At the Supreme Court’s Wednesday conference, a divided court issued a grant-and-transfer order in M.U. v. Superior Court.

Most grants of review, including grant-and-transfers, are unanimous.  Occasionally, one or two justices will simply not vote with their granting colleagues, as has happened recently (see In re Harris below, and also here and here), but it’s quite unusual to have justices affirmatively record a vote against a grant.  In fact, it appears that the court’s internal practices and procedures provide for a dissenting recorded vote only when a petition for review is denied.  (Several months ago, the court adopted a policy of allowing justices to record dissenting votes when the court recommends clemency at the governor’s request.)

In M.U., however, Chief Justice Tani Cantil-Sakauye and Justices Ming Chin and Carol Corrigan recorded votes to deny the petition for review.  Justices Goodwin Liu, Mariano-Florentino Cuéllar, Leondra Kruger, and Joshua Groban voted to grant and transfer.

The dispute among the justices concerned a procedural issue.  A minor filed a writ petition in the First District, Division One, Court of Appeal, challenging an order transferring the minor from juvenile to criminal court.  (See here, here, and here.)  The appellate court denied the petition “for failure to provide a record sufficient to enable informed appellate review.”  The problem was the lack of a reporter’s transcript or a declaration summarizing the relevant proceedings, a deficiency which the court gave the minor’s counsel opportunities to fix before denying the petition.

The Supreme Court order directs the Court of Appeal to “reconsider the matter in light of the reporter’s transcript, which counsel for petitioner has informed this court is now available, provided that petitioner lodges the record within seven days from the date of this order.”

Practice pointer:  when petitioning for writ relief, just comply with rule 8.486(b) and don’t count on the Supreme Court to bail you out.  In M.U., the majority might have thought it better to have the transfer issue reviewed on the merits now rather than in the context of a later habeas corpus petition claiming ineffective assistance of counsel.  (If so, the reasoning is similar to the impetus for changing the court’s grant-and-hold philosophy in criminal cases four years ago.)  That factor won’t be a consideration in a civil case writ petition.

Other conference actions of note included:

  • The justices were unanimous in granting review in Conservatorship of O.B., and they limited the issue to, “On appellate review in a conservatorship proceeding of a trial court order that must be based on clear and convincing evidence, is the reviewing court simply required to find substantial evidence to support the trial court’s order or must it find substantial evidence from which the trial court could have made the necessary findings based on clear and convincing evidence?”  The court’s decision will likely resolve a split of authority on this same issue in punitive damage cases.  The Second District, Division Six’s published opinion in O.B. held, “’The “clear and convincing” standard . . . is for the edification and guidance of the trial court and not a standard for appellate review.'”
  • The court denied review in People v. Servin, but depublished the opinion by the Fourth District, Division Three.  In a matter challenging the denial of a compassionate prison release, the appellate court issued its opinion even though the defendant had died during the appeal’s pendency.  The court said it was doing so “to make two points: (1) the statutory requirements and the standard of appellate review explained in Martinez v. Board of Parole Hearings (2010) 183 Cal.App.4th 578 apply in all cases under section 1170(e), whether the defendant or the People appeals; and (2) to alert the Attorney General and the criminal defense bar to the necessity of immediately advising the appellate court of the time exigency and the need for calendar preference in compassionate release cases.”  Points made; but they won’t be in the official reports.
  • In In re Harris, the court issued an order to show cause, returnable in the Court of Appeal, whether the habeas corpus petitioner is entitled to relief “because there was insufficient evidence to support the November 4, 2016 decision by the Board of Parole Hearings to rescind petitioner’s parole grant.  (See In re Powell (1988) 45 Cal.3d 894, 904.)”  Justice Chin did not vote in favor of the order, but he did not formally record a dissenting vote.  (See M.U. v. Superior Court above.)
  • There were six criminal case grant-and-holds.