There were two straight grants, a depublication order, and other actions of note at yesterday’s Supreme Court double conference. Here’s a partial rundown (with discussions to follow later about other actions):
Death penalty writ petition. Supplemental briefing order further delays ruling on anti-death-penalty writ petition.
Dependency mootness. The court granted review in In re S.R. after the Second District, Division Eight, Court of Appeal unpublished order dismissed as moot a mother’s appeal of a dependency ruling removing her two youngest daughters from her custody. Division Eight concluded a subsequent ruling returning the daughters to the mother established mootness. The petition for review argued the appeal is not moot because the factual finding underlying the removal order is reportable to California’s Child Abuse Central Index. The Supreme Court last year addressed dependency order mootness in In re D.P. (2023) 14 Cal.5th 266 (see here). It explained the “several consequences for parents” that “[i]nclusion in the CACI carries,” but found mootness because the parent there had “not shown that the . . . allegation against him was reported for inclusion in the CACI, nor . . . that this type of allegation is reportable.” (Id. at pp. 279-280.) The petition in S.R. asserted that reporting the allegations against the mother was required, even though she did not have proof that reporting had in fact occurred. The S.R. grant is not the first indication that D.P. didn’t fully settle the mootness issue. In July, the court depublished an opinion applying D.P. Also, in D.P. itself, after the Supreme Court reversed a mootness dismissal of the appeal, the Court of Appeal on remand reversed the appealed dependency order.
[September 13 update: Here are the issues as summarized by court staff — “(1) When a juvenile court’s jurisdictional findings establish that a parent committed an offense that the law requires be reported to the statewide Child Abuse Centralized Index (CACI), should an appellate court presume, on an otherwise silent record, the offense has been or will be reported to CACI? (2) If unrebutted, is this presumption sufficient to avoid dismissal for mootness?”]
Lesser-included-offense sentencing. The court also agreed to hear People v. Meno. The Fourth District, Division One, published opinion rejected a claim of sentencing error in a case where the defendant’s drunk driving caused the death of two of his passengers. The case concerns the rule that a defendant can’t be punished for multiple offenses for the same act when one offense is a necessarily included offense of the other. Division One held the superior court properly struck the more serious convictions (for manslaughter while intoxicated with ordinary negligence) and sentenced the defendant for the lesser convictions (driving under the influence causing bodily injury and driving with an excessive blood alcohol content causing injury). The defendant claimed it should have been the other way around since, once sentence enhancements were added, the lesser convictions yielded a longer sentence than a sentence for the greater convictions. But the appellate court concluded “where, as here, the necessarily included offense carries the longer potential sentence, . . . there is no requirement that the trial court vacate the necessarily included offense, so long as the court does not maintain convictions for both offenses.” It disagreed with the Second District, Division Six, opinion in People v. Binkerd (2007) 155 Cal.App.4th 1143. In Binkerd, the Supreme Court denied the defendant’s petition for review and also the Attorney General’s depublication request.
[September 13 update: Here’s the issue as summarized by court staff — “Does a trial court have discretion to dismiss either the greater or lesser included offense involving the same conduct of driving under the influence causing death in order to avoid the prohibition against multiple convictions based on necessarily included offenses?”]
Dependency depublication. The court denied review in In re Kieran S., but it depublished the Second District, Division Seven, belatedly published opinion. The case was originally a grant-and-hold for In re N.R. (2023) 15 Cal.5th 520 (see here) and was remanded for reconsideration in light of N.R. (see here). In N.R., the Supreme Court rejected a narrow definition of what constitutes a parent’s “substance abuse” that could lead to the removal of a child, but it also limited the circumstances under which substance abuse requires making the child a dependent of the court. On remand, Division Seven held in Kieran S. that “under In re N.R. [the mother’s] substance abuse still put [her young child] at a substantial risk of serious physical harm.”
Racial Justice Act order to show cause. The court issued an order to show cause in a pro per’s habeas corpus petition in In re Taylor. Cause is to be shown in the Second District, Division Two, “why petitioner has not satisfied the requirements for the appointment of counsel pursuant to Penal Code section 1473, subdivision (e) and for the production of discovery pursuant to Penal Code section 745, subdivision (d).” The statutes are part of California’s Racial Justice Act. (See here and here.)
Newly discovered evidence order to show cause. In In re Aguero, the court granted review and sent the case back to the Sixth District, which had partially denied a habeas corpus petition. The Court of Appeal is directed to issue an order to show cause, returnable in the superior court, “why petitioner is not entitled to relief on the ground that newly discovered expert testimony related to the victim’s cause of death is sufficiently material and credible that it more likely than not would have changed the outcome of the case under Penal Code section 1473, subdivision (b)(1)(C)(i), and whether trial counsel was ineffective for failing to investigate and present expert testimony related to the victim’s cause of death and the admissibility of petitioner’s recorded interview statements.” The Sixth District had previously issued an order to show cause only as to “the claims that counsel was ineffective for failing to investigate and present expert testimony related to the cause of death and the admissibility of petitioner’s recorded interview statements.”
Bond voting grant-and-hold. City of Escondido v. Fawcett is a grant-and-hold for City of San José v. Howard Jarvis Taxpayers Association (see here), where the court limited the issue to: “Is the issuance of pension obligation bonds to finance unfunded pension liability subject to the voter-approval requirement of article XVI, section 18, subdivision (a) of the California Constitution?” (Link added.) The constitutional provision requires a two-thirds voter approval for a city to “incur any indebtedness or liability in any manner or for any purpose exceeding in any year the income and revenue provided for such year.” In the Escondido case, the Fourth District, Division One, unpublished opinion found persuasive the Sixth District’s opinion in City of San José and concluded “the debt limitation is inapplicable.”
Dezi C. grant-and-hold. In re A.G. is a grant-and-hold waiting for the finality of last month’s opinion in In re Dezi C. (2024) __ Cal.5th __ [324 Cal.Rptr.3d 275], where the Supreme Court held an inadequate investigation under the federal Indian Child Welfare Act and complementary California statutes requires automatic reversal and a remand for an appropriate inquiry (see here). The Second District, Division Four, unpublished opinion in A.G., on the other hand, applied a harmless error analysis.
Arbitration forfeiture grant-and-hold. Keeton v. Tesla, Inc. is another grant-and-hold for Hohenshelt v. Superior Court (see here), in which the court is expected to address whether the Federal Arbitration Act preempts state statutes prescribing the procedures for paying arbitration fees and providing for forfeiture of the right to arbitrate if timely payment is not made by the party who drafted the arbitration agreement and who is required to pay such fees. In Keeton, an employment discrimination, harassment, and retaliation case, the First District, Division One, partially published opinion held there was no preemption.
[Update:
Imperfect self-defense dissenting vote. Over the recorded dissenting vote of Justice Goodwin Liu, the court denied review in People v. Issac. The Fifth District’s unpublished opinion rejected the invitation, as the appellate court put it, to “revisit the California Supreme Court’s ruling in People v. Elmore (2014) 59 Cal.4th 121 . . . and find that imperfect self-defense may be based on a purely delusional belief of the need to defend oneself.” Justice Liu signed a concurring and dissenting opinion by Justice Joyce Kennard in Elmore and he again criticized Elmore in a concurring opinion last year in People v. Schuller (2023) 15 Cal.5th 237 (see here). The Fifth District said, “while Justice Kennard’s and Justice Liu’s arguments are both well-reasoned and compelling, as an interim court we are bound by the ruling in Elmore.” A concurring justice wrote, “I concur with the opinion but do not necessarily adopt the majority’s characterization of the [Elmore and Schuller] dissents being ‘well-reasoned and compelling.’ ” Justice Kelli Evans signed Justice Liu’s separate opinion in Schuller, but she didn’t vote for review in Issac.
Miranda statement dissenting vote. Justice Liu also recorded dissenting votes from the denials of review in In re Singh and People v. Singh. Justice Liu didn’t say what issue or issues attracted his attention, so we’re guessing what caused the vote. There was an opinion (partially published, by the Fifth District) only in the latter matter and that opinion covered several issues. Two of them concerned a police interview with the defendant after his arrest for murder, an interview that was conducted in Punjabi and translated by an officer. The defendant unsuccessfully argued that “a critical component of the [Miranda] warning was lost in the translation process” and that the interview, “as translated, infused the trial with implicit bias in violation of the California Racial Justice Act of 2020 [see here and here].”
Resentencing procedure dissenting vote. The court denied review in People v. Boyd, but Justice Joshua Groban recorded a vote to grant. The Fourth District, Division Two, published opinion picked sides in a conflict whether an unauthorized sentence could be challenged by a trial court motion and, if necessary, an appeal from the denial of a motion or by a habeas corpus petition. Division Two followed the Second District, Division Two, decision in People v. King (2022) 77 Cal.App.5th 629 instead of the Fourth District, Division One, opinion in People v. Codinha (2023) 92 Cal.App.5th 976, concluding that a habeas corpus petition is the way to go. The appellate court nonetheless treated the appeal before it as a habeas corpus petition “in the interest of judicial economy” and it granted the petition, giving the defendant slightly more custody and conduct credits. The Supreme Court denied review in King. There was no petition for review in Codinha.
COVID restrictions. The court denied review in Ghost Golf, Inc. v. Newsom. Justice Evans was recused. In a published opinion, the Fifth District found unavailing a challenge to restrictions on businesses imposed during the COVID pandemic. The Fifth District followed the Third District’s opinion in Newsom v. Superior Court (Gallagher) (2021) 63 Cal.App.5th 1099, of which the Supreme Court denied review (see here). It reached the merits despite the case having been mooted by the lifting of the restrictions, because the appeal “raises questions of broad public interest that are likely to recur.”
COVID trial delay. The court denied review in People v. Mundy. Among other things, the Third District’s unpublished opinion rejected a criminal defendant’s argument that he was prejudiced by a three-month interruption of his trial at the outset of the COVID pandemic and by various health-related measures imposed when the trial resumed, including the masking of jurors. 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 more waiting for a decision in People v. Patton (see here), one more on hold for In re Hernandez (see here), and one more holding for People v. Wiley (see here).
Grant-and-hold dispositions (see here). The court disposed of two cases that were holding for the Sexually Violent Predator Act opinion in Needham v. Superior Court (2024) 16 Cal.5th 333 (see here). The court dismissed review in one and sent the other one back to the Court of Appeal for reconsideration in light of Needham.