J.O. v. Superior Court (Cal. Supreme Ct. - May 28, 2026)

Finally.

I have long been a critic -- like many others -- of blanket 170.6 peremptory challenges. They're bad for all the usual reasons; most critically, they permit repeat players (e.g., district attorney's offices) to effectively transfer a judge out of a particular department (e.g., felony or murder cases) by papering that judge in every single matter of that type. A decade ago, I talked about a Court of Appeal opinion that seriously questioned the validity of such blanket challenges on separation of powers grounds, notwithstanding the fact that the panel (understandably) felt bound by a 1977 California Supreme Court case that upheld even blanket 170.6 challenges as constitutionally permissible. At the time, I said that the Court of Appeal's opinion addressed an incredibly important opinion, and was "a long time coming."

Today's opinion was a long time coming as well.

The California Supreme Court now overrules its 1977 opinion in part and holds that blanket peremptory challenges to a judge can potentially violate separation of powers principles. It accordingly establishes a new test that's similar to Batson to isolate what it calls "bad faith" blanket 170.6 challenges from those that are constitutionally permissible. The long and short of today's ruling is that blanket papering of judges will be substantially more difficult in the future than they are today.

And for that, I applaud the Court. Well done.

I also appreciate that (1) the opinion is unanimous, and (2) that the Court in this regard is even more "progressive" than it was 50 years ago, in 1977. Today's opinion makes the world at least a marginally better place than the opinion rendered by that same tribunal half a century ago. That's progress. I'm pleased.

Do I have marginal disagreements with the opinion? Perhaps not surprisingly: Yeah, I do.

For one thing, I wasn't a huge fan of how Justice Groban initially pitched the result. His principal argument at the outset consisted of an admission that stare decisis is important but that the "world had changed" since 1977 sufficient to justify a departure from the Court's prior opinion.

That seems somewhat weak sauce to me. Do we have more cases these days? Yes. Do we have more specialized courts than previously? Of course. Do changes like that somewhat increase the dangers of blanket peremptory challenges? Sure.

But, in all honesty, that's not why the practice is unconstitutional. It had the same horrible effects then as it does now. Those harms may be slightly more serious now, but those changes are not why today's decision is correct. The California Supreme Court was simply wrong in 1977 when it validated blanket peremptory challenges. Seriously wrong. And the passage of time has only highlighted and magnified that error. It's not that the Court was right then but changes since then justify a departure. It was wrong then and it is wrong now, and I would have preferred an opinion that forthrightly said so.

I'm also not especially sold on the Court's remedial scheme. Sure, it's definitely better than what we have now (which is nothing). But I worry that it's too soft. Yes, parties should sometimes be able to establish a prima facie case of an impermissible blanket challenge. Yes, that'll require the party to submit an actual justification for their challenge rather than the barebones, conclusory statement of purported bias that 170.6 currently requires. So far, so good. (I foresee some problems with those first two prongs, but they're relatively minor, at least in the context of blanket challenges.)

It's the third stage of the process that I'm worried is too soft. Justice Groban says that all that's required at that stage is for the party making the challenge to establish a "subjective good faith" belief in the challenge. The key word, in my mind, being "subjective" (rather than objective). As long as the party making the challenge itself has a real -- i.e., not made up -- belief that the judge is biased, then the challenge is valid. Even if that subjective belief is entirely unreasonable.

That lets parties off too easily, in my view, and as a practical matter will permit a wide variety of practically blanket challenges to persist.

Parties (and lawyers) who paper judges under 170.6 almost always have a reason why they think the judge is biased against them. It might not be a good reason, but they can nonetheless come up with a reason. I suspect they'll continue to do so, even under the new rule in which that reason may (at the third stage) occasionally need to be articulated.

It's great that Justice Groban's opinion boxes out some reasons that are impermissible. You can't say you disagree with a judge's legal ruling. You can't say that they're too soft (or too hard) on crime. You can't (obviously) challenge them based on their race or gender or things like that. Great.

But there's still tons of leeway for articulated "reasons" behind a challenge. You can say that you think the judge is disrespectful. You can say you think the judge doesn't like your type of client. You can say the judge doesn't seems to like you personally. You can say virtually anything; after all, there probably is an underlying reason why you do, in fact, want to bounce the judge from your case, and most of those reasons are likely permissible under today's ruling.

And, critically, all that you have to do is to show that you actually believe what you're saying. That you have a subjective belief that such bias exists. Your view doesn't have to be reasonable, or even tethered to reality. You just gotta convince the judge that you believe it.

That's too easy a showing, in my view. We already have lawyers who routinely file blanket 170.6 challenges notwithstanding the requirement that these claims be made under oath; i.e., that they swear under penalty of perjury that they actually think the judge is biased (even though we all know full well that the advocate is really just saying that they're prefer a different judge). Do you really think that adding a requirement of subjective belief adds much of a constraint here?

Will this process limit blanket challenges somewhat? Yes. It will. So I'm happy for today's result.

But it could have been stricter. Particularly vis-a-vis the final prong of the relevant inquiry.

ConocoPhillips Alaska, Inc. v. Alaska Oil & Gas Conservation Comm'n (9th Cir. - May 27, 2026)

This one took a while to resolve. I wonder how it would have turned out if it had taken longer.

There's an oil company that wants to keep secret the details about the wells it has drilled in the North Slope of Alaska. But Alaska has passed a law that says that once the wells have been drilled, the company has to provide details about those wells to the state, which then keeps this information private for two years but releases it to the public thereafter, unless such a release would reveal trade secret information of the oil company. The oil company sues, claiming that the state statute is preempted by the federal law that opened up the North Slope to potential oil extraction. And the oil company wins in the district court.

The state files its appeal in 2023, and both sides file their briefs. The case then gets heard quite rapidly; the stat's reply brief was filed on March 4, 2024, and oral argument is held on May 20, 2024. 

The day after oral argument, submission of the case is vacated. The panel wants the views of the United States. So there's another round of briefing. The United States files its brief in September of 2024 and says that it agrees with Alaska that there's no federal preemption.

Alaska, of course, is thrilled. The oil company, less so. It files its response to the United States in January 2025. And then the case sits for a while. (Probably, in part, because it's now a "holdover" case from the prior law clerks. Lower priority.)

But here we are in late May of 2026 and the Ninth Circuit now resolves the case, reversing the district court in a unanimous opinion and finding no preemption.

As I thought about the timing of this case, I couldn't help but wonder if it would have come out the same way if the initial appeal would have been resolved along the more traditional timeline, with a substantial delay between the filing of the briefs and the oral arguments. Let's say, for example, that the initial briefs were all finished in late 2024, oral argument was eight or nine months later, and then the panel asked for the position of the United States, which filed its brief sometime in early 2026.

You may perhaps recall that some significant events transpired at around that time. I suspect that had it been the new Trump administration, rather than the Biden administration, that had filed in the amicus brief requested by the panel, the position taken by the United States with respect to this issue may have been markedly different than it was. (For example, check out this Department of Justice press release with respect to a different oil exploration case earlier this year. It's quite a bit different in both tone and content to the amicus brief filed in the present case.)

So it was interesting to me to see if timing mattered in this one. Maybe it would have come out the same way regardless notwithstanding whatever position the United States took on the preemption issue.

Or maybe not.

U.S. v. Johnsen (9th Cir. - May 26, 2026)

There were no published opinions yesterday, but there are some good ones today. I'm also in Iceland on a family vacation, so my posts may be a bit late this week. It's now almost midnight here, for example, but on the upside, it's still light outside. Sun will also rise again at 3:10 a.m. here. Crazy.

Meanwhile, the Ninth Circuit issued this opinion today, which provides some interesting detail on how federal officers look for child pornography on peer-to-peer networks. They don't even need to download the file to figure out that it's kiddie porn; they just look for specific hash marks on known child porn files to see if you have any. Yet another reason -- and there are billions of them already -- not to download or view child pornography.

The other interesting thing I noticed about the opinion was the sheer volume of kiddie porn Mr. Johnsen had on his computer. There were 140,000 images and 900 videos.

Who even has time to look at all this?! Or needs/wants it? It just seems excessive even on its own terms.

I'm also stunned that 140,000 images of child pornography even exists. Much less that one person could amass such a huge (and incredibly illegal) collection.

Maybe the child pornography industry is simply much, much larger than I ever even considered.

If so, yet another depressing commentary on the world.

Chemical Toxin Working Group v. Best Naturals, Inc. (Cal. Ct. App. - May 22, 2026)

This is another Proposition 65 (Safe Water Drinking Water and Toxic Enforcement Act of 1986) case. As Justice Richman's opinion cogently recounts, it's the third straight published opinion -- all within the last several months -- to hold that even though a notice that lists contact information for the attorney (rather than the principal) for the plaintiff, that's sufficient "substantial compliance" with the statute to permit the lawsuit to go forward.

Which pretty much makes it a consensus. There accordingly shouldn't be much additional need to litigate this point from here on out.

There are several ancillary comments contained throughout the opinion, and I agree with most of them. For example, I think Justice Richman is entirely correct when he says that there are good reason to get attorneys involved in a potential pre-lawsuit negotiation from the get-go, something that's potentially advanced by a notice that lists the attorney as the relevant point of contact. Makes sense to me.

I nonetheless wanted to point out two comments with which I might respectfully disagree.

First, after describing the initial Court of Appeal opinion that found substantial compliance in an analogous setting, Justice Richman says:

"After full and deliberate consideration, we conclude the reasoning of Pancho Villa’s is sound, we adopt it as our own, and reverse. We have only one thing to add: here, the notice plaintiff sent to the Attorney General and all 'District Attorneys of California Counties and City Attorneys' evoked no response. From this silence can be deduced that not one of the recipients deemed the notice inadequate or misleading."

Respectfully: No.

That sounds to me more like the argument of an advocate, rather than actually reflective of the real world. What it really means is that DAs and City Attorneys get these types of notices all the time and pretty much uniformly pay them virtually zero attention, relying instead on private enforcement. They most assuredly did not examine the notice and say "Well, okay, everything looks good to me here, I find that the notice requirements are met, so I'll do nothing. Let me assure you that if I thought the notice was somehow erroneous I would be right on top of it and send a letter out to the plaintiff immediately."

It's just not a very good argument.

Second, the conclusion -- and most interesting part -- of Justice Richman's opinion says the following:

"We end with a closing comment. Running through defendants’ position here is criticism . . .  that attorneys abuse the situation to generate attorney fees. This paragraph in defendants’ brief is illustrative: . . . "It is often outside counsel’s demand for attorneys’ fees (which can encompass up to 75 percent to 90 percent of a total settlement) that drives protracted Proposition 65 litigation. (Consumer Defense Group [v. Rental Housing Industry Members (2006) 137 Cal.App.4th 1185,] 1189 [(Consumer Defense Group)] [concluding in Proposition 65 private enforcement action that ‘[t]he bounty hunter lawyers wanted to get paid hefty fees, which is what the whole thing was obviously about in the first place’]; Consumer Advocacy Group Inc. v. Kinetsu Enterprises (2006) 141 Cal.App.4th 46, 49 [noting that the Legislature sought to prevent settlements ‘which simply result in inadequate public warning in exchange for payment of attorney’s fees.’].)”"

Those early 2000’s cases said what they said, the especially colorful Consumer Defense Group case chastising counsel at length with criticism after criticism, to the point it set aside a settlement. But whatever the state of affairs in the early 2000’s, there is nothing in the record to support that attorneys are currently misusing or abusing the situation for the purpose of generating attorney fees―and thwarting possible settlement. Indeed, the evidence before us indicates the contrary, HLF’s chief executive officer Steinman testifying as follows: “In every Proposition 65 case, HLF attempts pre litigation settlements that are in the public interest over lengthy litigation, and therefore designates counsel who resolves the vast majority, over 90% of HLF’s cases, without the need for litigation.”"

Ahem.

Let me make clear that I personally have no problem with providing private litigants, including their counsel, with bounties and incentives to enforce public statutes. Without a potential fee award, private enforcement in these settings would not occur because it would make zero economic sense. Permitting private enforcement may also be more effective, and perhaps even more cost-effective, that authorizing enforcement only by public officers (read: people paid with taxpayer dollars). Permitting fee awards in such case, paid by corporations that may have violated a statute, may also rightly shift the cost of such enforcement from the general public at large to the actual consumers of those products, a pro-efficiency move.

But let's not pretend that these cases aren't often -- very often -- lawyer- and fee-driven.

This is not some "early 2000's" reality. It's the nature of the beast, and remains so to the present day.

I would prefer to defend that situation on the merits rather than pretend that lawyers in this area are not out to make a buck. They are. For sure. (They may also perhaps be genuinely interested in making sure that public warnings about potentially cancerous chemicals exists. Perhaps. But let's be real. This is an industry that's about the money. As many, many industries are.)

The fact that the plaintiff's firm here (err, ahem, "the public interest group" here) resolves the vast majority of its cases pre-litigation -- often because the defendant sees the writing on the wall and puts up a notice in order to forestall a potential fee award -- is entirely irrelevant to the issue of the economic incentives behind the law firms that specialize in this area, much less "proof" that the interests of those firms are genuine and not motivated entirely by profit.

Lots of industries -- indeed, most of them -- are motivated by a desire to make money. You think that the founders of chemical plants, or food manufacturers, or Mark Zuckerberg or his ilk were centrally motivated by making the world a better place? Consider me unpersuaded on this point, at best.

Lawyers may (or may not) care about the causes they represent. Hopefully they do.

But let's be honest: Everyone's also gotta eat.

Greely v. Greely (Cal. Ct. App. - May 20, 2026)

Bigamy works!

Here, it saves the subsequent "spouse" -- who married her husband three years before he actually obtained a divorce from his former wife -- from a levy of nearly $400,000 on her financial accounts.

That's how we roll down here in San Diego. Three cheers for the efficacy of plural marriage.

Citizens Against Marketplace v. City of San Ramon (Cal. Ct. App. - May 19, 2026)

I haven't been able to find the petition for rehearing that resulted in this amendment by the Court of Appeal, but it was apparently at least successful at getting a bench slam (largely) removed from the opinion.

Here's the amendment:

"Appellant’s petition for rehearing is DENIED. The court remains concerned about, and does not excuse or condone, appellant’s counsel having attributed a quote to Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245 that does not exist in that opinion. However, we read appellant’s petition for rehearing to concede that it was unnecessary to reach the CEQA argument addressed in footnote three of the opinion. Accordingly, the opinion, filed on April 24, 2026, shall be MODIFIED as follows: On page 14 (in the unpublished portion of the opinion), footnote three is deleted."

Here's the relevant part of that deleted footnote:

"We summarily reject Citizens’ argument that the city effectively approved the project, for CEQA purposes, early in the planning process when the planning commission notified TRC, in compliance with a process set by the Housing Accountability Act, that the application was not inconsistent with the city’s objective standards. Citizens forfeits this startling assertion by failing to present a comprehensible and reasoned argument explaining how the authority it cites furthers its position. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)

In one instance, in its opening brief, Citizens goes so far as to attribute a quotation to Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245 that does not exist in that opinion. We caution Citizens’ counsel that similar conduct in the future could be cause for sanctions."

Cite checking: Probably a good idea.

Nuanmanee v. Superior Court (Cal. Ct. App. - May 18, 2026)

Yes, sometimes criminal plea negotiations do indeed take place -- both figuratively and sometimes literally -- on the courthouse steps, on the day the trial is about to start.

Similarly, for scheduling reasons, courts sometimes (indeed, often) schedule trials for the last day on which those trials may be commenced consistent with the defendant's constitutional and statutory rights to a speedy trial.

As a result, many times, jurors are called to court for a trial that pleads out. Particularly in small counties (here, Siskiyou), that's sometimes a hassle for the court administrator.

The Court of Appeal nonetheless holds that the way around that problem is not to "start" the trial at 4:15 p.m. -- in a department 90 minutes away -- despite the fact that no potential jurors are actually present. It doesn't count as "starting" a trial, on the last day of the defendant's speedy trial rights, to "say" that a trial is started and deal with administrative matters (e.g., motions in limine) and then actually start the trial the next day.

That's one day too late.

Can I suggest a solution for future court administrators in light of the Court of Appeal's ruling?

How about "starting" the trial a couple of days before the speedy deadline expires, rather than the very last day?

Like a lot of things in life, avoiding problems is often a lot easier when you don't wait until the day they are due.

(And, yes, I know this goes against the grain of many, many lawyers out there who always wait until the last day to file something. Including, at times, myself.)

People v. Mitchell (Cal. Supreme Ct. - May 18, 2026)

This is gorgeous.

I'm always a little bit worried when a court decides to reject the positions of both parties in a case. There's a danger in such settings that the tribunal is doing something without adequate briefing or consideration.

But here, the California Supreme Court's disposition seems not only entirely reasonable, but equitable as well. (I also love that Justice Corrigan's introductory paragraphs almost entirely spell out both the issue as well as the ultimate resolution.)

The first three paragraphs of the opinion tell you all you need to know:

"We are once again called upon to consider “the intersection of [the] statutory scheme of plea bargaining and the retroactivity rule of [In re] Estrada [(1965) 63 Cal.2d 740.]” [Cite] Defendant Sunee Lynn Mitchell accepted a plea bargain, entered the standard waivers, and agreed to an upper term sentence on one felony count of a multicount information. While her case was pending on appeal the Legislature amended Penal Code1 section 1170, which governs California’s determinate sentencing law. The amendment now requires that the facts used to justify an upper term be stipulated to or proven beyond a reasonable doubt at a jury or court trial. [Cite] The parties agree this statutory amendment applies retroactively to nonfinal judgments under Estrada. Mitchell’s further assertion that the plea bargain, as constituted, did not satisfy the current statutory requirements is likewise not contested by the Attorney General.

The parties’ point of disagreement centers on the effect, if any, of section 1170(b)’s provisions on the negotiated disposition. Mitchell argues she should continue to have the benefits of her plea bargain, including the dismissal of counts and insulation from exposure to a substantially higher sentence. However, she urges the upper term sentence she agreed to should be reduced to the middle term. The Attorney General argues the agreement should be enforced in its entirety because the trial court did not impose a sentence under the provisions of section 1170(b), but rather upon the terms of the bargain.

We reject both positions. We hold that defendants like Mitchell, who agreed to an upper term sentence as part of a plea bargain, may seek the retroactive benefit of section 1170(b)’s amended provisions to their nonfinal judgments. We reverse the Court of Appeal’s contrary holding and direct that the matter be returned to the trial court in a manner similar to the approach adopted in People v. Stamps (2020) 9 Cal.5th 685 (Stamps). On remand, Mitchell may either waive or invoke section 1170(b)’s requirements. If she reaffirms her acceptance of the plea bargain and waives the rights now conferred under section 1170(b), the court shall reinstate the original sentence as negotiated by the parties. If she declines to enter that waiver, in lieu of further proceedings the parties may agree to modify the existing plea bargain and accept a midterm base sentence on count 4, then seek the court’s approval of that downward departure. Absent a modified agreement and approval, Mitchell’s remedy is to withdraw her assent to the bargain, in which case Mitchell’s plea will be set aside and the parties returned to a pre-plea posture. At that point they would remain free to renegotiate further if they choose or to proceed to trial."

I totally agree.

A deal's a deal. But if circumstances then materially change, the deal gets reconsidered. If both sides still want to go through with it, great. But if either side wants to back out, that's fine too.

Hurrah.

Colonial Manor, Inc. v. Reyes (Cal. Sup. Ct. App. Div. - May 15, 2026)

Imagine that you're a landlord in Santa Monica and you've rented a place to an elderly tenant for a long time for $666/month. After he dies, you want to increase the rent for the place to the market rate, which is $3500/month. But his caregiver apparently married him a little over a year before he died, and says that she's entitled to stay in the place at the original rate. So you have your attorney file an eviction action, and it proceeds apace.

Then imagine that you see who's representing the surviving tenant: Munger, Tolles & Olson.

Shucks for you.

P.S. - The landlord loses.

Cardenas v. LAUSD (Cal. Ct. App. - May 11, 2026)

Woe is you.

Appellants briefed the case and were in the 2/5 (Second District, Division 5). They were likely fairly happy with that; as you probably know, it's a fairly well-respected group of justices.

Then, after the initial briefing was finished, on October 15, in an entirely different appellate case, there was a recusal in the 2/8. So that case got transferred to the 2/5.

In return, "to equalize workload," the Court of Appeal transferred this case to the 2/8. (None of this is in the opinion, by the way -- it instead comes from the appellate docket.)

That's a different panel, of course. With its own personalities. Including Justice Wiley.

As a direct result, you now see this two-page opinion. Authored by Justice Wiley. An opinion that you're more likely to see in the 2/8 than the 2/5.

That opinion reads, in its entirety:

"The trial court granted summary judgments against Jose Cardenas and his 21 fellow plaintiffs. This group appeals but has forfeited its objections to the summary judgments. The group’s opening brief asserts facts supported only by citation to its briefing in the trial court. That trial court briefing also cites no record evidence. We affirm on grounds of forfeiture.

Cardenas and the fellow plaintiffs were school safety officers, school police officers, police detectives, or other school security personnel. We refer to the group as Cardenas. The employer, the Los Angeles Unified School District, required vaccinations during the Covid-19 pandemic. Cardenas did not want to comply. Claiming religious objections, Cardenas sued the school district.

There were several bases for summary judgment against Cardenas. One was that accommodating religious objections would impose an undue hardship on the school district: unvaccinated employees would imperil students by exposing them to disease.

On appeal, Cardenas’s opening brief sets forth the supposed facts of the case by citing only to three pages of his trial court brief opposing the school district’s motion for summary judgment. These three trial court pages themselves contain no record citations. They are just three pages of something Cardenas’s same lawyer wrote in the past. On none of these pages is a citation to record evidence. Nothing is under penalty of perjury.

This appellate practice violates the cardinal rule that appellate briefs must fairly summarize the facts and must support factual assertions with record citations. [Cite] The purpose of this rule is to allow courts to decide the appeal by locating and examining the key record evidence. [Cite] Appellate records can, of course, be massive; simply asserting “it is somewhere in there” is no good. And the decisive issue can be the proper interpretation of a possibly ambiguous bit of testimony from a deposition or declaration. [Cite] Sometimes the proper interpretation of a single sentence or word decides everything.

Because appellate courts commonly must grapple with intricate details within a sizeable case record, we need record citations to get us started on this exacting work. Failing to give us the essential appellate material forfeits the argument. [Cite] We affirm the judgment and award costs to the respondent."

Could a similar opinion have been written by a different panel? Of course it could.

It's just somewhat more likely -- and predictable -- here.

P.S. - It's at least small solace that the only lawyer who's on the brief for the appellant no longer works for that firm, and instead moved to Morgan & Morgan. So he's not around to have to explain this one to his (now former) bosses.

J.N. v. Goldberg (Cal. Ct. App. - May 11, 2026)

There were no published opinions until late yesterday, but this one finally came out.

It's a great opinion for anyone who wants to file frivolous motions or complaints. As active litigators well know, under the Court Reservation System used in Los Angeles and several other counties, you have to reserve a hearing date and then file the underlying motion within three days of that reservation (or some other set number of days in other counties). Failure to do so vacates the hearing. As a result, you've got to have your motion ready (or nearly ready) to file when you reserve your date.

That's usually no problem.

But with sanctions motions under Section 128.5, as you likely know, you've got to give the other side a 21-day safe harbor notice period. You've got to (1) serve the motion on the other side, (2) wait 21 days, and (3) then file the motion.

This is typically no problem; what's usually done if that you prepare your sanctions motion, serve it on the other side with a blank hearing date (because you can't get one yet), and then after the 21 days has expired, you file and serve the motion (again) with the noticed hearing date.

The Court of Appeal, however, holds that this is improper, and reverses the $19,000+ sanction award here. The panel holds that if you leave the hearing date blank in your initial notice copy -- which you're required to do, since you can't get a hearing date -- that's insufficient under Section 128.5, so you can't get sanctions.

The Court of Appeal recognizes, albeit implicitly, that this means that parties can never get sanctions under Section 128.5 in Los Angeles or similar counties. Too bad, it holds. That's what the statute says.

So at least for now, go crazy. You can't be sanctioned. Congratulations.

Ultimately, if this opinion holds, I suspect that Los Angeles and other counties will, in due course, change their CRS system to allow sanctions motions (unlike regular motions) to reserve a hearing date without the requirement of filing the motion within 3 days. Which in turn will mean that you will be able to reserve sanction hearing dates with abandon, and drop them 21 (or 30, or 60) days thereafter. That may make a slight mess of the reservation system, but we'll deal. (It may also result in occasional late-opening hearing dates.)

Until then, though, it'll be a largely sanction-free world. We'll see how that goes.

People v. Robinson (Cal. Ct. App. - May 8, 2026)

It's surprising to me that the California Attorney General's Office decided to take an appeal in this one.

California entitles certain incarcerated individuals to petition to be resentenced. But as of January 1, 2025, this entitlement does not extend to -- and to be clear, I'm quoting here -- "an individual who has been convicted of a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole."

The Legislature passed that amendment because it wanted to make sure that Richard Allen Davis, who was found guilty of the high-profile kidnapping and murder of 12-year old Polly Klass, was not eligible for resentencing.

The statute says that you're not entitled to resentencing if you've been "convicted of a sexually violent offense [] and sentenced to [] a life term without the possibility of parole." Does that exclusion apply to someone who, like Henry Robinson here, was sentenced to life without parole but NOT convicted of a sexually violent offense?

In other words, does "and" in the statute mean "and," or does it instead mean "or?"

The trial court held that it did, indeed, mean "and." Gotta be both. The Court of Appeal affirms.

Justice Detjen's opinion seems obviously correct to me. It's not even close.

If the Legislature feels like changing the law, of course, it's free to do so. But, generally, "and" does indeed mean "and." Particularly when, as here, other portions of the statute make clear that the Legislature knows how to use the word "or" when it feels like it.

Yep. 100% right.

P.S. -  I wish I could run a 3-hour half marathon at age 68!

In re O.M. (Cal. Ct. App. - May 7, 2026)

"On January 7, 2025, the Department filed dependency petitions on behalf of then two-year-old O.M. and then one-year-old E.M. . . . [C]ount b-1 alleged that on December 30, 2024, O.M. “was taken to the emergency room (ER) due to a leg injury he received in [father and mother’s] care. . . . [O.M.] suffered a broken femur in his parents care . . . . The parents’ recollection of how the injury happened were initially different stories. [O.M.’s] injury is the result of a significant impact. Neither parent flew with [O.M.] from Humboldt to Oakland. The parents were not staying bedside with [O.M.] while he is being treated at UCSF. [Mother] left the hospital during [O.M.’s] surgery and was not able to be reached. [O.M.’s] broken leg, the parent[s’] lack of information as to how the injury occurred and the parents’ absence [at] the hospital places [O.M.] at risk of serious physical harm . . . .”

Count b-2 alleged that O.M. “is being treated for malnutrition in addition to his broken femur. He is less than 1% for his height and 1% for weight for his developmental age. The evidence of his malnutrition are his elevated levels of vitamin D-12, Microcytic anemia (iron deficiency), and his vitamin D and phosphorus is low. The mother was observed by hospital staff to be watering down [O.M.’s] soy formula. . . .

The report also noted that O.M. was diagnosed with speech and developmental delay. UCSF offered Mother services to address these diagnoses but she declined."

Ugh. 

People v. Mijares (Cal. Ct. App. - May 5, 2026)

This may seem obvious, but if it's not, this opinion makes the underlying principle clear:

Just because someone's going to eventually die doesn't mean you can kill him. It's still murder.

Juan Cordova was an elderly, homeless guy with serious liver and heart conditions. The coroner says he'd likely have died within three or four years.

Mark Mijares had a serious drug problem. After taking methamphetamine and staying awake for a full week, in a drug-induced psychosis, he inexplicably focused on Mr. Cordova, shouting "I'm going to take you out." He then pummeled Mr. Cordova with a brick, punched him, kicked him, covered his head with a plastic bag, and stabbed him in the neck, killing him. Mr. Cordova didn't die instantly, but instead lingered in the hospital for a week before dying of his injuries.

Mr. Mijares argues on appeal that his offense might only be attempted murder because Mr. Cordova would have died anyway. Quite understandably, the Court of Appeal disagrees.

Yep.

People v. Morris (Cal. Supreme Ct. - May 4, 2026)

Three things about today's California Supreme Court opinion.

First, Justice Groban's opinion. A portion of it struck me as the most anodyne way possible of setting forth the question presented. It sounded like the doctrinal language that professors in law school sometimes use when describing a subject. Language that's 100% accurate but somewhat obscures -- perhaps deliberately -- exactly what we're talking about. For example:

"Murder also requires an actus reus. . . . [T]he issue in this case is whether Morris is precluded from making a prima facie showing for resentencing relief under section 1172.6 as a nonkiller aider or abettor of robbery and rape with intent to kill. . . . Morris claims that, when a nonkiller acts with an intent to kill, the nonkiller must aid the actual killer in the lethal act. . . . The disagreement involves the actus reus requirement, specifically, what acts are required to prove the actus reus under section 189, subdivision (e)(2)."

This all makes sense. At least if you understand the lingo. Even though a different way of saying the same thing, rather than using terms like actus reus, would be to say something like: "Is someone eligible for resentencing under the relevant California statutory provision if he breaks into a home alongside another person, intended to rob it, and rapes a person therein while the other person murders the other resident?" We know that actual killers aren't eligible for resentencing, nor are people who actually help them kill, but what about situations like that?

You ultimately get from Justice Groban's opinion what he's talking about, but there's a lot of doctrinal lingo in there (including some in Latin) that you gotta get through first. (P.S. - The Court ultimately holds that, yeah, a person who doesn't actually help the person kill is potentially eligible.)

Second, Chief Justice Guerrero's concurrence. I can't tell you how surprised -- and excited -- I am to see a judge actually rely on the rule of lenity. That doctrine is almost always viewed as a throwaway these days. The constant -- and I mean, constant -- contemporary refrain is that you only interpret ambiguous criminal statutes in favor of the defendant if relevant interpretive rules are a tie, and in practice, judges never hold that it's a tie. So I was thrilled to see someone take and apply the doctrine seriously.

Finally, the dissent of Justice Yegan (sitting by designation). It's short: four pages. It makes some arguable points, and responds to both the majority opinion and the concurrence. But the thing that most struck me about this dissent (and, to be clear, several things struck me) was the penultimate sentence in its first paragraph, when Justice Yegan says "Salus populi suprema lex esto." Which is Latin for "The safety of the community is the highest law."

I get that other opinions have sometimes said that. But personally, I never would. The highest law in a democratic society is, in my view, the law. That's what we follow. We're a society dedicated to the rule of law -- and certainly the judiciary is -- not act utilitarian philosophers. We follow the rule of law even when, in our view, doing so would reduce communal safety. Both because "safety" (while critical) is not the sole human (or governmental) objective and, more centrally, because appeals to "the safety of the community" are traditional and oft-employed incantation of fascistic rulers. Yes, we care about safety. Deeply. But no, the objective is not, in fact, the highest law -- nor even "law" in the first place. It is a goal and an objective, but we follow the law regardless. Even if we individually believe that the law in a particular instance might be counterproductive to public safety. That's what in means to live in a nation committed to the rule of law, and what makes America qualitatively different from a variety of other, lesser nations where "the safety of the community" is indeed the highest law.

So I just wouldn't use that phrase myself. It's not something in which I believe, and certainly not a principle that I would want to invoke or affirmative spread. FWIW.