At its conference yesterday, the Supreme Court granted review in two criminal cases. Here’s part I of a recap of those and some other notable actions.
Second review grant in sentencing error case
The court agreed to hear People v. Flowers, granting review for a second time in the case. After the Second District, Division Six, Court of Appeal affirmed an upper-term sentence for robbery, the Supreme Court made the case a grant-and-hold for People v. Lynch and then sent the matter back to Division Six for reconsideration in light of the Lynch decision, People v. Lynch (2024) 16 Cal.5th 730 (see here). On remand, in an unpublished opinion, the appellate court again affirmed, “conclud[ing], beyond a reasonable doubt, that a jury would have found, beyond a reasonable doubt, all of the aggravating factors upon which the trial court relied to impose the upper term.”
The Supreme Court has limited the issue on review to, “Did the Court of Appeal err by declining to remand for resentencing under the amended Penal Code section 1170, subdivision (b)? (See People v. Wiley (2025) 17 Cal.5th 1069 [see here]; People v. Lynch (2024) 16 Cal.5th 730 [see here]; People v. Salazar (2023) 15 Cal.5th 416 [see here]; People v. Gutierrez (2014) 58 Cal.4th 1354.)”
The notice of appeal in this case was filed more than four and a half years ago.
Review granted: faulty information
The court also granted review in People v. Orozco and it limited the issue to, “Is defendant’s indeterminate sentence for attempted murder unauthorized under Penal Code section 664, subdivision (a) because the prosecutor did not allege in the information that the attempted murder was willful, deliberate, and premeditated?”
The Second District, Division Eight, in a published opinion, said “no.” It concluded that reliance on the pleading defect was forfeited and that the defect was inconsequential because it “did not mean Orozco and his attorney were ignorant of the prosecution’s plan of attack. To the contrary, the defense was fully on notice.”
Another headless PAGA grant-and-hold
Galarsa v. Dolgen California, LLC is yet another grant-and-hold 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.
In a belatedly partially published, and substantially modified, opinion, the Fifth District affirmed the denial of a motion to compel arbitration, concluding that the plaintiff was allowed to bring only a non-individual PAGA action.
Because the underlying lawsuit in Leeper has been dismissed at the plaintiff’s request, we guessed the Supreme Court would dismiss review in Leeper and straight grant in another case raising the same issues. That hasn’t happened. In fact, party briefing is complete in Leeper. Other Leeper grant-and-holds are Rodriguez v. Packers Sanitation Services Ltd., LLC (see here), Williams v. Alacrity Solutions Group, LLC (see here), Osuna v. Spectrum Security Services, Inc. (see here), CRST Expedited, Inc. v. Superior Court (see here), Medina v. Sood Enterprises, Inc. (see here), Neubecker v. Evans Hotels (see here), Resendiz v. Canyon Restaurant (see here), and Domingo v. Prime Healthcare Paradise Valley (see here).
Racial Justice Act OSCs
The court issued orders to show cause, returnable in the superior court, in three pro pers’ habeas corpus petitions for relief under California’s Racial Justice Act (see here, here, and here). — In re Jennings, In re Martinez, and In re Guzman.
Jennings is a systemic racism case. Cause is to be shown “why petitioner is not entitled to appointment of counsel pursuant to Penal Code section 1473, subdivision (e), in light of statistical data provided by petitioner demonstrating racial disparities in convictions and sentencing in Riverside County.”
Martinez and Guzman raise case-specific allegations. Martinez seeks “relief under Penal Code section 745, subdivision (a)(2) based on his claim that the prosecutor used racially discriminatory language or otherwise exhibited bias or animus towards petitioner because of his race, ethnicity, or national origin.” Guzman wants “relief under Penal Code section 745, subdivision (a)(1) and (a)(2) based on his claim that a detective used racially discriminatory language or otherwise exhibited bias or animus towards petitioner because of his race, ethnicity, or national origin during his interrogation and that the prosecutor exhibited bias by introducing an unredacted transcript of the interrogation containing the detective’s racially discriminatory language to the jury at trial.”
The court has made many orders like this before. (See here and, recently, here.)
Dissenting votes: Racial Justice Act denial
The court denied review in People v. Midell, but Justices Goodwin Liu and Kelli Evans recorded votes to grant. In a published opinion, the First District, Division Two, affirmed convictions for attempted premediated murder, torture, and assault, rejecting arguments that the Racial Justice Act was violated by the Black defendant’s attorney comparing his client to a “raving animal” and the sentencing court calling the defendant’s conduct “animalistic.”
Division Two concluded “defense counsel’s comments were an affirmative and tactical decision that reflect the central theme of Midell’s defense: ‘He doesn’t have intent.’ ” It found the judicial misconduct claim to have been forfeited by a failure to object.
Childhood sexual assault dissenting vote.
Justice Joshua Groban recorded a dissenting vote from the denial of review in John Doe R.L. v. Merced City School District.
The Fifth District’s published opinion reversed the dismissal of a lawsuit alleging a school district’s negligence caused childhood sexual assaults of the plaintiff by his elementary school principal starting 60 years ago. Assembly Bill 218 revived such otherwise time-barred claims against public entities, but the district argued the legislation violates the California Constitution’s prohibition against gifts of public funds (Cal. Const., art. XVI, § 6). The Fifth District found AB 218 constitutional, as have other appellate courts to rule on the issue.
Justice Groban has previously dissented from the denial of review in similar cases (see here, here, and here) and might be the lone member of the court who ever votes to decide the issue, unless a Court of Appeal declares AB 218 unconstitutional (see: The Supreme Court doesn’t decide all important issues.)
Criminal case grant-and-holds
There were two criminal case grant-and-holds, both waiting for a decision in People v. Eaton (see here).
