In addition to referring another prisoner/pandemic case to a lower court, the Supreme Court’s Wednesday conference included the following actions of note:
- The court granted review in People v. Lopez, and it limited the issue to: “Did the trial court err by sentencing defendant to 15 years to life under the alternate penalty provision of the criminal street gang penalty statute (Pen. Code, § 186.22, subd. (b)(4)(B)) for his conviction of conspiracy to commit home invasion robbery, even though conspiracy is not an offense listed in the penalty provision?” In a published opinion, the Fifth District Court of Appeal held “a conspiracy conviction . . . may be subject to the alternate penalty provision of section 186.22, subdivision (b)(4)(B).”
- The court is requiring the Fourth District, Division One, to decide a discovery dispute in litigation brought by the State alleging that marketing of prescription opioid medications by numerous pharmaceutical companies caused an opioid abuse crisis in California. The State is trying to prevent discovery by the defendant companies of investigative and administrative files about illegal prescribing, including information from a California Department of Justice database that tracks all controlled-substance prescriptions in the state. The Supreme Court issued grant-and-transfer orders in four related petitions for review (here, here, here, and here) after the appellate court summarily denied writ petitions by the DOJ, the Board of Registered Nursing, the Board of Pharmacy, and the Medical Board of California. Justices Ming Chin and Carol Corrigan were recused.
- The court granted-and-held in McHenry v. Asylum Entertainment Delaware, LLC, deferring further action pending a decision in Brown v. USA Taekwondo, which will decide the appropriate test that minor plaintiffs must satisfy to establish a duty by defendants to protect them from sexual abuse by third parties. [Disclosure: Horvitz & Levy represents one of the defendants in the Brown case.] In McHenry, the Second District, Division Two, in a published opinion, affirmed a summary judgment against a seaman who sued a reality show production company for injuries suffered during the show’s filming on a commercial fishing boat. After concluding the plaintiff was not the company’s employee or “borrowed servant,” the appellate court held there was no special relationship creating a duty by the company to rescue the plaintiff. The opinion says, “recognizing a duty in the context of this case would turn every production company employee into a person obligated to rescue every unpaid ‘extra’ and every ‘reality TV personality’ on every set. Tort law is elastic, but it cannot stretch this far without breaking.”
- The court denied review in People v. Landowski, but it depublished the Third District’s partially published opinion. The previously published portions of the opinion found sufficient evidence supported one defendant’s conviction of an assault with a semiautomatic firearm and also gang enhancement findings as to all three defendants, including findings against two defendants who were convicted of aiding the third defendant’s attempt to avoid apprehension.
- The court denied review in People v. Sanders, but Justice Goodwin Liu recorded a vote to grant. There are a number of varied issues in the Second District, Division One, unpublished opinion and Justice Liu did not publicly explain his vote, so it’s not certain what attracted his attention. (See here.) It could have been because the appellate court held to be admissible statements the defendant made in jail to an undercover informant after he had invoked his Miranda rights, an issue of continued interest to Liu (see here and here). Or, it could have been based on the appellate court’s rejection of the argument that the jury should not have been told to consider eyewitness certainty as a factor in evaluating the credibility of identification testimony. Justice Liu has in the past written separately about the reliability of eyewitness testimony (see here and here), an issue that is pending before the Supreme Court in another case. Or, maybe it was because the appellate court also, among other things, found reversible error in instructing the jury on a kill-zone theory of attempted murder, an issue that was recently before the court.
- There were five criminal case grant-and-holds: three more holding for a decision in People v. Lewis (see here) and two more holding for People v. Lemcke (originally People v. Rudd) (see here).