Gang enhancements, union protections, racially biased prosecutions, the Second Amendment, Michael Jackson, and more at the Supreme Court’s conference [Updated]

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

• AB 333 retroactivity. The court agreed to hear People v. Lopez, limiting the issue to: “Is defendant entitled to retroactive application of Assembly Bill No. 333 (2021-2022 Reg. Sess.) where he appeals for a second time after his judgment was conditionally reversed and the Court of Appeal issued a limited remand to the trial court to address sentencing issues?” (Link added.) The legislation amended the law regarding gang enhancements. Disagreeing with the Fourth District, Division Three, Court of Appeal decision in People v. Salgado (2022) 82 Cal.App.5th 376, the Fourth District, Division Two, in a 2-1 partially published opinion, held that, even though AB 333 applies retroactively, because the earlier appellate reversal and remand only concerned enhancements other than gang enhancements, “the trial court did not have jurisdiction to reconsider the [defendant’s] gang enhancement.” The dissent says the prior appeal doesn’t preclude application of AB 333 to the defendant — “this case has not reached a final judgment, so A.B. 333 applies retroactively to it.” There was no petition for review in Salgado. The Supreme Court heard argument last month in People v. Rojas, regarding AB 333’s constitutionality, and next month it will hear People v. Clark about the legislation’s application. Lopez already has its own grant-and-hold. (See below.)
• Discouraging union membership. The court wants a Court of Appeal opinion on the constitutionality of a state statute barring public employers from discouraging union membership. After the Second District, Division Two, summarily denied a writ petition, the Supreme Court granted review in Alliance Marc & Eva Stern Math & Science High School v. Public Employment Relations Board and directed Division Two to issue an order to show cause to the PERB. The petition asserts that Government Code section 3550 — providing, “A public employer shall not deter or discourage public employees or applicants to be public employees from becoming or remaining members of an employee organization” — violates free speech protections under the federal and state constitutions.
• California Racial Justice Act. The court granted review in People v. Lashon, vacated the First District, Division Three, decision (which depublished the appellate court’s opinion (see here)), and remanded the case for reconsideration in light of Assembly Bill 1118, which was enacted last month. The defendant challenged her murder convictions on appeal claiming implicit bias by the trial judge in violation of the California Racial Justice Act. Division Three held that, under the Act as then written, the claim was forfeited by not filing a motion in the trial court before judgment. AB 1118 changes the Act to allow a claim to be raised “on direct appeal from the conviction or sentence” and to permit a motion “to stay the appeal and request remand to the superior court to file a motion.” Division Three didn’t consider the then-pending bill because, it said, “we cannot consider amendments that may or may not be made at a future date.”
• Vehicle sales arbitration grant-and-hold.  Yeh v. Superior Court is another grant-and-hold for Ford Motor Warranty Cases (see here and here), where the court limited the issue to: “Do manufacturers’ express or implied warranties that accompany a vehicle at the time of sale [by a dealer] constitute obligations arising from the sale contract [between the dealer and a buyer], permitting manufacturers to enforce an arbitration agreement in the contract pursuant to equitable estoppel?” In Yeh, the First District, Division Four, picking sides in a split of authorities (see here), answered “no” in a published opinion.
• More ICWA grant-and-holds.  In re Andres R. and In re Ashton C. are additional grant-and-holds for In re Ja.O. (see here), which is expected to decide whether the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry applies to children who are taken into custody under a protective custody warrant. Andres R. and Ashton C., both from the Fourth District, Division Two (as is Ja.O.), show the continued disagreement in that court on the issue. (See here and here.) Both Andres R. (in a partially published opinion) and Ashton C. (in an unpublished opinion) said “no,” but both panels were divided.
• Second Amendment. The court denied review in People v. Ceja. A Fourth District, Division Three, published opinion rejected a defendant’s constitutional challenge to his conviction of being a felon in possession of ammunition. He argued that the statute criminalizing his conduct violates the Second Amendment. Division Three, agreeing with and quoting the Fourth District, Division Two, decision in People v. Alexander (2023) 91 Cal.App.5th 469, held, “California’s laws prohibiting felons from possessing firearms and ammunition do not violate the Constitution because ‘only law-abiding citizens are included among “the people” whose right to bear arms is protected by the Second Amendment.’ ” The Supreme Court denied review in Alexander, too. (See here.) (Related: Throwing shade at SCOTUS?)

[November 18 update: There was another review-denied Second Amendment case at the conference. See: No shade this time as the Supreme Court keeps on the books an opinion finding a Second Amendment violation.]

• Michael Jackson. The court also denied review in Safechuck v. MJJ Productions, Inc. The Second District, Division Eight, published opinion reversed the sustaining of a demurrer and a summary judgment grant. The appellate court framed the issue this way: “whether two corporations, wholly owned by the late entertainer Michael Jackson, had a legal duty to protect plaintiffs from sexual abuse Jackson is alleged to have inflicted on them for many years while they were children.” Based on Brown v. USA Taekwondo (2021) 11 Cal.5th 204 (see here), Division Eight concluded, “a corporation that facilitates the sexual abuse of children by one of its employees is not excused from an affirmative duty to protect those children merely because it is solely owned by the perpetrator of the abuse.”
• Criminal case grant-and-holds. There were 11 criminal case grant-and-holds:  one more waiting for a decision in People v. Hardin (see here and here), which will be argued next month; two related cases holding for Rodriguez v. Superior Court (see here), which was argued last month; one more on hold for People v. Curiel (see here), which was argued in September; one more waiting for decisions in two death penalty appeals — People v. Bankston and People v. Hin (see here); two more holding for People v. Lynch (see here); one more holding for People v. Walker (see here); two more waiting for People v. Patton (see here); and one on hold for People v. Lopez (see above).
• Grant-and-hold disposal. The court returned to the Court of Appeal for reconsideration a case that had been holding for the August decision in People v. Mumin (2023) 15 Cal.5th 176.