At its conference yesterday, the Supreme Court straight-granted review in two civil cases. With the court’s vacancy still unfilled, now over five months after Justice Martin Jenkins announced his retirement, it was another conference with just six justices participating.
Review granted: police pursuit immunity
The court agreed to hear Gilliland v. City of Pleasanton. In a published opinion, the First District, Division One, Court of Appeal reversed a defense judgment that was based on Vehicle Code section 17004.7, which makes a public entity that implements a police “vehicular pursuits” policy immune from liability for damages “resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he or she is being or has been, pursued in a motor vehicle by a peace officer employed by the public entity.”
Division One’s decision overturning the judgment after a bench trial reopens a case of a plaintiff injured by a driver who the opinion says believed he “was being followed by” a city police officer “for some type of investigative purpose.” The appellate court found it prejudicial error that the superior court “disregarded evidence that [the followed driver] did not believe he was pursued within the meaning of the City’s pursuit policy, which requires that the suspect be ‘attempting to avoid arrest.’ ” (Emphasis added.) The opinion said courts should “define suspects’ belief that they are being ‘pursued’ . . . based on the applicable pursuit policy and not the word’s ordinary meaning.”
Review granted: what’s organic?
The court also granted review in Environmental Democracy Project v. Rael, Inc. The First District, Division Two, published opinion held that selling feminine hygiene products as “organic” and as “made with” organic ingredients can violate the California Organic Food and Farming Act.
Although finding some ambiguity and a possible “inadvertent drafting error” in one part of COFFA, Division Two rejected an argument that the Act should “apply only to agricultural products.” Rather, noting that key parts of the Act broadly regulate “products,” Division Two concluded that the legislation “applies to all products sold as ‘organic’ or containing ‘organic’ materials.”
A few years ago, the Supreme Court passed on deciding whether a bumble bee falls within the definition of “fish” in the California Endangered Species Act. (See here.) But now it will determine whether products such as cover period underwear are regulated by a Food and Farming Act.
Although apparently not an issue the Supreme Court will decide, Division Two did devote a few pages of its opinion to explaining why it did not violate Government Code section 68081 in relying on portions of legislative history not cited by the parties in their briefs. That statute 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.” Division Two said, “all that happened here is that our independent research uncovered some additional legal authority that was relevant to the legal issue before us,” which “is a commonplace occurrence when appellate justices decide cases, indeed it is a routine and central feature of appellate review.” Section 68081 was not mentioned in the petition for review, the answer, or the reply. The Supreme Court has found section 68081 violations by Courts of Appeal in the past. (See here, here, and here.)
Another Racial Justice Act OSC
The court issued an order to show cause, returnable in the superior court, in the pro per’s habeas corpus petition in In re Nollins involving a claim under California’s Racial Justice Act (see here, here, and here).
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 Three Strikes sentences imposed in Los Angeles 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.)
Bail denial OSC
The court granted review in In re Sanchez and sent the case back to the Third District, which had summarily denied a habeas corpus petition. The appellate court is to issue an order to show cause “why petitioner is not entitled to relief on the ground she is not charged with ‘[f]elony offenses involving acts of violence on another person’ as required for denial of bail pursuant to article I, section 12, subdivision (b) of the California Constitution.” (Link added.)
Dissenting vote: LWOP murder
Justice Joshua Groban recorded a dissenting vote from the denial of review in People v. Johnson, in which the Second District, Division Seven, unpublished opinion affirmed a conviction and life without parole sentence for murder.
The court found unavailing several different arguments: the superior court erred in admitting hearsay statements from the defendant’s accomplice, in instructing the jury it could consider “anything that [it] observed about the defendant while in the courtroom,” in coercing the jury into reaching a guilty verdict, and in denying the People’s motion to dismiss special circumstance and firearm enhancements.
On the instruction issue, Division Seven concluded there was error, but that there was no prejudice. It also noted that, on a separate habeas corpus petition, it had issued an order to show cause, returnable in the trial court, regarding whether the judge’s answer to the jury’s question violated the federal constitution and the California Racial Justice Act.
Because the dissenting vote is not explained, it’s not clear which issue or issues Justice Groban wanted the Supreme Court to address. (There’s a fairly simple cure for that: When a message vote’s message is muddled.)
Dissenting votes: probation conditions
The court denied review in People v. Jones over the recorded dissenting votes of Justices Goodwin Liu and Kelli Evans. In a 2-1 unpublished opinion, the Fourth District, Division One, held to be forfeited objections to probation conditions imposed on a defendant who had pled guilty to burglary, attempted burglary, and resisting an officer, and it rejected assertions that defendant’s counsel was ineffective for not objecting to the conditions.
The conditions that the defendant claimed violated her constitutional privacy and due process rights required the defendant to take psychotropic medications if prescribed by a doctor; participate in treatment, therapy, counseling, or other course of conduct as suggested by validated assessment tests; and provide written authorization for the government to receive progress reports.
The dissent asserted the treatment, therapy, and counseling condition was “unconstitutionally overbroad and vague.”
Dissenting vote: felony murder
Justice Evans also recorded a dissenting vote from the denial of review in People v. Whitlatch. The Third District’s unpublished opinion affirmed a conviction for first degree murder during a carjacking committed when the defendant was 16. The fatal shooting was done by the defendant’s accomplice.
This is another case implicating Senate Bill 1437, 2018 legislation that limited criminal liability for felony murder. And it was the second time the Third District ruled on the appeal. The Supreme Court made the case a grant-and-hold after the Third District’s first opinion and the matter was then transferred back for reconsideration in light of 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).”
On remand, the Third District concluded, “the evidence is sufficient to support a finding that the defendant consciously disregarded the significant risk of death his actions created: he supplied [his accomplice] a gun, and he blocked [the victim] from efforts to get away from the scene while [the accomplice] aimed a gun at [the victim].”
Review denied: assault weapon possession
The court denied review in People v. Crenshaw. The First District, Division Five, in a published opinion, affirmed a conviction for, among other things, possession of an assault weapon (Pen. Code, § 30605(a)).
Finding meritless the claim that the conviction violated the Second Amendment of the U.S. Constitution, Division Five disagreed with a federal district court decision (Miller v. Bonta (2023) 699 F.Supp.3d 956, decision stayed (9th Cir., Oct. 28, 2023, No. 23-2979) 2023 WL 11229998) and, perhaps, a U.S. Supreme Court two-justice concurrence (Caetano v. Massachusetts (2016) 577 U.S. 411, 412). Relying on the “historical tradition [that] supports the prohibition of carrying dangerous and unusual weapons,” Division Five held “California’s statutory ban on assault weapons is beyond the scope of the Second Amendment because it has not been shown that such weapons are in common use by law-abiding citizens.”
Criminal case grant-and-holds
There were two criminal case grant-and-holds, both waiting for a decision in People v. Eaton (see here).
Grant-and-hold dispositions (see here)
The court dismissed review in seven cases that were waiting for the decision in People v. Emanuel (2025) 17 Cal.5th 867 (see here and here).
