In January, Justice Ming Chin announced he would retire at the end of August. The announcement was 245 days ago, giving Governor Gavin Newsom ample time to appoint a replacement who could take Justice Chin’s place when Chin left the court last month. (See here.) That didn’t happen, and an appointment might still be months away.
The court continues to hear cases, however, enlisting Court of Appeal justices to temporarily fill the vacancy. Since Chin’s retirement, the court has held one round of oral arguments with pro tems, two weeks ago. Today, the court announced its second pro tem calendar. The pro tems — who are generally assigned alphabetically — will be named later.
The October calendar, like September’s, has only four cases on it, indicating the lack of a seventh justice might be slowing the court down. An unfilled vacancy hampers the court because, among other things, the court delays scheduling arguments in cases where the six permanent justices are tentatively evenly divided. The delay limits the possibility of undesirable 4-3 opinions with a pro tem in the majority.
As with all arguments since April, the October calendar will be remote and held only in San Francisco (see here, here, and here).
On October 7, in San Francisco, the court will hear the following cases (with the issue presented as summarized by court staff or stated by the court itself):
In re Gadlin: Under Proposition 57 (Cal. Const., art. I, § 32), may the California Department of Corrections and Rehabilitation categorically exclude from early parole consideration all prisoners who have been previously convicted of a sex offense requiring registration under Penal Code section 290? The court granted review in May 2019.
People v. Gentile: The court limited the issues to these: “1. Does the amendment to Penal Code section 188 by recently enacted Senate Bill No. 1437 eliminate second degree murder liability under the natural and probable consequences doctrine? 2. Was it prejudicial error to instruct the jury in this case on natural and probable consequences as a theory of murder?” The court granted review, and depublished the Court of Appeal’s opinion, in September 2019.
Sass v. Cohen: In a case involving the legal fallout from an unmarried couple’s falling out, the court limited the issues to these: “(1) In a complaint that seeks an accounting of specified assets, is the plaintiff required to plead a specific amount of damages to support a default judgment, or is it sufficient for purposes of Code of Civil Procedure section 580 to identify the assets that are in defendant’s possession and request half of their value? (2) Should the comparison of whether a default judgment exceeds the amount of compensatory damages demanded in the operative pleadings examine the aggregate amount of non-duplicative damages or instead proceed on a claim-by-claim or item-by-item basis?” The court granted review in May 2019.
People v. Moses: The court limited the issue in the case to this: “Did the Court of Appeal err in reversing defendant’s conviction for human trafficking of a minor (Pen. Code, § 236.1, subd. (c)(1)) on the ground that defendant was communicating with an adult police officer posing as a minor rather than an actual minor?” The court granted review — on its own motion — in November 2019. The Attorney General opted to not petition for review, but the Orange County District Attorney (who we assume obtained the conviction) asked the court to grant review on its own motion. The Attorney General briefed the case in the Supreme Court, however.
