News from the Director

FDAP Panel Alert 2018-07

May 4, 2018

  • Waivers of Appellate Rights & Certificates of Probable Cause (CPCs), and  
  • In re I.C.: Cal. Supreme Court Dependency Case Decision 

                                                            

 
 

Waivers of Appellate Rights & Certificates of Probable Cause (CPCs)


Last week Division 1 of the First District declined to review the merits of a challenge to a probation condition on the ground that a boilerplate waiver of the defendant's right to appeal applied to probation conditions imposed post-plea at sentencing and because the defendant did not obtain a certificate of probable cause,  (People v. Espinoza, A151039, Filed 4/25/18.)  If you have an open guilty plea appeal with a waiver of appellate rights but no certificate of probable cause, please review Espinoza and contact your consulting attorney at FDAP about how to proceed.

The Court in Espinoza stated "that a defendant who waives the right to appeal as part of a plea agreement must obtain a certificate of probable cause to appeal on any ground covered by the waiver, regardless of whether the claim arose before or after the entry of the plea."  By itself, that statement is not remarkable. But the Court went on to conclude that the defendant could not challenge a probation condition without a certificate because the waiver of appellate rights extended to such a post-plea sentencing matter. The waiver in Espinoza stated: "Even though I will be convicted in this case as a result of my plea, I have the right to appeal the judgment and rulings of the court (e.g.: Penal Code Section 1538.5(m)). I give up my right of appeal." 

Although the case involved a challenge to a probation condition, its reasoning could apply to other types of appellate issues arising out of post-plea rulings, such as a challenges to the length of the term of incarceration. 

Espinoza is not final yet and there may be a petition for review.Again, if you have an open guilty plea appeal with a waiver of appellate rights but no certificate of probable cause, please review Espinoza and contact your consulting attorney at FDAP about how to proceedEach case can demand a different approach depending upon such things as: 

  • the language/scope of the waiver of appellate rights (some are more limited than others); 
  • whether there is still time to go back to request a CPC;
  • the issues sought to be raised on appeal; 
  • the division in which the case is pending; and
  • the stage of the briefing. 

In re I.C.: Cal. Supreme Court Dependency Case Decision 


Last week, the California Supreme Court held that certain “unclear, confusing, not credible, and unreliable” statements by a three-year-old child were not sufficient to remove her parent from the home. The case will have significant importance for other families as the principles applied, in the Court’s words, “guard[] against the risk that children will needlessly be separated from their parents ...”  In re I.C., S229276 (filed  Apr. 26, 2018).

In re I.C., expertly litigated by FDAP Staff Attorney Louise Collari, has implications for dependency cases involving the sufficiency of the evidence supporting jurisdictional allegations based on uncorroborated hearsay statements, CALICO interviews, the substantial evidence standard of review, and mootness. A practice tip alert regarding the implications of In re I.C. will be distributed to the dependency panel in the coming days. 
 

back to news

 

HOME | ABOUT FDAP | NEWS | CLAIMS | CONTACT US | DISCLAIMER
Copyright © 2019 First District Appellate Project. All rights reserved