announcements & news archive
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Year 2020
Panel Announcements
Updated: 3/4/2020
Claim Alert for Panel Attorneys With CSC Cases
For attorneys who have been appointed in cases in the California Supreme Court, there is a form that must be completed and submitted to JCC/Accounting before any Supreme Court Claim can be processed in the case. The form is available here (external link to PDF). Attorneys only need to submit the form on their first case in the California Supreme Court.
For quickest processing, send the completed form directly to:
JUDICIAL COUNCIL OF CALIFORNIA
Attn: Alberto Cruz, Accounting Unit
455 Golden Gate Avenue, 6th Floor
San Francisco, CA 94102-3688
Let Alberto know that you have a current appointment or claim pending with the Supreme Court.
This form is mandatory in order to enter the attorney ("vendor") into the State’s new FI$CAL system. Once accounting receives the form, the attorney is entered into the system and any claim sent from the Supreme Court can then be matched with them in the system. If the attorney isn’t yet in the FI$CAL system then there will be a delay. Note that Court of Appeal appointed case payments are not yet processed through FI$CAL, although eventually they will be. Consequently, there is no rush for other panel attorneys to send in the form now. Appellate Court Services will inform the projects when that needs to happen.
Updated: 2/7/2020
1099s for Panel Attorneys
The JCC has advised the projects that the accuracy problems with 1099s have been corrected. Amended 1099 forms are expected to be mailed to attorneys affected by the error by the close of business on Friday, Feb. 7, 2020. For those not impacted, you will not receive a replacement. Also being mailed are some 1099s not previously sent.
We anticipate receiving a list of impacted attorneys from the JCC. The newly mailed amended 1099s may take a few days to reach you, and the “final list of the attorneys impacted” may take a few days to reach us. Please check the information on the amended 1099s carefully.
We are hopeful the steps taken by the JCC will solve all problems. The JCC has expressed apologies for the confusion and have assured the projects that internal process corrections are being implemented to prevent this error from happening again.
Updated: 1/17/2020
Practice Tip for Augment Motions
Motions to augment the record should not include a request to stay the appeal. Requests to stay an appeal are considered urgent and the court processes these requests differently from motions to augment. If counsel is seeking to stay an appeal, the request should be made in a separate motion.
Year 2019
Panel Announcements
Updated: 12/20/2019
Important Amendments to the California Rules of Court, Effective January 1, 2020
Effective January 1, 2020, the California Rules of Court will be amended. Many of the amendments to the Appellate Rules (Title 8) are related to electronically filing documents in the appellate court. A summary of the amendments is available on the Courts’ website here: https://www.courts.ca.gov/documents/2019-09-23-rules-effective-2020-01-01.pdf (the summary of the Title 8 changes is on pages 88-110 of the PDF).
CCAP's panel annoucement regarding the amendments is available here.
Updated: 11/14/2019
eService Update: The Stanislaus County Public Defender is No Longer Accepting Paper Service Copies
The Stanislaus County Public Defender will no longer accept paper service copies of briefs or other filings in Court of Appeal cases. Instead, the office has requested that all counsel use their TrueFiling service email, PubDefE-service@stancounty.com, if counsel serves the public defender with a filing in a Court of Appeal case.
CCAP is in the process of collecting eservice addresses for district attorney and public defender offices in counties within the jurisdiction of the Third District and Fifth District Courts of Appeal. We will post eservice addresses that we are able to obtain on our website here.
Updated: 6/3/2019
Preauthorization Policy Update in the Fifth District
The preauthorization policy in the Fifth District is now the same as the Third District. CCAP is authorized to process travel requests that do not exceed $600 and translator requests that do not exceed $300. For requests not covered by CCAP's preauthorization authority (this includes motions to expand appointment and any extraordinary expenses) such requests should first be sent to CCAP for a recommendation, and CCAP will forward the request and recommendation to the Court.
Updated: 3/6/2019
Important Practice Note for the Third District
If counsel discovers confidential information in the reporter's or clerk's transcripts that should have been redacted from the record or sealed (Cal. Rules of Court, rule 8.45(d)(1)), counsel should file a request in the Court of Appeal to redact the confidential information from the record. The request may be made in a letter with a formal proof of service. Counsel should not redact the confidential information from the record himself or herself.
Updated: 1/16/2019
Clarification on Travel Preauthorization Requests in the Fifth District
In April 2018, the Fifth District authorized CCAP to approve up to $600 in travel expenses (but not expenses related to habeas investigation) without court screening. The Fifth District recently clarified that, for travel expenses that exceed $600, such requests should be first sent to CCAP for a recommendation on the request. As a result, the Fifth District's preauthorization policy for travel expense requests is now the same as the Third District.
For more information, see CCAP's article Preauthorization Steps and Procedures.
Year 2018
Panel Announcements
Updated: 8/17/2018
TrueFiling Fee Waivers
The issue of fee waivers for court-appointed counsel on indigent cases is presently a moving target dependent on contract provisions between each individual district court and ImageSoft, the proprietor of TrueFiling. The JCC’s ultimate goal is to have a unified contract state-wide with no fees. In the meantime, such negotiations take time because the various districts began their original contracts at different times. Because this is contract based, please be patient. The Second District is the first to authorize such fee waivers while counsel in the other districts must still presently pay the fees and await reimbursement through the compensation claim process.
Updated: 4/29/2018
CCAP's New Claims System is Live!
CCAP's new claims system, WebClaims, is now live and available for use.
You will need to register by following these simple steps:
1. Go to www.capcentralwebclaims.org.
2. Enter your State Bar Number in the first box. Please note that you will need to enter it as a six-digit number. For example, if your State Bar Number is five digits (86608), you will need to add a zero to the front of the number (086608).
3. Click on the "Forgot Password" link.
4. Retrieve the temporary password sent to your email.
5. Return to the site and enter your State Bar Number and temporary password. (Note: Your private password must be at least eight characters in length, including at least one upper case letter and at least one number. CCAP will not know your password. If you forget it, use the Forgot Password link.)
We have migrated all of CCAP's existing claims in the eClaims system to CCAP's WebClaims system, including claims that were not yet submitted, claims that were submitted, claims that were gathered by CCAP, and claims that have been sent to the JCC. If you have a claim that is partially complete, you will need to review each stage before you can submit the claim.
Like eClaims, most steps should be relatively self-explanatory. However, if you have any questions or need technical assistance with WebClaims, please contact our claims processor Lisa Eger at (916-441-3792) or email her at leger@capcentral.org.
Updated: 4/26/2018
CCAP's New Claims System
CCAP's new "WebClaims," tied to CCAP's proprietary case management system, is being prepared for its debut.
On Thursday, April 26, eClaims for CCAP will be shut down at 5 p.m. We hope to have the WebClaims portal open for business by Tuesday, May 1 at 8:30 a.m. at www.capcentralwebclaims.org.
On May 1 you will need to register as a new user of WebClaims by following these simple steps:
1. Go to www.capcentralwebclaims.org
2. Enter your State Bar Number in the first box
3. Click on the "Forgot Password" link
4. Retrieve the temporary password sent to your email
5. Return to the site and enter your State Bar Number and temporary password. (Note: Your private password must be at least eight characters in length, including at least one upper case letter and at least one number. CCAP will not know your password. If you forget it, use the Forgot Password link.)
Like eClaims, most steps should be relatively self-explanatory. However, if you have any questions or need technical assistance with WebClaims, please contact our claims administrator Kim Parris (916-441-3792) or email her at KParris@capcentral.org.
Updated: 4/16/2018
Fifth District Policy Update: CCAP is Now Authorized to Approve up to $600 in Travel Expenses
Panel attorneys must obtain preapproval for all travel expenses (other than for oral argument) to be reimbursed for these expenses. Previously, in Fifth District cases, panel attorneys had to submit a travel expense request directly to the court for consideration and approval. The Fifth District has now changed its policy and has authorized CCAP to approve up to $600 in travel expenses without court screening. However, CCAP's authorization is limited and does not include habeas investigation. For travel expense requests that are under $600, the Fifth District's preauthorization policy is now the same as the Third District.
For preapproval for travel expenses that exceed $600, send the expense request directly to the court for consideration and approval. (CCAP can lend assistance to counsel in framing the request, but does not offer a recommendation unless it is requested by the court.)
For more information, see CCAP's article Preauthorization Steps and Procedures.
Updated: 4/13/2018
Justice Gomes, 1946-2018
We regret to inform the panel that Justice Gene Gomes of the Fifth District Court of Appeal passed away on March 6, 2018. Justice Gomes was a Fresno native and served as an Associate Justice for the Fifth District from 2002 to 2018. Previously, he had served as a Municipal Court Judge and Superior Court Judge for Fresno County. He will be greatly missed at the Fifth District.
His obituary is available here (external link).
Updated: 3/27/2018
JCC policy on receipts for claimed expenses
The JCC has told the projects that counsel in the California Appellate Court Appointed Counsel (CAC) Program must retain documentation for claimed expenses. Documentation includes, but is not limited to, invoices, receipts, copying and mileage logs, and other records that support claims for expenses. Although documentation need not be submitted with a fee claim, the JCC or project may request documentation with regard to expenses. The burden of proof rests with appointed counsel to substantiate their claims. For tax purposes, the California Franchise Tax Board suggests keeping such documentation for at least seven (7) years, which would also cover audits of the CAC program.
Updated: 1/3/2018
Electronic Transcripts
Effective January 1, 2018, an amendment to Code of Civil Procedure section 271 (external link) requires court reporters to deliver the reporter's transcript in electronic form unless (1) a paper copy is requested or (2) prior to January 1, 2023, the court or court reporter do not have the technical ability to store or deliver a transcript in electronic form. The clerk's transcript will still be delivered in paper form.
This amendment has raised special issues for indigent appellants with counsel appointed through the Court Appointed Counsel (CAC) program. Many indigent appellants, especially those who are incarcerated, cannot receive or use a transcript in electronic form and a paper copy must be secured for these appellants. At this time, it is CCAP's understanding that court reporters will not provide both a paper and an electronic copy of the transcript without payment for the second copy of the transcript, which would not be reimbursable. Additionally, the CAC program is not currently funded to absorb the cost of reimbursing panel attorneys for printing paper copies of electronic transcripts in the majority of CAC cases. As a result, the majority of appointed attorneys will need a paper copy of the reporter's transcript (rather than an electronic copy) so the transcript can later be sent to the appellant in a usable form.
To address these issues until there is a more permanent solution, some of the Courts of Appeal have amended their local rules or issued standing orders providing that paper transcripts be provided in certain appointed cases. The Fifth District has issued Miscellaneous Order No. 2017-1 (external link to PDF), which provides that "in any case where counsel is to be appointed for any party, appointed counsel is deemed to have requested under Code of Civil Procedure section 271, subdivision (a)(1) that his or her copy of the reporter's transcript be delivered in paper form." The order also provides that "[a]t any time prior to the printing of the reporter’s transcript . . . , or within 15 days after the notice of appeal is filed, whichever is later, counsel, or if the party is not yet represented by counsel, the district appellate project, may serve the lead court reporter and the superior court with a request that counsel’s copy of the reporter’s transcript be delivered in electronic form." To ensure that appellants receive a usable copy of the reporter's transcript at the conclusion of their case, and in the interest of supporting the purpose of these local rules and orders, CCAP will not be requesting electronic transcripts for our cases. We anticipate the Third District will take steps to address this issue soon.
Year 2017
Panel Announcements
Updated: 12/11/2017
Updates on TrueFiling and Court Policies
The Court of Appeal Will Automatically be Served With a Petition for Review Submitted Through TrueFiling and Filed By the California Supreme Court
The California Supreme Court has announced that, notwithstanding the requirements set forth in California Rules of Court, Rule 8.500(f)(1), submission of a petition for review through TrueFiling that is accepted for filing by the Supreme Court constitutes service of the petition on the Court of Appeal. The Court's announcement is on its Electronic Filing / Submissions webpage here (external link).
Because the Court of Appeal will now automatically be served with a petition for review, attorneys will no longer need to complete a separate TrueFiling transaction in the Court of Appeal to serve the appellate court with a copy of the petition for review. However, the Court of Appeal will still need to be listed on the proof of service for the petition for review.
New Fifth District Policies
Motions to Augment in Cases with Multiple Appellants
In a case with multiple appellants, when a co-appellant files a motion to augment, counsel should no longer file a joinder motion. Not only will all parties automatically receive copies of a co-appellant's augmented record, but also they will automatically receive a suspended due date for their brief. The Fifth District's policy is now the same as the Third District.
Errata Letters
In the Fifth District, when an attorney files an errata letter, the Court is no longer able to add corrections to the brief, minor or otherwise, since everything is now filed electronically. Thus in every case, whether by errata letter or motion to file a corrected brief, a new electronic brief needs to be filed. In the case of an errata letter, counsel does not need to seek permission to file, but should file the errata letter and the corrected brief at the same time (as separate documents). The Court will strike the previously filed brief and replace it with counsel's new brief. If counsel seeks to "correct" a brief with anything other than truly minor changes (for example counsel wishes to change or add an argument), counsel should file an appropriate motion. It would be helpful if counsel submits the corrected brief at the same time the motion to file a corrected brief is submitted. The motion should be a separate document from the brief.
Note on Third District Policy on Errata Letters: In the Third District, counsel is not required to file a corrected brief with an errata letter.
Amendment to the Third District's Local Rule 5
The Third District is amending its local electronic filing rule (Rule 5) effective December 11, 2017. The amended version of the rule is available on the Court's website here (external link to PDF).
The main substantive change to the rule is the addition of the following language: "Submission of a petition for review through TrueFiling that is accepted for filing by the Supreme Court constitutes service of a copy of the petition on this court in accordance with the California Rules of Court."
Supplemental Briefs
The Courts of Appeal have expressed concern about the frequency of supplemental briefs, especially for issues that should have been raised at the time of the filing of the initial opening brief. Their complaints do not concern situations in which the issue is based on a development beyond counsel's control, such as a post-AOB case or statute; in those cases, the necessity for further action is perfectly understandable and the reasonableness of taking it is unquestioned. ADI's article from March 2011 includes an overview of the problems created where the initial briefing is incomplete or rushed, requiring supplemental briefing for missed issues: http://www.adi-sandiego.com/news_alerts/pdfs/2011/MARCH-2011NEWS-ALERT.pdf (external link to PDF). (With thanks to Elaine Alexander, Executive Director of ADI, for sharing this link and advice with us.)
Updated: 9/1/2017
eFiling now mandatory in the California Supreme Court
Effective September 1, 2017, certain documents must be filed in the California Supreme Court via TrueFiling.
The court has revised its eFiling rules, effective September 1, 2017. The revised rules are available on the Court's website here (external link to PDF).
The following documents must now be filed via TrueFiling with the court:
-Petitions for review;
-Answers to petitions for review;
-Replies to answers to petitions for review;
-Motions, applications, and documents related to petitions for review; and
-Automatic appeals from a judgment of death and related habeas corpus matters
More information is available on CCAP's California Supreme Court TrueFiling page here.
We have also created step-by-step instructions for filing a petition for review in the California Supreme Court via TrueFiling, and combining PDF copies of a petition for review and a Court of Appeal opinion. The instructions are available on CCAP's Step-by-Step guides page here.
Updated: 6/13/2017
Protocols for claim inquiries from panel attorneys
The JCC has asked the projects to implement a protocol that claim status inquiries be fielded by the projects. For CCAP, you may send your inquiries by email to our claims processor Lisa Eger, leger@capcentral.org according to these time frames:
- For claims under $7500 you can email Lisa starting on the 11th business day after the claim has been sent to the JCC.
- For claims of $7500 or more you can email Lisa starting on the 16th business day after the claim has been sent to the JCC.
Note: Please add 1-2 weeks before inquiring if you receive a check for your payment.
eClaims Connection Issue
CCAP has received inquiries from panel attorneys who have attempted to access eClaims using the Firefox Internet browser and have encountered a message about the connection to CAP/LA's website. We have confirmed with CAP/LA, the creator of eClaims, that the eClaims system is secure. The connection message is due to a certificate setting on CAP/LA's website.
In the event you receive this message, instructions for accessing the eClaims website are available here (PDF).
New Court Policies for Marsden Transcripts and Motions to Augment, Plus Other Record Tips
- New Policy in the Third District for Releasing Marsden Transcripts
California Rules of Court, rule 8.47(b) addresses the record procedures when a People v. Marsden (1970) 2 Cal.3d 118 issue is raised on appeal (these procedures also apply when raising an issue related to other types of in-camera hearings where the defendant was present but the People were excluded in order to prevent disclosure of information about defense strategy or other information to which the prosecution was not allowed access at the time of the hearing).
If the appellant files a brief presenting a Marsden issue, the People may serve and file an application requesting a copy of the reporter's transcript of and documents filed or lodged by a defendant in connection with the in-camera hearing. (Cal. Rules of Court, rule 8.47(b)(2)(B).) The appellant has 10 days to serve and file opposition to this application on the basis that the transcript or documents contain confidential material not relevant to the issues raised by the defendant in the reviewing court. (Cal. Rules of Court, rule 8.47(b)(2)(C).) If the appellant does not file an opposition to the application within the 10-day period, the reviewing court clerk must send the People a copy of the reporter's transcript of and documents filed or lodged by a defendant in connection with the in-camera hearing. (Cal. Rules of Court, rule 8.47(b)(2)(D).)
In the Third District, counsel has the option of alerting the Court in the opening brief that he or she does not object to the Court releasing the Marsden transcript to the Attorney General. In the opening brief, the attorney may include a section entitled "Statement of Consent to Release Marsden Transcript" after the "Statement of Appealability" section. In this section, the attorney may state that a Marsden issue is being raised in the opening brief and that the appellant consents to releasing the Marsden transcript to the Attorney General, citing to California Rules of Court, rule 8.47(b)(2). Alerting the Court in the opening brief that there is no objection will allow the court to release the Marsden transcript to the Attorney General right after it is requested without waiting an additional 10 days to see if appellant objects. This procedure is completely optional and should only be used if counsel has no objection to the Attorney General receiving the entire Marsden transcript.
If a panel attorney raises a Marsden issue and does object to the Attorney General receiving the entire transcript, the attorney may follow the procedure in rule 8.47(b)(2)(c) and file an opposition to the Attorney General's application requesting a copy of the transcript.
Please note that this procedure does NOT apply in the Fifth District. Counsel with cases in the Fifth District should continue to follow the procedures for Marsden transcripts outlined in rule 8.47(b). - New Policy in the Fifth District for Motions to Augment and Missing Normal Record Items
Under California Rules of Court, rule 8.155, an appellant may file a motion in the Court of Appeal to augment the record to include any document filed or lodged in the case in the trial court. However, if normal record items are missing on appeal, California Rules of Court, rule 8.340(b) provides a mechanism for counsel to request the missing record items directly from the trial court.
In the past, the Fifth District has allowed counsel to include a request for missing normal record items in a motion to augment. The Fifth District has recently changed this policy and would now prefer counsel to request normal record items directly from the trial court by sending the trial court an omissions letter under rule 8.340(b), with a service copy sent to the Fifth District. The Fifth District's policy is now the same as the Third District. - Tips for Motions to Augment
For motions to augment the record, if counsel cannot attach a copy of the document to be added, counsel must identify the requested material as required under California Rules of Court rules 8.122 (clerk's transcript items) and 8.130 (reporter's transcript items). (Cal. Rules of Court, rule 8.155(a)(3); see also Cal. Rules of Court, rules 8.340(c), 8.410(b)(1).)
When augmenting the record for items found in the clerk's transcript, counsel must identify each requested document by its title and filing date or, if the filing date is not available, the date it was signed. Minute orders may be requested by date. (See Cal. Rules of Court, rule 8.122(a)(1).) For documentary exhibits admitted into evidence or lodged, counsel must specify the exhibit by number or letter. (See Cal. Rules of Court, rule 8.122(a)(3). But see Cal. Rules of Court, rules 8.224, 8.320(e) [outlining the procedure for transmitting exhibits to the Court of Appeal].) Counsel should note in the motion to augment that the exhibit is a document rather than a physical item. Counsel should also explain why he or she is requesting the item in a motion to augment, rather than following the procedure in rule 8.224 for transmitting exhibits to the Court of Appeal after the respondent's brief is filed. It is also helpful to include any other information in the record that will assist the Court in identifying the item and ruling on the motion to augment.
When augmenting the record for items found in the reporter's transcript, counsel must specify the date of each proceeding. (See Cal. Rules of Court, rule 8.130(a)(1).) It is also helpful to include the reporter's name and certification (CRS) number if known, and any other information in the record that will assist the Court in identifying the hearing and ruling on the motion to augment. For example, if counsel determines that a hearing occurred because there is a minute order for the hearing in the clerk's transcript, counsel should also provide a citation to the minute order when identifying the requested reporter's transcript.
When moving to augment the record, be sure to explain how the requested materials will be useful on appeal. (See People v. Gaston (1978) 20 Cal.3d 476, 482.) - Obtaining Sealed Record Items
If the record on appeal includes a sealed or confidential record, and you did not receive a copy of the sealed of confidential record, check the Court's docket for the case to see if the record has already been filed in the Court of Appeal. There is no need to file a motion to augment for a sealed or confidential record that is already filed with the Court of Appeal. Instead, if the defense had access to the sealed or confidential record in the trial court, file a motion in the Court of Appeal to send the sealed or confidential document to counsel. (See Cal. Rules of Court, rule 8.45(d).) If the defense did not have access to a sealed record in the trial court, consider filing a motion to unseal the record. (See Cal. Rules of Court, rule 8.46(e).) - Obtaining Items That the Trial Court May Have Mentioned, but Were Not Filed or Lodged in the Trial Court
When reviewing the record on appeal, appellate counsel may find that trial counsel and/or the trial court referred to items that were never lodged or filed in the trial court. It is not proper to request a document that was not lodged or filed in the trial court in a motion to augment. In this situation, counsel may consider filing, in the trial court, a motion to correct or settle the record. (See Cal. Rules of Court, rules 8.340(c), 8.155(c) [correct record], 8.137 [settled statement].)
Year 2016
Panel Announcements
Amendments to the Third District Court of Appeal's Local Rule 5 (Electronic Filing)
The Third District has amended Local Rule 5 (which addresses electronic filing via TrueFiling), effective Monday September 26, 2016.
Changes to Note:
(1) Documents submitted to the Court via TrueFiling should not contain any color: "Notwithstanding provisions to the contrary in the California Rules of Court, electronic documents shall not have color covers, color signatures, or other color components absent leave of court. This requirement does not apply to the auto-color feature of hyperlinks." (Ct. App., Third Dist., Local Rules, rule 5(e)(7), Electronic Filing [italics added].) This amendment, for example, excludes use of color signatures or letterheads, or the use of electronic highlights for emphasis.
(2) Amended Local Rule 5 now provides that "Each document shall include an electronic bookmark to each heading, subheading and component of the document (such as a table of contents, table of authorities, petition, verification, points and authorities, declaration, certificate of word count, certificate of interested entities or persons, or a proof of service if included within the document)." (Ct. App., Third Dist., Local Rules, rule 5(a)(3).) "Document" is defined as "[a]ny filing submitted to the court, including but not limited to a brief, a petition, an appendix, or a motion . . . ." (Ct. App., Third Dist., Local Rules, rule 5(e)(5).) Previously, only briefs and original proceedings were required to include electronic bookmarks but the rule now includes all motions (form EOT requests need not be bookmarked).
(3) There are also new requirements for large documents consisting of multiple files (such as voluminous exhibits that are submitted in separate files). (See Ct. App., Third Dist., Local Rules, rule 5(d), (e)(3).) Please review the rule prior to filing large documents (e.g., any electronic document that exceeds 25 megabytes).
The full text of the amended rule is available on the Third District Court of Appeal's website here (external link to PDF).
New Rule of Court and Judicial Council Form for Sealing Juvenile Records
Recent amendments to Welfare and Institutions Code section 786 (effective January 1, 2016) clarified the process for sealing records for a minor who satisfactorily completes informal supervision or probation. To provide standardized implementation of the amended statute, the Judicial Council has adopted a new rule of court and has made appropriate forms available:
California Rules of Court, rule 5.840—Dismissal of petition and sealing of records (§ 786) (external link)
Effective July 1, 2016
How to Ask the Court to Seal Your Records (JV-595-INFO) (external link to PDF)
Request to Seal Juvenile Records (JV-595) (external link to PDF)
Dismissal and Sealing Of Records—Welfare and Institutions Code Section 786 (JV-596) (external link to PDF)
Order to Seal Juvenile Records—Welfare and Institutions Code Section 781 (JV-590) (external link to PDF)
Acknowledgment of Juvenile Record Sealed (JV-591) (external link to PDF)
(For agencies that must advise the court of their compliance with the court's sealing order)
supreme court eliminates automatic depublication
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)
Year 2015
Panel Announcements
Updated: 9/23/15
Third District Will Now Accept EOT Requests Where the PDF Form is Still Modifiable
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.
Updated: 9/14/15
Third District Joins TrueFiling - eService Now Accepted for All Filings
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.
eService on CCAP and the Attorney General Now Available
CCAP and the Attorney General are now accepting eService in both Third and Fifth DCA cases for all court filings.
CCAP eService email: eservice@capcentral.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, eservice@capcentral.org 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.
Updated: 1/26/15
IMPORTANT: Compensation Claims Moving to All-Electronic after February 25, 2015
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.
Updated: 1/15/15
IMPORTANT PANEL ANNOUNCEMENT: PLEASE READ
- The CCAP office is relocating
Due to our impending move, we anticipate that our office will be closed for business starting at approximately 3:00 PM on Thursday, January 22nd, and continuing all day Friday, January 23rd. We will re-open for business at our new location on Monday morning, January 26th.
During closed hours from 3 o'clock Thursday through Sunday CCAP staff will not have access to their computers or email. In addition, our phone system will be unavailable so there will be no voicemail option to outside callers. Please plan accordingly.
After the move, our phone number and staff emails will remain the same. Our FAX number will change and we will post that number on our website when it becomes available. - Proof of service & other mail items during our move
Effective February 1, 2015, CCAP's new mailing address will be:
2150 River Plaza Dr.
Ste. 300
Sacramento, CA 95833
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)
Year 2014
Panel Announcements
Updated: 9/5/14
CCAP e-Mail Offers - Anticipated launch date is October 1st
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.
Fifth District Now Using Court Call
Updated: 7/18/14
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..
eClaims & Recent Compatibility Questions
Updated: 5/7/14
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:
- MICROSOFT INTERNET EXPLORER (IE) INCOMPATIBILITY:
This is a simple fix for the incompatibility problem people have experienced with Microsoft’s recent update of Internet Explorer, especially IE-11. The problem is due to new default settings for compatibility with older programs. In our testing, the following solution worked for us:
(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.
- FIREFOX PRINTING BLANK PAGES FOR PDF OF CLAIM IN STEP 13:
The newest version of Firefox tries to print claims in Step 13 of eClaims using the Firefox PDF facility rather Adobe’s. There is also a simple fix for this very annoying problem.
(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.
Updated: 3/13/14
Important information for CCAP panel attorneys:
- The AOC has approved a statewide policy on where habeas-related work and expenses should be claimed on the compensation claim form.
Please review the issued memo at the following URL: http://www.capcentral.org/claims/guidelines/billing_habeas_time_mar_2014.pdf
- Third District alert on e-filing
When e-filing an EOT in this court, please do not checkmark item #6 on the court's EOT form which states, "6. Sufficient copies of the request and stamped, pre-addressed envelopes . . . ." etc. An e-filed EOT does not require copies nor pre-addressed envelopes be sent to this court. Do a quick proofing of the EOT form before you upload the PDF to check for that unintended checkmark.
The court’s EOT form can be found here: http://www.courts.ca.gov/documents/ext-crm.pdf
Changing the Framework for Transportation of Drugs
Updated: 1/21/14
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.
Potential issues:
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).
Third District's Announcement to Panel Attorneys Regarding Confidential Records and Probation Reports—Misc. Order 2013-002
Updated: 1/2/14
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.
Year 2013
Fifth District's Announcement to Panel Attorneys Regarding Confidential Records and Probation Reports
Updated: 12/31/13
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.
Panel e-Service Being Piloted
Updated: 10/14/13
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.
Panel Notification - Change in AOC/CAC Claim Processing Time
Updated: 6/20/13
AOC Announcement:
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.
Fifth District Encourages Use of New EOT Format
Updated: 5/6/13
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.
Year 2012
Fifth District's Email Notification Project Launched!
Updated: 10/23/12
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.
All Habeas Related Time Goes on Line #11
Updated: 6/28/12
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.)
E-Filing Now Mandatory for Adult Criminal Case Wendes in the Fifth
Updated: 4/1/12
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.
Read our "Top 10 Tips for e-Filing" for insight on recently encountered fix-its (PDF):
What's the difference between e-Filing and e-Submissions? Read our fact sheet (PDF):
Suggested standardization of naming your e-Filed documents(PDF):
Track Your Transcript!
Updated: 6/1/12
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 [auto-notify@ups.com], 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.
Year 2011
Third District: When Do I Need a Proof of Service?
Updated: 12/14/11
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.
MTA News . . .
Updated: 05/04/11
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.
Fifth District Policy Change Regarding Juvenile Dependency & Delinquency Cases
Updated: 03/15/2011
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.
Year 2010
Lexis Discount - Statewide Panel Offer
Updated: 10/27/10
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:
Northern California:
Richard Markowitz: 415-699-4257
richard.markowitz@lexisnexis.com
Southern California:
Cory Copeland: 909-593-8707
cory.copeland@lexisnexis.com
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!
Augmented Record Matters
Updated: 10/28/10
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.
Miscellaneous Breaking News
Updated: 09/10/10
Chelsea's Law
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.
Summer Panel Announcements
Updated: 08/09/10
- Filings Must Use Court-Designated Caption &
Third District Goes To Initials-Only Format For Minors
For all cases, the Third and the Fifth District Courts of Appeal clerks ask that counsel use only the court-designated caption for any filing (received, stamped or lodged) in their court.
In particular, the Third District has now adopted the designation of parties in any juvenile proceeding by 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 minor. (The Fifth District has not changed their practice of using first name + last initial for minors.)
All counsel are expected to follow and use the court-designated caption, including the use of initials where appropriate for minors and parents. All CCAP generated paperwork (such as the recommendation of counsel) will now default to this practice to mirror that of our courts. If appointed counsel have a question about whether the caption received from CCAP is correct or not, it can be checked against the court's online docket "Parties & Attorneys" entry at: http://appellatecases.courtinfo.ca.gov/index.html (link will open in new window)
- Statewide Travel Guidelines
The AOC's new statewide Travel Guidelines for appointed counsel have been posted on our website at: www.capcentral.org/claims/guidelines/statewide.asp It is highly recommended that counsel review the new guidelines and consult them prior to incurring travel-related expenses in appointed casework.
- eNews Users Alert -- Oops, Are You Treating Us Like Spam?
Some email programs and service providers treat us as "spam" because our eNews goes out to a group of users and is not sent via our in-house email. Thus, as a recipient of any eNews from CCAP, you may need to add the domain names we typically use to your "Trusted" or "Safe Senders" list in your email program, or use the personal "whitelisting" features of your email service provider, so as not to lose track of the most recent eNews, such as the Weekly Case Summaries, Panel eNews, or other announcements that you now receive.
To do this, we recommend that you include both capcentral.org, cp20.com, and campaigner.com domain names to your trusted sender lists and personal whitelists. We apologize for any inconvenience.
Finally, if you wish to unsubscribe from any eNews you currently receive, do so by modifying your profile on our site -- click on the Modify Profile link at the bottom of our homepage. If you simply reply "unsubscribe" from individual emails, you may unintentionally unsubscribe from ALL our emails, including Panel Announcements (which CCAP panel attorneys are required to receive).
- Updated Article: Final Steps to An Appeal
This article has been updated to add some specific duties of counsel prior to closing the case. For example, advice has been added concerning: Do you routinely send the opinion to the client? What about mailing transcripts to prison inmates? Should you seek a stipulation from the A.G. for an early remittitur? Find this article at: www.capcentral.org/procedures/case_manag/finalsteps.asp
- Serve All Petitions For Review on the A.G. in Sacramento
The Supreme Court has advised that petitions for review and all other Supreme Court filings in Fifth District cases should be served on the Attorney General in the Sacramento office. This procedure applies regardless of whether a Deputy Attorney General in the Fresno office handled the case in the Fifth District Court of Appeal. Two panel attorneys have recently had to re-serve petitions for review in order to comply with this directive.
- Don't Be Late!
Timely file those EOTs and MTAs! Neither court allows rule 8.360(c)(5) as a "grace period" for filing the opening brief. The same is true for dependency fast-track appeals. (Rule 8.416(g).) If counsel cannot file the brief by the court's deadline, an extension of time should be timely filed. Similarly, the appointment order usually states the MTA due date (prior to any EOT being filed). Counsel must calendar this date and file both MTA and supplemental record requests in the trial court by the first deadline. If not, explain why. Find more tips and advice in a related article on our website: www.capcentral.org/procedures/eot.asp
- Speaking Of Which!
When submitting a draft brief to CCAP for review, it should be both timely and in the condition the panel attorney considers to be ready for filing with the court (i.e., proofread, edited, and camera-copy ready); not a rough draft. The facts should be in edited narrative form, not a witness-by-witness account, and the arguments should be fully researched and developed.
For brief-writing tips, check out the Brief Writing area on our website: www.capcentral.org/procedures/brief_writing/index.asp and for dependency cases at: www.capcentral.org/juveniles/dependency/articles/docs/depend_brief_statements.pdf
There are also free training videos on brief writing found on CCAP's MCLE website. A dependency brief writing video is coming very soon!
Third Moves To Initials-Only Format For Minors
Updated: 07/22/10
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.
Augmented Record Matters
Updated: 04/23/10
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."
SCOTUS Decides Padilla v. Kentucky on Immigration Consequences for Pleas
Updated: 04/9/10
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.
Third District: PC 4019 or Wende?
Updated: 03/26/10
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.
3DCA Requests Briefing on PC 4019 With a Twist
Updated: 03/19/10
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.
STANDING ORDER RE PC 4019
From the Third District Court of Appeal
Updated: 03/17/10
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).]
PENAL CODE 4019 Update - Brown Case Published
Updated: 03/16/10
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.
AMENDED PENAL CODE SECTION 4019 UPDATE
Updated: 03/03/10
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.
Fifth District Issues Standing Order Re PC 4019 Supplemental Briefing
Updated: 02/11/10
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.
From the Fifth District Court of Appeal: Augmenting for Pitchess Materials
Updated: 02/3/10
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.
New Phoenix H. Briefing in Dependency Cases
Updated: 01/22/10
THIRD DISTRICT
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.
Download the Third District model minimum requirements brief (PDF)
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.
Download the Fifth District's policy (PDF)
Year 2009
Reminder: All Filed Documents Require a Proof of Service
Updated: 03/17/09
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.)
Year 2008
Fall Panel Announcements
Updated: 10/24/08
- From the Third District Clerk's Office - Multiple Defendant Cases:
When there are multiple appellants in a case with multiple court appointed counsel, don't forget to serve the other appointed counsel.
- From the CCAP Dependency Staff Attorneys - Serving Minor's Counsel:
A reminder that Calif. Rules of Court, rule 8.412(e) requires that appellate briefs must be served on minor's trial counsel or, if the minor was not represented, the guardian ad litem. This change took effect in 2007.
Brad Bristow's 2008 Dependency Case Compendium (PDF) is now posted on our website. On pages 2-4 there is a chart with 2007-2008 legislation updates. These compendiums are a great way to keep up on dependency issues, cases and legislative changes that may affect your cases.
- From the CCAP Claims Processor - Line 23 is for Communication Time:
A reminder that line 23 is now designated for “other” non-line 1 communication time, including opposing counsel, co-counsel, court clerks, court reporters, probation officers, prison officials, etc. If you put communication time on another line we will contact you to move the time to line 23.
For dependency cases where a Sade C. [now Phoenix H.] has been filed, list an "S" instead of a "W" in the box on line 6. Include your time for drafting the Sade C. filing on line 6 (other projects may differ). This and other compensation/claim form tips are included in our online Panel Claims Manual (PDF).
- From CCAP Resources - Special Group Pricing Offer for the 2008 Calif. State Prisoners Handbook:
The Prison Law Office has just published a fully-revised version of The California State Prisoners Handbook -- 1,100 pages explaining the laws and policies that govern California's prisons and providing straight-forward instructions on how to file administrative appeals, habeas petitions and civil rights suits. The Handbook can help you quickly and efficiently answer questions about prison and parole issues, such as behavior credits, disciplinaries, life parole consideration, classification, health care or detainers. Or you can refer your clients and their families to the Handbook for the information that they need to help themselves.
The price of the Handbook for non-prisoners/non-parolees is $182. However, you can get a discount price of $100/book if you order four or more books billed to one account and shipped to the same address; solo practioners can pool together to get the lower price. Prisoners and parolees can order the book at a special price of $40. An order form (external link) is available at the Prison Law Office website.
Nonappealable Cases
Updated: 08/27/08
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."
Fifth District Policy Change for Abandonment Requests
Updated: 03/19/08
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.
Year 2007
Spring Panel Announcements, May 2007
Updated: 05/17/07
- AUGMENTED & SUPPLEMENTAL RECORD PREPARATION ALERT! The counties of Lassen, Plumas, Modoc and Sierra have centralized the preparation of records on appeal to one contact, the Appellate Record Processing Center, located in the Lassen County Superior Court, 220 S. Lassen Street, Suite #2, Susanville, CA 96130. The clerk currently in charge of these records is Ms. Lynn Woods (530) 251-8256. If you have questions concerning appellate record preparations for these counties, your questions may be addressed to her at the Appellate Processing Center. This listing has been added to our web site Phone/Web Directory for these counties. It is also recommended that you add this listing to your 2006 Appellate Lawyer's Directory for these counties until a new directory is printed later this summer.
- PROCEDURAL ALERT! Whenever requesting record items, counsel should comply with Rules of Court, rules 8.155(a)(3) [the party must identify the record as required under rules 8.120 and 8.130] and 8.130(a)(4) [when designating a reporter's transcript, counsel must state the DATE of each proceeding requested (not just a reference to record volume/page number)]. At least one of our superior court county clerks has given us the heads-up that the failure to include a date for a requested reporter's transcript may result in return declarations requiring counsel to provide the date and re-do the request or augment motion.
- CLAIMS! We have added a new page to the claims area of our website: Frequently Asked Questions on California Supreme Court claims. And, for all appointed cases, the mileage rate for expenses depends on the date of travel, not the date of appointment. For example, the current rate is $.485 per mile for travel on or after 1/1/07. You can always check which rate applies using our Rate Information Page; mileage rates – determined by date of travel – are listed at the bottom of that page.
Alert Regarding Phone Calls to the Third District Clerk's Office Concerning Deadlines & EOT Requests
Updated: 01/02/07
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.
Year 2006
Does Your Criminal Appeal Involve a "Sloan/Izaguirre" Issue?
Updated: 11/09/06
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.
Don't Lose Your CCAP eNews!
Be sure your email will not "junk file" it.
Updated: 10/27/06
Our eNews sending domain name is: cmpgnr.com
Follow the directions below to update your email "trusted sender" list
On October 27, 2006, our outsourced mail server for all eNews from CAPcentral.org was replaced with a new server at: cmpgnr.com
How Does This Affect You?
Some email programs and service providers treat us as "spam" because our eNews goes out to a group of users and is not sent via our in-house email. Thus, as a recipient of any eNews from CCAP, you may need to add the new domain name to your "trusted sender lists," or use the "personal whitelisting" features of your email service provider, so as not to lose track of the most recent eNews, such as the Weekly Case Summaries, Panel eNews, or other announcements that you now receive. To do this, we recommend that you include our "from email address" and the new cmpgnr.com domain name to your trusted sender lists and personal whitelists.
Need A Little Help?
If you need further information, please see the whitelisting instructions (PDF) which lists steps for a wide variety of email service software platforms and several ISPs.
We apologize for any inconvenience, but we appreciate your continued interest in using CCAP eNews announcements -- it has proven to be an excellent way of communicating efficiently with our panel and other website users.
Reminder: No Federal Habeas Relief for Most 4th Amendment Issues!
Updated: 5/24/06
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.
Expanding Your Appointment & Cunningham "Me Too" Petitions for Certiorari
Updated: 3/14/06
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.
Year 2005
Alert Regarding Word Count Certificates
Updated: 9/26/05
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.
Download proper certificate as Word (Word doc)
Download proper certificate as WordPerfect (Word Perfect doc)
Download proper certificate as PDF (PDF)
Stipulations Affecting Case Outcome in the Fifth
Updated: 6/28/05
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