The Supreme Court hasn’t published its December calendar yet (there are some technical problems with the court’s website), but, from email notifications, we know four of the cases that will be argued next month.
One of the cases involves a mother convicted of murder for using drugs while pregnant and nursing her baby, who died five days after birth. According to the Court of Appeal opinion affirming the murder conviction in the case, “During her pregnancy, and then while she fed breast milk to her baby, defendant used heroin, methamphetamine, and marijuana.”
The case — People v. Brown — hasn’t garnered much media attention, unlike a case where a woman was being prosecuted for murdering her fetus because of drug use during her pregnancy (see here).
When the court granted review in Brown, it limited the issues to: “1. Did the trial court err in instructing the jury on the elements of first degree murder by poison (see People v. Steger (1976) 16 Cal.3d 539, 544-546; People v. Mattison (1971) 4 Cal.3d 177, 183-184, 186)? 2. Was any such instructional error prejudicial?”
Review was granted three years ago and has been fully briefed since June 2020. (The notice of appeal was filed five years ago; the defendant was sentenced in November 2017.) Just two months ago, and eight months after sending its oral argument letter, the court ordered supplemental briefing on three questions.
The delay in deciding the case and the request for more briefs suggest the court might be struggling with Brown.
The other cases — that we know of — to be argued in December (with the issue presented as summarized by court staff or limited by the court itself) are:
Travis v. Brand: Must a prevailing defendant in an action under the Political Reform Act of 1974 (Gov. Code, § 81000 et seq.) show that the case was frivolous, unreasonable, or without foundation in order to recover attorney fees? The court granted review in June 2021.
People v. McWilliams: (1) Is the discovery of a parole or probation search condition an intervening circumstance that removes the taint of an illegal detention under the attenuation doctrine? (2) What constitutes purposeful and flagrant police misconduct under the attenuation doctrine analysis? The court granted review in July 2021.
In re Cabrera: When the court granted review in December 2021, it limited the issues 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.)”