Supreme Court will answer teed-up bail questions and decide felony-murder resentencing issue; it depublishes arbitration opinion

At yesterday’s Supreme Court conference, a double one, actions of note included:

• Court allows clemency for one, returns files to be redacted for four others.
• Bail. The court agreed to hear In re Kowalczyk and limited the issues to: “(1) Which constitutional provision governs the denial of bail in noncapital cases – article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution – or, in the alternative, can these provisions be reconciled? (2) May a superior court ever set pretrial bail above an arrestee’s ability to pay?” In its landmark In re Humphrey (2021) 11 Cal.5th 135 decision (see here), the court declined to address the first issue (id. at p. 155, fn. 7), but it later teed up the issue by granting review in Kowalczyk and sending it back with directions to answer the unresolved question. The resulting First District, Division Three, published opinion holds the two constitutional provisions can be reconciled and “both sections govern bail determinations in noncapital cases.” The court further concluded, “This means that section 12’s general right to bail in noncapital cases remains intact, while full effect must be given to section 28(f)(3)’s mandate that the rights of crime victims be respected in all bail and OR release determinations. In so concluding, we reject any suggestion that section 12 guarantees an unqualified right to pretrial release or that it necessarily requires courts to set bail at an amount a defendant can afford.” In other words, although Humphrey held “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” setting unaffordable bail is appropriate when pretrial detention is warranted. Division Three disagreed with the Second District, Division Seven, opinion in In re Brown (2022) 76 Cal.App.5th 296, of which the Supreme Court considered granting review on its own motion, but decided not to (see here).
• Resentencing. The court granted the Attorney General’s petition for review in People v. Arellano to resolve a conflict between the Sixth District’s published opinion in the case and the First District, Division Five’s opinion in People v. Howard (2020) 50 Cal.App.5th 727. The cases concern resentencing a defendant whose felony-murder conviction is tossed under subsequent legislation narrowing the felony-murder rule. Specifically, the issue is whether a court, when resentencing for the felony underlying the vacated felony-murder conviction, can include an enhancement related to the underlying felony. The Sixth District said “no” (concluding that the pertinent statute’s plain language “does not authorize enhancements to be attached to the redesignated conviction for resentencing”), but the Howard court said “yes.” The Supreme Court denied the defendant’s petition for review in Howard.
• PAGA arbitration. The court granted a depublication request in Lewis v. Simplified Labor Staffing Solutions, Inc. There was no petition for review. The Second District, Division Eight, opinion side-stepped an issue pending before the Supreme Court in Adolph v. Uber Technologies, Inc., i.e., “Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable.” (See here, here, and here.) After accepting the parties’ agreement that the plaintiff employee’s individual PAGA claims must be arbitrated, Division Eight said, “We need not decide whether an arbitration agreement can require that non-individual PAGA claims be arbitrated because the arbitrator must decide whether the . . . arbitration agreement calls for such arbitration at all.”
• Government immunity. Conway v. San Diego City Employees’ Retirement System is a grant-and-hold for Leon v. County of Riverside, which will be argued next month. Leon is expected to answer, is immunity under Government Code section 821.6 limited to actions for malicious prosecution? (See Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710.) The Fourth District, Division One, unpublished Conway opinion held a retirement system was immune from liability — under section 821.6 and other statutes — for taking away a retired police officer’s disability benefits after he took another job based on alleged assurances that doing so wouldn’t jeopardize his benefits.
• Appeal timeliness: Following an Attorney General concession in the habeas corpus proceeding In re Harper, the court granted “petitioner’s request for constructive filing of his late notice of appeal from the denial of his resentencing petition” and directed the Fourth District, Division One, “to consider the merits of petitioner’s appeal as though a timely notice of appeal had been filed in the first instance. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7; Cal. Rules of Court, rule 8.528(d); In re Benoit (1973) 10 Cal.3d 72.)” In an unpublished opinion, Division One had dismissed the appeal because the petitioner “did not diligently seek constructive filing of a notice of appeal.”
• New evidence. In In re Johnson, the court issued an order to show cause, returnable in the superior court, “why relief should not be granted on the ground the petitioner has presented newly discovered evidence of such decisive force and value that it would have more likely than not changed the outcome at trial. (Pen. Code, § 1473, subd. (b)(3)(A).)” The Second District, Division Four, had summarily denied an earlier habeas petition in an order stating that the petitioner’s claims had been “raised and rejected on appeal as well as in a prior habeas petition” and that the petitioner had “present[ed] no evidence that fundamentally undermines the entire prosecution case and points unerringly to innocence or reduced culpability. (In re Bell (2007) 42 Cal.4th 630, 637.)”
• Jury trial waiver. The court denied review in Conservatorship of C.O. over the recorded dissenting vote of Justice Goodwin Liu. In an unpublished opinion (Conservatorship of C.O. (Dec. 15, 2022, No. H048150) 2022 WL 17687411), the Sixth District dismissed as moot an appeal from an order renewing a since-concluded conservatorship under the Lanterman-Petris-Short Act. The appellate court noted it had previously published an opinion — Conservatorship of C.O. (2021) 71 Cal.App.5th 894 — rejecting the same arguments the conservatee had made in challenging an earlier conservatorship renewal, holding that a failure to personally advise the conservatee of his right to a jury trial was harmless error and that a conservatee’s attorney can waive a jury trial on the conservatee’s behalf.
• Criminal case grant-and-holds. There were six criminal case grant-and-holds: three more waiting for a decision in People v. Lynch (see here); one more holding for People v. Williams (see here), in which party briefing was completed in July 2021; one more waiting for Camacho v. Superior Court (which is technically a civil case, involving a civil commitment under the Sexually Violent Predators Act (see here)); and one more on hold for People v. Faial (see here).
• Delgadillo transfers. The court granted review in People v. Grissom and People v. Vinson, and sent the cases back to the Courts of Appeal “with directions to vacate its decision and reconsider whether to exercise its discretion to conduct an independent review of the record or provide any other relief in light of People v. Delgadillo (2022) 14 Cal.5th 216, 232-233 & fn. 6.” (See here.)