Yesterday’s conference — a double one — was the fourth in a row in which the Supreme Court did not straight-grant any cases. There hasn’t been a straight grant (or its equivalent) since September 3. But there were notable actions.
Dissenting statement in Racial Justice Act case
Childhood sexual assault immunity grant-and-hold
D.W. v. County of Stanislaus 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.
In D.W., the Fifth District Court of Appeal’s unpublished opinion relied on its review-granted K.C. opinion and affirmed the dismissal on demurrer of a former foster care child’s lawsuit claiming, as the opinion summarized, “negligent acts and/or omissions of County and/or County’s employees proximately caused the childhood sexual assault that resulted in her injuries.”
Racial Justice Act OSC and grant-and-transfer
Ruling on pro per petitions in In re Jimenez (petition for review) and In re Harbor (habeas corpus), the court issued (Harbor) or directed (Jimenez) orders to show cause why the defendants had not shown entitlement to appointment of counsel under Penal Code section 1473, subdivision (e), of the Racial Justice Act (see here and here).
The court’s orders state that Jimenez’s claim relies on “statistical data . . . demonstrating racial disparities in the imposition of gang enhancements in Monterey County,” while Harbor has provided “statistical data . . . demonstrating racial disparities in Three Strikes sentences imposed in Los Angeles County.”
The court has made numerous similar orders before. (See recently here.)
Falling-tree-branch injury grant-and-transfer
After the Third District summarily denied a writ petition, the Supreme Court granted review in Kunau v. Superior Court and sent the case back to the appellate court for a decision on the merits. The petition for review, relying on a city’s ordinances, claimed the superior court wrongly dismissed a case against the city by a man injured when a truck struck low-hanging tree branches that then fell on him. The plaintiff asserted the city had “a mandatory duty . . . to maintain and care for the trees that are planted on and about its own public roadways so as to prevent injury to pedestrians legally using those same public roadways.”
The petition for review was four days late, but was filed with permission. (See: Getting relief for a late petition for review might not be a hopeless cause.)
Depublication: labor violations class action decertification
The court denied review in Allison v. Dignity Health, but it granted two requests to depublish the First District, Division Four, belatedly published opinion. The opinion affirmed the decertification of class claims brought by a registered nurse for meal period and rest break violations at three hospitals. The opinion held the superior court did not abuse its discretion in relying on post-certification new evidence — “ ‘a large number of new declarations,’ plus ‘plaintiffs’ efforts at a statistical analysis.’ ” It said there was nothing wrong with relying “on evidence uncovered in post-certification discovery” or with finding a plaintiff’s statistical survey “was unreliable because substantial evidence . . . supports [the trial court’s] finding that ‘[t]here is no evidence the actual participants were randomly picked.’ ”
Clemency recommendations
The court granted Governor Gavin Newsom’s July requests (here) for constitutionally required recommendations that allow him to pardon Willard Munford and Marc Viotti. According to the Governor’s requests, Munford was convicted in 1989 of possession of a controlled substance for sale and, in 1994, of possession of a firearm as a felon; and Viotti in 2001 and 2003 was convicted of drug-related offenses.
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 86 of his other requests. 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.
Dissenting vote: resisting arrest
Justice Martin Jenkins recorded a dissenting vote from the denial of review in People v. Gresham. A Second District, Division Eight published opinion affirmed a resisting-arrest conviction, holding that establishing the crime “requires that a jury find only that a defendant ‘knew or reasonably should have known’ that the person they were resisting was a peace officer acting in the lawful performance of official duties.” A concurring opinion, twice the length of the majority, noted a conflict in the Courts of Appeal, but said the defendant loses regardless of which appellate analysis is used. Nonetheless, the concurrence said, “For future interactions between police and the public, [it] matters [which analysis is correct]. Only our Supreme Court can resolve this conflict in the lower courts.” (See Wait for it: issue percolation, right vehicles, and legislative inaction.)
Dissenting vote: drunk driving murder
The court denied review in People v. Ramirez, but Justice Goodwin Liu recorded a vote to grant. The Sixth District’s unpublished opinion affirmed a second degree murder conviction for a fatal accident the defendant caused while driving under the influence of alcohol.
The Sixth District rejected the argument that, according to the opinion, “the trial court erroneously instructed the jury regarding the necessary elements for implied malice murder by failing to modify the requisite instruction to reflect the language referencing a ‘high degree of probability’ of death from People v. Reyes (2023) 14 Cal.5th 981.” (Regarding Reyes, see here.)
Last month, Justice Liu recorded a dissenting vote from the denial of review in a similar Sixth District case. (See here.) (See also: Separate concurring statement in implied murder case.)
Dissenting vote: human trafficking
Justice Liu also recorded a dissenting vote from the court’s denial of review in People v. Grant.
The Second District, Division Five, unpublished opinion affirmed a conviction for human trafficking and possession of a firearm by a felon. The defendant made several unsuccessful appellate arguments, including that the prosecutor violated the Racial Justice Act (see here and here) in closing argument (the prosecutor equated human trafficking to antebellum slavery and sex slavery) and that gang evidence was improperly admitted. Either or both of these issues (or another) could have been what attracted the dissenting vote, but we don’t know because the vote is unexplained. (There’s a fairly simple cure for that: When a message vote’s message is muddled.)
Dissenting votes: search-and-seizure, inevitable discovery
Justice Liu and Justice Kelli Evans recorded dissenting votes from the denial of review in People v. Smith. A 2-1 Second District, Division Five unpublished opinion upheld a trial court order denying the defendant’s motion to suppress the gun and drugs that police found in his backpack, concluding, “We need not decide whether the search was unreasonable because the discovery of the gun and drugs was inevitable.”
The appellate court dissent says the superior court ruling should be reversed so the trial judge can “consider the viability of an alternative argument the People made but the trial court never reached: whether defendant . . . abandoned a backpack he was carrying such that he lacks standing to contest the subsequent search.”
Dissenting vote: discovery of neuropsychological testing data
The court denied review in Woollard v. Superior Court, but Justice Joshua Groban recorded a dissenting vote. The petition for review, filed after the summary denial of a writ petition by the Second District, Division Six, stated the issue to be “whether a defendant can be forced to provide raw neuropsychological testing data to lay persons when it will cause the withdrawal of their chosen expert and that of at least 269 other qualified experts in the state because the turn-over order violates their professional duties, resulting in denial of the defendant’s right to defend against a plaintiff’s mental health damages claims.”
In August, Justice Groban dissented from the denial of review in a similar case. (See here.)
Criminal case grant-and-holds
There were two criminal case grant-and-holds, both additional cases waiting for a decision in People v. Eaton (see here).
