At its conference yesterday, a double one, the court made 191 rulings, but none of them resulted in a straight grant.
Once again, with the court’s seven-month-long vacancy, it was another conference with just six justices participating.
OSC: Racially discriminatory death penalty scheme
Supreme Court orders hearing on landmark anti-death penalty writ petition.
More Racial Justice Act OSCs
The court issued orders to show cause, returnable in the superior court, in the pro per petitions in In re Alvarez and Dickerson v. Court of Appeal involving claims under California’s Racial Justice Act (see here, here, and here).
In Alvarez, cause is to be shown “why petitioner is not entitled to the appointment of counsel pursuant to Penal Code section 1473, subdivision (e)(5) [providing for the appointment of counsel for an indigent petitioner who pleads a plausible allegation of a violation of the Racial Justice Act] in light of statistical data cited by petitioner demonstrating racial disparities in the imposition of Three Strikes sentences in Kern County.”
In Dickerson, cause is to be shown “why petitioner is not entitled to the appointment of counsel pursuant to Penal Code section 1473, subdivision (e)(5) [providing for the appointment of counsel for an indigent petitioner who pleads a plausible allegation of a violation of the Racial Justice Act] in light of news articles and the information provided in the Jail Information Management System printouts demonstrating disparities in charging and sentencing in Riverside County and to the disclosure of discovery pursuant to Penal Code, section 745, subdivision (d) [providing for the disclosure of evidence relevant to a potential violation of the Racial Justice Act in the possession or control of the state].”
The court has made many orders like this before. (See here and, recently, here.)
[Update:
Atypical grant-and-transfer: unauthorized Wende/Delgadillo brief
People v. Montes presents a very unusual situation.
Appointed counsel for a defendant appealing from a resentencing order filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (see here) that raised no issues. After the defendant himself filed a supplemental brief, the Second District, Division Four, affirmed in an unpublished opinion that rejected the defendant’s arguments. The opinion related that, among other things, the defendant argued “his appellate counsel was ineffective because she did not ‘consult with him regarding the filing of the brief and she definitely did not advocate’ for him, since she filed a no-issue brief under Delgadillo.”
A senior staff attorney at the California Appellate Project — Los Angeles, which supervises and oversees appointed criminal appellate counsel, submitted a late petition for review and an application for relief and declaration. She stated that the appointed appellate counsel did not get the required CAP approval to file a no-issue brief and that, upon analyzing the case, she “realized that there were viable issues that should have been raised and that this case was not, in fact, a Wende/Delgadillo no-issue case.” The petition for review frames the issue this way: “Should this matter be transferred back to the Court of Appeal for counseled briefing considering appointed counsel’s failure to obtain approval from the appropriate appellate project when it appears there are arguable statutory and constitutional sentencing issues in the case not argued by an attorney and not addressed by the Court of Appeal’s opinion and in order to forestall a petition for writ of habeas corpus based on ineffective assistance of appellate counsel?”
The Supreme Court filed the petition with permission, granted review, and returned the case to Division Four “with directions to vacate its decision and reconsider the cause in light of the declaration of [the senior staff attorney] . . . and additional briefing as the court may allow.”]
Grant-and-transfer: insufficient briefing opportunity
The court granted review in Brodsky v. Ervin Cohen & Jessup LLP and sent the case back to the Second District, Division Seven, “with directions to grant the petition for rehearing and afford the parties the opportunity for supplemental briefing. (Gov. Code, § 68081; Cal. Rules of Court, rule 8.528(d).)” Section 68081 bars an appellate court from deciding a case “based upon an issue which was not proposed or briefed by any party to the proceeding” unless the court “afford[s] the parties an opportunity to present their views on the matter through supplemental briefing.”
The case involves allegations that a law firm and one of its partners “conspired . . . to dissipate and divert the assets from singer-songwriter Leonard Cohen’s family trust after his death.” In an unpublished opinion, Division Seven affirmed a trial court ruling that the plaintiff trustee did not need to obtain a prefiling order under Civil Code section 1714.10(a), which requires a preliminary showing before a plaintiff can plead a cause of action against an attorney “for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute.”
Earlier this year, the Supreme Court made a similar grant-and-transfer order.
Ministerial exception grant-and-hold
Ehrenkranz v. San Francisco Zen Center is a grant-and-hold for Lorenzo v. San Francisco Zen Center (see here), where the court limited the issue to, “Does the ministerial exception arising under the Religion Clauses of the First Amendment to the United States Constitution categorically preclude wage and hour claims by a minister against a religious organization without any inquiry into whether the claim touches upon any ecclesiastical concern?”
The First District, Division Two, in a published opinion, reversed a defense summary judgment and agreed with the First District, Division Five, decision under review in Lorenzo. Division Five held “the trial court erred in finding that the ministerial exception barred Ehrenkranz’s wage-and-hour claims because defendants presented no evidence that his claims raised an ecclesiastical concern.” Division Two disagreed with Division Five, however, on another issue, one not before the Supreme Court, finding that individual defendants could appeal from a pro-plaintiff Labor Commissioner ruling without posting an undertaking that is statutorily required of some defendants.
Two more headless PAGA grant-and-holds
Gerlach v. Zara USA, Inc. and Shin v. Aya Healthcare, Inc. are additional grant-and-holds for Leeper v. Shipt, Inc. (see here), in which the court limited the issues to: “1.) Does every Private Attorneys General Act (Lab. Code, § 2698 et seq.) (PAGA) action necessarily include both individual and non-individual PAGA claims, regardless of whether the complaint specifically alleges individual claims? 2.) Can a plaintiff choose to bring only a non-individual PAGA action?” The issues are of importance because individual claims must be arbitrated before non-individual claims can be litigated in court.
The Second District, Division Two, unpublished opinion in Gerlach affirmed the denial of a motion to compel arbitration of Labor Code violation claims, holding the plaintiff “was not required to allege, nor did he allege, an individual PAGA claim subject to arbitration.” In Shin, a First District, Division Four, unpublished opinion also affirmed the denial of a motion to arbitrate, concluding “a plaintiff is the master of the complaint and a court cannot construe a plaintiff’s complaint to allege an individual claim if the plaintiff disclaims any such claim. If this makes a complaint defective (an issue we need not and do not decide), the proper solution is to challenge the pleading via the normal procedures, not to read the intentionally omitted element into the complaint and then compel it to arbitration.”
There are many other Leeper grant-and-holds. (See recently here.)
Dissenting votes: warrantless cell phone search
The court denied review in People v. Anderson and People v. Allen with Justices Liu and Evans recording dissenting votes. The published Sixth District opinion deciding both cases held any violation of California’s Electronic Communications Privacy Act in searching a cell phone without a warrant was subject to “the good faith exception to the exclusionary rule” and evidence obtained from the phone thus did not need to be suppressed.
In 2023, Justices Liu and Evans dissented from the denial of review in People v. Meza (2023) 90 Cal.App.5th 520 and issued a separate statement, authored by Liu, saying “[i]t is not clear whether [the good faith] exception applies to violations of CalECPA, and there are plausible arguments on both sides of the question.” (See here.)
Dissenting vote: youth offender parole denial
Justice Liu recorded a dissenting vote from the denial of a pro per’s petition for review in People v. Mitchell. The Second District, Division Six, in an unpublished opinion, rejected a constitutional challenge 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 convicted of first degree murder, committed when he was 18.
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.)
Clemency recommendations
The court granted Governor Gavin Newsom’s requests — made earlier this month — for the constitutionally required recommendations that allow him to pardon De’Mel Bullock and Sophorn Dy.
The Governor’s requests stated:
For Bullock — “In 2004 and 2005, Mr. Bullock was convicted of drug-related felony offenses.”
For Dy — “In 1991, Mr. Dy was convicted of possession of a deadly weapon. In 1996, he was convicted of second degree robbery.”
Newsom has a nearly perfect clemency record: he withdrew one request before a ruling, but the court — applying a deferential standard (see here and here) — has approved all 94 of his other requests. (Not counting seven requests that are still pending.) That’s better than former Governor Jerry Brown, who had the court without explanation block 10 intended clemency grants. The denial of a request implies that a clemency grant would be an abuse of power.
Criminal case grant-and-holds
There were three criminal case grant-and-holds, all waiting for a decision in People v. Eaton (see here).
Grant-and-hold disposition (see here)
At the plaintiff’s request, the court dismissed review in Basith v. Lithia Motors, Inc., which was a grant-and-hold (see here) for the February arbitration opinion in Fuentes v. Empire Nissan, Inc. (2026) 19 Cal.5th 93 (see here).
