For a Supreme Court conference — a double one with just six justices participating — without any straight grants, there was a fair amount of notable action yesterday. In fact, we’ll be recapping the conference in two parts. This is Part I.
Two separate statements
Separate statement about closing public meetings after disruptions
Separate statement about the timing of a resentencing hearing
Grant-and-transfer: possible sanctions for a DA’s AI brief
The court granted review in Kjoller v. Superior Court and returned the case to the Third District Court of Appeal, which had summarily denied a motion to issue an order to show cause why that court should not impose sanctions. The Supreme Court’s order requires the Third District to now issue the requested OSC.
A criminal defendant had filed a habeas corpus petition in the appellate court challenging the denial of bail. The Nevada County District Attorney filed an informal response that the defendant’s petition for review claimed “cited to fabricated authority, misrepresented the record, and mischaracterized the few actual authorities that were accurately referenced, including a provision of the California Constitution.” “The number and nature of the errors strongly suggested that the document had been prepared by generative [artificial intelligence],” the petition said. The DA responded in the Court of Appeal, as quoted in the petition for review, “There are errored citations; however, the errored citations belong to real cases.”
The petition for review also claimed that the DA “had previously filed briefs citing to fabricated authority in at least two other cases, and been put ‘on notice’ by the trial court to be careful when using AI to draft briefing.” (Initial caps omitted.)
In response to the habeas petition, the Third District had issued a Palma notice (see here). The superior court reversed itself and held a new bail hearing, causing the Third District to dismiss the habeas petition as moot but also to deny the sanctions motion.
The Supreme Court order says, “The Court of Appeal may appoint a referee to hear evidence and make findings on certain specified questions. (Holt v. Kelly (1978) 20 Cal.3d 560, 562.)”
[January 16 update: An amicus curiae letter in support of review was submitted by 22 “professors, scientists, and scholars that conduct research on issues of criminal law and procedure, prosecutorial obligations and misconduct, wrongful convictions, the use of forensic scientific evidence in criminal proceedings, or the use of generative artificial intelligence (‘AI’) models.” The letter said, “Left uninvestigated and unchecked, the use of false or misleading legal authority in the criminal justice system—whether generated by AI or not—will have grave consequences: inaccurate judicial decisions, unjustified deprivation of individual liberty, wrongful convictions, and an erosion of public trust in the judicial system.”]
Related: Supreme Court posts AI warning.
Racial Justice Act OSC
The court issued an order to show cause, returnable in the Court of Appeal, in In re Jones, ruling on a habeas corpus petition filed in July 2024. Cause is to be shown “why petitioner is not entitled to the relief sought in the petition. With respect to the claim under the Racial Justice Act of 2020 (RJA) [see here, here, and here], the return should address both (1) whether the RJA applies to a prosecutor’s use of a peremptory challenge against a prospective juror and (2) if so, whether petitioner is entitled to relief in this case because the prosecutor’s exercise of a peremptory challenge against the sole remaining Black prospective juror violated the RJA.”
The Third District had previously summarily denied a habeas petition filed by the same defendant. The denial order stated, “To the extent petitioner asserts a claim under the California Racial Justice Act (Act), assuming without deciding the Act applies, petitioner has failed to establish that there is a ‘substantial likelihood,’ as that term is defined in the Act (Pen. Code, § 745, subd. (h)(2)), that the prosecutor ‘exhibited bias or animus towards the [petitioner] because of the [petitioner’s] race,’ (Pen. Code, § 745, subd. (a)(1)) or ‘used racially discriminatory language about the [petitioner’s] race . . ., or otherwise exhibited bias or animus toward the [petitioner] because of the [petitioner’s] race’ (Pen. Code, § 745, subd. (a)(2)).”
Childhood sexual assault immunity grant-and-hold
T.L. v. San Diego County Health and Human Services Agency is another grant-and-hold for K.C. v. County of Merced (see here), which is expected to decide whether the foster child plaintiff’s complaint alleging that a social worker failed to investigate or act in response to claims of sexual abuse was subject to demurrer on the ground that discretionary act immunity under Government Code section 820.2 precluded liability.
The Fourth District, Division One, unpublished opinion affirmed summary judgment for a county based on discretionary act immunity in a case alleging the county negligently failed to adequately investigate the plaintiff’s claims of sexual abuse while she was in foster care over 35 years earlier and failed to remove her from the home.
Criminal case grant-and-holds
There were four criminal case grant-and-holds: one more each holding for decisions in People v. Mitchell (see here and here), In re Hernandez (see here, here, and here), People v. Eaton (see here), and People v. Munoz (see here).
