News from the Director

FDAP Panel Alert 2018-12

Sept. 11, 2018

  • Clerk's Office Reminders
  • Legislative Update
  • Review Denied in People v. Espinoza (Waivers of Appellate Rights & Certificates of Probable Cause)
  • Vulnerable Clients

Clerk's Office Reminders

Here are some important reminders regarding some common filing missteps: 

Pagination: Make sure briefs are properly paginated – starting with page 1 on the cover and no roman numerals – so that the PDF page numbers match the document page numbers.

Bookmarking: It is helpful to have all briefs bookmarked, not just those over 40 pages per Local Rule 16(b)(2). (This may eventually become mandatory.) 

Calendar and Opinion Date Inquiries: the division clerks at the Court of Appeal do not know when any particular case will be put on calendar or when the opinion will issue, so inquiries to the clerks along those lines will not be useful. 

Augment Motion Structure: Include a list of the items sought near the beginning of the motion.  Motions to augment which bury the requested items only within the pages of the argument cause the Court of Appeal clerks and swamped county court clerks some difficulty in quickly discerning the items requested. 

Legislative Update

We are still in hold mode, waiting to see whether the governor signs several reform bills approved by the Legislature. Here are some important bills sitting on the governor's desk: 
  • SB 1437 Felony Murder: eliminates first degree felony murder liability for certain accomplices and also eliminates second degree imputed-malice felony murder. 
  • SB 1393 Section 667(a) five-year serious felony prior conviction enhancements: Deletes the restriction in PC section 1385(b) prohibiting a judge from striking a prior serious felony conviction supporting the 5-year enhancement. 
  • SB 439 Jurisdiction of Juvenile Court - Age of Minors: Modifies the ages that a minor must be to fall within the jurisdiction of the juvenile court to between 12 years of age and 17 years of age, except where the minor is alleged to have committed murder and several specified sex offenses. 
  • SB 1391. SB 1391 forbids transfer of 14 and 15 year olds to adult court (with one exception).
The governor could act on these any day now. FDAP is poised to prepare a panel alert regarding any action to take in the wake of the governor signing some or all of these bills. 

A couple other sentencing reform bills, however, failed and did not make it out of the Legislature: 
  • SB 1279: Would have restored the double-the-base-term rule, i.e. This bill would, "limit the maximum term of imprisonment to twice the number of years imposed by the trial court as the base term."
  • SB 1392: Would have eliminated one-year prison prior enhancements under 667.5(b)


Review Denied in People v. Espinoza (Waivers of Appellate Rights & Certificates of Probable Cause)

Lat May, 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.)

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."  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."  The reasoning of Espinoza could apply to other types of issues arising out of post-plea rulings, such as a challenges to the length of the sentence. 

Espinoza is now final, the California Supreme Court having denied review on August 15, 2018. (Justices Liu and Cuéllar would have granted review.)  Our advice dispensed last May remains the same, 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. 

Vulnerable Clients

In July, an inmate in state prison serving time for child molestation, was killed. CDCR news release here.  He was not the first. This is a good time to take a moment to consider your best practices when representing a vulnerable inmate. It is essential that you be proactive in communications and serving of documents with clients convicted of any sex offense. The presumption is that in sex offense cases, clients should not be receiving anything that describes the offense (letter, briefs, transcripts) unless they ask for those things well-advised of the risks.

In order to comply with Rule 8.360(d)(1) and (2) (regarding service of briefs on the defendant), be proactive in your communications at the start of the case.  Write to the client to inquire about his or her preferences about receiving the briefs, but be vague about why you're asking (another inmate might ask to see the letter). You can say something like:  "the briefs will list all the charges and the facts of the case, which are nobody else's business, but someone might ask to read the documents I send to you. I can instead (1) send your copy of the briefs to a relative, (2) send it to you along with a return envelope and as soon as you looked at it,  you can put it in the envelope, marked "legal mail," and mail it back to me, or (3) hold onto your copy. Please let me know in writing which of these options you prefer, or whether you want me to simply send the briefs to you at the prison. 
There may be other types of cases (e.g. a gang member who testified against another gang member) in which the client could be at risk if he or she receives the pleadings. So when you get a new case, thing about whether it is a case in which you need to be proactive. As always, confer with the assigned FDAP staff attorney regarding anything unusual. 



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