Tag: Weekly conference reports

The day-early, Thanksgiving week conference didn’t produce many highlights. Here are some, mostly involving Senate Bill 1437, legislation that limited criminal liability for felony murder and eliminated it for murder under the natural-and-probable-consequences doctrine:

Pardon recommendation. The court granted Governor Gavin Newsom’s July request for a constitutionally required recommendation that allows him to pardon David Anguiano for 2007 convictions of possessing a dangerous weapon and transporting a controlled substance. Newsom has a nearly perfect clemency record: he withdrew one request before a ruling, but the court — applying a deferential standard (see here and here) — has approved all 68 of his other requests (not counting two that are pending). That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants. The denial of a request implies that a clemency grant would be an abuse of power.

Murder resentencing dissents. Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denial of review in People v. Chavarria. (The conference results list reports they dissented, but the case’s online docket does not.) The Fourth District, Division Two, Court of Appeal’s unpublished opinion affirmed the denial of the defendant’s resentencing petition under SB 1437. The opinion states, “The trial court issued an order to show cause and, after the evidentiary hearing, denied the petition, concluding that defendant was a major participant in the kidnapping and acted with reckless indifference to human life.”

Habeas grant and transfer. The court granted review in In re Lee and sent the case back to the Second District, Division Four, with directions to issue an order to show cause. Division Four had summarily denied the habeas corpus petition stating, “The petition is untimely and petitioner has failed to establish justification for the substantial delay. (In re Robbins (1998) 18 Cal.4th 770, 780, 789.) In addition, petitioner fails to demonstrate a prima facie case warranting habeas relief.” The Supreme Court and Court of Appeal dockets don’t indicate what is in issue, but Division Four had four years ago affirmed, in an unpublished opinion, a superior court order summarily denying the defendant’s resentencing petition under SB1437.

Criminal case grant-and-holds. There were just two criminal case grant-and-holds:  one more waiting for a decision in People v. Patton (see here), which will be argued next week; and one more on hold for People v. Morris (see here). Patton and Morris are both SB 1437 cases.

It was a light Supreme Court conference yesterday, with the court ruling on only 64 matters. But there were some notable actions, including:

Statements made to undercover police agent.

The court agreed to hear People v. Allen and, uncommonly, it added an issue to be briefed besides “the issue presented in the petition for review.” (Rule 8.516(b)(2) [“The court may decide an issue that is neither raised nor fairly included in the petition or answer if the case presents the issue and the court has given the parties reasonable notice and opportunity to brief and argue it”].) The Second District, Division One, Court of Appeal’s unpublished opinion found “persuasive” the Second District, Division Two, decision in People v. Orozco (2019) 32 Cal.App.5th 802 and held to be admissible a jailed defendant’s statements that were made — after the defendant had invoked his Miranda right to remain silent — to a police agent posing as a fellow inmate.

The U.S. and California supreme courts have held Miranda warnings are not necessary before a defendant speaks to an undercover agent, but neither has decided whether that so-called Perkins operation (Illinois v. Perkins (1990) 496 U.S. 292) is OK after the defendant has said he doesn’t want to be questioned. Justice Goodwin Liu has been targeting the issue for review for some time, including filing two separate statements on review denials. (See here, here, here, here, here, and here.) Now might finally be its time. (See Wait for it: issue percolation, right vehicles, and legislative inaction.) The Supreme Court denied review in Orozco with no recorded dissents.

The issue only “might” be addressed because the court directed the parties to also brief, “What effect, if any, does the fact that the interrogating officer continued questioning after petitioner invoked his Fifth Amendment right to silence have upon the admissibility of the statements subsequently obtained during the Perkins operation?” In the superior court, the defendant argued the statements made to the undercover agent were the fruit of the poisonous tree, the poisonous tree being the officer’s earlier illegal questioning. If the Supreme Court goes with the defendant on this additional issue, it might avoid deciding the Perkins issue.

[November 22 update: Here is the issue as summarized by court staff (see here) — “(1) If a defendant has invoked his right to remain silent while being interrogated by a law enforcement officer, are incriminating statements obtained through a subsequent Perkins operation (i.e., the use of an undercover agent to question a jailed defendant) admissible as substantive proof of the defendant’s guilt at trial? (See Illinois v. Perkins (1990) 496 U.S. 292; Miranda v. Arizona (1966) 384 U.S. 436.) (2) What effect, if any, does the fact that the interrogating officer continued questioning after petitioner invoked his Fifth Amendment right to silence have upon the admissibility of the statements subsequently obtained during the Perkins operation?”]

Warrantless search dissenting votes?: Over the recorded dissenting votes of Justices Liu and Kelli Evans, the court denied review in People v. Bridgette. The Fourth District, Division Three, unpublished opinion rejected three arguments for reversing a conviction of two different sexual assaults: “1) the trial court erred in failing to suppress incriminating evidence that was seized during a warrantless search of his home, 2) the trial court erred in denying his request for a separate trial as to each victim, and 3) the jury instruction on the use of propensity evidence was fundamentally unfair.” The dissenting votes are not explained, so we don’t know which issue or issues the two justices wanted to hear. (There’s a fairly simple cure for that: When a message vote’s message is muddled.) On the first issue, Division Three held that, even if police officers didn’t have lawful consent to enter the defendant’s home, exigent circumstances justified the officers’ entry.

More dissenting votes for review about youth offender parole denial.  Justices Liu and Evans also recorded dissenting votes from the denial of review in People v. Scott. The Second District, Division Eight, unpublished opinion rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, here, here, here, here, here, and here). It seems unlikely the court will ever grant review in any such case unless a Court of Appeal goes against the tide and adopts a defense cruel-or-unusual argument. (See: The Supreme Court doesn’t decide all important issues.)

[November 22 update:

Release of liability supplemental briefing. The court requested supplemental briefing in Whitehead v. City of Oakland (see here) on this issue: “Does the release in this case extend to a claim that the City of Oakland violated Government Code section 835 et seq., in light of Civil Code section 1668, which provides in relevant part that ‘[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own . . . violation of law, whether willful or negligent, are against the policy of the law’? (Cf. City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 763 [Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 ‘found a release of liability for future ordinary negligence void on public policy grounds other than those set forth in section 1668‘].)”]

Criminal case grant-and-holds. There were four criminal case grant-and-holds:  one more waiting for a decision in People v. Mitchell (see here and here), another two holding for People v. Rhodius (see here), and one more on hold for People v. Superior Court (Guevara) (see here and here).

There were no straight grants at yesterday’s conference, a double one. But here are some notable actions:

Clemency approval. The court granted Governor Gavin Newsom’s July request for a constitutionally required recommendation that allows him to pardon Cecil Stroud for 1997 and 1998 convictions of second degree burglary. Newsom has a nearly perfect clemency record — he withdrew one request before a ruling, but — applying a deferential standard (see here and here) — the court has approved all 67 of his other requests (not counting three that are pending). That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants. The denial of a request implies that a clemency grant would be an abuse of power.

Compassionate release depublication. The court granted the California District Attorneys Association’s request to depublish the Third District Court of Appeal’s opinion in People v. Gonzalez. There was no petition for review. Under the compassionate release program in Penal Code section 1172.2, the appellate court ordered the recall of the terminally ill defendant’s sentence for continuous sexual abuse of his under-14 stepdaughter. The opinion said the statute “presumes a terminally ill inmate is a low risk to be released from custody because of their diagnosis, even if not fully rehabilitated.” The Third District also found inapplicable to a compassionate release the statutory ban, under certain circumstances, against a released parolee being “returned to a location within 35 miles of the actual residence of a victim.”

More dissenting votes for review about youth offender parole denial. Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denials of review in People v. Boyd. The Second District, Division Four, unpublished opinion rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, here, here, here, here, and here). It seems unlikely the court will ever grant review in any such case unless a Court of Appeal goes against the tide and adopts a defense cruel-or-unusual argument. (See: The Supreme Court doesn’t decide all important issues.)

Gun control. The court denied review in People v. Anderson. The published portion of the First District, Division Three, opinion rejected a defendant’s Second Amendment challenge to his conviction of being a felon in possession of a firearm and of related charges. Quoting recent U.S. Supreme Court case law, Division Three held, “the statutes he challenges are constitutional, as they are ‘consistent with the principles that underpin’ this nation’s ‘regulatory tradition.’ ”

OSC for attorney failure to file a notice of appeal. The pro per’s habeas corpus petition in In re Campa looks like a good bet to succeed. The Supreme Court issued an order to show cause in superior court “why trial counsel was not ineffective for failing to file a notice of appeal and why petitioner should not be permitted to file a constructive notice of appeal, as conceded by the Attorney General in his informal response filed with this court on October 2, 2024. (See Roe v. Flores-Ortega (2000) 528 U.S. 470; In re Benoit (1973) 10 Cal.3d 72; Penal Code § 1240.1, subdivision (b).)”

Criminal case grant-and-holds. There were 11 criminal case grant-and-holds:  one more waiting for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here) (Hin was argued in November); four more holding for People v. Patton (see here), which will be argued next month; one more on hold for People v. Antonelli (see here); four more waiting for People v. Rhodius (see here); and one more holding for People v. Morris (see here).

Grant-and-hold dispositions (see here).

• In re E. L. (see here) was a grant-and-hold for only In re Kenneth D., but it was remanded to the Court of Appeal for reconsideration in light of both Kenneth D. (In re Kenneth D. (2024) 16 Cal.5th 1087) and In re Dezi C. (2024) 16 Cal.5th 1112, August opinions concerning the federal Indian Child Welfare Act and complementary California statutes (see here).
• Agnone v. Agnone and Newton – The Children’s Learning Center, Inc. v. De Ritz, LLC (see here and here) were waiting for the August discovery sanctions opinion in City of Los Angeles v. PricewaterhouseCoopers, LLP (2024) 17 Cal.5th 46 (see here). The Supreme Court dismissed review in Newton and sent Agnone back to the Court of Appeal for reconsideration in light of Pricewaterhouse.

Here are some highlights from yesterday’s Supreme Court conference:

Clemency approval: Supreme Court approves another gubernatorial commutation of an LWOP sentence.

Confidential medical records: The court granted review in J.M. v. Illuminate Education. The Second District, Division Six, Court of Appeal published opinion reinstated a class action, dismissed on demurrer, alleging the defendant education consulting business violated California’s Confidentiality of Medical Information Act and Customer Records Act by negligently failing to protect its data against a hack that obtained student personal and medical information the business had obtained from the lead plaintiff’s school. The business, which got the private information to assist the school and evaluate the student’s educational progress, also allegedly delayed for five months before giving notice of the data breach. Division Six held the business is covered by the CMIA, which applies to, among others, “[a]ny business organized for the purpose of maintaining medical information in order to make the information available to an individual or to a provider of health care at the request of the individual or a provider of health care, for purposes of allowing the individual to manage the individual’s information, or for the diagnosis and treatment of the individual.” It also concluded that the lawsuit’s “allegations demonstrate the type of harm the Legislature sought to prevent in enacting the CMIA–negligence causing a data breach that exposed confidential information to cyber hackers.” The appellate court additionally found the allegations stated a valid cause of action under the CRA.

[November 1 update: Here is the issue as summarized by court staff — “Is a company that stores students’ confidential personal and medical information through its work providing software to school districts subject to liability to these students under the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.) and the Customer Records Act (Civ. Code, § 1798.80 et seq.) following disclosure of such information through a data breach?”]

Revived sex assault claims against public entities dissenting vote. Over Justice Joshua Groban’s recorded dissenting vote, the court denied review in West Contra Costa Unified School District v. Superior Court, a writ petition arising from a case in which the plaintiff alleges she was sexually assaulted by her high school counselor between 1979 and 1983. The First District, Division Five, published opinion rejected constitutional challenges to 2019’s Assembly Bill 218, legislation described by the appellate court as having “provided a three-year window within which plaintiffs were permitted to bring childhood sexual assault claims against public entities that would otherwise be barred because of statutes of limitations or claim presentation requirements.” The school district claimed that, by retroactively eliminating the claim presentation requirement, the statute violated the California Constitution’s provision barring the Legislature from making “any gift” to an individual and also the federal and state constitutional due process clauses. Division Five held there was no “gift clause” violation: “waiver of the claim presentation requirement did not constitute an expenditure of public funds that may be considered a ‘gift’ because AB 218 did not create new ‘substantive liability’ [citation] for the underlying alleged wrongful conduct,” but instead “AB 218 simply waived a condition the state had imposed on its consent to suit.” The due process arguments were rejected because, the appellate court concluded, the school district, as a subordinate political entity and creature of the State, didn’t have standing to challenge the State’s enactment of AB 218. Horvitz & Levy was appellate counsel for the School District and filed the petition for review.

Traffic-stop-search dissenting vote. Justice Groban also recorded a dissenting vote from the denial of review in People v. Ramirez. The Fourth District, Division Three, published opinion reversed the suppression of evidence (a handgun and cocaine) seen in a car during a traffic stop — for the defendant driver’s failure to make a complete stop at a stop sign — after a police officer ordered the driver out of the auto. The appellate court reviewed officer body camera video and concluded there were no Fourth Amendment violations. The officer “was permitted to order Ramirez ‘to exit the vehicle without any articulable justification,’ ” Division Three wrote, adding that the officer’s “intent or motives for his actions—even if they were pretextual—are irrelevant.” The opinion first chided the appellant district attorney for accusing the trial judge of “ ‘fabricat[ing]’ a legal theory,” language the court said is “subject to misinterpretation and [is] unacceptable.”

More dissenting votes. Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denial of review in Miller v. Superior Court. The denial follows the Fourth District, Division Three, summary denial of a writ petition. The Supreme Court and Court of Appeal dockets don’t indicate what the case is about nor have we been able to obtain a copy of the petition for review.

[November 27 update: Having now looked at the petition for review, we know that the writ proceeding raised issues under the California Racial Justice Act (here and here). The superior court had rejected the defendant’s claims that RJA violations were established by a “statistical report of racial disparity in the charging of robbery and burglary special circumstances” and by the prosecution’s written statement in opposition to a pretrial motion that “Black individual can commit different types of murder than White individuals.”]

Criminal case grant-and-hold. There was just one criminal case grant-and-hold, another case waiting for a decision in People v. Rhodius (see here).

Another Turrieta grant-and-hold disposition (see here). The court dismissed review in Morales v. Garfield Beach CVS, which had been one of several grant-and-hold cases waiting for the August decision in Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 664 about intervention in Private Attorneys General Act actions in (see here).

Here are some of the highlights from yesterday’s Supreme Court conference:

Dog attack. The court granted review, for a second time, in Long v. City of Exeter. The Second District, Division Six, Court of Appeal’s unpublished opinion reversed, also for a second time, a multi-million dollar award against a city and city employees for a former police dog’s attack that killed one person and severely injured another. The city had sold the dog to the dog’s officer-handler when that officer left the police force. In its first opinion, Division Six said the defendants owed the victims no duty to warn the former officer about how to care for the dog because the defendants had no special relationship with the victims or the former officer. It also concluded that, special relationship or not, the Rowland v. Christian (1968) 69 Cal.2d 108 factors didn’t support finding a duty either. The Supreme Court granted review of that decision and transferred the case back to the appellate court with directions to “reconsider the cause in light of Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1015 [‘The assertion that a special relationship is required misapprehends our case law’].” (See here; regarding Kuciemba, see here.) Division Six held on remand that “Kuciemba does not mandate that we recognize a duty of care under these circumstances in the absence of a special relationship between the parties.” This case might be one of those rare Supreme Court rescue missions.

[October 25 update: Here is the issue as summarized by court staff — “If a police department elects to sell a patrol canine that the department has trained to attack people, do the department officials responsible for oversight of the patrol canine program have a duty to warn the purchaser about precautions that must be taken in order to prevent the animal from killing or injuring members of the public?”]

Late arbitration fees grant-and-hold.  Costa-Fleeson v. Americor Funding, an employment case, 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 the fees. The Fourth District, Division Three, unpublished opinion found no preemption under an uncommon factual scenario. It was the plaintiff-employee who demanded arbitration and, when the defendant-employer who had drafted the arbitration agreement didn’t timely pay the arbitration fees, withdrew from the arbitration and was awarded attorney fees and costs of over $175,000. Division Three affirmed the award, finding the employer “materially breached the Agreement” because of the fee-payment failure.

Murder resentencing dissenting votes. The court denied review in People v. Aroche, but Justices Goodwin Liu and Kelli Evans recorded dissenting votes. It’s another resentencing case under Senate Bill 1437, 2018 legislation that limited accomplice liability for felony murder and eliminated it for murder under the natural-and-probable-consequences doctrine. The Sixth District’s unpublished opinion affirmed the denial of a resentencing petition in which defendant claimed a jury instruction at his pre-SB1437 trial erroneously permitted the jury to find a lying-in-wait special circumstance without finding he had the required intent to kill. The appellate court held that, if the instruction was faulty, it “constituted legal error at the time it was given” and an SB 1437 petition “is not a second appeal to raise claims of trial error under the law applicable then as now.” Justices Liu and Evans have dissented before from denials of review in SB 1437 cases. (See here and here.)

Batson legislation violation. The court also declined to hear People v. Caparrotta. Anomalously, it was the criminal defendant’s counsel who was found to have engaged in discrimination in peremptorily challenging prospective jurors — two white females — in violation of Code of Civil Procedure section 231.7 (see here, here, and here). Affirming a conviction for elder abuse by assault, the Fourth District, Division One, published opinion held the superior court used the correct legal standard in sustaining the prosecution’s objection to the peremptory challenges. It applied “a broad interpretation of the statute disallowing any peremptory challenge that is exercised even in part for a conclusively invalid reason.”

Firearm enhancement habeas relief. Construing an Attorney General concession as a waiver of the need for an order to show cause in the pro per’s habeas corpus petition in In re Gage, the court ordered a superior court “to consider whether to strike the firearm enhancements attached to counts 5 and 6 pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682). If the superior court strikes the firearm enhancements, it shall consider whether to modify petitioner’s existing sentence, or to instead resentence petitioner.” (Link added.)

Criminal case grant-and-holds. There were five criminal case grant-and-holds:  one more waiting for a decision in  People v. Emanuel (see here), one more holding for People v. Fletcher (see here), and three more on hold for People v. Rhodius (see here).

Grant-and-hold dispositions (see here).  The court removed 39 cases from its docket that had been grant-and-holds for one of four different decisions:

• Holding for In re Dezi C. (2024) 16 Cal.5th 1112. 14 cases were returned to the Courts of Appeal for reconsideration in light of the August Dezi C. opinion involving the standard for determining prejudicial error in cases under the federal Indian Child Welfare Act and complementary California statutes (see here): In re A.G. (see here); In re An. L. and In re Athena R. (see here); In re D.D. (see here); In re E.T. and In re Z.C. (see here); In re G.A., In re M.M., and In re R.T. (see here); In re M.G. (see here); In re M.R. (see here); In re Ryder S. (see here); In re Tyler C. (see here); and In re X.R. (see here).
• Holding for Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 664. The court dismissed review in Gonzalez v. Aluminum Precision Products (see here) and Porras v. Chipotle Services, LLC (see here), and it sent Accurso v. In-N-Out Burgers (see here) back to the Court of Appeal for reconsideration in light of the August Turrieta decision about intervention in Private Attorneys General Act actions (see here).
• Holding for Stone v. Alameda Health System (2024) 16 Cal.5th 1040. Krug v. Board of Trustees of the California State University (see here) was returned to the Court of Appeal for reconsideration in light of the August Stone opinion exempting public employers from certain employment statutory requirements (see here).
• Holding for People v. Walker (2024) 16 Cal.5th 1024. The court dismissed review in 19 cases and it sent two cases back to the Courts of Appeal for reconsideration in light of the August Walker decision regarding dismissing sentence enhancements (see here).

At its conference yesterday, a double one, the Supreme Court straight-granted review in one case, depublished two opinions, approved a gubernatorial pardon, and saw a separate statement and a host of dissenting votes. Here is information about those actions and others:

Implied malice murder. Separate concurring statement in implied murder case.

Retirement board salaries. The court agreed to hear Los Angeles County Employees Retirement Association v. County of Los Angeles. Justice Martin Jenkins was recused. The Second District, Division Seven, Court of Appeal’s published opinion framed the issues this way: “does the fiduciary board of a county public employee retirement system established under the County Employees Retirement Law of 1937 (Gov. Code, § 31450 et seq. (CERL)) have authority under the California Constitution and relevant statutes to create employment classifications and set salaries for employees of the retirement system?” and “does section 31522.1 impose a ministerial duty on a county board of supervisors to include in the county’s employment classifications and salary ordinance the classifications and salaries adopted by the board of a county public employee retirement system for employees of that system?” (Footnote omitted.) In answering “yes” to both questions, Division Seven disagreed with the Third District’s decision in Westly v. Board of Administration (2003) 105 Cal.App.4th 1095. The Supreme Court denied review in Westly with Justices Joyce Kennard and Carlos Moreno recording dissenting votes.

[October 18 update: Here are the issues as summarized by court staff — “(1) Does the board of a county public employee retirement system established under the County Employees Retirement Law of 1937 (CERL) (Gov. Code, § 31450 et seq.) have authority under the California Constitution and relevant statutes to create employment classifications and set salaries for employees of the retirement system? (2) Does Government Code section 31522.1 impose a ministerial duty on a county board of supervisors to include in the county’s employment classifications and salary ordinance the classifications and salaries adopted by the board of a county public employee retirement system for employees of that system? (3) Do Proposition 162 (Cal. Const., art. XVI, § 17) and CERL override a county board of supervisors’ constitutional authority to establish civil service classifications, set salaries, and maintain a civil service system for county employees under article XI of the California Constitution?”]

Resolving a conflict by depublication. The court denied review in People v. Malbry, but it depublished the Second District, Division Eight, opinion affirming the denial of a petition to end the requirement that the defendant annually register as a sex offender. The defendant had pleaded no contest 30 years earlier to repeatedly sexually abusing a young child. Saying “[i]t is unnecessary for the trial court to have stated the right rationale if its result is legally proper,” Division Eight held, “The persistence and extent of [the defendant’s] offense conduct, his lack of insight, and his willingness to exploit a trusting child support the trial court’s ruling.” It also disagreed with the Second District, Division Two, decision in People v. Franco (2024) 99 Cal.App.5th 184, which had concluded it was not relevant the defendant there likely would have been convicted of violating a statute enacted after the defendant’s crime, a violation requiring lifetime registration. There was no petition for review in Franco.

Public contract depublication. The court also denied review but depublished the Fourth District, Division Three, opinion in Talley Amusements v. 32nd District Agricultural Association. The case involved a statute barring a state agency from drafting a request for proposal on a public contract for services to be rendered to the state in a way directly or indirectly limiting bidding to any one bidder. The appellate court held the statute was inapplicable to a district agricultural association’s request for proposal for a master carnival operator contract to run the midways at a county fair because the contract was “not a contract for services to be rendered to the state.”

Clemency greenlighted. The court granted Governor Gavin Newsom’s request for a constitutionally required recommendation (see also here and here) that allows him to pardon Anthony Brown for convictions in the 1990s of (1) possession, transport, and sale of a controlled substance; (2) possession of a weapon; (3) possession and sale of a controlled substance; (4) possession of a controlled substance; and (5) possession and transport of a controlled substance. Newsom has a nearly perfect clemency record — he withdrew one request before a ruling, but the court has approved all 65 of his other requests (not counting five that are pending). That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants. The denial of a request implies that a clemency grant would be an abuse of power.

Youth offender murder resentencing dissenting votes. The court denied review in People v. Carpio, another Senate Bill 1437 resentencing case, over the recorded dissenting votes of Justices Goodwin Liu and Kelli Evans. The Second District, Division Two, unpublished opinion in the case affirmed the denial of a petition to resentence the defendant for a murder committed by his brother when defendant was 19. Division Two agreed the superior court erred in not considering the defendant’s relative youth in finding he had acted with reckless indifference to human life, but concluded the error was harmless.

More dissenting votes for review about youth offender parole denial. Justices Liu and Evans also recorded dissenting votes from the denials of review in People v. Camorlinga, People v. Smyer, and People v. Stewart. Unpublished decisions by the Fifth District, the Second District, Division Eight, and the Second District, Division One, respectively, rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, here, here, here, and here). It seems unlikely the court will ever grant review in any such case unless a Court of Appeal goes against the tide and adopts a defense cruel-or-unusual argument. (See: The Supreme Court doesn’t decide all important issues.)

COVID-related tuition refund dissenting votes. Justices Liu and Joshua Groban recorded dissenting votes from the court’s denial of review in Stoffel v. Regents of the University of California. In an unpublished opinion, the Second District, Division Five, held the superior court improperly bounced at the demurrer stage a lawsuit by students at University of California schools claiming they should get refunds of tuition and fees paid for times when instruction was remote rather than in-person because of the COVID pandemic. The appellate court held that the “plaintiffs’ allegations regarding the UC System’s statements in marketing materials, course catalogs, and class schedules” were enough to “allege an implied contract to provide an in-person and on-campus educational experience.” Division Five distinguished the First District, Division Three, decision in Berlanga v. University of San Francisco (2024) 100 Cal.App.5th 75 that affirmed the dismissal after summary adjudication of a similar lawsuit against a private school. There was no petition for review in Berlanga.

Attorney fees for challenging COVID vaccination requirement. The court denied a request to depublish the Fourth District, Division One, opinion in Let Them Choose v. San Diego Unified School District. There was no petition for review. The appellate court had previously held a school district could not require COVID vaccinations for students over 15 years old when the Legislature has not enacted such a mandate, and the Supreme Court denied a request to depublish that opinion, too. (See here.) In the second case, Division One said the parties challenging the vaccine mandate were entitled to attorney fees under the private attorney general statute. The opinion stressed its first opinion wasn’t about whether the mandate “was a good public health policy and a prudent precaution,” but rather the problem with the mandate “was that the State had established procedures for adding new school attendance vaccination requirements, and the District failed to follow the law.” It then concluded attorney fees were appropriate because the lawsuit challenging the mandate “promoted the strong public interest in following fair and uniform procedures.”

Sentence enhancement grant-and-transfer. The court granted review in People v. Paul and sent the case back to the Second District, Division Eight, for reconsideration in light of the August decision in People v. Walker (2024) 16 Cal.5th 1024 (see here).

Criminal case grant-and-holds. There were seven criminal case grant-and-holds:  one more waiting for a decision in People v. Mitchell (see here and here), one more on hold for People v. Patton (see here), one more holding for People v. Emanuel (see here), and four more waiting for People v. Rhodius (see here). The Attorney General’s petition for review in the Patton grant-and-hold was a day late and was filed with the court’s permission. (See here; also: Getting relief for a late petition for review might not be a hopeless cause.)

More Lynch grant-and-hold dispositions (see here).  Fourteen more cases that had been grant-and-holds waiting for the August decision in People v. Lynch (2024) 16 Cal.5th 730, which concerned the standard of review for sentencing error (see here), were sent back to the Courts of Appeal for reconsideration in light of Lynch.

The Supreme Court granted review in three criminal cases at its conference yesterday. Here’s information about those grants and some other actions:

Resentencing procedure: Six-justice concurring statement about own-motion resentencing procedure.

Resisting an officer with an unloaded gun. The court granted review in People v. Morgan to (probably) decide whether the crime of “resist[ing]” an officer “by the use of force or violence” (Penal Code section 69(a)) can be committed by pointing an unloaded gun at the officer and pulling the trigger if the officer doesn’t know the weapon is not loaded. The First District, Division One, Court of Appeal published opinion said “yes,” rejecting the defendant’s argument that an assault can’t be committed with an unloaded gun, that assault is a necessarily included lesser offense of resistance under section 69, and that he therefore couldn’t be convicted of the greater offense. Division One concluded, “resisting an officer by ‘force or violence’ under section 69, subdivision (a) does not require either a threshold quantum of force or violence, or the use of force or violence ‘upon the person of’ the officer.” We say review was granted “probably,” but not definitely, to decide the resisting-an-officer issue because the appellate court’s opinion also addressed two sentencing issues, including one that is before the court in People v. Wiley (see here). The court hasn’t limited the issues, but we haven’t seen the petition for review, which might have raised only one issue. We should know more tomorrow when we see court staff’s summary of the issue(s).

[October 4 update: Here’s the issue as summarized by court staff — “Is assault (Pen. Code, § 240) a necessarily included lesser offense of resisting an executive officer by force or violence (Pen. Code, § 69, subd. (a))?”]

Scope of resentencing hearing. Another review grant was in People v. Esquivias. Ruling on a habeas corpus petition, the superior court struck firearms sentence enhancements based on the retroactive application of new legislation, but it declined to revisit the defendant’s convictions based on other new statutes, including Assembly Bill No. 333, which narrowed criminal liability for gang-related activities. In a published opinion, the Second District, Division Two, affirmed, concluding that the “[d]efendant’s proffered ‘revisit-any-on-habeas, revisit-all-on-habeas’ rule is inconsistent with . . . fundamental tenets of habeas review, is inconsistent with our Legislature’s express intent to make only certain new laws fully retroactive, and is likely to discourage trial courts from revisiting any part of a sentence on habeas—thereby harming defendants.” The defendant relied on the Supreme Court’s decisions in People v. Padilla (2022) 13 Cal.5th 152 (see here) and People v. Buycks (2018) 5 Cal.5th 857 (see here).

[October 4 update: Here’s the issue as summarized by court staff — “Does the issuance of an order to show cause to review one aspect of a defendant’s sentence in habeas corpus proceedings render applicable all ameliorative laws taking effect after the defendant’s judgment became final?”]

Presentence credits. The court also agreed to hear People v. Cofer to resolve another intra-district split of authority. The Sixth District’s 2-1 published opinion held, “when a defendant is sentenced concurrently at a single hearing to resolve multiple cases that were not previously the subject of a judgment of conviction or probationary disposition, Penal Code section 2900.5 requires the trial court to apply presentence credits for all periods of actual custody toward all of those concurrent sentences.” (Link added.) The ruling is contrary to the earlier Sixth District decision in People v. Jacobs (2013) 220 Cal.App.4th 67, in which the Supreme Court denied review. Unlike other appellate courts that have purported to “overrule” or “disapprove” prior opinions from the same court (see, e.g., here and here), the Cofer opinion only “disagree[s] with Jacobs.” A dissenting justice “disagree[d] . . . with the majority’s conviction that we may bend Penal Code section 2900.5, subdivision (b) to our own sense of what is fair and reasonable—without either legislative action or the California Supreme Court’s reconsideration of its own more restrictive interpretations of the legislative intent.” (Footnote omitted.)

[October 4 update: Here’s the issue as summarized by court staff — “When a defendant is sentenced to concurrent terms on multiple cases jointly resolved at a single hearing, does Penal Code section 2900.5, subdivision (b) entitle the defendant to duplicative presentence custody credits for time spent in custody on one or more of the cases, but not others?”]

Another Racial Justice Act grant-and-transfer. The court granted review in In re Davis and sent the case back to the Second District, Division Five, which had summarily denied the habeas corpus petition in the case. Division Five is to issue an order to show cause, returnable in the superior court, “why the petition does not satisfy the statutory requirements for the disclosure of discovery and the appointment of counsel under the Racial Justice Act (Pen. Code, §§ 745, subd. (d), 1473, subd. (e) [providing for the disclosure of discovery upon a showing of good cause and appointment of counsel for an indigent petitioner who alleges facts that would establish a violation of the Racial Justice Act]), in light of data provided by petitioner demonstrating racial disparities in sentencing under the Three Strikes law.” These RJA grant-and-transfers are becoming regular occurrences. (See here.)

Racial Justice Act OSC. The court issued an order to show cause, returnable in the superior court, in the pro per’s habeas corpus petition in In re Semien. The issue to be decided is whether the petitioner is “entitled to relief under Penal Code section 745, subdivision (a) based on his claims that the prosecutor’s exercise of a peremptory challenge against the sole Black juror on the jury venire, and the prosecutor’s statements justifying the challenge, violated the Racial Justice Act.” (See also Davis, directly above.)

Kill-zone OSC. The court issued an order to show cause, returnable before the Second District, Division Two, in the pro per’s habeas corpus petition in In re Wroten. Cause is to be shown “why relief should not be granted on the ground petitioner’s attempted murder conviction in count five is invalid pursuant to People v. Canizales (2019) 7 Cal.5th 591 and People v. Mumin (2023) 15 Cal.5th 176.” Canizales and Mumin both involved the requirements for liability under what is known as the kill-zone theory, invoked when a defendant is sought to be convicted of attempted murder of someone who was not a primary target. (See here and here.) Division Two summarily denied a Wroten habeas corpus petition a year ago.

Capital habeas dissenting votes. The court denied review in In re Bramit, but Justices Goodwin Liu and Kelli Evans recorded dissenting votes. The Fourth District, Division Two, had dismissed an appeal from a superior court denial of a prisoner’s capital habeas corpus petition. The petition was originally filed in the Supreme Court, but the court transferred the petition to the superior court six years ago under Penal Code section 1509(a), enacted by Proposition 66.  (See here and here.)  Division Two ruled, “At the time appellant filed his appeal he was no longer in custody pursuant to a judgment of death, so he is not entitled to appeal pursuant to Penal Code section 1509.1.” (Link added.) It is unclear from online dockets why the defendant is no longer under a judgment of death, nor what issue or issues attracted the dissenting votes. Fifteen years ago the Supreme Court affirmed the defendant’s death sentence for a 1994 murder. (People v. Bramit (2009) 46 Cal.4th 1221.)

More dissenting votes for review about youth offender parole denial. Justices Liu and Evans also recorded dissenting votes from the denials of review in People v. Hout and People v. Hughes. Unpublished decisions by Second District Divisions Five and Six, respectively, rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, here, here, and here). It seems unlikely the court will ever grant review in any such case unless a Court of Appeal goes against the tide and adopts a defense cruel-or-unusual argument. (See: The Supreme Court doesn’t decide all important issues.)

Murder resentencing dissenting vote. Justice Evans also dissented from the denial of review in People v. Rodriguez, where a Fifth District unpublished opinion affirmed the denial of a defendant’s petition to be resentenced under Senate Bill 1437, 2018 legislation that limited liability for felony murder and eliminated it for murder under the natural-and-probable-consequences doctrine.  The appellate court concluded “substantial evidence supports the [superior] court’s finding that appellant would be found guilty of murder under the aiding and abetting implied malice murder theory.” That opinion said it didn’t matter whether the defendant knew another person was going to shoot and kill the victim because there was evidence that the “appellant knew she was aiding, intended to aid, and did aid a life-endangering act—the violent group beating of one person where dangerous weapons were used—with conscious disregard for human life.” (Related: see here and here.)

ICWA grant-and-transfer. The court granted review in In re J.S. and sent the case back to the Second District, Division Four, for reconsideration in light of the August decision in In re Dezi C. (2024) 16 Cal.5th 1112, 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 Division Four unpublished opinion, on the other hand, concluded that any failure of inquiry was harmless.

Undisclosed hospital fee grant-and-hold. Salami v. Los Robles Regional Medical Center is another grant-and-hold for Capito v. San Jose Healthcare System (see here and here), which will be argued next week and which is expected to decide whether a hospital has a duty to disclose emergency room fees to patients beyond its statutory duty to make its chargemaster publicly available. In Salami, the Second District, Division Six, belatedly published opinion agreed with and quoted the Fourth District, Division Three, decision in Moran v. Prime Healthcare Management, Inc. (2023) 94 Cal.App.5th 166, also a Capito grant-and-hold (see here), in concluding, “ ‘[a] hospital’s duty to list, post, write down, or discuss fees it may or may not charge an emergency room patient starts and ends with its duty to list prices in the chargemaster.’ ” “It is not up to this court to disturb the balance rulemakers have struck,” the court added.

Criminal case grant-and-holds. There were four criminal case grant-and-holds:  one each waiting for decisions in People v. Patton (see here), People v. Lopez (see here), People v. Rhodius (see here), and People v. Montgomery (see here).

Grant-and-hold dispositions (see here). Thirteen former grant-and-holds were disposed of. Five were waiting for the August restitution decision in People v. McCune (2024) 16 Cal.5th 980 (see here) — the court dismissed review in three and returned the other two to the Courts of Appeal for reconsideration in light of McCune. Eight cases on hold for another August decision — People v. Lynch (2024) 16 Cal.5th 730, which concerned the standard of review for sentencing error (see here) — were sent back to the Courts of Appeal for reconsideration in light of Lynch.

Two straight grants, three review denials with a dissent or two, and more at yesterday’s Supreme Court conference. Here are some highlights:

Two victims, two strikes? The court agreed to hear People v. Shaw and it limited the issue to: “May two prior convictions arising out of a single act that harms multiple victims constitute two strikes under the Three Strikes law? (People v. Vargas (2014) 59 Cal.4th 635; People v. Williams (1998) 17 Cal.4th 148.)” The Vargas court held “two prior convictions arising out of a single act against a single victim [cannot] constitute two strikes under the Three Strikes law.” (Emphasis added.) The Third District Court of Appeal unpublished opinion in Shaw, following the Fourth District, Division One, decision in People v. Rusconi (2015) 236 Cal.App.4th 273, concluded two 2002 convictions for a drunk driving accident that killed a young mother and her baby can count as two strikes. The Third District said, “While the convictions may have occurred due to [the defendant’s] singular action, the offenses had the catastrophic impact of ending the lives of two different victims.” The Supreme Court denied review in Rusconi.

New trial motion remand? The court also granted review in TRC Operating Company v. Chevron USA and limited the issue to: “Does Code of Civil Procedure section 660 preclude remand for further proceedings in the trial court on a motion for new trial?” (Link added.) Justice Carol Corrigan was recused. Horvitz & Levy represented Chevron in the Court of Appeal and filed the successful petition for review. The Fifth District published opinion reinstated a $120,000,000 judgment against Chevron, reversing a new trial order that had been based on juror misconduct. The appellate court agreed there was juror misconduct, but held the trial court used the wrong legal standard for determining whether the misconduct was prejudicial. The Fifth District said it “is normally the preferred course” to “remand[ ] to the trial court for redetermination based on a correct understanding of the law,” but concluded that the Supreme Court’s Mercer v. Perez (1968) 68 Cal.2d 104 decision “foreclos[es] this option.” “[S]ection 660 is . . . meant to be jurisdictional,” the opinion stated, “and once the time limit [for ruling on a new trial motion] set forth there has expired, the matter may not be revisited by the trial court.” It disagreed with the Second District, Division Eight, opinion in Barrese v. Murray (2011) 198 Cal.App.4th 494. There was no petition for review in Barrese.

Racial Justice Act grant-and-transfer. The court granted a pro per’s petition for review in In re Jones and sent the case back to the Fourth District, Division Two, which had summarily denied the pro per’s habeas corpus petition. Division Two is to issue an order to show cause, returnable in the superior court, “why petitioner is not entitled to appointment of counsel pursuant to Penal Code section 1473, subdivision (e), in light of data provided by petitioner demonstrating racial disparities in charging special circumstance murder in Riverside County.” (Link added.) Section 1473(e) allows habeas petitions for violations of section 745(a), which is part of California’s Racial Justice Act (see here) and which provides, “The state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” The court made a similar order last month. (See here.)

Murder ineffective assistance OSC. The court issued an order to show cause in In re Tillman, returnable in the Court of Appeal, “why petitioner is not entitled to relief based on his claim that trial and appellate counsel rendered ineffective assistance by failing to argue that the jury instructions erroneously allowed the jury to find the drive-by shooting special circumstance true based either on an intent to kill or a reckless disregard for human life.” Last year, the Fourth District, Division Two, held in an unpublished opinion that the superior court properly denied Tillman’s resentencing petition regarding a 1996 murder committed by a passenger in the car Tillman was driving. Resentencing was sought under Senate Bill 1437, 2018 legislation that limited criminal liability for felony murder, eliminated it for murder under the natural-and-probable-consequences doctrine, and allowed possible resentencing for those convicted under pre-SB 1437 law.

More dissenting votes for review about youth offender parole denial. Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denials of review in People v. Munoz and People v. Roberts. Unpublished decisions by the Second District, Division Two, and the Fourth District, Division Three, respectively, rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, here, and here). It seems unlikely the court will ever grant review in any such case unless a Court of Appeal goes against the tide and adopts a defense cruel-or-unusual argument. (See: The Supreme Court doesn’t decide all important issues.)

Imperfect self-defense dissenting vote. Speaking of regular dissenting votes (see Munoz and Roberts above), Justice Liu also recorded a dissenting vote from the denial of review in People v. Ruvalcaba. The Fourth District, Division Two, unpublished opinion addressed a few different issues, so it’s not clear what attracted Justice Liu’s vote, but it was likely the appellate court feeling itself bound by the holding in People v. Elmore (2014) 59 Cal.4th 121 that imperfect self-defense cannot 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). Justice Liu dissented from a review denial in a similar case just two weeks ago. (See here.)

Court attorney pension denial. The court turned down a former superior court research attorney’s petition for review in Morell v. Board of Retirement. The Second District, Division One, published opinion held a retirement board correctly calculated the attorney’s compensation — excluding payments made under an “Optional Benefit Program” — as part of its determination of the amount of his pension. He had prevailed in the superior court. (The attorney had worked for the Orange County Superior Court and he filed his lawsuit in that court, but the case was transferred to the superior court in Los Angeles.)

Criminal case grant-and-holds. There were seven criminal case grant-and-holds:  one more waiting for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here), two more on hold for People v. Patton (see here), two more holding for People v. Lopez (see here), another one waiting for In re Hernandez (see here), and one more on hold for People v. Rhodius (see here).

Grant-and-hold disposition (see here). Richmond Shoreline Alliance v. City of Richmond, which was a grant-and-hold (see here) for the July time-to-appeal opinion in Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th 643 (see here), was returned to the Court of Appeal for reconsideration in light of Meinhardt.

At its conference yesterday, the Supreme Court agreed to hear two more cases. Here’s information about those and other actions:

Clemency grant. Supreme Court approves pardon for host of Pulitzer Prize nominated podcast.

Discovery of social media info in criminal cases. The court granted review in Snap, Inc. v. Superior Court. The Fourth District, Division One, Court of Appeal, in a published opinion, upheld a murder defendant’s subpoena of two years’ worth of the victim’s Facebook, Instagram, and Snapchat posts and communications, although disclosure is to be made first to the superior court for an in camera relevancy hearing. The victim was the defendant’s brother and the defendant claimed the social media publications could show his brother’s violent character. The social media companies relied on the federal Stored Communications Act for protection, but Division One concluded that because the companies’ “business models . . . provide them with the ability to access and use the information sought by [the defendant], the SCA does not foreclose production of th[e] information.” The appellate court also said the evidence supported the superior court’s finding of good cause for discovery. The Snap case will be a follow-up to the Supreme Court’s Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329 decision (see here), which stated a “good cause” standard, but deferred answering questions about the SCA. Regarding the SCA, Division One in particular examined Chief Justice Tani Cantil-Sakauye’s extended concurrence in Touchstone.

[September 20 update: Here’s the issue as summarized by court staff — “(1) Does the federal Stored Communications Act (18 U.S.C. § 2701 et seq.) bar a social media company from disclosing an individual’s account information in response to a criminal defendant’s subpoena? (2) Did the trial court abuse its discretion by finding that good cause supported the subpoena for third-party discovery?”]

City ordinance enforcement. The court also agreed to hear Cohen v. Superior Court and it limited the issue to: “Does Government Code section 36900, subdivision (a) confer upon private citizens a right to redress violations of municipal ordinances?” The statute makes it a misdemeanor or an infraction to violate a city ordinance and says a violation “may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.” The Second District, Division Four, published opinion concluded, “the Legislature only intended section 36900 to grant city authorities—not all private parties—the right to redress violations of municipal ordinances via either criminal prosecution or civil action.” (Writing nit note: shouldn’t “only” go between “grant” and “city” instead of where it is?) In doing so, Division Four “overrule[d] . . . and disavow[ed]” one of its prior decisions, Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599, 607. (Jurisdiction nit note: can a Court of Appeal overrule one of its opinions or can it do no more than disagree?) The Supreme Court denied review in Riley.

[Update: about that jurisdiction nit, I just noticed that Court of Appeal Justice Michael Raphael has a Daily Journal column today discussing the issue of whether a Court Appeal can overrule one of its own opinions. Justice Raphael mentions two instances, in 1977 and 1980, when his court — Division Two of the Fourth District — “overruled” its earlier decisions. He could have also mentioned the Division Two opinion in People v. Thompson (1981) 178 Cal.Rptr. 735 that overruled People v. Barrick (1981) 177 Cal.Rptr. 532. The Supreme Court granted a hearing (what “review” was called back then) in both cases and decided that the “overruled” Barrick decision reached the right result. (People v. Barrick (1982) 33 Cal.3d 115.) The only reason I know that trivia is because I was the research attorney for the overruled Barrick opinion’s author.]

John’s Grill grant-and-hold dispositions (see here). The court removed from its docket three cases that were holding for last month’s decision in John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. (2024) 16 Cal.5th 1003 (see here). French Laundry Partners, LLP v. Hartford Fire Insurance Co. had been sent by the Ninth Circuit for the Supreme Court to answer a question of California law; after having made the case a grant-and-hold, the court “dismiss[ed] consideration of the question” because John’s Grill makes “resolution of the question posed by the . . . Ninth Circuit . . . no longer ‘necessary . . . to settle an important question of law.’ ” (See here and here.) Similarly, the court dismissed review in Showa Hospitality, LLC v. Sentinel Insurance Co. (see here). Brooklyn Restaurants, Inc. v. Sentinel Ins. Co., Ltd. (see here) was sent back to the Fourth District, Division One, for reconsideration in light of John’s Grill.

Pre-trial detention grant-and-transfer. The court granted review in In re Munoz and transferred the case to the Third District, which had summarily denied a habeas corpus petition. The Court of Appeal is to issue an order to show cause “why petitioner is not entitled to relief on the grounds that, at the detention hearings held on June 26 and July 2, 2024, the San Joaquin County Superior Court failed to address the feasibility of less restrictive alternatives to detention and to articulate the factual basis for its findings — made pursuant to article I, section 12, subdivision (b) of the California Constitution — with sufficient specificity to facilitate review of its detention orders. (In re Humphrey (2021) 11 Cal.5th 135, 154-156 [see here].)” (Links added.)

More dissenting votes for review about youth offender parole denial. Justices Goodwin Liu and Kelli Evans recorded dissenting votes from the denials of review in People v. Cisneros, People v. Sedillo, and People v. Watson. Unpublished opinions by the Sixth District and Divisions Three and Four of the Second District, respectively, rejected constitutional challenges to the statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed between the ages of 18 and 26. In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed (see here, here, here, here, here, and here).

Habeas corpus dissenting vote. Justice Liu also voted to hear In re Sanchez. The court denied review after the Fourth District, Division Two, summarily denied an “emergency” habeas corpus petition. The Supreme Court’s and Division Two’s dockets don’t indicate what the petition was about, so we don’t know what issue or issues were of interest to Justice Liu. There’s a remedy for that lack of information.

Proposition 66 transfer. The court transferred another capital habeas corpus petition to the superior court under Penal Code section 1509(a), enacted by Proposition 66.  (See here and here.) This petition was filed by a pro per.

Criminal case grant-and-holds. There were four criminal case grant-and-holds:  one more waiting for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here), another one on hold for People v. Rhodius (see here), and one more holding for People v. Morris (see here).

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.