This is the second part of a recap of yesterday’s Supreme Court conference. It discusses a number of dissenting votes from denials of review, besides the votes in In re Mency (see here). Part I is here.
Dissenting votes: juvenile de facto LWOP resentencing
The court denied review in People v. Bhimji and People v. Kline, but Justices Goodwin Liu and Kelli Evans recorded votes to grant. A Second District, Division Four, Court of Appeal unpublished opinion in Bhimji affirmed the denial of a resentencing petition by a defendant serving 40 years to life for a murder committed when he was 17. In Kline, the Second District, Division Six, unpublished opinion upheld the denial of a resentencing petition by a defendant serving a 32 years to life sentence for attempted murder when he was 15.
The defendants sought relief under Penal Code section 1170, which generally permits resentencing of some defendants who were sentenced to life without parole for crimes committed when they were minors, and under the Fourth District, Division One, decision in People v. Heard (2022) 83 Cal.App.5th 608, which held that, consistent with equal protection principles, resentencing must also be allowed for those sentenced to the “functional equivalent of life without parole.”
Division Four and Six held the defendants’ sentences were not LWOP functional equivalents. Division Four said, “Even disregarding other avenues for earlier release (e.g., §§ 3051, 3055), Bhimji will have the opportunity to be released on parole by age 58,” and concluded that he did “not demonstrate that he would not have an opportunity to reintegrate into society as a productive and respected citizen.” Division Six relied on its earlier unpublished opinion in People v. Walton (but see rule 8.1115(a) [“an opinion of a California Court of Appeal . . . that is not certified for publication or ordered published must not be cited or relied on by a court . . . in any other action”]), of which the Supreme Court denied review (see here).
In June, the Supreme Court granted review in People v. Munoz to decide whether a juvenile homicide offender sentenced to 50 years to life in prison is entitled to recall and resentencing under section 1170(d)(1), on the ground that the sentence is the functional equivalent of life imprisonment without parole. (See here; see also here.)
50 years to life sentences are getting the court’s attention; 40 years (or fewer) to life, not so much. (See here.)
This week’s denials of review in Bhimji and Kline are “without prejudice to any relief to which defendant might be entitled after this court decides . . . Munoz.” Justices Liu and Evans have dissented in similar cases. (See recently here.)
Dissenting vote: off-campus sexual assault of student
Justice Joshua Groban recorded a dissenting vote from the denial of review in Doe v. Mount Pleasant Elementary School District. The Sixth District’s published opinion reversed a summary judgment for a school district in an action seeking damages for the sexual assaults of a fifth grade student while spending four days at an outdoor science school run by a county office of education with which the district had contracted.
The appellate court concluded the district had not shown on summary judgment that it was protected from liability by the limited statutory immunities in Education Code sections 35330 (field trips or excursions) or 44808 (pupils not on school property). A concurrence differed from the majority regarding why section 35330 was not available to the district.
Dissenting vote: Racial Justice Act
The court denied a pro per’s habeas corpus petition in In re Navarro, but Justice Evans recorded a dissenting vote. The denial order says one habeas claim was for relief under California’s Racial Justice Act (here and here) based on an allegation “a juror in the case exhibited bias or animus toward petitioner because of petitioner’s race, ethnicity, or national origin by telling other jurors during deliberations that petitioner looked like he was in a gang.” The court concluded Navarro “fails to allege particularized facts that support his claims based on alleged exhibitions of racial bias.”
Dissenting votes: counsel substitution in murder resentencing proceeding
Justices Liu and Evans also recorded dissenting votes from the denial of review in People v. Ramirez. The Second District, Division Two, in an unpublished opinion, affirmed the denial of a petition for resentencing under Penal Code section 1172.6, part of Senate Bill 1437, 2018 legislation that eliminated murder liability under the natural and probable consequences doctrine, significantly limited the scope of the felony murder rule, and allowed for resentencing for some convictions obtained under prior law. The defendant was sentenced for first degree murder in aiding and abetting a gang killing.
The defendant wanted a reversal because the superior court refused his belated request for a continuance so he could substitute retained counsel for his appointed counsel and because, he claimed, his appointed counsel provided constitutionally ineffective representation. Division Two held that the continuance denial was not an abuse of discretion, that counsel’s performance did not “[fall] below an objectively reasonable standard,” and that, anyway, a continuance or better counsel wouldn’t have helped the defendant because “the evidence that appellant aided and abetted the murder with knowledge and intent was overwhelming.”
