At the Supreme Court’s conference yesterday — a double one, and with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October — actions of note included:

  • Supreme Court recommends pardon.
  • Dependency: The court granted review in Michael G. v. Superior Court, a dependency case. The Fourth District, Division Three, Court of Appeal, in a published opinion, affirmed an order ending reunification services even though the superior court had found that reasonable services were not provided in the most recent review period. The appellate court conceded it “is a difficult issue” and recognized a split of authority on the question. Four years ago, when the Supreme Court denied review in another case raising the issue, Justice Goodwin Liu said in a separate statement, “there appears to be a substantial tension in the statutory scheme,” but he concluded the particular case was “not a proper vehicle” and he recommended, “The Legislature seems the best forum for studying and resolving these issues in the first instance.” (See here.)
  • Sixth Amendment: Another review grant was in People v. Catarino, with this limited issue: “Does Penal Code section 667.6, subdivision (d), which requires that a ‘full, separate, and consecutive term’ must be imposed for certain offenses if the sentencing court finds that the crimes ‘involve[d] the same victim on separate occasions,’ comply with the Sixth Amendment to the U.S. Constitution?” In an unpublished opinion, the Fourth District, Division One, found no constitutional violation. It concluded U.S. Supreme Court case law requiring a jury to make certain punishment-increasing findings “do[es] not apply to the court’s determination of whether to impose consecutive sentences for convictions of multiple criminal offenses.” California’s Supreme Court last month granted review in In re Cabrera (see here) to decide a related Sixth Amendment issue.
  • Harmless instructional error: The court also agreed to hear People v. Schuller. The Third District’s published opinion affirmed a first-degree murder conviction of a defendant who pleaded not guilty by reason of insanity. The appellate court held the superior court erred in refusing to instruct the jury on voluntary manslaughter based on imperfect self-defense (“While defendant’s testimony included evidence of delusion, his account pertaining to the actual shooting was not entirely delusional and thus provided substantial evidence of an actual but unreasonable belief in the need for self-defense”), but it concluded the error was harmless. Although finding the error harmless under any standard, it rejected the defendant’s argument that the error had to be shown to have been harmless beyond a reasonable doubt. In so doing, the opinion seems to conflict with a recent Fourth District, Division One, decision, People v. Dominguez (2021) 66 Cal.App.5th 163, 183–184, in which no petition for review was filed.
  • Recorded vote: The court denied review in D.C. v. Superior Court, but Justice Goodwin Liu recorded a vote to grant. The partially published opinion of the First District, Division Five, upheld a superior court order transferring the defendant to adult criminal court for a murder he allegedly committed when he was 16. Justice Liu’s vote is unexplained, so it’s not certain which of several issues in the case attracted his attention. But the published portions of the opinion found no error in the superior court considering various evidence: (1) conduct taking place after the alleged offense, (2) conduct not resulting in a delinquency petition, and (3) defendant’s expressive writings, which the appellate court said the superior court regarded “as evidence of Petitioner’s ‘continued attraction to violence.’ ”
  • Recorded vote: Justice Joshua Groban recorded a dissenting vote from the court’s denial of review in Dosouqi v. Superior Court. As with Justice Liu’s vote in D.C. (see above), there is no explanation for the vote and the issue of interest is thus unclear. Also, the petition for review followed the summary denial by the First District, Division Two, of a writ petition and neither the Supreme Court’s nor the Court of Appeal’s docket discloses why the writ petition was filed.
  • What about the reply brief?: In People v. Rubio, the court granted review and transferred the case back to the Second District, Division Eight, “with directions to vacate its decision and reconsider the matter in light of appellant’s reply brief.” In an unpublished opinion, the appellate court rejected an ineffective assistance of counsel claim and affirmed a conviction of two first-degree murders with special circumstances.
  • New-Legislation Grant-and-Transfers: The court granted review and transferred four more cases back to the Courts of Appeal for reconsideration in light of new legislation: two more for Senate Bill 567, one more for SB 567 and Assembly Bill 124, and one more for Senate Bill 775 (see here and here).
  • Grant-and-holds: There were eight criminal case grant-and-holds: five more holding for a decision in People v. Strong (see here); two more holding for People v. Delgadillo (see here); and one more holding for  People v. Tirado (see here), which was decided today.
  • Habeas OSC: Speaking of Tirado, in In re Weisner, the court issued an order to show cause, returnable in the superior court, why a pro per should not be granted habeas corpus relief “on the ground that petitioner is entitled to resentencing under Senate Bill No. 620 (Stats. 2017, ch. 682).” SB 620 is the legislation the court construed today in its Tirado opinion. (See here.)
  • Disposal of grant-and-holds:  The court got rid of some more criminal grant-and-hold cases, but only nine this week, as opposed to between 58 and 80 at each of the previous three conference. Review was dismissed in seven cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952. In two cases that had been on hold for both Lewis and People v. Lopez (Lopez was transferred in November to the Court of Appeal for reconsideration in light of SB 775), the court transferred the matters to the Court of Appeal for reconsideration in light of Lewis and SB 775. By our count, there are 127 Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)
  • Proposition 66 transfer: The court transferred another capital habeas corpus petition to the superior court under Proposition 66.  (See here and here.)

Tags: Weekly conference reports