Originally posted on December 16
At the Supreme Court’s double conference yesterday, with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement over six weeks ago, actions of note included:
- Writ petition against redistricting commission fails
- Supreme Court won’t require remote public access to Los Angeles Superior Court proceedings
- Clemency for two approved
- The court granted review in In re Cabrera, and it limited the issue to: “Did the sentencing court err by finding petitioner’s conviction for battery with serious bodily injury (Pen. Code, § 243, subd. (d)) was a serious felony (id., §§ 667, subd. (a)(1), 1192.7, subd. (c)(8)), despite the jury’s failure to reach a verdict on the attached allegation that petitioner personally inflicted great bodily injury (id., § 12022.7, subd. (a))? (See Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. 270.)” In an unpublished opinion, the Third District Court of Appeal held that a jury finding of great bodily injury was unnecessary to impose a sentence enhancement because the superior court correctly applied the “ ‘usual assumption’ ” that a serious bodily injury finding is “equivalent” to a great bodily injury finding. This was the second grant of review in the case — after the appellate court had summarily denied the habeas corpus petition, the Supreme Court over two years ago granted review and directed the superior court to assess the Apprendi/Blakely/Cunningham issue. Unusually, yesterday’s grant of review was not unanimous; Justice Martin Jenkins didn’t vote to hear the case.
- The court issued an order to show cause, returnable in the superior court, in In re James, a habeas corpus petition relating to a non-capital first degree murder case. The issue to be determined is whether “trial counsel rendered ineffective assistance by failing to retain the services of an expert on Post-Traumatic Stress Disorder and to present such evidence at the trial.”
- There were seven criminal case grant-and-holds: five more holding for a decision in People v. Strong (see here), one more holding for People v. Delgadillo (see here), and one more holding for People v. Espinoza (see here).
- The court granted review and transferred 10 cases back to the Courts of Appeal for reconsideration in light of various pieces of new legislation: three more for Assembly Bill 333, two more for Senate Bill 775 (see here and here), one more for Senate Bill 567, one more for both SB 567 and Assembly Bill 124, two more for Assembly Bill 518, and one more for Assembly Bill 1540.
- The court dismissed review in nine more cases that had been grant-and-holds waiting for the July decision in People v. Lewis (2021) 11 Cal.5th 952. By our count, there are 188 Lewis grant-and-holds still pending. There had been 327 of them. (See here.)
- The court transferred another capital habeas corpus petition to the superior court under Proposition 66. (See here and here.)