Here’s a report on some actions the Supreme Court took at its conference yesterday. As with other conferences after October, only six justices participated.
Review granted: conflict between Court of Appeal and WCAB
The court agreed to hear Illinois Midwest Insurance Agency v. Workers’ Compensation Appeals Board to resolve a conflict in the case law. Such conflicts are usually between Court of Appeal decisions. This one is between the Second District, Division Three, Court of Appeal’s published opinion and a Workers’ Compensation Appeals Board decision, Patterson v. The Oaks Farm (2014) 79 Cal.Comp.Cases 910. Division Three “reject[ed]” Patterson even while noting that Patterson, a “significant panel decision” but not an en banc decision, was not a precedent binding on future Appeals Board panels and workers’ compensation judges.
Relying on “[l]egislative reforms to the workers’ compensation system” in 2004 and 2013, Division Three held, “When a request for authorization of treatment [of an injured worker] is submitted and there is a dispute over whether the requested treatment is medically necessary, that dispute must be resolved through the utilization review and independent medical review processes, rather than in an extra-statutory proceeding before the WCAB.” The appellate court concluded that the reforms require disputes about the necessity of requested medical treatments to be decided by “medical professionals . . . rather than the WCAB or a higher court” and that “there is no exception . . . for ongoing or continual treatment.”
Illinois Midwest already has its own grant-and-hold. The court granted review and deferred briefing in CMAX Commercial Maintenance Inc. v. Workers’ Compensation Appeals Board, in which the Fourth District, Division Two, summarily denied a petition for writ of review.
[January 23 update: Here is the issue as summarized by court staff (see here) — “(1) Is there an exception to the exclusivity of utilization review and independent medical review when an employer seeks to deny a form of ongoing, continual treatment that the employer has previously authorized? (2) If an employer has submitted a request for such treatment to utilization review, does the Workers’ Compensation Appeals Board have jurisdiction to hear an employee’s appeal from an adverse decision denying such treatment?”]
Dissenting vote: Statements made to undercover agents
The court denied review in People v. Cummings, but Justice Goodwin Liu recorded a vote to grant. The Fourth District, Division One, unpublished opinion affirmed a conviction for two counts of first degree murder, finding without merit the four arguments made by the defendant.
Because the dissenting vote is unexplained, it’s not clear which of the four issues attracted Justice Liu’s attention. (There’s a fairly simple cure for that: When a message vote’s message is muddled.) But we guess it’s issue number four: the admissibility of statements the defendant made — after he had invoked his Miranda right to remain silent — to undercover police officers posing as fellow jail inmates. The Division One majority found no constitutional violation because the defendant “was not aware he was speaking with undercover agents.” A concurring justice agreed with the majority’s alternative holding that any error was harmless, but said there was error because “[d]eliberately tricking a suspect who has just invoked his Miranda rights into speaking with an undercover agent of law enforcement while the suspect is still in uninterrupted custody without counsel does not scrupulously honor the suspect’s invocation and cannot be counted as a voluntary, knowing, and intelligent waiver of the rights previously invoked.”
After many Justice Liu dissenting votes, the court granted review in People v. Allen, which might resolve whether post-Miranda-invocation undercover questioning is permissible. (See here and here.) There are a number of Allen grant-and-holds. The five Supreme Court justices who didn’t vote to grant-and-hold in Cummings may have thought it was unnecessary because of the harmless error analysis all three Division One justices agreed on.
Dissenting votes: attorney fees as criminal restitution
Justices Liu and Kelli Evans recorded dissenting votes from the denial of review in People v. Russell. The Second District, Division Five, in a 2-1 unpublished opinion upheld restitution awards to crime victims for flat fees the victims had paid to two attorneys, one who tracked down the defendant (a hit-and-run car’s passenger who assaulted the victims before the running) and obtained insurance settlements for the victims and one who helped one victim assert her rights during the criminal proceedings.
Division Five held restitution of the flat fees was appropriate without calculating the attorneys’ fees using a “lodestar method,” a method that has been used when a crime victim has incurred fees under a contingency fee agreement. The appellate court also concluded it was proper to require restitution for the fee paid to protect the one victim’s rights.
A dissenting justice said restitution for the victim’s-rights attorney was error because “defendant’s criminal conduct was [not] a ‘substantial factor’ in the economic loss that [the victim] sustained through her payment of attorney fees to [that attorney].”
Dissenting votes: juvenile de facto LWOP resentencing
The court denied review in People v. Rogers, but Justices Liu and Evans recorded votes to grant. In an unpublished opinion, the Third District affirmed the denial of a resentencing petition by a defendant serving a sentence of 42 years eight months to life for a murder and other crimes committed when he was 15.
The defendant 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.” The Third District concluded Rogers’s sentence did not “rise[ ] to th[e] [functional equivalent] level as a matter of law.”
The Supreme Court last year 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; lesser, but still very lengthy, sentences, not so much. (See here.)
The Rogers denial of review is “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: elder abuse murder
Justice Evans also recorded a dissenting vote from the denial of review in People v. Townsel. The Fourth District, Division Two, unpublished opinion affirmed a conviction for special circumstance felony murder, robbery, and elder abuse. The defendant unsuccessfully raised four arguments, as summarized in the opinion: “substantial evidence does not support the finding that force or fear was used in stealing the victim’s property,” “there is insufficient evidence to support the finding that she aided and abetted robbery, as opposed to theft,” “substantial evidence does not support the finding that she acted with reckless indifference, as required for her felony murder conviction,” and “the trial court made an error in the elder abuse jury instruction.”
The dissenting vote is unexplained, so it’s not clear why Justice Evans voted for review. (There’s a fairly simple cure for that: When a message vote’s message is muddled.) However, we’re guessing it was the “reckless indifference” issue. The Division Two opinion was after remand from the Supreme Court for reconsideration in light of last June’s felony murder resentencing opinion in People v. Emanuel (2025) 17 Cal.5th 867. (See here and here.) The Emanuel court, in a unanimous opinion by Justice Evans, held that statutory changes make it crucial “to distinguish between defendants who participate in a violent felony posing only the foreseeable risk of death inherent in any such crime (who are not liable for deaths that may occur during its commission) from those who knowingly engage in criminal activities known to carry a grave risk of death (who are liable).” (Id. at p. 889.)
Criminal case grant-and-holds
There were two criminal case grant-and-holds: one more waiting for a decision in In re Hernandez (see here, here, and here) and one more on hold for People v. Eaton (see here).
Grant-and-hold dispositions (see here)
The court dismissed review in two cases that had been holding for December’s pension bond decision in City of San José v. Howard Jarvis Taxpayers Assn. (2025) 18 Cal.5th 1106 (see here): City of Escondido v. Fawcett (see here) and City of Oxnard v. Howard Jarvis Taxpayers Association (see here).
