There were no straight grants at the Supreme Court’s conference yesterday, with only six justices participating because newly confirmed Justice Patricia Guerrero has not yet been sworn in. But there were actions of note, including:

  • Second time’s the charm for LWOP clemency request.
  • Immunity for law enforcement: The court granted-and-held in Nelson v. Santa Barbara County Sheriff’s Office, deferring action pending a decision in Leon v. County of Riverside, which is expected to decide whether immunity under Government Code section 821.6 is limited to actions for malicious prosecution. Review was granted in Leon last August. The Second District, Division Six, Court of Appeal’s unpublished opinion in Nelson affirmed the dismissal of an action against the Santa Barbara Sheriff’s and District Attorney’s offices for, among other things, malicious prosecution, false imprisonment, and negligence. On the immunity issue, Division Six agreed with the concurrence in the Leon Court of Appeal opinion that “ ‘any correction to the Court of Appeal’s decades-old, expansive application of section 821.6 will have to come from our Supreme Court, rather than from us.’ ” Division Six had previously reversed the plaintiff’s involuntary manslaughter conviction, but, later, it also reversed a superior court finding the plaintiff was factually innocent of murder, a charge on which she won a jury acquittal.
  • Trespass remedy. The court denied review in Johnson v. Little Rock Ranch, but it depublished the Fifth District’s 2-1 opinion. Additionally, Justices Carol Corrigan and Leondra Kruger recorded votes to hear the case. The Court of Appeal affirmed a superior court ruling that the defendant had encroached on over 3 acres of the plaintiff’s property, but that, applying a laches defense, denied injunctive relief and fashioned an equitable remedy: the defendant was required to pay damages and undertake corrective action on the property and the plaintiffs were required to deed the disputed property to the defendant. The dissent said “[o]rdering private landowners to sell their property against their will to a trespasser is a profound power” that was unjustified in the case.
  • But I won in SCOTUS: The court denied the defendant’s petition for review in People v. Lange. He had won in the U.S. Supreme Court, which, in reversing a First District, Division Five, decision (People v. Lange (Oct. 30, 2019, No. A157169) 2019 WL 5654385, review denied), held that pursuit of a fleeing misdemeanor suspect did not categorically allow the police to enter a home without a warrant. (Lange v. California (2021) 141 S.Ct. 2011, 210 L.Ed.2d 486.) On remand, Division Five, in a published opinion, again affirmed the denial of the defendant’s suppression motion, concluding that, even though the police entry was illegal under the U.S. Supreme Court’s decision in the case, the “good faith” exception to the exclusionary rule precluded suppression because the police warrantless entry complied with then-binding state appellate law. One commentator — Professor Shaun Martin — noted about this case that the “good faith” exception greatly diminishes the incentive to challenge current law: “Winners get prospective relief — for others — but that doesn’t help them at all.”
  • Parole reversal: The court directed the First District, Division Four, to hear on the merits prisoner Larry Johnson’s habeas corpus petition and to issue an order to show cause “why the Governor did not abuse his discretion in reversing the Board of Parole Hearings’ September 2020 determination that petitioner was suitable for parole, and why the Board’s decision to grant parole should not be reinstated. (See In re Shaputis (2011) 53 Cal.4th 192; In re Lawrence (2008) 44 Cal.4th 1181; In re Pugh (2012) 205 Cal.App.4th 260, 266; but see In re Butler (2014) 231 Cal.App.4th 1521, 1533.)” Division Four had summarily denied the petition.
  • Denied briefing opportunity. In a rare ruling, the court granted review in Munoz v. PL Hotel Group and sent the case back to the Fourth District, Division One, for rehearing after supplemental briefing under Government Code section 68081. The statute proscribes a reviewing court from “render[ing] a decision in a proceeding . . . based upon an issue which was not proposed or briefed by any party to the proceeding [without] afford[ing] the parties an opportunity to present their views on the matter through supplemental briefing.” In response to a rehearing petition, Division One denied it had violated section 68081 because, it said, the dispositive issue — fraud in the execution of a contract — “was ‘ “fairly encompassed” ’ within the main issues at all relevant stages.” The Supreme Court’s order depublishes the appellate court’s opinion. (See here.)
  • Suspension of former judge: Two years ago, the court denied review of a Commission on Judicial Performance decision removing a Contra Costa County Superior Court judge from the bench. (See here.) Later, the court referred to the State Bar the former judge’s petition to end his suspension from law practice, a suspension that followed automatically from his removal. (See Cal. Const., art. VI, section 18(e).) Yesterday, the court denied the petition based on the State Bar’s recommendation.
  • Criminal case grant-and-holds. There were 4 criminal case grant-and-holds — three more holding for a decision in People v. Strong (see here) and one more holding for People v. Delgadillo (see here).