Sept. 19, 2017
Lately, the TrueFiling website has ranged from sluggish to slow to excruciatingly slow. The vendor (ImageSoft) reports that the problem is that they don't have enough server capacity and that they are working on it. The Court of Appeal is aware of the problem and looking into it.
For now, the best advice we have is to upload documents later in the day, e.g. after 2 p.m. when east coast users (TrueFiling is used by courts in other parts of the country) have ended their work days, or even after 5 p.m. PST. This is not a true solution, so we will stay in touch with the Court and ImageSoft to make sure the problem is resolved.
2. When Signed by the Governor, AB 1308 Will Provide Franklin/Perez Record Development Hearings to Persons Serving Lengthy Sentences and Who Were under 26 at the Time of the Offense
In People v. Franklin (2016) 63 Cal.4th 261 the California Supreme Court held that a de facto LWOP sentence imposed on a person under the age of 18 at the time of the offense did not require a resentencing hearing under Miller v. California (2012) 132 S.Ct. 2455. The Court held, in Franklin, that while the prospect of early parole consideration under Penal Code section 3051 (which then only applied to persons under 18) mooted out the necessity for a resentencing hearing under Miller, a remand to the sentencing court was nevertheless necessary to develop a record for consideration of youth-related Miller factors at future parole hearings, pursuant to 3051's companion parole statute section 4801(c). When section 3051 was amended in 2015 to include persons under 23 years old at the time of the offense, the Court of Appeal held that the Franklin remand procedure applied to such youthful offenders as well. (People v. Perez (2016) 3 Cal.App.5th 612.)
Through the hard work of Human Rights Watch, the PacificJuvenile Defender Center, the Post-Conviction Justice Project of the University of Southern California’s Gould School of Law, and the Youth JusticeCoalition--as well as the tireless lobbying efforts of individuals released under earlier juvenile justice bills, the Legislature recently passed Assembly Bill 1308. This new law would extend Youth Offender Parole through age 25. While the Governor has 30 days to sign or veto the bill, he is expected to sign it. The law would be effective January 1, 2018. Assembly Bill 1308 expands section 3051's early parole eligibility to include persons who were 23, 24, and 25 years old at the time of the offense. Accordingly, appellate counsel with cases resulting in lengthy sentences involving this age group will need to consider whether to request remands for Franklin/Perez record development hearings. Note: the youthful offender parole suitability procedures of § 3051 do not apply to LWOP sentences. Section 3051 also excludes sentences under two of the regimens accounting for many of the most lengthy non-homicide sentences: “three strikes” (§ 1170.12) and “one strike” life terms for certain aggravated sex offenses (§ 667.61).
When the Governor signs Assembly Bill 1308, FDAP will distribute sample arguments to the panel. If you have such a case, contact your consulting Staff Attorney at FDAP about when and how to raise the claim, depending on the procedural posture of your case.
3. Appellate Specialization
4. Save the Date: FDAP's 2018 Annual Panel Attorney Training Will be Held on Friday, February 9, 2018