For a second week, there were no straight grants at yesterday’s Supreme Court conference, but there were some notable actions.
Justice Carol Corrigan was absent from, and did not participate in, the conference. She was absent from another conference a month ago.
Supplemental briefing: papering judges
The court ordered supplemental briefing in J.O. v. Superior Court, in which the issue is whether Solberg v. Superior Court (1977) 19 Cal.3d 182 should be overruled or limited insofar as it allowed a public agency to bring “blanket challenges” against particular judges under Code of Civil Procedure section 170.6. More about the case here.
The additional briefs are to address, “Assuming arguendo that ‘blanket challenges’ to a particular judge under Code of Civil Procedure section 170.6 implicate separation of powers concerns, do those concerns apply to actions taken only by executive branch offices such as a county counsel or a district attorney’s office, or does the concern apply more broadly to non-executive branch entities such as a public defender’s office or a private law firm? (See, e.g., People v. Superior Court (Tejeda) (2016) 1 Cal.App.5th 892, 896; id. at p. 912, fn. 2 (conc. opn. of Aronson, J.); id. at p. 930 (dis. opn. of Thompson, J.).)”
Racial Justice Act OSC
Ruling on a pro per’s habeas corpus petition in In re Bowden, the court issued an order to show cause, returnable in the superior court, “why petitioner is not entitled to appointment of counsel pursuant to Penal Code section 1473, subdivision (e) [providing for the appointment of counsel for an indigent petitioner who alleges facts constituting a violation of the Racial Justice Act [here and here]] in light of statistical data provided by petitioner demonstrating racial disparities in the imposition of Three Strikes sentences in Sacramento County.” (Bracketed links added.)
The court has made numerous similar orders before. (See recently here.)
Dissenting votes: compassionate release
The court denied review in In re Brissette, but Justices Goodwin Liu and Kelli Evans recorded dissenting votes. The court had issued an order to show cause on the habeas corpus petition filed by Brissette, who has stage IV liver cancer and is serving two sentences imposed by different superior courts — an eight-year sentence for possession of a controlled substance by an inmate, a sentence that is consecutive to a sentence for second degree murder. Moreover, the two superior courts had issued conflicting rulings on whether to grant compassionate release. The Supreme Court’s OSC was to determine whether Brissette was entitled to relief “on the ground Penal Code section 1172.2 is irreconcilable with Penal Code section 1170.1, subdivision (c).” (Links added.) (See here.)
Section 1172.2 specifies “the medical criteria” for a compassionate release and section 1170.1(c) provides that, when there is a consecutive sentence for an inmate-committed felony, “the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison.”
The Fifth District Court of Appeal denied the petition in a published opinion, concluding “section 1172.2 is reconcilable with section 1170.1(c)” and upholding the petition denial of the second superior court to rule. It held that “section 1170.1(c) does not actually operate to impose two entirely separate and independent sentences” and that “section 1172.2 requires that a single court resolve an inmate’s petition for compassionate release.” That “single court” is “the latest court to impose a sentence on an inmate in a multiple case situation,” the court stated.
Dissenting votes: Miranda violation
Justices Liu and Evans also recorded dissents from the denial of review in In re J.T. The Second District, Division Six, in an unpublished opinion, affirmed a juvenile court order that the defendant had committed attempted murder and robbery as a 16 year old. The defendant failed to convince the appellate court that his Miranda waiver was not knowing, intelligent, or voluntary because he was sleep deprived, under the influence of narcotics, and his young age “greatly impacted” his ability to understand his rights and because police used coercive tactics.
Related: Governor signs Liu-inspired juvenile Miranda bill.
Dissenting votes: search and seizure
Justices Liu and Evans also recorded dissents from the denial of review in People v. Shafer. A Fourth District, Division One, unpublished opinion upheld the denial of a motion to suppress evidence and affirmed a conviction, based on a no-contest plea, for illegal possession of a loaded firearm.
The defendant claimed she had a reasonable expectation of privacy in a large tent in which the firearm was found. She had been living in the tent on private property without permission for about a year. The opinion said the tent was “[s]urrounded” by “a significant quantity of household goods, tools, generators, home decor, yard decor, several other things one would find at a standard house, and debris.” Even though the defendant had a subjective expectation of privacy, Division One concluded her situation was analogous to “the cases that hold that when a person is trespassing, there is no objectively reasonable expectation of privacy.”
Dissenting votes: transfer of juvenile to criminal court
Justices Liu and Evans also recorded dissents from the denial of review in In re F.S. Fifteen years after he was convicted in criminal court of murder and attempted murder committed when he was 16, the defendant lost at a hearing on a motion claiming he should have been tried in juvenile court. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299 [Proposition 57 applies retroactively] [see here].) In an unpublished opinion, the Third District affirmed the transfer order, rejecting arguments that the superior court applied the wrong legal standard and, alternatively, that substantial evidence didn’t support the ruling, including the court’s finding the defendant would not have been amendable (and was currently not amenable) to rehabilitation under juvenile court jurisdiction.
Dissenting vote: drunk driving murder
Justice Liu also recorded a dissent from the denial of review in People v. Castro. The Sixth District unpublished opinion affirmed a conviction for implied malice murder committed while driving drunk. The appellate court rejected the defendant’s claim, based on the Supreme Court’s People v. Reyes (2023) 14 Cal.5th 981 decision (see here), that a jury instruction should have been modified to incorporate language “that the jury must find that his act involved ‘a high degree of probability that death would result.’ ”
The Sixth District concluded Reyes “neither modified the legal definition of implied malice murder nor overruled long-standing precedent that [prior Supreme Court] decisions articulate the same standard for implied malice murder.” Alternatively, the court found any instructional error to be harmless.
Dissenting vote: involuntary medication
Justice Liu also recorded a dissent from the denial of review in People v. Wayfer, in which a First District, Division Three, partially redacted unpublished opinion affirmed an order authorizing involuntary medication as needed for a defendant found incompetent to stand trial on charges of felony assault with a deadly weapon and misdemeanor resisting a peace officer.
The defendant unsuccessfully argued that the superior court’s denial of an evidentiary hearing deprived him of due process and equal protection and that the evidence was insufficient to support the order. A concurring justice said the order should be affirmed on grounds the defendant was not in fact denied a hearing, but instead chose not to offer evidence or seek to examine witnesses.
Justice Liu dissented from the denial of review in a similar case a few weeks ago. (See here.)
Criminal case grant-and-holds
There were two criminal case grant-and-holds this week: both are additional cases waiting for a decision in People v. Munoz (see here).
Grant-and-hold dispositions (see here)
Atypically, a number of the dispositions of former grant-and-hold cases were by non-unanimous votes, and not just because of Justice Corrigan’s absence.
Lopez v. Dayton, which was a grant-and-hold for the July MICRA statute of limitations decision in Gutierrez v. Tostado (2025) 18 Cal.5th 222 (see here and here), was remanded to the Court of Appeal for reconsideration in light of Gutierrez. Chief Justice Patricia Guerrero, who authored the court’s unanimous Gutierrez opinion, did not vote for the remand disposition.
The court also shed 15 grant-and-holds that were waiting for the June felony murder resentencing opinion in People v. Emanuel (2025) 17 Cal.5th 867. (See here and here.) 13 were sent back to the Courts of Appeal for reconsideration in light of Emanuel and review was dismissed in the other two. Chief Justice Guerrero voted for only three of the 13 remands and for both of the review dismissals.
There was no explanation given for the Chief Justice’s non-votes. Perhaps she thought the court should have dismissed review in the cases that she did not vote for remands.
