Tag: Weekly conference reports

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.

The conference list for this week’s conference included the anti-death-penalty writ petition but the conference report did not announce any ruling on that case. And there were no straight grants of review.

Criminal grant and holds. The were a five grant-and-hold orders in criminal cases: two for People v. Emanuel (see here), one for People v. Bankston and People v. Hin (see here), one for People v. Lopez (see here), and one for People v. Superior Court (Guevara) (see here).

Denial with dissenting votes. Justices Liu and Evans recorded dissenting votes from the denial of review in People v. Wong. In that case, the First Appellate District, Division One issued an published opinion rejecting the same argument that the Supreme Court itself rejected yesterday in People v. Williams.

Three Strikes sentencing. In In re Haynie the court ordered the Secretary of the Department of Corrections and Rehabilitation to appear before the Sacramento County Superior Court and show cause why the petitioner is not entitled to appointment of counsel in light of data provided by petitioner demonstrating racial disparities in sentencing under the Three Strikes law.

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

Arbitration?: The court granted review in Holland v. Silverscreen Healthcare. The belatedly published Second District, Division Two, Court of Appeal opinion held the plaintiff parents’ claim for the wrongful death of their son had to be arbitrated because their son had signed an arbitration agreement with the defendant skilled nursing facility where he had been a resident. Even though the parents had not signed an arbitration agreement themselves, Division Two found dispositive the fact that “[t]he arbitration agreement’s plain language manifests an intent between the parties to bind [the son’s] heirs, i.e., the wrongful death claimants, to any claims of professional negligence.” The appellate court rejected the argument that the wrongful death claim is one for dependent adult abuse, not professional negligence. It held the “wrongful death claim sounds in professional negligence” and is thus governed by Code of Civil Procedure section 1295, an arbitration statute in the Medical Injury Compensation Reform Act, as interpreted by the Supreme Court in Ruiz v. Podolsky (2010) 50 Cal.4th 838.

Arbitration grant-and-holds. Hernandez v. Sohnen Enterprises and Solis v. Sohnen Enterprises are more grant-and-holds for Hohenshelt v. Superior Court (see here), in which the court is expected to address whether the Federal Arbitration Act (9 U.S.C. § 1 et seq.) 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 a 2-1 published opinion, the Second District, Division Five, held in Hernandez that the California procedural statutes didn’t apply because the parties agreed federal procedures would apply and, in any event, “when an agreement falls within the scope of the FAA and does not expressly select California arbitration procedures, the FAA preempts the provisions of [Code of Civil Procedure] section 1281.97 [governing fee payment] that require finding a breach or waiver of the parties’ arbitration agreement as a matter of law.” The majority disagreed with several other Court of Appeal decisions, including the opinion under review in Hohenshelt. It also concluded the order allowing the plaintiff to withdraw from arbitration was appealable. The dissent asserted “it is a real stretch—and a stretch too far—to say the Federal Arbitration Act is offended by a state law that requires prompt payment of arbitration fees.” Solis is an unpublished opinion from the same Court of Appeal with the same divided result as in Hernandez.

Yet another Riverside ICWA grant-and-hold.  In re P.M. is one more grant-and-hold for In re Ja.O. (see here), which is expected to decide whether, under the federal Indian Child Welfare Act and complementary state statutory law, the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. The Ja.O. decision will resolve a multi-case split in the Fourth District, Division Two, on the issue. (See here, here, here, here, here, here, and here.) It is also waiting for the finality of Monday’s Supreme Court opinion in In re Dezi C. (see here). The Division Two unpublished opinion in P.M. resolved the Ja.O. issue in the negative and also held any failure to inquire was harmless.

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. Mitchell and People v. Payne. Unpublished opinions in the Second District, Divisions Six and Three, 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. They have not sought to revisit the equal protection issue, but, after Hardin, they have been regularly dissenting from other 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, and here).

Juvenile transfer OSC. The court issued an order to show cause, returnable in the superior court, in In re Knight, a pro per’s habeas corpus petition. The cause to be shown is “why petitioner is not entitled to relief based on his claims that he is entitled to a juvenile transfer hearing pursuant to Proposition 57 and appellate counsel and counsel on remand rendered ineffective assistance by failing to seek such relief.” Regarding Prop. 57, see here.

Criminal case grant-and-holds. There were two criminal case grant-and-holds, both waiting for a decision in In re Hernandez (see here).

After two straight conferences with no straight grants, yesterday’s double conference yielded one. Here are some of the notable actions.

Voting on bonds? The court granted review in City of San José v. Howard Jarvis Taxpayers Association and it 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 Sixth District Court of Appeal’s published opinion said “no.” The constitutional provision requires two-thirds of voters’ 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.” The Sixth District said the vote requirement doesn’t apply because the City hadn’t incurred any such indebtedness or liability. Rather, the court held, “The actions that incurred the city’s existing liability—enacting the pension plans and employing the individuals covered by them—have already occurred.” The appellate court also reasoned that “the city does not seek to increase pension benefits but instead to issue bonds to provide an income stream for a liability it has already incurred.”

Ambulances and MICRA grant-and-hold. Lopez v. Dayton is a grant-and-hold for Gutierrez v. Tostado (see here), where the court will decide whether the one-year statute of limitations in the Medical Injury Compensation Reform Act (Code Civ. Proc., § 340.5) applies to a personal injury claim alleging that the plaintiff’s vehicle was struck by a negligently driven ambulance. In Lopez, the First District, Division One, unpublished opinion held that the MICRA statute of limitations — not the longer limitations period for personal injury cases in general — does apply to such a claim. Division One said “there is no authority for the proposition that the applicability of MICRA is limited to medical malpractice claims.”

New evidence OSC. The court issued an order to show cause, returnable in the superior court, in In re Galik. Justice Leondra Kruger was recused. The superior court is to determine whether the habeas corpus petitioner is “entitled to relief based on his claim that newly discovered DNA evidence, considered together with newly discovered evidence of third party culpability . . ., is sufficiently material and credible that it more likely than not would have changed the outcome of the case. (Penal Code § 1473, subd. (b)(1)(C)(i).)” A Fifth District unpublished opinion denied a habeas petition based on newly discovered DNA evidence. Galik was convicted of the 1996 murder of an 11-year-old girl. The judge who arraigned Galik was publicly admonished for ex parte communications with Galik’s defense counsel. Galik is currently represented by the Northern California Innocence Project.

Detention hearing grant-and-transfer. The court granted review in In re Garcia and sent the case back to the Fifth District, which had summarily denied a habeas corpus petition. The appellate court is “ordered to reconsider, in light of In re Harris (2024) 16 Cal.5th 292, whether the superior court: erroneously presumed the truth of the criminal charges; ensured the evidence it considered was sufficiently reliable; or erroneously prevented petitioner from presenting information by proffer or otherwise.” Harris addressed how a superior court is to evaluate whether to detain an arrestee without bail.

2×2 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. Cano and People v. McNeill. The Second District, Divisions Three and Five, respectively, issued unpublished opinions rejecting 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. They have not sought to revisit the equal protection issue, but, after Hardin, they have been regularly dissenting from other 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, and here).

Vote for review of whistleblower case. The court denied review in Ververka v. Department of Veterans Affairs, but Justice Evans recorded a vote to grant in the case where, although a jury found the plaintiff’s making of protected disclosures were contributing factors in the plaintiff’s firing by the defendant Department, there was no liability because the Department proved it would have made the same decision for non-retaliatory reasons. The First District, Division One, published opinion rejected an argument that, as summarized by the appellate court, “an employer’s ‘same decision’ showing . . . precludes only an award of damages and backpay and an order of reinstatement and, as a result, [the plaintiff] was entitled to declaratory relief and reasonable attorney’s fees and costs.”

Criminal case grant-and-holds. There were six criminal case grant-and-holds:  one more waiting for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here); one more holding for People v. Walker (see here), which was decided today [Update: see here]; one more waiting for People v. Patton (see here), two more on hold for People v. Rhodius (see here), and one more waiting for People v. Wiley (see here).

Grant-and-hold dispositions (see here). Two cases that were holding for the enhancement-on-resentencing opinion in People v. Arellano (2024) 16 Cal.5th 457 (see here) were removed from the docket. The court dismissed review in one and sent the other one back to the Court of Appeal for reconsideration in light of Arellano.

Yesterday’s Supreme Court conference was notable mostly for the absence of one particular ruling. There were no straight grants for the second week in a row. Here are some highlights:

Still no ruling on the anti-death-penalty writ petition.

PAGA grant-and-hold. Gonzalez v. Aluminum Precision Products is another grant-and-hold for Turrieta v. Lyft, Inc. The Supreme Court had limited the issue in Turrieta to, “Does a plaintiff in a representative action filed under the Private Attorneys General Act (Lab. Code, § 2698, et seq.) (PAGA) have the right to intervene, or object to, or move to vacate, a judgment in a related action that purports to settle the claims that plaintiff has brought on behalf of the State?” Today, it answered that question, “no.” (See here.) The Second District, Division Six, Court of Appeal’s published opinion in Gonzalez held a PAGA plaintiff does have standing to intervene, but then concluded the appellants in that case “did not meet the standards for mandatory and permissive intervention.”

Resentencing depublication. The court denied review in People v. Ellis, but it depublished the Second District, Division Six, two-page opinion that rejected a challenge to a resentencing order. The court found unavailing the defendant’s reliance on Senate Bill 567, 2021 legislation that precludes imposition of the highest of three possible sentencing terms unless the defendant has stipulated to, or a trier of fact has found, aggravating circumstances. In fact, in just one paragraph, Division Six stated eight different reasons for dismissing the SB 567 argument. It also said that “[a]ny claim of ineffective assistance of counsel should be addressed, if at all, in a petition for writ of habeas corpus.” The Supreme Court decided an SB 567 case today, People v. Lynch (opinion here; summary to follow). [Update: the Lynch summary is here.]

Dependency dissenting vote. Over the recorded dissenting vote of Justice Goodwin Liu, the court denied review in In re D.A., a Fourth District, Division Two, unpublished opinion affirming an order bypassing reunification services for a mother as to two of her children. Because Justice Liu’s vote is unexplained, it’s not clear why he voted for review. (There’s a fix for that.) Division Two decided various issues, including finding the trial court correctly both appointed a guardian ad litem to represent the mother’s interests because of her mental incompetence and applied the disentitlement doctrine because the mother had refused to submit to a court-ordered psychological evaluation. Justice Liu could have been interested in the guardian ad litem issue, the disentitlement doctrine issue, or both.

Good faith exception to the exclusionary rule dissenting vote. Justice Liu also dissented from the denial of review in People v. Pritchett. The First District, Division One, belatedly published opinion reversed the grant of an evidence suppression motion because it concluded that the searching police officer reasonably believed he was conducting a valid probation search, even if the defendant’s probation had actually expired under new legislation, Assembly Bill 1950.

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), one more holding for People v. Emanuel (see here), one more waiting for In re Hernandez (see here), and one more on hold for People v. Superior Court (Guevara) (see here).

There were no straight grants at yesterday’s Supreme Court conference, but several justices weren’t happy about that. Four different members of the court dissented from various denials of petitions for review. Those and other notable actions were:

One vote short of review, probably on a Miranda issue. The court just barely denied review in People v. Hernandez, with Justices Goodwin Liu, Martin Jenkins, and Kelli Evans recording dissents. The dissenting votes are unexplained and the Fourth District, Division One, Court of Appeal unpublished opinion addresses several issue, so the reason or reasons for Liu, Jenkins, and Evans’s dissatisfaction is not clear. However, it’s likely the issue that attracted their attention is the use of undercover operatives posing as fellow jail inmates to illicit incriminating statements after the defendant had invoked his right to remain silent. Finding nothing wrong with the practice and extrapolating from the U.S. Supreme Court opinion in Illinois v. Perkins (1990) 496 U.S. 292, Division One said, “we note ‘California courts have uniformly come to the conclusion that Perkins [not Miranda] controls when a suspect invokes his Miranda right to counsel but later speaks with someone he does not know is an agent of the police.’ ” Justice Liu has consistently advocated for review of the issue, including twice penning separate statements, and he has brought some justices along with him, but not the fourth vote necessary to hear a case, at least not yet. (See here, here, here, here, and here.)

Two votes for review about youth offender parole denial. The court denied review in People v. Cervantes, but Justices Liu and Evans recorded dissenting votes. The unpublished Second District, Division Five, opinion 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. They have not sought to revisit the equal protection issue, but, after Hardin, they have dissented from other 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 and here). Division Five wrote in Cervantes, “Even taking into account his diminished culpability as a 23 year old, Cervantes’s crimes are such that the sentence does not exceed the constitutional limit.”

Two votes for review about scope of murder resentencing hearing. Justices Liu and Evans also recorded dissenting votes from the court’s decision not to hear People v. Palacios. The published portion of the Second District, Division Three, opinion held a resentencing hearing under Senate Bill 1437 couldn’t include the defendant’s contention, not raised at trial, that his confession was involuntary. The 2018 legislation 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. Interpreting a statute added by SB 1437, Division Three concluded the confession could be considered in determining whether the evidence supported a conviction under current law because there were “no grounds for excluding the confession today that were not available at the time of his trial.”

Two votes for review in Three-Strikes resentencing case. The court denied review in People v. Payne over the recorded dissenting votes of Justices Joshua Groban and Evans. The Fifth District unpublished opinion affirmed the denial of relief under Proposition 36, the Three Strikes Reform Act of 2012.

Yet another Riverside ICWA grant-and-hold.  In re D.M. is one more grant-and-hold for In re Ja.O. (see here), which is expected to decide whether, under the federal Indian Child Welfare Act and complementary state statutory law, the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. The Ja.O. decision will resolve a multi-case split in the Fourth District, Division Two, on the issue. (See here, here, here, here, here, and here.) The D.M. 2-1 published opinion holds the duty “applies only if the child was placed into temporary custody without a warrant.” You’d think that the Division Two justices would have said all they need to say on the issue by now, but the majority opinion is 40 pages long and the dissent takes 23 pages. The majority says, “We publish this opinion in order to explain why we are . . . unpersuaded by subsequent cases [some decided by other Courts of Appeal] that follow [a Division Two opinion that’s consistent with the dissent].”

Another Lemon Law grant-and-hold. Stiles v. Kia Motors America, Inc. is another grant-and-hold for Rodriguez v. FCA US, LLC (see here and here), where the issue is whether a used vehicle that is still covered by the manufacturer’s express warranty is a “new motor vehicle” within the meaning of Civil Code section 1793.22, subdivision (e)(2), which defines “new motor vehicle” as including a “motor vehicle sold with a manufacturer’s new car warranty.” In Stiles, the Second District, Division Six, in a published opinion, resolved the issue in the affirmative. Horvitz & Levy filed the petition for review in Stiles and is also appellate counsel for the defendant in Rodriguez. The Supreme Court yesterday denied plaintiff’s motion for calendar preference in Rodriguez, but it did send an oral argument letter on Monday.

Another discovery sanctions grant-and-hold. Newton – The Children’s Learning Center, Inc. v. De Ritz, LLC is another grant-and-hold for City of Los Angeles v. PricewaterhouseCoopers (see here), argued in June (video here), in which the court agreed to decide whether a court’s authority to impose monetary sanctions for misuse of the discovery process is limited to circumstances expressly delineated in a method-specific provision of the Civil Discovery Act, or whether courts have independent authority to impose monetary sanctions for such discovery misconduct, including under Code of Civil Procedure sections 2023.010 and 2023.030. The Pricewaterhouse case involves a $2,500,000 sanction. In Newton, the unpublished opinion by the First District, Division Four, distinguished Pricewaterhouse in a footnote and affirmed a sanction award of about $60,000.

The Cincinnati Reds strike out in workers’ comp case. The court declined to hear The Cincinnati Reds v. WCAB after the Fourth District, Division Three, summarily denied a petition for a writ of review. Rejecting an argument by the National League baseball club, the Workers’ Compensation Appeals Board ruled that the Board had personal jurisdiction over the Ohio team regarding an injury claim by Chad Fonceca, a former minor league ballplayer employed by the Reds for 16 months. The Reds signed Fonceca to a contract in California after a tryout in the state, but he never played a professional game in California while a Reds employee, although he did participate at the Reds’ direction in junior college games in California in the off-season. The Board concluded that “the contacts between the Cincinnati Reds and California were sufficient to warrant the exercise of personal jurisdiction over the defendant.”

Incompetency to stand trial. The court issued an order to show cause on the habeas corpus petition in In re Zaki, directing a superior court hearing regarding “why petitioner is not entitled to relief based on allegations he was incompetent to stand trial and trial counsel was ineffective for failing to investigate petitioner’s mental illness and initiate competency proceedings.”

Ineffective assistance of counsel. The court granted review in In re W.H., a habeas corpus petition, and directed a superior court hearing to determine whether relief should be granted “on the ground trial counsel rendered ineffective assistance.” Relevant to that issue, the court had earlier asked for an answer to the petition for review to address “(1) Is evidence of specific acts of infidelity admissible under Evidence Code section 1102, subdivision (b) to rebut evidence of the defendant’s character for honesty?, (2) Does Evidence Code section 352 apply to evidence admitted under Evidence Code section 1102, subdivision (b)?, and (3) If Evidence Code section 352 applies to evidence admitted under Evidence Code section 1102, subdivision (b), is the evidence at issue in the instant case admissible under Evidence Code section 352?” The First District, Division Three, had summarily denied the habeas corpus petition after it affirmed in an unpublished opinion the defendant’s conviction for committing a lewd act on a child.

Criminal case grant-and-holds. There were two criminal case grant-and-holds:  one more waiting for a decision in People v. Antonelli (see here) and one holding for People v. Morris (see here).

Grant-and-hold dispositions (see here). West Adams Heritage Association v. City of Los Angeles was holding (see here) for Make UC A Good Neighbor v. Regents of the University of California (2024) 16 Cal.5th 43 (see here). The court sent West Adams back to the Court of Appeal to reconsider the case in light of Assembly Bill 1307 and the Make UC opinion. The appeal in a case that had been waiting for April’s witness-dissuasion opinion in People v. Reynoza (2024) 15 Cal.5th 982 (see here) was abated due to the defendant’s death.

At its weekly conference yesterday, the Supreme Court ruled on only 76 matters, 59 if you don’t count disposals of previous grant-and-hold cases. Relatively, that’s a small number. But there were notable actions, including:

Felony murder resentencing. Taking yet another Senate Bill 1437 case, the court agreed to decide People v. Morris. A 2-1 published opinion by the Fourth District, Division Three, Court of Appeal applied the Supreme Court’s decision in People v. Curiel (2023) 15 Cal.5th 433 (see here) and affirmed the summary denial of a petition to resentence the defendant who was convicted of first degree murder in 2013. The majority held the 2018 legislation that limited liability for felony murder didn’t help the defendant because “[t]he jury instructions and jury verdicts in this case establish the jury necessarily concluded defendant possessed an intent to kill during the commission of the underlying felonies and aided and abetted the actual killer in committing those felonies.” (Emphasis added.) The dissent, on the other hand, asserts the prosecution must establish not only an intent to kill, but also that “the defendant aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of first degree murder.” (Original emphasis.) Morris joins a substantial number of other decided or pending SB 1437 cases. In fact, the Supreme Court filed an SB 1437 opinion just last week. (See also here, here, here, here, here, here, and here.)

[July 19 update: Here’s the issue as summarized by court staff — “Did the trial court correctly deny defendant’s Penal Code section 1172.6 resentencing petition at the prima facie stage on the ground that the actus reus of first degree felony murder requires that a defendant who is not the actual killer need only aid in the underlying felony and not in the killing itself (Pen. Code, § 189, subd. (e)(2))?”]

Targeted healthcare initiative stays on the ballot. The court denied review in AIDS Healthcare Foundation v. Superior Court, a writ petition that attempted to knock off this November’s ballot the initiative titled “Protect Patients Now Act of 2024.” Bob Egelko gives a detailed report on the initiative and its backstory in “California voters can decide ballot measure targeting L.A. nonprofit, state Supreme Court rules.” It begins, “The California Supreme Court refused Wednesday to remove from the November ballot an initiative backed by apartment owners that would prohibit one man, a wealthy health care executive and supporter of rent control, from spearheading future ballot measures.” The writ petition was filed in April in the Third District, which summarily denied the petition two months later. The Supreme Court last month ordered a different initiative from the ballot.

Three votes for review in a double jeopardy case. The court denied review in People v. Barooshian, but just barely, as Justices Goodwin Liu, Martin Jenkins, and Kelli Evans all recorded dissenting votes. The Fourth District, Division One, published opinion affirmed a conviction of drunk-driving murder. A previous jury had hung on the murder charge, but convicted the defendant of gross vehicular manslaughter while intoxicated and the defendant asserted a double jeopardy claim based on the contention the manslaughter charge was a necessarily included offense of the murder charge. Relying on People v. Sanchez (2001) 24 Cal.4th 983, not a double jeopardy case, Division One said gross vehicular manslaughter while intoxicated is not a lesser included offense of murder and it refused to endorse “an unprecedented extension” that would “bar subsequent prosecution for offenses that are merely lesser related offenses.”

Two votes for review in two youth offender parole cases. The court also denied review in People v. Freeman and People v. Quesada over recorded dissenting votes in both by Justices Liu and Evans. Both cases were decided by unpublished Second District opinions, Freeman from Division Three and Quesada from Division Seven. The defendants were serving life without parole sentences for special circumstances murders committed after they turned 18 years old and they unsuccessfully challenged their statutory ineligibility for youthful offender parole hearings as unconstitutional under equal protection and cruel and unusual punishment principles. Last month, the two justices filed a separate statement dissenting from the denial of review in a similar case, arguing the Supreme Court should decide the cruel and unusual punishment issue.

Batson legislation reversal. The court denied a district attorney’s request to depublish the 2-1 Second District, Division Six, published opinion in People v. Uriostegui. The majority reversed a residential burglary based on Code of Civil Procedure section 231.7, which the opinion said was enacted “to help eradicate the improper removal of jurors based on their actual or perceived race, ethnicity, gender, or membership in another specified protected group.” The majority held invalid the practice of giving “a facially neutral reason . . . to remove a juror—such as “lack of life experience”—[that] is based on a presumptively invalid reason, such as lack of employment or demeanor.” The dissent said, “I applaud the Legislature’s recognition that implicit bias — an unconscious trait we all carry within us whatever our race, background, or life experience — has no place in our judicial system. . . . Yet I seriously doubt the majority’s literal interpretation of . . . section 231.7 requires reversal here.” [Update: Just last week, Justices Liu and Evans filed a separate statement discussing section 231.7.]

Dependency depub. The court denied the petition for review in In re Ca.M., but it granted two requests to depublish the Second District, Division Five, partially published opinion. Division Five followed “language” in In re I.J. (2013) 56 Cal.4th 766, an opinion Division Five said “has not since been disapproved.” The I.J. language was a quote from a Court of Appeal opinion: “ ‘When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence.’ ” (Id. at p. 773.) Division Five found substantial evidence that supported one jurisdictional finding the appealing mother did not challenge was enough to avoid ruling on the one finding she did challenge. The appellate court also concluded the Supreme Court’s subsequent decision in In re D.P. (2023) 14 Cal.5th 266, giving discretion to decide moot issues (see here), did not “require reviewing courts to invariably consider whether to exercise their discretion to decide a parent’s challenge to one adverse jurisdiction finding even if there are other adverse findings against the parent that are uncontested.”

Parole denial grant-and-transfer. The court granted review in In re Renteria and then sent the case back to the Second District, Division Seven, which had summarily denied a pro per’s habeas corpus petition. Division Seven is directed to issue an order “to show cause why relief should not be granted on the grounds petitioner’s reincarceration for his 2021 parole violation amounts to cruel and unusual punishment under the state and federal Constitutions and that the Board of Parole Hearings erred by failing to consider youth offender and elderly parole suitability factors at petitioner’s initial parole reconsideration hearing. (See Pen. Code, § 3000.1, subd. (d); Cal. Code of Regs., tit. 15, § 2775(c).)”

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

Burgos Grant-and-hold dispositions (see here). 17 grant-and-hold cases have left the building. Eight were waiting for only the gang-evidence decision in People v. Burgos (2024) 16 Cal.5th 1 (see here); review was dismissed in four and four were returned to the Courts of Appeal for reconsideration. Review was also dismissed in seven cases that were on hold for Burgos and, earlier, the death penalty appeal in People v. Tran (2022) 13 Cal.5th 1169 (see here); in one case holding for Burgos, the youth offender parole decision in People v. Hardin (2024) 15 Cal.5th 834 (see here), and the gang crime opinion in People v. Rojas (2023) 15 Cal.5th 561 (see here); and in one case holding for Burgos and Rojas.