Goodwin Liu dissented from the denial of review in People v. Martinez. The 62-page unpublished opinion of the Fourth District, Division One, addressed several issues, so it’s not clear why Justice Liu wanted to hear the case, but one of the issues has been of repeated interest to him. Division One had no problem with the admission of statements the defendant made in jail — after he requested an attorney — to “an undercover detective and a cooperating individual, who were posing as fellow inmates.” The appellate court held that a suspect’s Miranda rights are not violated “in the absence of a suspect’s knowledge that he is speaking with an agent of police.” Three years ago, Justice Liu issued a separate statement in a case raising a similar issue. He asked, “How is it possible . . . that the protections of Miranda are so easily evaded?” (See more recently here and here.) The Martinez opinion notes the separate statement, saying that Liu had “indicated in his statement that he would grant review in order to consider the validity of th[e] case law [allowing the undercover police practice].”
• Parole denial. The court denied review in In re Mariscal, but Justice Liu recorded a vote to grant. The Second District, Division Five, order summarily denying the habeas corpus petition in the case stated there was “some evidence supporting the conclusion that petitioner poses a current, unreasonable risk of violence,” and it rejected challenges to parole procedures and to regulations concerning parole consideration for determinately sentenced inmates.
• [Update: PAGA constitutionality. The court denied review in California Business & Industrial Alliance v. Becerra, where the Fourth District, Division Three, rejected a constitutional attack on the Labor Code Private Attorneys General Act. According to the published opinion, a “lobbying group for small and midsized businesses” sought a declaration that “PAGA violates California’s separation of powers doctrine by allowing private citizens to seek civil penalties on the state’s behalf without the executive branch exercising sufficient prosecutorial discretion.” Division Three said it was bound by the Supreme Court’s constitutionality ruling in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, and it also didn’t think much of the plaintiff’s argument anyway. The Supreme Court has agreed to decide other PAGA cases. (See here and here.)]
• Possible habeas relief. The court issued an order to show cause on the habeas corpus petition in In re Tibbs. The order requires the Fourth District, Division One, to determine whether relief should be granted “on the ground the trial court and court of appeal misapplied the standard for establishing a prima facie case for relief (Petn. at p. 29; see also Cal. Rules of Court, rule 4.551, subd. (c)(1); People v. Romero (1994) 8 Cal.4th 728, 737-738, 741-742; People v. Duvall (1995) 9 Cal.4th 464, 474-475) and on the separate ground that petitioner has presented newly discovered evidence of such decisive force and value that it would have more likely than not changed the outcome at trial (Pen. Code, § 1473, subd. (b)(3)(A)).”
• Expedited habeas relief: In In re Wade, after the Third District summarily denied a pro per’s habeas corpus petition and after a concession by the Attorney General, the Supreme Court ordered the superior court “to vacate its July 25, 2022, order denying petitioner’s motion for release on bail pending appeal and to properly exercise its discretion in ruling on the motion. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.)” The cited footnote states, “The right to file a return in a habeas corpus proceeding is subject to waiver. Upon being served with a copy of the petition, or upon receiving a request from the court for informal opposition . . ., the petitioner’s custodian may stipulate to the truth of the petition’s allegations and to the requested relief. Should this occur, the court in which the habeas corpus petition is pending may grant relief without issuing a writ of habeas corpus or an order to show cause.” The Attorney General filed an answer to the petition for review at the Supreme Court’s request.
• Criminal case grant-and-holds. There were seven criminal case grant-and-holds:  five more waiting for People v. Lynch (see here); one more holding for People v. Delgadillo (see here), which was argued 11 days ago; and one more for In re Lopez (see here and here).
• Strong and Lewis actions. August’s decision in People v. Strong (2022) 13 Cal.5th 698 and last year’s decision in People v. Lewis (2021) 11 Cal.5th 952 — both involving 2018’s Senate Bill No. 1437, which narrowed murder liability under the felony murder theory and eliminated it under the natural and probable consequences doctrine — continued to occupy court conference time. The court granted review in two cases and transferred them back to the Courts of Appeal for reconsideration in light of Strong and it dismissed review in one Strong grant-and-hold, one Lewis grant-and-hold, and one case that was a grant-and-hold for both Strong and Lewis. Six grant-and-hold cases were sent back for reconsideration: a Strong and Lewis grant-and-hold will be reconsidered in light of, of course, Strong and Lewis; five Lewis grant-and-holds will be reconsidered — one in light of Lewis and Strong, three in light of Lewis alone, and one in light of Senate Bill 775 (see here). We were wrong when we thought the court had already taken care of the last of the many Lewis grant-and-holds. (See here.)