Another SB1437 murder resentencing case added to the docket at a light conference [Updated x2]

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.

Supreme Court agrees to hear another bar disciplinary case [Updated]

This is only a partial report. (Here’s why.) It will be updated later with additional information and links.

It was a heavy Supreme Court conference today, with some notable rulings and actions, and at least one significant non-action. Justice Leondra Kruger was absent.

Two-justice concurring statement in a Batson case.

No ruling on anti-death-penalty writ petition. The lack of a ruling on a matter is normally not news, but the absence of action on the writ petition in Office of the State Public Defender v. Bonta is significant because the case was on the conference list. (See here.) The petition claims the State’s death penalty system, because it is “administered in a racially discriminatory manner,” violates the State Constitution’s equal protection provisions. The last time I remember a high-profile case being listed for consideration at a conference but not ruled on at the conference, there was a ruling and five separate statements less than a week later. (See here and here.) In that other matter, however, time was running out on when the court could rule on a petition for review, but there is no time limit for ruling on the State Public Defender writ petition. Nonetheless, one or more separate statements accompanying whatever the ruling might be would not be surprising.

Should attorney discipline include restitution? For the second time this year, the court granted a petition for review by the State Bar’s Chief Trial Counsel claiming the State Bar Court’s Review Department did not sufficiently discipline a lawyer. The case is In re Spielbauer. The petition claims the Review Department “imposed inappropriate categorical limits on the availability of restitution in attorney discipline cases.” The Review Department’s opinion recommended a suspension for the attorney’s fraudulent conduct that led to a civil judgment against him of over $800,000, but it declined to order restitution to the fraud victim because “the matter involves a civil judgment in tort, which cannot serve as the basis for restitution.” The Supreme Court denied the disciplined attorney’s petition for review that asserted he did not have a fair hearing before the State Bar Court and its Review Department. In May, when the court granted review in In re Bradshaw (see here), we wrote, “This might be the first straight review grant in a Bar discipline matter since the court rejected a Review Department suspension/probation recommendation and ordered disbarment of an attorney who had pleaded guilty to possession or control of child pornography. (In re Grant (2014) 58 Cal.4th 469.)”

[July 13 update: Here are the opinion, the Chief Trial Counsel’s petition for review, and the attorney’s petition for review.

Here’s the issue as summarized by court staff — “If a victim of attorney misconduct suffers damages recoverable in tort and incurs attorney fees as a result of the misconduct, under what circumstances may the State Bar Court order restitution based on such damages and fees as a condition of the attorney’s probation? (See Sorensen v. State Bar (1991) 52 Cal.3d 1036.)”]

[Additional July 13 updates:

Another ICWA grant-and-holdIn re M.R. is another grant-and-hold for In re Dezi C. (see here), where the court agreed to decide what constitutes reversible error when a child welfare agency fails to make the required inquiry under the federal Indian Child Welfare Act and state statutory law concerning a child’s potential Indian ancestry. Dezi C. was argued last month. The unpublished Second District, Division Four, M.R. opinion found harmless any ICWA error, applying the test stated in the Dezi C. Court of Appeal opinion.

Arbitration forfeiture grant-and-hold. Doe v. Lawyers for Employee and Consumer Rights is a grant-and-hold 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. Finding no federal preemption, the Second District, Division Six in Lawyers, in an unpublished opinion, held arbitration of a wrongful termination action was forfeited by the employer defendant’s failure to timely pay arbitration fees.

COVID insurance grant-and-hold dispositions. (See here.) Four cases that had been grant-and-holds for Another Planet Entertainment, LLC v. Vigilant Ins. Co. (2024) 15 Cal.5th 1106 (see here) were taken off the docket. The court dismissed review in Endeavor Operating Company v. HDI Global Insurance Company (see here) and Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation California v. Lexington Insurance Company (see here). JRK Property Holdings v. Colony Insurance Company (see here) and Shusha v. Century-National Insurance Company (see here) were sent back to the Second District, Division Seven, for reconsideration in light of the Another Planet opinion. JRK and Shusha were disapproved by Another Planet.

Civil case grant-and-transfers. After summary denials of writ petitions by the Court of Appeal, the Supreme Court granted-and-transferred in three cases. With Chief Justice Patricia Guerrero and Justice Carol Corrigan recused and Justice Kruger absent, the remaining four justices sent Montrose Chemical Corp. v. Superior Court back to the Second District, Division Three, to consider “whether the existence of a prior judicial construction of an insurance policy’s form exclusion that found it to be unambiguous precludes a trial court from considering extrinsic evidence in determining whether the exclusion is ambiguous.” The discovery dispute in Thatcher School v. Superior Court was returned to the Second District, Division Six, after the superior court, at the appellate court’s suggestion, required notice to the third-party victims and an opportunity to object to the disclosure, before the third-party victims’ names and contact information are released to plaintiff. (Justice Joshua Groban was recused.) Valla v. Superior Court is going back to the Second District, Division One, “with directions to vacate its order denying mandate and to reconsider the timeliness of the petition for writ of mandate.” (Horvitz & Levy represents the real parties in interest.)

Criminal case grant-and-holds. There were ten criminal case grant-and-holds:  four more waiting for a decision in People v. Walker (see here), which was argued in May; three more holding for People v. Emanuel (see here); one more on hold for two death penalty appeals — People v. Bankston and People v. Hin (see here); one more waiting for People v. Patton (see here); and one more holding for People v. Antonelli (see here).]

Summertime, and the conference is easy

With Justices Carol Corrigan and Joshua Groban absent, the Supreme Court had a second straight relatively quiet conference yesterday. The court ruled on only 74 matters. Last week there were 92 rulings. There were no straight grants at either conference. By contrast, two weeks ago saw action on 201 cases with two straight grants. Yesterday’s actions of note included:

Three-justice concurring statement in infanticide case calls for legislative action on postpartum mental illness. (Although he was absent from the conference, Justice Groban did participate in this case, as a signatory to Justice Kelli Evan’s separate statement.)

Criminal case grant-and-holds. There were just four criminal case grant-and-holds:  two more each holding for decisions in People v. Emanuel (see here) and In re Hernandez (see here).

Grant-and-hold dispositions (see here). The court removed nine grant-and-hold cases from its docket. It dismissed review in five cases that had been waiting for April’s witness-dissuasion opinion in People v. Reynoza (2024) 15 Cal.5th 982 (see here). The other four cases were on hold for People v. McDavid (2024) 15 Cal.5th 1015, also decided in April, which concerned firearms sentencing enhancements (see here); review was dismissed in three and one was sent back to the Court of Appeal for reconsideration in light of the McDavid opinion.

A couple of Racial Justice Act grant-and-transfers at the Supreme Court conference

Yesterday’s early Supreme Court conference was as sedate as last week’s was bustling. Last week, the court ruled on 201 matters, and there were two straight grants and three multi-justice dissents from denials of review, including two dissents with detailed separate statements. This week, there were 92 rulings, no straight grants, and not a single dissent. Justice Carol Corrigan was absent; maybe the court is saving the juicier stuff for when she’s back.

But there were a few actions of note, including:

Racial Justice Act grant-and-transfers.

The RJA (here and here) is a good candidate to be the next big thing on the court’s docket. Chief Justice Patricia Guerrero has already identified it as legislation that is “impacting [the court’s] workflow.” (See, e.g., here, here, here, here, and here.) Yesterday, the court granted two pro per petitions for review — In re Green and In re Wilkins — after summary denials of pro per habeas corpus petitions by Courts of Appeal, and it directed the issuance of orders to show cause, returnable in the superior courts.

The Green habeas corpus denial was by the Second District, Division Seven, Court of Appeal. In that case, cause is now to be shown: “why (1) the petition does not satisfy the statutory requirements for the appointment of counsel and the disclosure of discovery and (2) the petition does not state a prima facie case for relief 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].)”

The First District, Division One, denied the Wilkins habeas petition with a three-paragraph explanatory order. Despite those reasons, the Supreme Court wants the superior court to evaluate — similar to the second Green issue — whether the petition “satisf[ies] 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].)”

Criminal case grant-and-holds. There were seven criminal case grant-and-holds:  two more holding for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here); one more waiting for People v. Lynch (see here), which was argued last month ; one on hold for both Lynch and People v. Wiley (see here); one more on hold for a decision in People v. Arellano (see here), which was also argued last month; one more waiting for People v. Walker (see here), also argued last month; and one more holding for People v. Patton (see here).

Supreme Court adds arbitration, Coastal Commission cases to its docket [Updated with grant-and-hold dispositions] [Updated with review-granted issues]

Yesterday’s Supreme Court conference dealt with an unusually large number of cases, even for the double conference that it was. Notable actions included:

There were three multi-justice dissents from denials of review. Two included separate explanatory statements:

  1. Three votes for review, and a dissenting statement, in juvenile coerced plea case
  2. Two votes for review, and a dissenting statement, in youth-offender LWOP no-parole case

A third case concerned domestic violence torts. (See below.)

Fee failure forfeit of arbitration. The court granted review in Hohenshelt v. Superior Court, an employment retaliation case that was headed to arbitration until the defendant employer delayed paying fees to the arbitration provider. The plaintiff employee unsuccessfully sought a trial court order allowing him to withdraw from arbitration and proceed in court, but the Second District, Division Eight, Court of Appeal, in a 2-1 published opinion, granted relief based on Code of Civil Procedure section 1281.98(a)(1), applicable to employment and consumer arbitrations, that provides if “the drafting party” is required to pay arbitration fees, but doesn’t do so “within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.” The arbitration provider had extended the due date, but, quoting the Second District, Division Two, decision in Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, Division Eight said, “ ‘There is no escape hatch for companies that may have an arbitrator’s favor. Nor is there a hatch for an arbitrator eager to keep hold of a matter.’ ” Division Eight also rejected, as had the Gallo court, the argument that the Federal Arbitration Act preempts section 1281.98. The preemption issue is what attracted the dissent’s attention. Writing that “California law over the last few decades . . . has not been a friend of arbitration,” the dissent said, “By again putting arbitration on the chopping block, this statute invites a seventh reprimand from the Supreme Court of the United States.” There was no petition for review in Gallo.

[June 14 update: Here’s the issue as summarized by court staff — “Does the Federal Arbitration Act (9 U.S.C. § 1 et seq.) preempt 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?”]

Coastal Commission jurisdiction. The court also agreed to hear Shear Development Co. v. California Coastal Commission. The Coastal Commission appealed to itself a county’s grant of a coastal development permit for construction of three single family homes, and it then denied the permit. An unpublished opinion by the Second District, Division Six, held the Commission’s limited appellate jurisdiction was properly invoked because the permit approved a development located in a Sensitive Coastal Resource Area. It also concluded that the Commission did not abuse its discretion in denying the development permit.

[June 14 update: Here’s the issue as summarized by court staff — “What standard of review applies to a decision by the California Coastal Commission asserting appellate jurisdiction under Public Resources Code section 30603, where such jurisdiction depends on the Coastal Commission’s disagreement with a local government’s interpretation of its local coastal program?”]

Sexual abuse evidence. The court granted review in S.M. v. Superior Court and remanded the case to the Second District, Division Five, which had summarily denied a writ petition. Division Five is directed to decide the petition on its merits. The case alleges sexual abuse of a 12-year-old at school, and the writ petition challenges a superior court ruling that would allow evidence at trial of other abuse subsequent to the subject abuse. The petition concerns Evidence Code sections 1106 and 783, and the Supreme Court’s decision in Doe v. Superior Court (2023) 15 Cal.5th 40 (see here), which concluded that a superior court ruling allowing subsequent-abuse evidence “left [the plaintiff] in danger of what [section 783] was designed to avoid — unjustified and uncircumscribed intrusion into her privacy in the immediate presence of the jury.” Here are the petition for review, the answer to the petition, and the reply to the answer.

Even more Riverside ICWA grant-and-holdsIn re C.B. and In re L.G. are two more grant-and-holds for In re Ja.O. (see here), which is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. The Ja.O. decision will resolve a multi-case split in the Fourth District, Division Two, on the issue. (See herehereherehere, and here.) The unpublished opinions in C.B. and L.G., both 2-1 decisions, held there is no such duty of inquiry when a child is taken into custody under a protective custody warrant.

Another COVID insurance grant-and-hold. Brooklyn Restaurants, Inc. v. Sentinel Insurance Co. is another grant-and-hold for John’s Grill, Inc. v. The Hartford Financial Services Group, Inc., where the court is expected to address: (1) Is a grant of coverage for property loss or damage to covered property caused by a virus rendered illusory where it is limited by a condition that makes coverage applicable only if the virus is the result of one or more of a number of listed causes? (2) Is a conditional grant of coverage for property loss or damage to covered property caused by a virus, including the cost of removal of the virus, triggered by cleaning surfaces in the covered property that are contaminated by the virus in the absence of physical alteration of the property? John’s Grill was argued last month. (Video here.) In Brooklyn Restaurants, the Fourth District, Division One, in a belatedly published opinion, held that “a unique [policy] provision, specifically covering losses attributable to a virus” made this “one of those rare cases where . . . an insured has adequately alleged a direct physical loss or damage under the subject policy, at least raising the specter of coverage under that policy.” In another COVID insurance case, Another Planet Entertainment, LLC v. Vigilant Insurance Co., the court recently ruled for the insurance carrier. (See here.)

Domestic violence tort. The court denied review in M.A. v. B.F., but Justices Liu and Evans recorded dissenting votes. In a 2-1 published opinion, the Fourth District, Division Three, framed the issue: “whether a relationship characterized in modern parlance — and by the plaintiff in this case — as ‘friends with benefits’ constitutes a dating relationship under Family Code section 6210, so as to support a tort claim for domestic violence.” (Link added.) The issue arose in a lawsuit seeking damages for domestic violence and sexual battery. The majority found substantial evidence supported the superior court finding of no dating relationship, a finding that led to a defense judgment. The dissent claimed “[t]he majority’s opinion, in effect, raises the bar for domestic violence victims by narrowly construing the definition of a ‘dating relationship.’ ”

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

Grant-and-hold dispositions (see here). There were 31 grant-and-holds that the court dumped. This post will be updated with details later.

[Update: All 31 were holding for the March decision in People v. Hardin (2024) 15 Cal.5th 834 (see here). One was also holding for last December’s decision in People v. Rojas (2023) 15 Cal.5th 561 (see here). Of the 31, the court dismissed review in 29 and sent two back to the Courts of Appeal for reconsideration in light of the Hardin opinion. One of the review dismissals was specifically “without prejudice to any relief that may be available for claims of racial disparities in sentencing.”]

Supreme Court will hear two resentencing cases [Updated]

Here are some of the notable actions at yesterday’s Supreme Court conference, a double one:

Striking a strike. The court granted review in People v. Dain, and it limited the issue to: “Did the Court of Appeal err in remanding the case with directions to reinstate the strike finding and to resentence defendant as a person who has suffered a prior strike conviction under the Three Strikes Law? (See People v. Williams (1998) 17 Cal.4th 148, 164, fn. 7; see also People v. McGlothin (1998) 67 Cal.App.4th 468, 478; People v. Humphrey (1997) 58 Cal.App.4th 809, 814; but see People v. Mayfield (2020) 50 Cal.App.5th 1096, 1109; People v. Strong (2001) 87 Cal.App.4th 328, 347.)” In a published opinion, the First District, Division Two, Court of Appeal held the superior court’s ruling that struck the strike was an abuse of discretion and had erroneously taken into account Penal Code section 1385(c), which specifies various “mitigating circumstances” a court is to consider when deciding whether to “dismiss an enhancement.” Section 1385 was inapplicable, Division Two said, because “ ‘the Three Strikes law is not an enhancement.’ ” The appellate court also found inapplicable the Legislature’s intent statement in newly enacted Assembly Bill 600 that, in resentencing proceedings under section 1172.1, which the bill amended, “courts have full discretion . . . to reconsider past decisions to impose prior strikes” and that “[c]ourts should consider Section 1385.” Division Two brushed off the statement as “an uncodified declaration in a subsequent law amending a different statute” (cf. People v. Montgomery below) and said that, in any event, neither the addition of section 1385(c) nor AB 600 could amend the Three Strikes Law because they were not passed by the requisite two-thirds legislative vote.

Plea bargain withdrawal. The court decided to also hear People v. Montgomery. The First District, Division Three, published opinion accepted the Attorney General’s concession that, when the superior court struck an enhancement — imposed under a plea bargain — under 2021’s Senate Bill 483, the court wrongly failed to hold a full resentencing hearing. It also ruled against the Attorney General, concluding the prosecution wouldn’t be able to withdraw from the plea bargain because of any sentence reductions at the resentencing hearing. Unlike Division Two in Dain (see above), Division Three did find compelling an uncodified declaration of legislative intent, this one in SB 483. Agreeing with the Fourth District, Division One, decision in People v. Carter (2023) 97 Cal.App.5th 960, but disagreeing with the First District, Division One, decision in People v. Coddington (2023) 96 Cal.App.5th 562, Division Three said, “the Legislature intended to prohibit the prosecutor from withdrawing from a plea bargain for any reduction to a sentence, even if the reduction resulted from a code provision other than those enacted by Sen. Bill 483.” There was no petition for review in Carter. The court denied a depublication request in Coddington, but Justice Kelli Evans voted to grant review on the court’s own motion. (See here.)

[June 6 update: Here’s the issue as summarized by court staff — “Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements (Pen. Code, § 667.5, subd. (b))?”]

Double jeopardy vote to grant. The court denied review in People v. Superior Court (Woodward) over Justice Evans’s recorded dissenting vote. The Sixth District’s published opinion vacated the dismissal of a refiled murder case. There had been two prior hung juries and, after the second one, the trial court dismissed the case “in the furtherance of justice for insufficiency of the evidence.” The appellate court held that, under the Supreme Court’s decision in People v. Hatch (2000) 22 Cal.4th 260, double jeopardy principles didn’t bar the refiling. Hatch stated, “[w]here a court merely ‘disagrees with a jury’s resolution of conflicting evidence and concludes that a guilty verdict is against the weight of the evidence,’ [ ] a reversal or dismissal on that ground does not bar retrial.” Quoting Hatch, the Sixth District relied on the “default presumption”: “unless the record clearly indicates the court applied the substantial evidence standard in deciding the evidence was legally insufficient to prove guilt beyond a reasonable doubt, ‘we will assume the court did not intend to dismiss for legal insufficiency and foreclose reprosecution.’ ” A concurring justice agreed that a reversal was compelled by Hatch, but otherwise would have concluded the “dismissal here [after the second mistrial] is an acquittal that bars retrial” under later U.S. Supreme Court decisions that “ ‘erode the analytical foundations’ of Hatch,” and the justice “respectfully urge[d] the California Supreme Court to reexamine the continuing vitality of Hatch’s narrow definition of an acquittal under federal double jeopardy principles.” The urging went unheeded, except for Justice Evans.

Another vehicle sales arbitration grant-and-holdDavis v. Nissan North America is another grant-and-hold for the Ford Motor Warranty Cases (see here), where the court limited the issue to: “Do manufacturers’ express or implied warranties that accompany a vehicle at the time of sale [by a dealer] constitute obligations arising from the sale contract [between the dealer and a buyer], permitting manufacturers to enforce an arbitration agreement in the contract pursuant to equitable estoppel?” In Davis, the Fourth District, Division One, in a 2-1 published opinion, answered “no.” (See also here.)

Another ICWA grant-and-hold. In re Ryder S. is another grant-and-hold for In re Dezi C. (see here), where the court agreed to decide what constitutes reversible error when a child welfare agency fails to make the required inquiry under the federal Indian Child Welfare Act and state statutory law concerning a child’s potential Indian ancestry. Dezi C. will be argued next week. The unpublished Second District, Division Four, opinion in Ryder S. applied the test in the Dezi C. Court of Appeal opinion in finding harmless failures in initial inquiry duties.

COVID speedy trial claim.  The court denied review in People v. Osborne, where a Fourth District, Division Two, unpublished opinion affirmed the dismissal of a burglary case because of a violation of the defendant’s right to a speedy trial. Division Two rejected the prosecution claim that the COVID pandemic was an exceptional circumstance creating good cause for the delay in bringing the case to trial. It said, “While the pandemic was an ongoing circumstance in October 2022 [when the defendant moved to dismiss the charges filed in June 2019], to describe anything that has been going on for two and one-half years as ‘exceptional’ would undermine the word ‘exceptional.’ In other words, anything lasting for two and one-half years tends to become more ordinary than exceptional.” 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. In Raju v. Superior Court, the court will decide whether taxpayers have standing to sue a superior court for improper pandemic-related delays in bringing criminal cases to trial. (See here.)

Criminal case grant-and-holds. There were eight criminal case grant-and-holds:  one more holding for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here); two more waiting for People v. McCune (see here), which was argued last week; another one on hold for People v. Lopez (see here); two more waiting for In re Hernandez (see here); one more holding for People v. Rhodius (see here); and one more on hold for People v. Superior Court (Guevara) (see here).

Grant-and-hold dispositions (see here). The court rid its docket of two cases that had been waiting for the February gang-enhancement opinion in People v. Clark (2024) 15 Cal.5th 743 (see here). One was transferred to the Court of Appeal for reconsideration in light of Clark and People v. Cooper (2023) 14 Cal.5th 735 (see here). The other was transferred for reconsideration in light of only Clark.

Court adds release-of-liability case and Bar disciplinary matter to its docket [Updated]

Here are some of the notable actions at yesterday’s Supreme Court conference, a double one:

Release of liability. The court agreed to hear Whitehead v. City of Oakland. The First District, Division Three, Court of Appeal’s belatedly published opinion affirmed summary judgment against a plaintiff who, before being injured in a bicycle-v.-Oakland-pothole accident during a training ride for a fundraiser, had signed an agreement releasing from liability the “owners/lessors of the course or facilities used in the Event.” Division Three rejected the argument that the release was invalid because it affected a public interest, i.e., the defendant City’s maintenance of safe public roads. Instead, the appellate court concluded the deciding factor was that “the cycling event was a nonessential sports activity that did not affect the public interest.”

[May 17 update: Here’s the issue as summarized by court staff — “Does a liability release agreement between a bicyclist and the organizer of a recreational bicycle ride extend to the alleged negligent maintenance of a public road by a municipality named in the agreement but not a party to it?”]

Suspension or disbarment? The court granted the petition for review by the State Bar’s Chief Trial Counsel in In re Bradshaw. The Chief Trial Counsel contends the State Bar Court’s Review Department went too easy on a lawyer in recommending only a six-month suspension, instead of disbarment, for what the Review Department’s 2-1 unpublished opinion called “professional misconduct for three grossly negligent misrepresentations.” The dissenting judge, concluding that the misrepresentations were intentional and that the attorney “schemed to defraud,” preferred the disbarment recommendation of the Bar Court’s hearing judge. The attorney had been removed as trustee for an elderly client due to the attorney’s undisclosed conflicts of interest. The Supreme Court had granted review once before, four years ago, at that time ordering the Review Department to reconsider its first decision dismissing the charges against the attorney. Here are the petition for review, answer, and reply. This might be the first straight review grant in a Bar discipline matter since the court rejected a Review Department suspension/probation recommendation and ordered disbarment of an attorney who had pleaded guilty to possession or control of child pornography. (In re Grant (2014) 58 Cal.4th 469.)

[May 17 update: Here’s the issue as summarized by court staff — “What is the appropriate discipline in light of the record in this case?”]

Surreptitious police questioning. The court denied review and a depublication request in People v. Felix, but Justices Goodwin Liu and Kelli Evans recorded votes to hear the case. A 2-1 published opinion by the Second District, Division Eight, affirmed a conviction for two counts of first degree murder. There were multiple issues and Justices Liu and Evans did not say why they wanted to grant review, but it was probably because of the Division Eight majority’s holding that there was no problem with an undercover police officer obtaining incriminating statements after the defendant had invoked his Miranda rights. The Division Eight dissenting justice wrote that use of the undercover officer deprived the defendant of “an opportunity to knowingly and intelligently waive his previously asserted right to have counsel present during questioning.” Justice Liu has long sought to have the Supreme Court decide this issue. (See hereherehere, and here.) He now apparently has an ally in Justice Evans.

Murder resentencing depublication. The court denied review in People v. Hollywood, but it depublished the Second District, Division Six, opinion, which upheld the denial of a resentencing petition by a defendant who is serving a life without parole sentence for first degree murder and kidnapping. The opinion states at the outset, “Leniency for a person who orders his cohorts to murder a 15-year-old child with a machine gun? The child is dead and our answer is, no.” The Supreme Court had reversed a pre-trial Division Six decision that ordered the recusal of a prosecutor who consulted on a movie about the defendant’s story. (Hollywood v. Superior Court (2008) 43 Cal.4th 721.) Division Six held that, although the Supreme Court “has told us that the trial court should not weigh the evidence at a stage one [resentencing] hearing [citation], [t]here must, of necessity, be an exception where the trial judge ruling on resentencing, heard the evidence at a death penalty trial and where the Supreme Court recites these facts in the same case.” A concurring justice agreed with the affirmance, but wrote separately “because I do not agree that factfinding is appropriate at the prima facie stage in this case.”

Transfer from juvenile to criminal court. Over Justice Liu’s recorded dissent, the court denied review in In re Miguel R. In a published opinion, the Fourth District, Division Two, affirmed an order transferring the defendant to criminal court to be tried for a murder he allegedly committed when he was 17. Analyzing recent legislation concerning such transfers, Division Two concluded, “(1) the statute does not require that any one factor be given greater weight than others in determining whether the minor is amenable to rehabilitation while under the jurisdiction of the juvenile court, and (2) although the current version of [Welfare and Institutions Code] section 707 expressly requires consideration of the minor’s history of involvement in the child welfare or foster care system, human trafficking, sexual abuse, or sexual battery, and prior versions of the statute did not contain that express requirement, evidence of any such history was nonetheless relevant under prior versions of the statute.” (Link added.)

Racial Justice Act. The court issued an order to show cause on the In re Nelson habeas corpus petition. Cause is to be shown in the superior court “why petitioner is not entitled to the production of discovery for purposes of presenting a motion under the Racial Justice Act. (See Pen. Code, § 745, subd. (d).)”

Dissent from denial of pro per habeas petition. After requesting a response to a pro per’s habeas corpus petition in In re Sandstrom, the court denied the petition, but Justice Joshua Groban recorded a vote to issue an order to show cause. Defendant’s conviction of sexually abusing a six-year-old was affirmed by the Fourth District, Division Two, in an unpublished opinion. In his habeas petition, the defendant claimed ineffective assistance of counsel in, among other things, misinforming him about facts relevant to a proffered plea deal and forcing him to not testify in his own defense. The defendant alleged that one of his attorneys was suspended by the State Bar for incompetence and misconduct during the defendant’s trial. Here are the petition, the response, and the reply to the response.

Forum selection grant-and-holds. Lockton Companies LLC — Pacific Series v. Superior Court (Barnes), Lockton Companies LLC — Pacific Series v. Superior Court (Racunas), and Lockton Companies LLC — Pacific Series v. Superior Court (Roderick) are all grant-and-holds for EpicentRx, Inc. v. Superior Court (see here), which is expected to decide whether a forum selection clause is enforceable when a party’s right under California state law to a jury trial for their civil claims would not apply in the exclusive forum identified by the clause. Writ petitions were summarily denied in Barnes (by the Second District, Division Two), Racunas (by the Second District, Division Eight), and Roderick (by the Second District, Division Four). By our count, there are now six Lockton Companies grant-and-holds. (See here.) Another pending review-granted case about forum selection clauses is Zhang v. Superior Court (see here).

Section 998 grant-and-hold. Ayers v. FCA US is a grant-and-hold for Madrigal v. Hyundai Motor America (see here), where the court limited the issue to: “Do Code of Civil Procedure section 998’s cost-shifting provisions apply if the parties ultimately negotiate a pre-trial settlement?” Agreeing with the 2-1 Third District’s Madrigal opinion now under review, the Second District, Division Eight, 2-1 published opinion in Ayers answered “yes.” Horvitz & Levy is appellate counsel for the defendant.

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

Grant-and-hold disposition (see here). The court disposed of 21 cases that had been holding for the February sentencing/notice decision in In re Vaquera (2024) 15 Cal.5th 706 (see here). Review was dismissed in four cases and the other 17 were sent back to the Courts of Appeal for reconsideration in light of the decision.

Supreme Court will hear HIV/AIDS drug case [Updated]

Here are some of the notable actions at yesterday’s Supreme Court conference:

Racial Justice Act separate statement. See here.

HIV/AIDS drug. The court granted review in Gilead Tenofovir Cases. Justice Martin Jenkins was recused. The First District, Division Four, Court of Appeal published opinion allowed a negligence case to proceed against the manufacturer of a drug to treat HIV/AIDS. The plaintiffs are claiming not that the drug they used — and suffered adverse side effects from — was defective, but that, to maximize profits from the drug, the manufacturer deferred development of another HIV/AIDS-treatment drug, a drug with a potentially lower risk of adverse effects. Division Four held “the legal duty of a manufacturer to exercise reasonable care can, in appropriate circumstances, extend beyond the duty not to market a defective product.”

[May 3 update: Here’s the issue as summarized by court staff — “Does a drug manufacturer have a duty of reasonable care to users of a drug it is currently selling, which is not alleged to be defective, when making decisions about the commercialization of an allegedly safer, and at least equally effective, alternative drug?”]

PAGA grant-and-hold. Morales v. Garfield Beach CVS, LLC is another grant-and-hold for Turrieta v. Lyft, Inc. (see here), where the court limited the issue 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?” Turrieta will be argued next week. (Horvitz & Levy is Lyft’s appellate counsel in Turrieta.) The Second District, Division Five, unpublished opinion in Morales — an employment wage case — affirmed the denial of an intervention motion, the approval of a settlement, and the denial of a motion to vacate the judgment.

Criminal case grant-and-hold. There was just one criminal case grant-and-hold this week. That case is another one waiting for a decision in People v. Patton (see here).

Grant-and-hold disposition (see here). The court dismissed review in Figueroa v. FCA US LLC (see here), which was holding for the March opinion in Niedermeier v. FCA US LLC (2024) 15 Cal.5th 792 (see here). Horvitz & Levy was counsel for the defendant in Figueroa.

Supreme Court says “no” to anti-tax appeal, requires Court of Appeal to take another look at dog attack case

There were no straight grants at yesterday’s Supreme Court conference, but here are some actions of note:

Tax vote requirement. With oral argument two weeks away in a case that will determine whether November’s ballot will include an anti-tax initiative claiming that prior similar measures “have been weakened and hamstrung” by, among others, the Supreme Court (see here and here), the court denied review in County of Alameda v. Alameda County Taxpayers’ Association. The First District, Division Five, Court of Appeal’s partially published opinion in the case rejected a challenge to a citizen’s tax initiative to fund early childhood education and pediatric health care. One unsuccessful argument was that, because the initiative didn’t quite receive a two-thirds approval vote, the initiative failed under part of Proposition 13 and part of Proposition 218. After its decision in California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924 (see here), the court has regularly declined to hear tax-voting cases. (See hereherehere, and here.)

Dog attack grant-and-transfer. The court granted review in Long v. City of Exeter and transferred the case to the Second District, Division Six, for reconsideration. The appellate court’s unpublished opinion reversed 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. Division Six held the defendants owed the victims no duty to warn the former officer about how to care for the dog, concluding the defendants had no special relationship with the victims or the former officer. It also concluded, “[e]ven if appellants had a special relationship with [the former officer], the Rowland factors do not support recognition of a duty to warn under these circumstances.” The Supreme Court’s remand order appears to focus only on Division Six’s no-special-relationship holding. The order states Division Six is 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’].” Regarding Kuciemba, see here.

Dependency depublication. The court denied review in In re L.B., but it depublished the Fifth District’s belatedly published opinion. The juvenile court had removed five children from their parents’ custody and ordered reunification services for the parents. Based on Welfare and Institutions Code section 361.5(b)(13), the Fifth District found error in the juvenile court’s ruling that it had to order reunification services. The statute states the otherwise-required services need not be provided if there’s a finding by clear and convincing evidence that a parent “has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court’s attention.” The appellate court held, “A parent’s engagement in treatment at the time of the disposition hearing does not prevent a juvenile court from denying reunification services pursuant to section 361.5, subdivision (b)(13). The bypass provision only requires proof of the parent’s resistance during the three-year period prior to the filing of the petition.”

Forum selection grant-and-holds. Lockton Companies LLC — Pacific Series v. Superior Court (Canales) and Lockton Investment Advisors v. Superior Court (Kaufman) are grant-and-holds for EpicentRx, Inc. v. Superior Court (see here), which is expected to decide whether a forum selection clause is enforceable when a party’s right under California state law to a jury trial for their civil claims would not apply in the exclusive forum identified by the clause. Writ petitions were summarily denied in both Canales (denied as untimely by the Second District, Division Five) and Kaufman (by the Second District, Division Two). The Supreme Court previously granted-and-held in Lockton Companies v. Superior Court (Giblin), also after a Division Two writ petition summary denial (see here). Another pending review-granted case about forum selection clauses is Zhang v. Superior Court (see here).

Civil commitment grant-and-transfer. The court granted review in Cole v. Superior Court and sent the case back to the First District, Division Three, with instructions to vacate its order summarily denying mandate or habeas corpus and to hear the petition in the case on its merits. In its denial order, Division Three cited People v. Nolasco (2021) 67 Cal.App.5th 209, where the Second District, Division Two, rejected an equal protection challenge to the scheme for ending the civil commitment of a person who has been declared incompetent to stand trial for certain felonies and who continues to pose a danger to others because of the person’s “developmental disability.” The Supreme Court denied review (with Justice Goodwin Liu dissenting) and a depublication request in Nolasco. (See here.)

Sexual offense sentencing grant-and-transfer. The court granted a pro per’s petition for review in In re Cross and returned the matter to the Fourth District, Division Three, which had summarily denied the habeas corpus petition in the case. The appellate court is to determine whether the petitioner is entitled to relief on the ground that his conviction’s abstract of judgment erroneously fails to “reflect the jury’s findings under Penal Code section 667.61, subdivisions (d)(4) and (e)(2), nor does it reflect petitioner was sentenced pursuant to subdivision (a) of that section.” (Link added.) The statute provides a 25-years-to-life sentence for various sexual offenses during the commission of certain burglaries.

Criminal case grant-and-holds. There were three criminal case grant-and-holds:  one more on hold for a decision in People v. Arellano (see here), which will be argued next month; another one waiting for People v. Patton (see here); and one holding for People v. Superior Court (Guevara) (see here).

Grant-and-hold dispositions (see here). The court dumped 20 cases that had been grant-and-holds. Balistreri v. Balistreri (see here) was remanded for reconsideration in light of February’s trust-modification opinion in Haggerty v. Thornton (2024) 15 Cal.5th 729 (see here); Haggerty disapproved Balistreri. Of 17 cases that were waiting for November’s murder-resentencing decision in People v. Curiel (2023) 15 Cal.5th 433 (see here), the court dismissed review in 4 and remanded for reconsideration in 13. One case, in which the petition for review was filed in September 2020, was remanded for reconsideration in light of both Curiel and People v. Lewis (2021) 11 Cal.5th 952 (see here and here). And the court dismissed review at the defendant’s request in a case that had been waiting for a decision in the probation-time case of People v. Faial (see here).

Supreme Court will hear another pension case [Updated]

Some notable Supreme Court actions taken at yesterday’s conference include:

Pensions again. The court will hear another case about the Public Employees’ Pension Reform Act of 2013, this time apparently concerning PEPRA’s interpretation rather than its constitutionality. (See here.)

Canal immunity dissenting vote. The court denied review of the Fifth District Court of Appeal’s belatedly published opinion in Perez v. Oakdale Irrigation District, but Justice Leondra Kruger recorded a vote to grant. The Fifth District affirmed summary judgment for an irrigation district in an action for the death of a father and daughter who drowned when their overturned car landed in a drain. The appellate court held the action was barred by Government Code section 831.8(b), which provides irrigation districts are generally immune from liability “for an injury caused by the condition of canals, conduits, or drains used for the distribution of water if at the time of the injury the person injured was using the property for any purpose other than that for which the district or state intended it to be used.” It concluded that, even though the phrase “using the property” could reasonably be construed as “limit[ing] immunity to circumstances where the injured party volitionally interacted with the property,” the Legislature enacting the statute more likely was “evinc[ing] a concern with how foreseeable the injury was to the government, rather than how much responsibility the injured person assumed.” Horvitz & Levy was appellate counsel for the defendant District.

Racial Justice Act procedure. The court denied review in People v. Lashon, handing a renewed defeat to a defendant who has been claiming her murder convictions were tainted by the trial judge’s implicit bias in violation of the California Racial Justice Act (here and here). The First District, Division Three, published opinion came after the Supreme Court had granted review of an earlier opinion and sent the case back for reconsideration in light of new legislation, Assembly Bill 1118. (See here.) Pre-AB 1118, Division Three held the bias claim was forfeited by not filing a motion in the trial court before judgment. AB 1118 amended Penal Code section 745(b) to provide, “For claims based on the trial record, a defendant may raise a claim alleging a violation of [the CRJA] on direct appeal from the conviction or sentence” and “may also move to stay the appeal and request remand to the superior court to file a motion pursuant to this section.” Division Three stuck to its forfeiture decision, stating, “By the AB 1118 amendment, the Legislature did not include any language indicating a section 745 claim could be presented on direct appeal for the first time.” It also declined to remand the case, saying that “it appears the Legislature intended the stay and remand procedure to be available in cases that need further factual development” and that the defendant “both had the opportunity to raise a CRJA violation and develop the record in the trial court and fails to identify what factual development (if any) is now needed in the trial court.” The appellate court noted the defendant has also raised her CRJA claim in a pending Supreme Court habeas corpus petition. (See here.) The Supreme Court denied review in another CRJA case last month. (See here.)

Grant-and-hold disposal. The court dismissed review in Winick v. Noble LA Events, Inc., which had been a grant-and-hold (see here) for TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766 (see here).

Criminal case grant-and-transfer. The court granted the prosecution’s petition for review (and denied the defendant’s) in People v. Browder and transferred the case back to the Second District, Division Eight, for reconsideration in light of People v. Clark (2024) 15 Cal.5th 743 (see here).

Criminal case grant-and-holds. Uncommonly there were none this week.

[April 24 update: Supreme Court won’t review State Bar Court opinion broadening availability of alternative discipline program for impaired attorneys.]

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