At a busy double conference yesterday (the court ruled on 181 matters), the Supreme Court straight granted in two cases, made one high-profile denial, and took other notable actions. Once again, with the court’s nearly six-month-long vacancy, it was another conference with just six justices participating. This is Part I of a two-part recap.
Review denied: Trump lawyer disbarment
See: California Supreme Court disbars President Trump’s lawyer, John Eastman
Review granted: possible parental fault in school sexual abuse case
The court granted the plaintiff’s petition for review in Doe v. Coronado Unified School District after a Fourth District, Division One, Court of Appeal unpublished opinion reversed a $5,000,000 judgment for a new trial on apportionment of damages; a limited retrial because the appellate court rejected numerous defense arguments for a complete reversal. Chief Justice Guerrero was recused.
The action was brought against a high school basketball assistant coach for his sexual abuse of a student. The jury assessed fault between the coach and the school district, an apportionment the trial court later modified. But Division One held it was error to not allow the jury to consider apportioning some fault to the student’s parents. It concluded the student’s “parents had a duty to use reasonable measures to protect her from foreseeable injury at [the coach’s] hands” and there was sufficient evidence “one or both of [the] parents knew or should have known that [the coach] posed a risk of sexual misconduct toward [the student] and that a reasonable parent would have taken additional steps to investigate [the student’s] unusual behaviors and/or her contact with and relationship with [the coach].”
Horvitz & Levy requested publication of the opinion, a request both the Court of Appeal and the Supreme Court denied.
Review granted: withdrawal of plea before a different judge
The court also agreed to hear People v. Lant and it limited the issues to: “1. Did the trial court err under People v. Arbuckle (1978) 22 Cal.3d 749 by denying defendant’s motion to withdraw his plea where the judge who accepted his plea was not available to impose sentence due to matters beyond the trial court’s control? 2. Did the Court of Appeal err by holding that, because defendant failed to appear at certain hearings, defendant bore the risk that the judge who accepted his plea would become unavailable for sentencing and therefore defendant could not rely on the judge’s unavailability to seek to withdraw his plea?”
In an unpublished opinion, the Third District held that, although defendants normally have the right to have the judge who accepted their negotiated plea also sentence them, the defendant in the case was not entitled to withdraw his plea when the judge who had accepted his plea recused herself and later retired and was not available for sentencing. On top of that, it concluded that the defendant “bore the risk” of the plea-accepting judge not being available to do the sentencing when the defendant failed to appear for sentencing before that judge, and this was true regardless of whether the defendant’s absence was misconduct.
There’s a conflict in the law on the first issue: the Third District followed its opinion in People v. Dunn (1986) 176 Cal.App.3d 572, an opinion the Sixth District disagreed with in People v. Letteer (2002) 103 Cal.App.4th 1308. There was no petition for review in Dunn or Letteer, but the Supreme Court denied a depublication request in Letteer.
Another Racial Justice Act OSC
The court issued an order to show cause, returnable in the superior court, in the habeas corpus petition in In re Potts 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 relief under Penal Code section 745, subdivision (a) (2), (3), and (4) based on his claims that the prosecutor exhibited bias or animus towards the defendant because of defendant’s race, ethnicity, or national origin by asking questions regarding petitioner’s gang status; that petitioner was charged or convicted of a more serious offense and sentenced more severely than defendants of other races, ethnicities, or national origins who have engaged in similar conduct and are similarly situated; that prosecutors in Ventura County more frequently sought or obtained convictions for more serious offenses against people who share petitioner’s race, ethnicity, or national origin; and that petitioner received a longer or more severe sentence compared to similarly situated individuals convicted of the same offense and longer or more severe sentences were more frequently imposed for the same offense on defendants who share petitioner’s race, ethnicity, or national origin in Ventura County.”
The court has made many orders like this before. (See here and, recently, here.)
Dissenting vote: DUI murder
Justice Liu recorded a dissenting vote from the denial of review in People v. Goss. A Fourth District, Division One, unpublished opinion affirmed a murder conviction arising from a two-car collision caused by driving drunk and drugged.
The defendant argued the evidence didn’t support a finding that she acted with the implied malice necessary to sustain a murder conviction because the conduct didn’t constitute an act involving a high degree of probability that death would result. She also claimed the jurors weren’t properly instructed that they needed to find her conduct involved a high degree of probability that death would result. Division One found both contentions unavailing.
Implied malice murder has been on Justice Liu’s (and Justice Evans’s) radar for a while now. (See here, here, here, and, recently, here.)
Dissenting vote: imperfect self-defense
Justice Evans recorded a dissenting vote from the denial of review in People v. Coleman. An unpublished opinion by the Third District affirmed a murder and attempted murder conviction for a shooting on a bus. It concluded the superior court had not erred in refusing to instruct the jury on imperfect self-defense “because defendant’s belief in the need to defend himself was based entirely on delusion.”
Imperfect self-defense based on delusion has been an issue of interest to Justice Liu (see here), but he didn’t record a vote for review in Coleman.
Dissenting votes: Three Strikes resentencing
The court denied review in People v. Grandberry over the recorded dissenting votes of Justices Liu and Evans. The Second District, Division Six, in a published opinion, held that Penal Code section 1385(c), which concerns the striking of sentence enhancements, did not apply to the defendant’s request to dismiss two prior strike convictions. It agreed with other decisions that “the Three Strikes [law] is an alternate sentencing scheme, not an ‘enhancement.’ ”
Dissenting votes: murder resentencing
Justices Liu and Evans also recorded dissents from the denial of review in People v. Gutierrez. A First District, Division Five, unpublished opinion affirmed the denial of a resentencing petition under Penal Code section 1172.6, part of SB 1437, 2018 legislation that limited criminal liability for felony murder, eliminated it for murder under the natural-and-probable-consequences doctrine, and allowed for resentencing of certain defendants convicted under pre-SB 1437 law.
The defendant did not commit the fatal shooting, but Division Five held it was sufficient that “there is substantial evidence that appellant directly aided and abetted second degree murder by aiding and abetting [an accomplice’s] commission of a life-endangering act, to wit, pursuing a car while openly displaying a gun.” The murder occurred when the defendant was 18 or 19, but the appellate court rejected the argument the evidence didn’t support “the findings that he knew the act was dangerous to human life and acted in conscious disregard for human life, because his ‘immaturity made him unable to subjectively appreciate the danger to life of [the accomplice’s] conduct.’ ”
Dissenting vote: firearm possession
Justice Liu also recorded a dissenting vote from the denial of review in People v. Fee. In an unpublished opinion, the First District, Division Two, affirmed firearm possession and carrying convictions, rejecting arguments that the superior court improperly denied the defendant’s motion to disclose the identity of the confidential informant who led to the defendant’s arrest and that the superior court should have expressly discussed his eligibility for a presumptive lower term based on childhood trauma that he alleges may have contributed to his commission of the offenses.
The dissent is unexplained, so it’s not clear which issue or issues attracted Justice Liu’s vote. (There’s a fairly simple cure for that: When a message vote’s message is muddled.)
Criminal case grant-and-holds
There were eight criminal case grant-and-holds: one more waiting for decisions in both People v. Mitchell (see here and here), which was argued last month, and People v. Eaton (see here); one more on hold for just Mitchell and four more waiting just for Eaton; one holding for People v. Andrews (see here); and one more waiting for People v. Dixon (see here).
