News from the Director

FDAP News Alert: Training/Fees & Fines Issues/Use of Associate Counsel/Binding Expenses
& A Retirement

Dec. 28, 2015

Seminar Registration Reminder & Syllabus Available

Registration is open for FDAP’s annual training on January 22, 2016. The full syllabus is now available here. Highlights include a conversation with Justice Leondra Kruger of the California Supreme Court and a presentation by Prof. L. Song Richardson of U.C. Irvine on implicit bias in the judicial system.  The full day will qualify for 6.0 hours of MCLE credit, including one hour of Elimination of Bias credit. Please visit our seminar information/registration page.

Present Fees and Fines Errors to Superior Court First: New Penal Code 1237.2

Penal Code section 1237.2, a new statute governing the appeal of monetary issues (fines, penalty assessments, surcharges, fees, and costs) takes effect January 1, 2016. The provision parallels section 1237.1, which governs the appeal of credits issues. The same legislation also amends section 1237.1. (Stats. 2015, c. 194 (A.B. 249).) As explained in greater detail in the memorandum posted on the FDAP website, under new section 1237.2, an error in the imposition or calculation of such monetary orders may not be raised on appeal unless either (1) the defendant first presents the claim to the superior court or (2) the monetary error is not the sole issue on appeal. For more details on this new provision and how it differs from section 1237.1, review the memorandum.

Associate Counsel Policy

In December 2015, the appellate projects announced a new statewide policy promulgated by Appellate Indigent Defense Advisory Oversight Committee (AIDOAC) on use of associate counsel in appointed appeals. Be sure to review the projects’ announcement of the policy and the 2015 Associate Counsel Policy itself.

Expenses

It has been a long-standing policy (since 2004), that brief binding costs are reimbursed only for the court’s original and the court’s copies. Now that we have electronic filing in the Court of Appeal, there should be no binding expenses for Court of Appeal filings. In the vast majority of cases, the only reimbursable binding expenses will be for the Supreme Court's original and the Supreme Court's service copies of petitions or briefs (usually just a petition for review). If binding expenses are claimed, please provide a comment itemizing which briefs the binding cost is for and how many briefs were bound. If the binding was for an item which is not ordinarily reimbursable, provide an explanation as to why binding was necessary. (This might occur, for instance, when a set of habeas exhibits is so voluminous that the paper service copies for the client and other non-email recipients cannot be stapled.)

In addition, a rule change two years ago gave parties the option of serving the Supreme Court with eight paper copies and one PDF, instead of thirteen paper copies of petitions for review, answers, replies, and briefs on the merits. (Rule 8.44(a)(1).) In Court of Appeal appointed cases, the least expensive option reasonably available should be chosen. Because the eight-paper-copies-one-PDF option is the least expensive option and because it is not a burdensome option, we will be recommending reimbursement on copying, binding, and shipping of the original and only 8 paper copies (not 13) served on the Supreme Court.

Similarly, where email or TrueFiling is a permitted and available means for service on any service recipient (e.g. D.A., trial counsel, FDAP, AG, superior court, etc.), we cannot recommend reimbursement for the copying, binding, and shipping of a paper copy.

Congratulations to Fran Ternus on Her Retirement

As some of you already know, FDAP Staff Attorney Fran Ternus is retiring. I cannot overstate the contributions Fran, one of our founding staff attorneys, has made for the past 30 years to her clients, the panel, and our work in general. The legal acumen, the humanity, and the dedication she has brought to her work is to be admired and emulated, whether it is work directly for her clients, mentoring the panel, or lecturing on criminal law or appellate practice.

Not one to let up, Fran was still showing us how it’s done just a couple weeks ago when she obtained reversals in her last two opinions as a FDAP staff attorney, an amazing way to end a career. Most significantly, Fran won a new parole hearing for a client who has been imprisoned for decades and who has been discipline-free for the past 30 years. This is just the most recent of several cases in which Fran obtained habeas relief in difficult cases for lifer clients who had been unfairly denied parole.

Please join us in congratulating Fran and thanking her for all her hard work and for being a wonderful colleague.

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