Supreme Court grants review in three criminal cases

Actions of note at yesterday’s Supreme Court conference — a double one — included:

• In People v. Gray, the court agreed to review the published opinion of the Second District, Division Two, Court of Appeal, which held that a hearsay statement that is not admissible at a criminal trial because of the Sixth Amendment’s Confrontation Clause is admissible at a probation violation hearing.  The appellate court said it was choosing sides in an existing split of authority, siding with the Third District’s decision in People v. Stanphill (2009) 170 Cal.App.4th 61 rather than the more recent People v. Liggins (2020) 53 Cal.App.5th 55 from the First District, Division Four.  The Supreme Court denied review in Stanphill, with Justices Joyce Kennard and Ming Chin recording dissenting votes.  The court denied a depublication request in Liggins (there was no petition for review) but Justice Carol Corrigan recorded a dissenting vote.  (See here.)
• The court granted review in People v. Arnold, another case involving when new sentence-reduction legislation can apply retroactively.  The unpublished opinion of the Second District, Division One, held the defendant couldn’t take advantage of 2018’s Senate Bill 1393, which gave superior courts discretion to strike sentence enhancements for previous serious felony convictions, because his judgment was already final when SB 1393 was enacted and it didn’t matter that the California Department of Corrections and Rehabilitation had recommended recall of his sentence based on the change in the law.  The Supreme Court addressed the retroactivity of different legislation just last month in People v. Esquivel, and last year it reviewed the retroactivity of SB 1393 specifically in People v. Stamps.
• The court also granted review in People v. Braden, and it limited the issue under consideration to:  “What is the latest point at which a defendant’s request for mental health diversion is timely under Penal Code section 1001.36?”  (Link added.)  The partially published opinion of the Fourth District, Division Two, disagreed with the Third District’s recent decision in People v. Curry (2021) 62 Cal.App.5th 314 and held the defendant “was ineligible for that section’s ‘pretrial diversion’ because he did not request diversion before trial began.”  Last year, in People v. Frahs, the Supreme Court held the 2018 legislation providing for the diversion applies retroactively to cases in which the judgment is not yet final.  The appellate court said that Frahs “did not address” the  statutory construction issue that is dispositive in Braden.  The Supreme Court yesterday made Curry a  grant-and-hold for Braden.
• The court granted a pro per petition for review in In re Gadlin and transferred the matter back to the Second District, Division Five, which had summarily denied the defendant’s habeas corpus petition on the ground he had “fail[ed] to demonstrate he exhausted his administrative remedies.”  The appellate court is to issue an alternative writ on the issue whether the defendant should now have a nonviolent offender parole hearing.  The Supreme Court’s order cites to the court’s December decision regarding the same defendant (In re Gadlin (2020) 10 Cal.5th 915) that struck down regulations excluding from parole eligibility all inmates who have past or current convictions requiring sex offender registration.
• The court granted-and-held in Beier v. Bank of America, deferring action until it decides Sheen v. Wells Fargo Bank (see here).  Sheen involves the issue whether a mortgage servicer owes a borrower a duty of care to refrain from making material misrepresentations about the status of a foreclosure sale following the borrower’s submission of, and the servicer’s agreement to review, an application to modify a mortgage loan.  In Beier, the Fourth District, Division Three, in an unpublished opinion, stuck by its previous decision that disagreed with a 2013 First District, Division Two, opinion “ ‘to the extent it suggests a residential lender owes a common law duty of care to offer, consider, or approve a loan modification, or to explore and offer foreclosure alternatives.’ ”
• Over the dissenting recorded votes of Justices Mariano-Florentino Cuéllar and Joshua Groban, the court denied review in People v. Martinez, which raised the issue whether a recommendation from the California Department of Corrections and Rehabilitation to recall a sentence automatically triggers the right to a superior court hearing and the appointment of counsel.  The unpublished opinion of the Fourth District, Division Three, concluded there is no such right, following the Second District, Division Seven, decisions in People v. Frazier (2020) 55 Cal.App.5th 858 and People v. McCallum (2020) 55 Cal.App.5th 202.  Justice Groban dissented from the denial of review in Frazier.  (See here.)  Review wasn’t sought in McCallum, because the defendant there obtained a reversal on other grounds.
• The court denied review in In re L.A., but Justices Goodwin Liu and Mariano-Florentino Cuéllar recorded votes to grant.  The Third District’s unpublished opinion affirmed an order asserting dependency jurisdiction and removing a minor from the appealing father’s custody.  The appellate court found substantial evidence supporting the finding that the father was not able and willing to appropriately care for the minor even though the superior court stated the father was “ ‘prepared to care for’ ” the minor.
• There were 23 criminal case grant-and-holds:  11 more holding for a decision in People v. Lewis (see here), which was argued in May; two more holding for People v. Lopez (see here); three more holding for Lewis and Lopez; one more holding for People v. Strong (see here); one more holding for Lewis and Strong (that’s a total of 311 Lewis grant-and holds); two more holding for People v. Duke (see here); one more holding for People v. Renteria (see here and here); and two holding for People v. Braden (see above).