The Supreme Court straight granted review in one case at yesterday’s conference, a double one.
And here’s the old news: It was yet another short-handed conference, with just six justices participating, because Governor Newsom has left unfilled a ten-month-long vacancy on the court, a situation that might continue for a little longer.
Clemencies approved
Supreme Court recommends three more LWOP commutations, one pardon.
Review granted: conflict on tax voting requirement
The court agreed to hear Nguyen v. City of Los Angeles and it limited the issue to one about which the Courts of Appeal are in conflict: “To satisfy the exception in California Constitution, article XIII C, section 1, subdivision (e)(4), must a local government prove that ‘a charge imposed for entrance to or use of local government property’ bears a ‘reasonable relationship to the payor’s burdens on, or benefits received from, the governmental activity?’ ” (Link added.)
The Second District, Division Six, Court of Appeal published opinion held a “franchise fee” that a city imposed on a gas company to install, maintain, and operate a natural gas system under city streets — some of the fee being passed on to the company’s customers — is not a “tax” under article XIII C that must be approved by voters.
On the issue to be decided, Division Six agreed with the First District, Division Two, decision in Howard Jarvis Taxpayers Assn. v. Bay Area Toll Authority (2020) 51 Cal.App.5th 435 that the section 1(e) reasonable-relationship exception to the tax-voting mandate was inapplicable and “does not require a reasonable relationship between the fee and the value of the franchise.” It disagreed with the First District, Division One, contrary conclusion in Zolly v. City of Oakland (2020) 47 Cal.App.5th 73.
Both earlier decisions got favorable action from the Supreme Court. The Bay Area Toll Authority case was a grant-and-hold for Zolly v. City of Oakland (2022) 13 Cal.5th 780 (see here) and the Supreme Court dismissed review after it issued its Zolly decision (see here and here). The Supreme Court in Zolly affirmed the Court of Appeal’s Zolly opinion.
Grant-and-transfer: pre-trial detention
The court granted review in In re Ridley and sent the case back to the First District, Division Three, which had summarily denied the habeas corpus petition in the case.
The Supreme Court directed Division Three to decide whether the defendant is “entitled to relief on the ground there was not substantial evidence in the record at [two] custody hearings from which a reasonable trier of fact could find, by clear and convincing evidence, that no conditions of release could reasonably protect the safety of the public or the alleged victims. (In re Humphrey (2021) 11 Cal.5th 135, 153-154; Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)”
Humphrey held that, “if a court concludes that public or victim safety, or the arrestee’s appearance in court, cannot be reasonably assured if the arrestee is released, it may detain the arrestee only if it first finds, by clear and convincing evidence, that no nonfinancial condition of release can reasonably protect those interests.” (See here.) The O.B. court said that, when the heightened clear-and-convincing-evidence standard of proof applies at trial, it also affects the way an appellate court assesses the evidence. (See here.)
Racial Justice Act OSCs
The court issued orders to show cause, returnable in the superior court, in the pro per habeas corpus petitions in In re Farley, In re Shelmon, and In re Caver, which seek appointment of counsel and, in Farley and Shelmon, discovery, concerning claims under California’s Racial Justice Act (see here, here, and here). Farley raises a systemic racism claim, while the Carver claim is case-specific. Shelmon raises both types of claims.
The Farley petition contains “statistical data . . . demonstrating racial disparities in the imposition of gang enhancements in San Diego County.”
The Carver claim is that, “during [the petitioner’s] trial, in court and during the proceedings, the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror, used racially discriminatory language about the defendant’s race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful. (Pen. Code, § 745, subds. (a)(2), (h)(4).)”
In Shelmon, the petitioner submitted “statistical data and comparison cases . . . demonstrating racial disparities in the charging and sentencing of premeditation allegations and firearm and gang enhancements in Los Angeles County” and he also seeks relief based on “the prosecutor’s use of the words ‘terrorist’ and ‘terrorism’ during closing argument.”
The court has made many orders like this before. (See here and, recently, here.)
OSC: ineffective counsel
The court issued an order to show cause, returnable in the superior court, in In re Daniels, “why relief should not be granted on the ground that trial counsel rendered ineffective assistance by failing to investigate and present evidence of mitigating factors at petitioner’s sentencing hearing.”
Dissenting vote: misdemeanor speedy trial
The court denied review in Bishop v. Superior Court, but Justice Evans recorded a vote to grant. The First District, Division One, summarily denied a writ petition, saying, “We decline to exercise our discretion to review the ruling of the appellate division.”
The petition for review states the issue: “Is dismissal mandated under Penal Code section 1382 where the prosecution had a witness under subpoena for trial, and could have compelled their attendance, but instead sought and obtained a continuance beyond the last day to accommodate their witness who had a workplace training event that conflicted with the trial date?”
Section 1382 requires dismissal of a criminal case — “unless good cause to the contrary is shown” — when the case has not been brought to trial within a specified time.
The petition says that “the continuation of misdemeanor trials beyond the Section 1382 deadline is a reoccurring issue in Solano County.”
Dissenting votes: Racial Justice Act
Justices Liu and Evans recorded dissenting votes from the denial of the pro per’s petition for review in In re Charles.
The First District, Division Four, had summarily denied the pro per’s habeas corpus petition, which raised Racial Justice Act claims, both of systemic and case-specific racism. The denial order said, “Petitioner fails to allege particularized facts that support his claims based on alleged exhibitions of racial bias or that support his claim that petitioner was charged, convicted, or sentenced in a more severe manner than similarly situated individuals of other races, ethnicities, or national origins.”
Liu and Evans have dissented in the past from denials of review when pro per petitioners sought the appointment of counsel and/or discovery under the RJA. (See, e.g., here, here, and here.)
Dissenting vote: victim restitution
The court denied review in In re J.L. over Justice Liu’s recorded dissenting vote.
In March, the court granted review of the First District, Division Two’s first opinion in the case affirming a victim restitution award and sent the case back “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].” (See here.)
Division Two had rejected the attempt of two defendants 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)), saying the law wasn’t retroactive because victim restitution is not punishment. 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,” but also said that its ruling “does not mean that a restitution statute can never be civil.”
On remand, Division Two, in a published opinion, said, “We have considered Ellingburg and conclude, as we did in our previous opinion, that the Legislature intended the new amendment to section 730.6 to operate prospectively.”
Criminal case grant-and-holds
There were six criminal case grant-and-holds: three more waiting for a decision in People v. Eaton (see here) and three more holding for People v. Munoz (see here and here).
