At the Supreme Court’s conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October, the court granted two petitions for review, but also removed a large number of cases from its docket.  The actions of note included:

  • Supreme Court allows commutation of three-strikes sentence
  • Granting review in People v. Brown, the court agreed to resolve a conflict about whether a superior court can deny a prosecution motion for continuance of a suppression motion hearing when the denial will foreseeably result in the prosecution’s dismissal.  In Brown, the Sixth District Court of Appeal’s published opinion said the trial court can do that and it disagreed with the contrary view by the First District, Division Five, in People v. Ferrer (2010) 184 Cal.App.4th 873.  It’s a statutory construction issue.  The Supreme Court denied review in Ferrer, with Justice Joyce Kennard recording a vote to grant.
  • The Supreme Court also agreed to hear Haggerty v. Thornton, where the Fourth District, Division One, in a published opinion, held that a trust was validly amended under Probate Code section 15402, which provides, “Unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for revocation.”  The appellate court concluded the trust’s reservation of the right to amend “by an acknowledged instrument” “[did] not appear” to intend “to bind [the settlor] to the specific method described in the trust agreement, to the exclusion of other permissible methods.”  Although distinguishing the Fifth District’s divided decision in King v. Lynch (2012) 204 Cal.App.4th 1186 and declining to address whether the King result was correct, the Haggerty opinion said, “as a general matter, we conclude the King dissent more accurately captures the meaning of section 15402 than the majority opinion.”  The Supreme Court denied review in King.
  • The court granted-and-held in County of Fresno v. Superior Court.  The case is another one now waiting for a decision in Tansavatdi v. City of Rancho Palos Verdes, in which the issue was limited to:  “Can a public entity be held liable under Government Code section 830.8 for failure to warn of an allegedly dangerous design of public property that is subject to Government Code section 830.6 design immunity?”  (See here and here.)  A divided Fifth District summarily denied the County’s writ petition in the new grant-and-hold matter, the dissenting justice contending that, as a matter of law, there could be no liability for a driver’s death because “becoming inattentive to unobscured traffic controls at an unobscured intersection is inconsistent with the exercise of due care,” even though the plaintiff’s expert found a stop sign and a warning of a stop sign insufficient due to “inattentional blindness.”
  • The court denied review in People v. Gonzalez, but Justice Goodwin Liu recorded a vote to grant.  The unpublished opinion by the Fourth District, Division Two, rejected arguments by a defendant who was sentenced to life without parole for a murder he committed when he was 18 that (1) a statute denying him a youth offender parole hearing violates equal protection and (2) the sentence was unconstitutionally cruel and unusual.  Justice Liu has shown a recurring interest in youth offender parole ineligibility issues.  (See here, here, here, here, and here.)  He did not record a dissenting vote, however, from the court’s denial of review yesterday in People v. Sands, where the First District, Division Five, in a published opinion, rejected an equal protection argument similar to the one in Gonzalez.
  • The court disposed of 80 criminal grant-and-hold cases.  Review was dismissed in 11 cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952.  By our count, there are 176 Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)  32 cases that had been grant-and-holds for People v. Lopez — which was recently transferred to the Court of Appeal for reconsideration in light of new Senate Bill 775 (see here and here) — were themselves transferred for the same reason.  One case that was on hold for both Lewis and Lopez was also transferred for an SB 775 reconsideration.  Like Lopez, People v. Duke was transferred last month for reconsideration in light of SB 775, and yesterday 16 Duke grant-and-holds were similarly transferred.  The court dismissed review in 20 cases that were on hold for the August decision in People v. Raybon (2021) 11 Cal.5th 1056.
  •  The court granted review and transferred another 10 cases back to the Courts of Appeal for reconsideration in light of various pieces of new legislation:  one more for Assembly Bill 333; seven more for SB 775 (see here and here, and above); one more for Assembly Bill 1540; and one for AB 1540, Assembly Bill 124, and Senate Bill 567.
  • After having granted review in January and receiving full briefing on the merits, the court transferred People v. Hernandez for reconsideration in light of newly enacted Senate Bill 483.  In October, the court asked for supplemental briefing on the legislation’s “significance, if any,” to the case.
  • The court might be considering another transfer of a review-granted case in light of new legislation.  It asked for supplemental briefing in In re Lopez to answer, “What effect, if any, does Assembly Bill No. 333 (Stats. 2021, ch. 699) have on the issues presented in this case?”  (Link added.)  The court granted review in January 2020, and the case is otherwise fully briefed.
  • In People v. Prudholme, a grant-and-hold for People v. Hernandez (which was transferred yesterday (see above)), the court ordered briefing on these questions, “Does Assembly Bill No. 1950 (Stats. 2020, ch. 328) apply retroactively under In re Estrada (1965) 63 Cal.2d 740?  If so, does the remand procedure of People v. Stamps (2020) 9 Cal.5th 685 apply [see here]?”  (Link added.)  It’s unclear whether this is an un-hold order that will lead to full briefing, oral argument, and an opinion, or if the court is deciding an appropriate disposition for the case (e.g., a transfer or a dismissal of review) now that Hernandez is no longer on the docket.
  • There were eight criminal case grant-and-holds:  seven more holding for a decision in People v. Strong (see here) and one more holding for In re Vaquera (see here).