Effective July 1, 2016, rules 8.1105 and 8.1115 (PDF link) of the Rules of Court have been amended to change the effect on a Court of Appeal's published opinion that has been granted review.
CCAP recommends that counsel read the new rules in detail, of course, but here's the essence:
1. A grant of review no longer automatically affects the published status of the Court of Appeal opinion, even if it is a grant and hold. Those portions of the Court of Appeal opinion that were published remain published, unless the California Supreme Court declares otherwise.
2. While review is pending, the case has no binding or precedential effect, but it may be cited for its potentially persuasive value. (Any citation to it must note its review status.)
3. After the Supreme Court has issued its opinion, the Court of Appeal decision may be cited as binding or precedential effect, except to the extent it is inconsistent with the Supreme Court's opinion or is disapproved by that court.
4. The Supreme Court has the authority to order that, while review is pending or after it has been decided, all or part of the Court of Appeal opinion may or may not be citable or may or may not have binding or precedential effect.
In other words, whereas the default was that a grant of review essentially made the Court of Appeal opinion disappear forever on all issues, the default as of July 1, 2016, is that the opinion can be cited as persuasive, even though not binding, authority, and once review has resulted in a Supreme Court opinion, the Court of Appeal opinion on issues not taken up on review may be cited for their binding or precedential effect (to the extent not inconsistent with the Supreme Court decision).
It currently is an open question whether the change will allow counsel to cite Court of Appeal cases whose review was granted prior to July 1, 2016. For example, in construing procedural changes effected by Proposition 115 ("The Crime Victims Justice Reform Act," 1990), Tapia v. Superior Court (1991) 53 Cal.3d 282 concluded that there was no bar to applying new procedural statutes (addressing the conduct of trials) to cases arising before the effective date of the changes, when the affected proceedings (i.e., the trial) had not yet taken place. The changes were not actually being applied retroactively, because the trial had not yet occurred. Because they were strictly procedural, they did not substantially change the legal consequences of past events.
Given Tapia, it would be tempting to say with confidence that as of July 1, 2016, one may cite (as persuasive) Court of Appeal published opinions in which the Supreme Court granted review prior to that date. But it may not be that clear cut. Under rule 8.1105(e)(1), until July 1, 2016, "Unless otherwise ordered under (2), an opinion is no longer considered published if the Supreme Court grants review or the rendering court grants rehearing." So unless the Supreme Court has taken rarely-used action under rule 8.1105(e)(2) to affirmatively order that an opinion remain published despite the grant of review, there is no longer a published opinion to cite. Both before and as of July 1, 2016, rule 8.1115(a) stated and continues to state, "Except as provided in (b) [which lists exceptions not pertinent here], an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action."
Can it be argued that the Supreme Court has ordered all previously depublished Court of Appeal opinions republished by adopting the amendments to rules 8.1105 and 8.1115, such that they can be cited (as of July 1, 2016)? Does the amendment to rule 1115(c) imply that the Supreme Court recognizes that it may be hard to find opinions as easily on cases granted review prior to July 1, 2016, and that by amending that rule it implicitly condones citation to opinions whose publication status was changed once review was granted? (Rule 8.1115(c) requires the citing party to provide a copy of the cited opinion on request of the court or other parties.) If the Supreme Court contemplates that an attorney can cite as persuasive the previously published opinions issued in cases granted review prior to July 1, 2016, how far back can one go? Remember, under the amendments, the ENTIRE published portion of the Court of Appeal opinion regains binding and precedential effect once the Supreme Court has decided the issues on which review was granted, to the extent not inconsistent with the opinion or disapproved by the Supreme Court. How about those grants of review from the 1990s? Some of those cases were granted review on a single issue (the validity of the instruction on reasonable doubt, for example), but the Courts of Appeal had resolved several other issues as well. Since the entire opinions became unpublished, so did the portions having nothing to do with the issue granted review. Do those portions now regain vitality, if not inconsistent with the opinion resolved on review? Answers to these questions are unknown at this time.
Read the Supreme Court's official announcement (external link)
The Third DCA has informed CCAP that attorneys who use the fillable-format PDF EOT request form may now submit the form to the court without first making it non-modifiable. ImageSoft has added a feature to the Third DCA's version of TrueFiling that will allow the court to make the form non-modifiable.
TrueFiling is now mandatory in the Third District. Effective September 14, 2015, all documents filed in the Third District Court of Appeal (Third DCA) must be filed via the Court's new electronic filing system, TrueFiling.
For those panel attorneys who practice in the First and the Fifth Districts, you may notice that the Third's version of TrueFiling is slightly different from previous released versions. CCAP will soon post new filing instructions for the Third's version on our Step-by-Step Guides for TrueFilers webpage. This webpage also has step-by-step guides that cover how to create PDF bookmarks and how to meet the courts' new pagination requirement.
It is CCAP's understanding that the Fifth District's portal for TrueFiling will be updated to the version that the Third DCA is currently using. However, we do not know how soon the change will occur.
CCAP and the Attorney General are now accepting eService in both Third and Fifth DCA cases for all court filings.
CCAP eService email: firstname.lastname@example.org
Attorney General eService email: SacAWTTrueFiling@doj.ca.gov
Counsel may use either TrueFiling or their own email for this. IMPORTANT NOTE REGARDING CCAP'S ESERVICE ADDRESS: Do not use the eService box for DRAFTS submitted to the CCAP buddy; drafts should continue to be sent to buddy's CCAP email. CCAP case processors are unlikely to differentiate between a draft version and a filed version of a document sent to our eService email. For this reason, email@example.com should NOT be used for anything other than for electronic service.
Please note that the Attorney General's eService email address changed a few months ago. The previous eService email used by the AG's office will re-direct emails to the new one above. For more information, see CCAP's webpage on E-service Procedures and TrueFiling, FAQ number 2.
CCAP is also aware that TrueFiling may be using the AG's old eService address in their contact lists; you may update it, or use it as is until further notice.
As you know, the courts are moving toward requiring electronic documents. This movement has been slow but steady and will continue.
Most of the appellate projects have continued to accept compensation claims in both electronic and paper (manual) formats. ADI was the first to require electronic claims, and soon all of the other appellate projects will follow.
The benefits of electronic claims will accrue to both the panel and the projects. The electronic programs catch most errors as they occur and perform calculations automatically and correctly. As a result, claims can be processed much more quickly by appellate project staff. eClaims users may remember how many hours filling in a paper claim used to take, while in eClaims much of the needed data is pre-entered from information already in the appellate project in-house database, bringing time for completion down often to less than a half hour. Many panel attorneys report claims now take only around 15 minutes.
Thus, February 25th will be the last date the appellate projects will accept paper claims. Beginning thereafter, all claims will need to be electronic. For FDAP, SDAP, CCAP, and CAP/LA, this means using eClaims will be mandatory. (ADI has a separate eClaims portal site.) The important exception will be for cases in which a paper claim has already been submitted. All subsequent claims in such cases must also be manually submitted on paper. In other words, a final claim cannot be submitted in eClaims format if the interim claim was a manually submitted paper claim; all claims in any one case must use the same format for the automatic math calculations to work.
For those of you who will have to change your practice, other panel attorneys can attest to the fact that the learning curve is very short, and the time savings is likely to be substantial. Nonetheless, we appreciate your patience and good will during this transition. Please send an email to both Laurel Thorpe (LThorpe@capcentral.org ) and Kim Parris (KParris@capcentral.org ) with your phone number and a convenient time for one of us to call you to give you an initial temporary password for CCAP cases (for security reasons, we do not supply passwords by email). There is a instruction sheet for eClaims posted on our website at: http://www.capcentral.org/claims/using_eclaims_memo.pdf
Thank you for your important work in indigent appeals.
IMPORTANT: Proof of Service and other mail items should continue to be sent to our current J Street address during this gap week between office relocation and the new mailing address date.
CCAP's moving announcement is available here. (PDF)
In order to expedite our case offers to our panel and to better keep track of responses, we will be launching a new e-mail offer system for some case offers. Our anticipated launch is October 1st.
These e-mails will be from “CCAPoffer@capcentral.org” with some basic information about the case in the e-mail body. We ask that panel members do what is necessary so that these e-mails do not make their way to a “Junk” mail box.
We also request that attorneys reply to the CCAPoffer e-mail rather than sending an e-mail response to one of our individual case processors as has been the previous custom at CCAP. By sending a reply to the CCAPoffer e-mail, responses can be checked throughout the workday by our case processing team without regard to whether a particular case processor is in the office that day or not.
Also a prompt reply will let us know whether or not you can take the case or alternatively when you might be next available for a case offer. This will assist us in expediting the appointment process.
Questtions about the new e-mail offer system can be directed to Florence Hoffman, Supervising Attorney, Panel Administration.
Effective July 1, 2014, Court Call (www.courtcall.com external link) will be used for any party appearing telephonically for oral argument in the Fifth District. (Their aging teleconferencing equipment has now been retired.) Parties appearing using Court Call must call Court Call reservations at 1-866-582-6878 to schedule an appearance. Fees for Court Call use will be paid directly to Court Call and can be claimed as an expense on the final claim. Currently, the fee is $40 for the first 45 minutes and $7.50 for each additional 15-minute increment. Appearance waiting time does not start the clock. Additional fees can be avoided by making arrangements at least three business days in advance.
According to their web site, as a private company, Court Call fees apply to all participants, including government agencies. (The Fifth District web site announcement mentions Fee Waivers, which apply only to pro. per. litigants.)
In most instances, Court Call prohibits the use of cell phones on the basis that they can be disruptive to the court. Court Call appearances should be made from a land-line, with the handset engaged, wherever possible. If you use only a cell phone as your business phone, please contact Court Call directly well in advance of your appearance to discuss it with them.
For all appointments (assist and independent appointments), discuss the case with your CCAP buddy before deciding whether to seek or waive oral argument, even telephonic appearances..
CAP-LA – the project that maintains the eClaims database and website – announced the following important compatibility information regarding use of the eClaims website:
When Microsoft and Firefox update their browsers, the new versions sometimes seem to have problems with eClaims. Usually the problem is created because the new browsers’ default settings have changed from what was in the older versions. Once the problems are reported to us, we can usually discover the proper setting to alter in order to ensure continued compatibility.
In that vein, here are possible solutions you can try if you experience the following problems:
(1) In Internet Explorer, go to the eClaims home page (which is the place where you may be getting the error message that you cannot log in).
(2) Click on “Tools” on the Internet Explorer tool bar at the top of the screen.
(3) Click on “Compatibility View Settings.”
(4) A pop-up window will appear which already shows the eClaims website in a small box; click on “Add” to move the website to the larger box below.
(5) Make sure the two checkboxes at the bottom of the screen are both checked. Then close the pop-up window.
You should now be able to use eClaims in Internet Explorer.
(1) In the Firefox menu, click on Tools/Options (or Settings, depending on your setup).
(2) In the resulting window, on the menu along the top, click on Applications.
(3) In the list of applications, find and click on Portable Document Format (PDF).
(4) To the right, open the drop-down menu and choose "Use Adobe Acrobat (in Firefox)" (or “Use Adobe Acrobat 9.5” if you have that version).
(5) Click on the OK button at the bottom of the window.
(6) Close Firefox. This process need be done only one time.
Now when you go to Step 13 of a claim in eClaims, and click to display the claim in PDF format, the screen display will be almost imperceptibly different. Bringing your mouse pointer toward the bottom of the display will materialize a menu bar that has a printer icon on it (second from left). If you use that printer icon to print the claim, it should print correctly.
Important information for CCAP panel attorneys:
AB 721 amended Health & Safety Code sections 11352 & 11379 to define “transport” to mean "transportation for sale." The purpose of the bill was to make it clear that a person charged with these felonies must be in possession of drugs with the intent to sell. A person in possession of drugs only for personal use would remain eligible for drug possession charges, but would no longer be eligible for a second felony charge for transportation.
1. Does Estrada apply to 11352/11379 probation cases where there's no final judgment yet? (See In re May (1976) 62 Cal.App.3d 165, 168-169.)
2. Is there an Equal Protection argument to be made for other similarly situated drug transportation sections? Consider an EP argument for cases of: 11360 (transportation of marijuana); 11355 (transportation of specific substances); 11361 (using minor to transport marijuana); 11366.8 (using false compartment to transport drugs); 11379.5 (transport phencyclidine); 11382 (transportation specific drugs); and 11391 (transporting prohibited mushrooms).
As explained in the December 31, 2013 Panel Announcement, new California Rules of Court, read literally, would require counsel to move to file briefs and other documents that refer to information in probation reports under seal. To address this issue, the Third District issued Misc. Order 2013-002. The court has asked CCAP to share the order with our panel members:
"Absent leave of court, parties shall not submit for filing an unredacted brief, application, petition, memorandum, or other document that contains 'personal information' derived from a probation report. (Pen. Code § 1203.5 [sic]; People v. Connor (2004) 115 Cal.App.4th 669; Cal. Rules of Court, rules 8.45, 8.47 (effective January 1, 2014).)" (CCAP note: the intended citation is to § 1203.05, not § 1203.5.)
Please refer to the December 31, 2013 Panel Announcement for the Fifth District's policy on this issue.
The Fifth District has asked CCAP to share the following with our panel members:
"The court has reviewed the numerous rule of court changes, related to Title 8 - Appellate Rules, that will take effect in January. In so doing, the court has discovered an oversight and potential problem related to confidential records, in particular probation reports. Rule 8.45 identifies 'probation reports (Penal Code, § 1203.05),' as an example of confidential records. Rule 8.47(c) appears to preclude '[e]xcept as otherwise provided by law or order of the reviewing court' disclosure in a brief of material contained in a confidential record and requires an application to file such a brief under seal. Read literally, these rules would require counsel to move to file briefs in many briefs in criminal appeals under seal.
"As the [Sixth District] Court of Appeal observed in People v. Connor (2004) 115 Cal.App.4th 669, 681, 'a probation report is designed to contain narrative information about a defendant’s offense, statements from the victim, analyses of sentencing factors, and recommendations concerning the appropriate disposition. However, it is also designed to contain highly personal information about the defendant, including his or her arrest record; family background; and employment, military, medical, and psychological histories. Because a restriction on access is, in effect, a type of shield, we infer that the restriction in section 1203.05 is directed at the personal information, which might ordinarily be confidential, rather than the nonpersonal information, such as the factual summary of an offense and the evaluations, analyses, calculations, and recommendations of the probation officer.'
"It is the court’s experience that counsel in the Attorney General’s Office (AG’s Office) and associated with the Central California Appellate Program (CCAP) carefully avoid discussion of personal information, which might be confidential about an appellant, witness(es), and victim(s). Accordingly, counsel in the AG’s Office and those associated with CCAP may file briefs that refer to probation report material, without motioning the court to file such briefs under seal." (Emphasis added.)
CCAP note: If the Third District adopts a policy or issues an order on this change in the Rules of Court, we will add that information as soon as we learn of it.
CCAP is starting a volunteer pilot project for e-service on CCAP. Over time, we intend to expand both the number of documents and panel participants in the pilot.
Hopefully this measure will save printing and delivery costs incurred by hard copy service on CCAP. This is a step toward full voluntary e-service for our panel.
If you are not yet in the pilot, we thank you for your patience while we work out the logistics here at CCAP working with e-documents.
The AOC maintains the important objective of processing compensation claims as quickly as possible. We realize the extent to which panel attorneys rely on a prompt turnaround in order to have sufficient case flow to pay their overhead and living expenses.
For that reason, we want to provide you with an update on the actual time needed by the AOC to complete its required claim review and processing prior to sending claims to the State Controller's Office (SCO) for payment. As a result of permanent budget reductions, hiring freezes, and furlough days, the Administrative Office of the Courts is requiring additional time for processing the Court-Appointed Counsel (CAC) compensation claims. From the date the Projects transmit the claims to the AOC, allow up to five additional days for the AOC to review and process the CAC claims before submitting the claims to the State Controller's Office (SCO) for payment. Claims transmitted by the Projects to the AOC that require additional information and/or corrections may take the full five days for processing before submission to the SCO.
We hope this information is helpful and that it enables panel attorneys to adjust their expectations so they can plan appropriately.
The Fifth District recently published a new simplified EOT format which is now preferred by this court.
IMPORTANT TIP#1 COURT'S FORM: The court's extension of time form (PDF) behaves best using Adobe Reader XI (the most current version of the free download reader). In testing, we were unable to save a copy of the document using either version 9 or 10. Save a copy to your desktop before you start using the form. Once you have filled in the information, either print or save a copy, but check your saved document to be sure it's not a blank copy. If you are unable to save a completed copy of it, printed copies can then be scanned and sent to the court for e-filing purposes as this court does not require searchable PDFs for e-filing. [Please note that other districts are different. Often a scanned document does not produce a searchable PDF and therefore will not work for e-filing in another court.].
IMPORTANT TIP#2 CCAP'S FORM: If you experience problems either opening or saving the court's form, the CCAP samples book now contains alternative versions of the simplified form under "E" for EOT. [Note: Counsel must still convert Word and WordPerfect versions to a PDF in order to e-file a first time EOT with this court. The court has posted how-to instructions (PDF) on converting documents to a PDF.
Beginning October 22, 2012, the Fifth District Court of Appeal clerk’s office began transmitting by email attachment, rather than paper copies, to appointed counsel, the AG, and to CCAP, routine letters and notices identified in the attached chart (PDF). The email subject line will contain the court’s case number, caption and a 3-letter code for the type of document as identified in the chart. The name of the attachment will mimic the email subject line. The body of the email will include the Deputy Clerk’s name and DCA name/address so that the recipient will have contact information.
The court’s new email notification project does not apply to delinquency appeals, dependency appeals or other confidential case matters. These cases will continue to be notified by mail in paper format.
For other helpful tips and PDF information sheets about the Fifth District’s “greening,” please refer to our e-filing procedures page.
Time spent on a subject, whether completed or not, should now be claimed on the closest related line item on the claim form for that subject or task, not on a line for "other" services.
For example, line #11 (Habeas) now includes all of the following habeas-related tasks:
· Preliminary time spent investigating potential habeas issues in the context of preparing an application to expand the scope of the appointment, identified by each potential issue investigated;
· All miscellaneous communications specifically related to habeas-issue investigation (rather than line 23);
· The motion to expand appointment; and,
· All project habeas-related consultation time (rather than line 21).
(The exception is for line 1 habeas-related communication time.)
The Fifth District's policy for mandatory e-Filing (external link) of all Wende briefs for an adult criminal appeal is now in effect.
Do not use e-Filing or e-Submission procedures in any juvenile delinquency, dependency, LPS, or any other confidential appellate cases.
Read our FAQ page for details on e-Filing in the Fifth.
CCAP now has the ability to send you a tracking number for any package we send to you via UPS, such as transcripts. The email will have our name in the body of the message along with shipping details, the related case number, and a specific tracking number. Although the email "sender" will be UPS Quantum View [firstname.lastname@example.org], your email address is only used for "pass through" in the UPS system and is not retained by them once the email is sent.
Please note: Our UPS notification email will never have attachments, and will never request any further information or action be taken on your part.
Simply enter the tracking number at www.ups.com (external link) to track your package.
This is a reminder that anything filed with the Court of Appeal needs a Proof of Service, not just a cc: list.
If you submit anything for filing -- whether it is a motion, a brief, or even a court response form (such as the oral argument response form) -- you should always include a formal Proof of Service with that filing.
A cc: list is not sufficient to meet this requirement.
Notes From CCAP
re: Timing of Augment Requests
In October 2010, the court notified CCAP that counsel appeared to be more frequently filing an MTA after first obtaining an EOT. Here is a reminder of the court's long-standing policy on this matter as reiterated in an April 2011 meeting with Presiding Justice Vance Raye:
If the record in incomplete, the Third expects an MTA be filed before an EOT is filed. You must meet the augment deadline specified in the appointment order. If you cannot do so, an explanation for the variance from the court's policy should be included when the augment motion or an initial EOT is filed.
The point is not to deprive clients of necessary records, but to encourage timeliness in securing those records. Thus late requests will be considered on the merits. If the request is late, counsel should show good cause why it could not have been filed earlier or, if there is no good cause, should apologize and endeavor to avoid repetition.
Effective immediately, the Fifth District Court of Appeal will resume identifying the parties in juvenile dependency and delinquency cases by using their first name and initial in both published and unpublished opinions, unless circumstances (e.g. a unique first name) would indicate that this would compromise the aim of confidentiality. For publicly-available docket information in these cases, however, the court will continue to identify the parties by using initials only.
While this court never required panel attorneys to adopt the double suppression method in their briefs and motions, attorneys who voluntarily did so may resume using the parties' first name and initial in their briefs and motions.
Current procedures for both the Third and the Fifth District can be found online in the CCAP Procedural Comparsion Chart.
The Appointed Appellate Counsel projects have negotiated a deep discount on three different Lexis plans for all current statewide panel members. For information, questions and to sign up, please contact the appropriate regional territory manager -- choose the region closest to your office, not which panel project you are on:
Richard Markowitz: 415-699-4257
Cory Copeland: 909-593-8707
The regional territory manager will have your local sales representative contact you. Because some of the local reps may not be aware of the new discount for panel members, the regional rep will do that footwork for you.
Please note: The discount is not available to anyone who is in an existing contract with Lexis.com. Once the current contract expires, you will be free to take advantage of the group rate for the new contract period.
Appreciation goes to panel attorney Maureen Bodo for putting CCAP in touch with regional manager Rick Markowitz, and to Rick for presenting our panel’s special needs to the corporate office in Dayton, Ohio. Thank you both!
From the Third District
re: Late Requests
The Third District has asked CCAP to get the word out to the panel regarding late motions to augment. It has long been the policy in the Third District (as well as in the Fifth District) that motions to augment must be filed within the first 30 days and by the date specified in the appointment order. The court may be suspicious when it routinely receives an augment request the day the AOB is due, or after an EOT has already been filed, if there is no explanation accompanying it.
CCAP has warned attorneys who routinely practice this way that if the court's suspicions are not dispelled, the attorney runs the risk that the court will require more and better explanation for the need of the sought material before it will consider whether to grant the motion at all. Over time, your credibility suffers. That is, if the court believes the motion is just an attempt to get an extension by another name, and is not satisfied that the sought material is really necessary, it may deny the motion. While we have not yet seen this, it is within the court's discretion.
Panel attorneys are strongly advised to check their appointment orders and adhere to the specified augment dates routinely - whereas exceptions with a solid explanation for why a deadline was not met will not raise a red flag.
Yesterday Assembly Bill 1844, "Chelsea's Law," was signed into law. It is urgency legislation and takes effect immediately.
Although Chelsea's law deals mostly with sex offenses and their increasing punishment, section 15 amends Penal Code section 666, petit theft with a prior. The amended section provides that, in some circumstances, three or more prior convictions are needed to boost a misdemeanor petty theft to a felony. Counsel should review the amended statute and active cases involving this offense for potential Estrada ameliorations of punishment.
Penal Code Section 4019
In other news, on September 3, 2010, the Third District decided People v. Jones (2010) __ Cal.App.4th __ (C059440). The court concluded that prior convictions that disable a person from the more beneficial aspects of 4019 must be pleaded and proved. Moreover, the judge can strike priors for purposes of eligibility for 4019's more favorable scheme. The panel attorney appointed on the case was Ben Owens, and his briefing is available on the CCAP website. Congratulations to Ben for his victory in this case!
For issue spotting purposes, counsel should also be aware that in a separate case the Third District has requested briefing on the application section 4019 in a different context:
On August 26, 2010, in the case of In re Randy Kemp (C064821), the Third District requested supplemental briefing in response to a traverse filed by petitioner arguing that irrespective of the date of finality, the equal protection clauses of the California and federal constitutions compel the conclusion that the revised statute retroactively applies to all defendants who are presently serving a sentence, presently on parole, or presently on probation. The court has directed respondent to filing supplemental briefing by September 15. The traverse filed by panel attorney Beth Campbell can also be found on the CCAP website.
The Third District has now adopted the designation of parties in any juvenile case caption using initials only in place of first and last names. Thus, for all dependency and delinquency cases, the parties (and even non-parties) are identified by initials only, including the parent of a dependency minor.
All counsel are expected to follow and use the court-designated caption, including the use of initials where appropriate for minors and parents.
If appointed counsel have a question about whether the caption on older case paperwork is correct or not, it can be checked against the Court's docket online "Parties & Attorneys" entry (link will open in new window).
The Fifth District has not changed its policy; it uses full first name + last-name initial for any minor.
These procedures have been captured in our Procedural Comparison Chart.
From the Third District Clerk's Office
re: Sealed Record Requests
When filing a motion to augment for a sealed record, do not at the same time move for permission to view the sealed material. Instead, once the augmented record has been filed, THEN move for permission to view the sealed record. On receipt of the motion to view, the Court will examine the sealed record and determine whether to grant counsel's request to view it.
From a Recent Fifth District Order
re: Dependency Case Documents - While You're There . . .
"When[ever] counsel has the opportunity to review a juvenile dependency superior court file and discovers missing material which counsel believes should be part of the appellate record, counsel is urged to proceed as follows. If at all possible, counsel should obtain a certified copy of such material and submit it to this court, along with a motion to deem the material part of the appellate record. [See Cal. Rules of Court, rules 8.155(a)(1)(A) and (a)(2).] In this manner, delay in a priority appeal . . . may be avoided in the future."
On March 31st, the U.S. Supreme Court decided Padilla v. Kentucky (PDF) (08-651).
The issue presented in Padilla was whether the Sixth Amendment's guarantee of effective assistance of counsel requires a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea.
The High Court recognized that deportation has become an integral part of the penalty for a criminal conviction for noncitizens. And so, the Court held the Sixth Amendment right to counsel requires that defense counsel inform a noncitizen defendant whether his plea carries a risk of deportation. When deportation consequences of a particular plea are unclear or uncertain, counsel need do no more than advise a noncitizen client that the plea carries a risk of adverse immigration consequences. But when a deportation consequence is clear, counsel has a duty to give correct advice.
Like the Kentucky Supreme Court, the California Supreme Court has deemed immigration consequences of a plea to be collateral consequences. (See In re Resendiz (2001) 25 Cal.4th 230, 242; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198.) The California Supreme stated in dicta In re Resendiz that it was "not persuaded that the Sixth Amendment imposes a blanket obligation on defense counsel, when advising pleading defendants, to investigate immigration consequences or research immigration law." (Resendiz, supra, 25 Cal.4th at pp. 249-250.) In that case the question was not squarely presented because the petitioner did not allege a mere failure to investigate, but rather argued his was misadvised of the consequences. (Ibid.) But Padilla now makes clear that defense counsel has an affirmative duty under the Sixth Amendment to provide advice on immigration consequences of a plea.
CCAP urges appellate counsel appointed to represent non-citizen defendants in guilty plea cases to review the plea advisements and inquire from the client and/or defense counsel whether any advice was given regarding immigration consequences. Appellate counsel may also wish to review their concluded cases to determine whether further action is warranted in light of Padilla.
Two defender organizations providing free resources on post-conviction relief for non-citizens are the Law Offices of Norton Tooby and the Immigrant Legal Resource Center. In addition, CCAP has posted an article by Mr. Tooby on the implications of Padilla. Finally, the attached document contains a more detailed analysis of the opinion.
In view of its Misc. Order #2010-2, here is the Third District's policy if the brief would otherwise be a Wende but for the PC 4019 issue:
(1) If counsel represents a client who is not eligible for PC 4019 additional credit even if the statute is applied retroactively to pending cases, and there is no other arguable issue, the court would expect counsel to file a standard Wende AOB; and (2) if counsel represents a client who is not statutorily excluded from prisoners entitled to additional credit under the terms of PC 4019 if applied retroactively to pending cases, and there is no other arguable issue, the court will accept a Wende brief that contains, in its statement of facts, an advisement that defendant may be entitled to additional credit under PC 4019 with citation to the Third District's Misc. Order #2010-002.
On March 19, 2010, the Third District requested supplemental briefing on the question of whether the defendant is entitled to a recalculation of credits under revised section 4019 given that he has a prior serious felony conviction. It also asked the parties to address whether the fact that the trial court struck the prior felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 affects the calculation of presentence work and custody credits.
The case in which the court requested briefing is People v. Jones, C059440.
On March 16, the Third District issued Order #2010-002:
"In all pending appeals in which an opinion has not yet been filed and in which appellant is arguably entitled to additional presentence custody credits pursuant to the amendments to Penal Code section 4019, effective January 25, 2010, the court will deem the following issue raised without additional briefing:
"The amendments to Penal Code section 4019 apply retroactively to appeals pending on January 25, 2010; thus, appellant is entitled to recalculation of presentence work and custody credits."
[See People v. Brown (2010) 182 Cal.App.4th 1354, review granted 6/9/10 (S181963).]
On March 16, the Third District Court of Appeal held that the January 25, 2010 amendment to Penal Code section 4019, which increased presentence conduct credits to day-for-day for many defendants with non-serious felony convictions, must be applied retroactively to eligible defendants whose convictions were not final as of January 25. This includes all eligible defendants whose cases were on direct appeal or who had a petition for review pending in the Supreme Court on January 25.
The Third District’s opinion in People v. Brown (C056510) is based on In re Estrada (1965) 63 Cal.2d 740. The section 4019 retroactivity discussion is at pages 24-35 of the slip opinion.
There is now a conflict in published opinions on the subject, in light of the Fifth District’s March 1 opinion in People v. Rodriguez (F057533, published at 182 Cal.App.4th 535), which held that the amended section 4019 is not retroactive. In light of the conflict of authority, the issue seems destined to end up in the Supreme Court.
Further information will be posted on this website as it becomes available.
The Fifth District recently issued People v. Rodriguez (2010) 183 Cal.App.4th 1, holding that the amended version of Penal Code section 4019 does not apply retroactively, and that application of the amendment in a prospective manner does not violate equal protection principles. [NOTE: review in Rodriquez was granted on 6/9/10 (S181808) was briefing deferred pending the Brown decision (S181963).]
Although the opinion is not yet final, it is immediately citable as authority. (Cal. Rules of Court, rule 8.1115(d).) And since the opinion now constitutes precedent, trial courts are bound by it under the doctrine of stare decisis. As such, seeking application of the amended statute in the trial court is futile.
Nevertheless, Rodriguez is not the last word on this issue. Appellate counsel should continue to argue in the Court of Appeal for application of revised Penal Code section 4019 for eligible clients whose convictions are not final on appeal as of January 25, 2010.
As to appeals pending in the Fifth District in particular, CCAP has contacted the court to determine what effect the Rodriguez decision has on that court’s standing order regarding the need for supplemental briefing on the issue of the retroactivity of Penal Code section 4019's new provisions. The court has advised us as follows:
The standing order still stands. The issue is deemed raised in every case. If all an attorney wants to accomplish in a supplemental brief is argue that Rodriguez was wrongly decided, the likelihood of getting the court's permission to file a supplemental brief is very low. If an attorney has something new and persuasive, e.g., a different slant on it or something that clearly shows the legislative intent, the chances of getting permission to file a supplemental brief is likely much higher. In other words, counsel's application for permission to file a supplemental brief must be compelling, and counsel should not assume that the request will be granted pro forma.
For cases where the opening brief is not yet filed, counsel can certainly raise and argue the issue fully in an opening brief. And it is proper to fully argue the issue in a reply brief, since the issue was deemed raised by the standing order. The standing order really has an impact only on the chances of getting permission to file a supplemental brief after normal briefing has otherwise been completed.
Panel attorney Mark Shusted has prepared sample briefing (PDF) addressing Rodriguez which is available on the home page of the CCAP website.
Order Regarding Penal Code section 4019 Amendment Supplemental Briefing
In pending appeals in which an appellant arguably is entitled to additional presentence custody credits under the January 25, 2010 amendments to Penal Code section 4019, the court will deem the following issues raised without additional briefing:
(1) Under amended Penal Code section 4019, appellant is entitled to recalculation of presentence work and custody credits;
(2) To hold otherwise would violate equal protection principles.
This order applies to all appeals. If the court deems supplemental briefing necessary from either the appellant or the respondent, it will request a letter brief from counsel.
James A. Ardaiz, P.J.
Augmenting Pitchess Materials
A reminder that when asking the court to independently review the denial of a Pitchess motion, the record must be augmented with the necessary documents for such review. This includes the in-camera transcript, materials reviewed, ruling, etc. If these items are not made part of the record, this results in a delay in processing the appeal once it reaches chambers and a court attorney notices the missing record.
In light of the new In re Phoenix H. case (12/21/09, S155556) 47 Cal.4th 835, the Third District is adjusting their procedures for Sade C. filings, effective as of Jan. 7, 2010:
Pursuant to the dictates of Phoenix H., if no arguable issue can be discerned, counsel should no longer file a letter to that effect or move to substitute appellant to proceed in pro per. Rather, counsel should file a “Wende-type” brief [a “Phoenix H. brief”] which shall include an abbreviated recitation of the relevant facts and procedure and a declaration establishing that counsel has advised appellant that counsel has reviewed the entire record, served a copy of the brief on appellant, and informed appellant of appellant’s right to file, within 30 days of the filing of the “Phoenix H. brief,” a motion to file a supplemental brief supported by a showing of good cause that an arguable issue does exist.
In any case where appellant already has been permitted to proceed in pro per, the court will proceed to dispose of the appeal on the merits if an opening brief is filed by appellant.
Henceforth, all Sade C. letters and motions to substitute appellant in pro per will be rejected with a directive to file an opening brief in compliance with Phoenix H.
For your convenience, CCAP has drafted a sample Phoenix H. brief that meets the Third District’s new procedures, including all advisory elements.
FIFTH DISTRICT (revised as of 1/22/10)
The Fifth District has adopted new formal procedures in light of In re Phoenix H. (2009) 47 Cal.4th 835. Please review these procedures carefully as they are slightly different than that of earlier announcements. The Court is aware that the California Supreme Court extended time for rehearing in Phoenix H. and the opinion is therefore not yet final. The Court will follow this policy in the meantime.
The Third District has noticed an increase in the number of times attorneys have failed to attach proof of service when documents are submitted to the clerk's office for filing. Please remember that rule 8.25(a) of the California Rules of Court requires a written proof of service whenever a document is to be served and filed. A "cc" notation is not a proof of service. (Note: This applies to any documents that are to be in the Court of Appeal; it does not apply to documents that are sent to the Court of Appeal that are marked "received" such as rule 8.340(b) letters where the original is filed in the superior court.)
On rare occasion, counsel is appointed on something that is not, in fact, appealable. The following is the policy for criminal and juvenile delinquency appeals pending in the Third District Court of Appeal when appointed counsel has concluded that the matter appealed from is not an appealable order or judgment.
The Third District will not consider a motion that asks the Court of Appeal to determine whether the case is appealable. Instead, when counsel has concluded that the matter appealed from is not appealable, doublecheck with the CCAP buddy, then submit a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. For the Statement of Appealability, counsel should state simply, "There may be a question as to the appealability of the matter being appealed."
The Third District will determine whether the case is properly before the Court when it conducts its review of the briefing in the ordinary course of the appeal. If the Court determines that it is, the Court will conduct a normal Wende review and request supplemental briefing on any issues that the Court believes should be briefed.
A Wende brief requires that the statement of the case and statement of the facts be adequate to assist the reviewing court during its Wende review. It is not proper to present an argument in the Statement of the Case, but it is proper to identify the proceedings that occurred in the court below that may give rise to an issue. CCAP recommends that counsel craft the Statement of the Case in a way that draws the Court's attention to potential issues in the event that the Court finds that the appeal is properly before the Court.
(There is no change in the policy followed in the Fifth District. In other words, if counsel determines that the matter is not appealable, ask the Fifth District Court of Appeal for instruction on whether to proceed with the briefing.)
Our Procedural Comparison Chart has been updated with this Third District policy change; see "Nonappealable case."
Effective immediately, the Fifth District Court of Appeal no longer requires counsel's declaration that "the absence of arguable issues is not a substantial factor in the dismissal of the appeal." Our Procedural Comparison Chart has been updated with this policy change.
In conjunction with EOT requests:
When an extension request is sent very close to the filing deadline, the attorney should call the clerk to advise that the extension request is on its way. That will minimize the risk that a late letter will be issued.
See our Extensions of Time article for a more complete discussion of EOT policies in both courts.
In conjunction with filing the AOB in compliance with rule 8.25 [formerly 40.1(b)(3)]:
If counsel relies on rule 8.25 by sending the brief on or before the due date by OVERNIGHT mail, it is NOT necessary to call the clerk. But if the brief is sent by EXPRESS mail or PRIORITY mail (neither of which guarantees next day delivery), the attorney should call the clerk to advise that the brief has been mailed in compliance with the rule.
Suppose a defendant whom you are representing has been convicted of cohabitant abuse (Pen. Code, § 273.5), aggravated assault (Pen. Code, § 245, subd. (a)(1)) and aggravated battery (Pen. Code, § 243, subd. (d)), all based on the single act of stomping on his wife’s leg and breaking it. Do any of these offenses merge with any of the others, because it is necessarily included within another? Now suppose that the cohabitant-abuse and aggravated-assault convictions were enhanced by a finding (under Penal Code section 12022.7) that the defendant personally inflicted great bodily injury (GBI) during their commission. Would the addition of this enhancement change the merger analysis?
It has long been established that a defendant may not be convicted of multiple crimes whose elements are wholly included within a greater offense for which he has been convicted on the basis of the same conduct. (People v. Pearson (1986) 42 Cal.3d 351, 355 [“multiple convictions may not be based on necessarily included offenses”]; People v. Moran (1970) 1 Cal.3d 755, 763 [“If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed”].)
In People v. Reed (2006) 38 Cal.4th 1224, the California Supreme Court recently held that, “[i]n deciding whether multiple conviction is proper, a court should consider only the statutory elements.” (Id. at p. 1229.) Although Reed limits the scope of offenses that can be found to be lesser included offenses (LIOs) for purposes of the “Pearson” rule (i.e., by eliminating the “accusatory pleading” test for LIOs in the multiple-conviction context), two other cases presently pending in the California Supreme Court could expand the number of offenses that are LIOs and subject to reversal under the Pearson rule.
In People v. Sloan (S132605/C042448; 126 Cal.App.4th 1148, review granted 6/8/05) and in People v. Izaguirre (S132980/B169352; unpublished opinion, review granted 6/8/05), the Court will decide whether enhancements (e.g., weapon use, GBI infliction, etc.) are included in determining whether the “Pearson” ban on multiple convictions for necessarily included offenses applies.
Although prior cases have held that enhancements are not included in determining whether one offense necessarily includes another (In re Jose H. (2000) 77 Cal.App.4th 1090, 1093-1096; and see People v. Wolcott (1983) 34 Cal.3d 92, 96-101 [holding that enhancements should not be included in determining whether a trial court has a sua sponte duty to instruct on lesser included offenses]), the question is still unsettled, especially in light of the impact that intervening United States Supreme Court authority (viz., Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296) is having on the fleeting distinction between “enhancements” and “elements” when considering facts legally essential to the defendant’s sentence. (See, e.g., People v. Sengpadychith (2001) 26 Cal.4th 316, 326; People v. Seel (2004) 34 Cal.4th 535, 539, fn. 2.)
In light of the impact that additional convictions (even ones that have been stayed under Penal Code section 654 (see People v. Benson (1998) 18 Cal.4th 24)) can have on a defendant’s sentence in future cases (e.g., as strikes and serious-felony priors), panel attorneys are encouraged to challenge as many convictions as they can on “Pearson” grounds, and to make sure that enhancements are included in the LIO analysis, if their inclusion reduces the number of permissible convictions. (Because “one cannot be punished for the enhancement separately from the underlying offense” (People v. Smith (1985) 163 Cal.App.3d 908, 914), it is possible that including enhancements in the LIO analysis will be contrary to the defendant’s interests in some situations (i.e., where an unenhanced conviction is a LIO of another offense of conviction, but would not be if its enhancement(s) were included in the analysis).)
Your CCAP staff buddy can help you analyze how and if to raise a Sloan/Izaguirre issue, if the facts of a case arguably present such an issue. Finally, a discussion of this issue is contained in section VI of the “JABS” and “Upper Cuts” article (PDF) on the Apprendi/Blakely page of CCAP’s website, and the Respondent’s Brief on the Merits filed in People v. Sloan, S132605, is available via our website’s Searchlight feature.
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A rule 33.3 petition for review should never be filed to preserve search and seizure issues.
Stone v. Powell (1976) 428 U.S. 465 [96 S.Ct. 3037; 49 L. Ed. 2d 1067] precludes federal habeas relief for most Fourth Amendment issues: "[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." (Id., 428 U.S. at p. 494, footnote omitted.)
Rule 33.3 permits the filing of an abbreviated petition "for the sole purpose of exhausting state remedies before presenting a claim for federal habeas relief." Filing a petition under this rule requires counsel to state in the petition that the case presents no grounds for review. Since Stone permits no federal habeas review of Fourth Amendment claims, the petition is appellant's last shot at relief, and a standard petition for review in compliance with rule 28 should be filed instead.
Ordinarily, for both the Third and Fifth District Courts of Appeal, appointed attorneys need to file motions to expand their appointments to seek compensation for all writ petition work, including both habeas corpus and certiorari.
Good news! In light of the U.S. Supreme Court's grant of certiorari in Cunningham v. California (Apr. 18, 2005, A103501) unpublished opinion, cert. granted 2/21/06 (05-6551), both of our courts have agreed not to require counsel to file the motion to expand the appointment if appointed counsel can prepare a Cunningham petition for cert. in 4.0 hours or less. If at any point before or during the preparation of the petition and related activity counsel believes that 4.0 hours may not be sufficient time to complete the petition for cert., a motion to expand should be submitted as soon as possible directly to the Court of Appeal. The expansion motion must include 1) an explanation for the need for more time, and 2) an indication of how many hours are needed. The 4.0 hours includes not only the petition, but also the time for obtaining the In Forma Pauperis declaration from the appellant (required to avoid having to pay a filing fee for which counsel would not be reimbursed).
>> View the Cunningham Page for a checklist of procedural steps to filing a petition for certiorari, a simplified Cunningham "Me Too" cert. petition, the IFP affidavit, and other samples and links.
CCAP has learned that some attorneys are using certificates of word length that do not comply with the Rules of Court. CCAP has now posted a sample proper format on our Motions Samples Page . Code of Civil Procedure, section 2015.5 sets forth the requirements for certificates required by any rules. They must be executed under penalty of perjury.
Without compliance, your briefs or petitions may be rejected by the courts, so be sure to include a proper certificate whenever required.
The Fifth District appreciates a courtesy telephone call to the clerk as soon as possible whenever parties engage in negotiations which might affect the progress of a case, such as a stipulation for reversal of judgment, or anything else which might affect the finality of the case. The clerk will ask counsel to submit a follow-up letter. While this advisement may not change the court's workflow on a given case, it is regarded as a helpful notification to court staff. Give them a call!
This procedure for the Fifth District Court of Appeal has been added to our online comparison chart: Procedural Policies of the Third vs. Fifth