At its conference yesterday, a double one, the Supreme Court agreed to hear four more cases, one on reference from the Ninth Circuit. With the court’s vacancy still unfilled, it was another conference with just six justices participating.
Review granted: recovery by unmarried cohabitant witness
See: Supreme Court might reverse itself on precluding recovery by unmarried cohabitant of injured person.
Ninth Circuit request granted: Criminal law issues affecting federal sentencing
See: Supreme Court will answer Ninth Circuit’s criminal law questions.
Review granted: conservation and water rates
See: Supreme Court will hear conservation-based water rates case.
Review granted: FAIR Plan liability insurance
The court also granted review in California FAIR Plan Association v. Lara. In a published opinion, the Second District, Division Three, Court of Appeal annulled an Insurance Commissioner order requiring the FAIR Plan — California’s insurer of last resort — to offer liability insurance as part of its property insurance policies.
Division Three agreed that relevant legislation was ambiguous, but said, “our review of the statutory scheme and the historical context of the law’s passage compel us to conclude that the Legislature’s intent in enacting the Basic Property Insurance Law was to ensure that first-party property insurance—not liability coverage—would be available to property owners in this state.”
Grant-and-transfer: restitution statute retroactivity
The court granted review in In re J.L. and sent the case back to the First District, Division Two, “with directions to vacate its decision and reconsider the cause in light of Ellingburg v. United States (Jan. 20, 2026; No. 24-482) 607 U.S. __ [2026 WL 135982].”
The Division Two published opinion affirmed a restitution award against four juvenile offenders. It rejected the attempt of two of them to rely on a later-enacted statutory change that ended joint and several restitution liability in juvenile delinquency matters (Welf. & Inst. Code, § 730.6(b)(3)). Division Two held the new law was not retroactive, “infer[ring]” that, when the change was made, “the Legislature knew that victim restitution is not punishment and, consequently, it did not intend” the change to implicate principles presuming punishment-lessening legislation is retroactive.
In Ellingsburg, decided after Division Two filed its opinion, the U.S. Supreme Court held that “[r]estitution under the [federal Mandatory Victims Restitution Act] is plainly criminal punishment for purposes of the Ex Post Facto Clause,” which was good news for the defendant in the case who committed his crime before the MVRA’s enactment. The high court also said, however, that its ruling “does not mean that a restitution statute can never be civil.”
The California Supreme Court’s order to vacate depublishes Division Two’s opinion.
More Racial Justice Act OSCs
The court issued orders to show cause, returnable in the superior court, in the pro pers’ habeas corpus petitions in In re Brimmer, In re Collins, In re Fritz, and In re Washington, and a represented defendant’s petition in In re McClain, all involving claims under California’s Racial Justice Act (see here, here, and here).
Brimmer, Fritz, and Washington raise systemic racism claims. Cause is to be shown in each why the petitioner is not entitled to the appointment of counsel and to discovery “in light of statistical data cited by petitioner demonstrating racial disparities” in “Three Strikes sentences imposed in” Riverside County (Brimmer), Sacramento County (Fritz), and San Bernardino County (Washington).
In Collins, the issue is whether the petitioner is entitled to appointment of counsel and to discovery “based on his claim that a law enforcement officer used racially discriminatory language or otherwise exhibited bias or animus towards petitioner because of his race, ethnicity, or national origin.”
In McClain, cause is to be shown “why petitioner is not entitled to relief based on his claim the prosecutor’s telling of the fable of the scorpion and the frog during closing argument violated the Racial Justice Act. (See Pen. Code, § 745, subds. (a)(2), (h)(4).)”
The court has made many orders like this before. (See here and, recently, here.)
Dissenting vote: accomplice murder
The court denied review in People v. Athwal, but Justice Kelli Evans recorded a dissenting vote. It came after the Fifth District took a second look at, and again affirmed, a first degree murder conviction under Senate Bill 1437, 2018 legislation that eliminated murder liability under the natural and probable consequences doctrine and significantly limited the scope of the felony murder rule. After the first opinion, the Supreme Court granted-and-held and then remanded the case so the Fifth District could reconsider in light of People v. Emanuel (2025) 17 Cal.5th 867 (see here and here). The defendant participated in a convenience store robbery during which his cousin fatally shot a store clerk.
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).”
In an unpublished opinion, the Fifth District said, “Viewed in the light most favorable to the judgment, the record provides ample evidence that appellant was aware of and willingly involved in the violent manner in which this robbery was committed, and he consciously disregarded the significant risk of death his actions created.”
Dissenting votes: youth offender parole denial
Justices Goodwin Liu and Evans recorded dissenting votes from the denial of review in People v. Castro. In an unpublished opinion, the Second District, Division Two, rejected constitutional challenges to a statute that prevents parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26. The defendant was 19 when he committed first degree murder.
In People v. Hardin (2024) 15 Cal.5th 834, the Supreme Court found unavailing an equal protection attack. (See here.) Justices Liu and Evans dissented there. After Hardin, they have been regularly dissenting from review denials in youth offender parole denial cases, including once with a separate statement asserting that cruel-or-unusual-punishment issues should be addressed. (See here and recently here; see also here.)
Alternative writ ordered: police officer arrest record
In Perez v. Superior Court, the court ordered the Second District, Division Eight, to hear on the merits a writ petition Division Eight had summarily denied. The criminal defendant petitioner has thus far unsuccessfully sought records related to a driving-under-the-influence arrest by the Pomona Police Department of the Los Angeles County Deputy Sheriff who was involved in arresting the defendant.
The petition for review frames the issue this way: “Whether a criminal defendant may obtain, through the issuance of a subpoena duces tecum, the arrest records of a testifying police officer who was arrested as a private citizen by a third-party agency?” The superior court ruled the defendant should have made a Pitchess motion instead of issuing a subpoena.
The Police Department’s answer to the petition for review said it “agrees with Petitioner that the SDT was the correct procedural device for seeking discovery of its active criminal investigation files concerning [the deputy’s] arrest.” It also conceded that “[a] Pitchess motion is not the correct discovery device . . . because PPD does not maintain [the deputy’s] personnel records since he is employed by LASD.” But it argued against review “because Petitioner simply seeks to correct an alleged error made by Respondent court regarding a settled area of law and does not provide citation to conflicting opinions by other trial and appellate courts.”
The reply to the answer is here.
Criminal case grant-and-holds
There were nine criminal case grant-and-holds: seven more waiting for a decision in People v. Eaton (see here); one more on hold for People v. Dixon (see here); and one waiting for People v. Orozco (see here).
