Read on for important information about the launch of FDAP’s video library; a new First District local rule involving tentative opinions and oral argument; an upcoming MCLE training opportunity; getting up to speed on juvenile “secure track” appeals; reminders and updates about new sentencing laws; and some new and noteworthy panel victories.
The Video Library Is Live!
We are excited to announce that FDAP’s recent webinar presentations have been added to our website. The training videos include presentations from our March 2022 seminar and several presentations from 2021. The training videos are eligible for MCLE self-study credit. A certificate of attendance is not provided and attorneys must keep their own record of self-study events pursuant to state bar rules.
To access the videos, you will need to register here. Click on “Not yet registered?” and you will be directed to the registration for secure areas of FDAP’s website. After filling out a short registration form, you will be able to view the training videos. Any questions about the registration process or the training videos should be directed to mcle@fdap.org.
We hope this will be an invaluable resource for attorneys, not only for the substantive content, but for continuing education.
New Local Rule: Tentative Opinions and Re-Requesting Oral Argument
The Court of Appeal has amended First District Local Rule 15, effective June 24, such that oral argument will not remain on calendar if the panel issues a tentative opinion. Following issuance of a tentative opinion, the party who originally requested oral argument must notify the court and opposing counsel if they still wish to proceed with oral argument. If the party does not re-request oral argument after the tentative opinion is issued, oral argument will not be held.
The full text of the amended rule is on the First District’s website.
MCLE Opportunity: Deploying Amicus Curiae and Filing Publication/Depublication Requests and Letters in Support of Review
Please join us for this 1.5 hour presentation by FDAP attorneys Richard Braucher and Jason Stenson, who will discuss when and how best to engage amicus curiae in your case and the nuts and bolts of managing amicus projects. They will also discuss the use of publication and depublication requests, and letters regarding review petitions, as important tools for advancing the interests of your client and shaping the law.
The training will take place on Zoom on June 10, 2022 from 12:00 to 1:30 p.m.
This training is eligible for 1.5 hours of general MCLE credit and 1.5 hours of criminal and appellate specialization credit.
Juvenile “Secure Track” Appeals
As part of the Legislature’s sweeping juvenile justice realignment in 2020, Senate Bill 823 ordered the eventual closure of the Division of Juvenile Justice (DJJ) and provided for funding of future county-based custody of youth otherwise eligible for DJJ. Last year, Senate Bill 92 closed intake to DJJ as of July 1, 2021, and mandated the creation of secure youth treatment facilities (SYTFs) for youths 14 years or older who have been adjudicated and found to be a ward based on an offense that would have resulted in a commitment to DJJ. This new county-based system providing for custody of youth otherwise eligible for DJJ is known as “secure track.”
Welfare and Institutions Code section 875 governs virtually all aspects of secure track and sets forth extensive new concepts and procedures. These include eligibility and criteria for commitment of youth to SYTFs; individual rehabilitation plans; progress review hearings to reduce confinement time or baseline term of confinement; probation discharge hearings at the end of a baseline confinement term; probation violation hearings after discharge; motions for transfer from an SYTF to a less restrictive program; and mandatory compliance criteria for SYTFs. A brief overview of secure track is available here.
It is unclear whether counties are prepared for these sweeping changes and we expect much litigation as these cases come up on appeal. Appellate counsel should learn as much as possible about the respective county’s SYTF in a given case, stay informed about all significant post-notice of appeal events, and coordinate efforts with trial counsel to ensure the best outcomes for youth in the secure track system. Your FDAP consulting attorney is a resource for this new area of law and a sounding board for ideas, as we litigate this brand new area of juvenile defense.
Reminders and Updates About New Sentencing Laws
In 2021, the Legislature enacted several bills that modified sentencing procedures in criminal cases as of January 1, 2022. A December 2021 summary of the new laws is here, and FDAP’s New and Pending Legislation page includes an updated chart noting published decisions on retroactivity for each bill.
Although it is settled that SB 567 and AB 124’s amendments to Penal Code section 1170(b) apply retroactively to nonfinal cases, there is a split of authority as to when remand is required. In People v. Flores (2022) 75 Cal.App.5th 495, the court found remand was not required because the jury would have found at least one factor true beyond a reasonable doubt. However, People v. Lopez (May 10, 2022, D078841), specifically disagreed with Flores and found remand was required unless the record clearly indicated the trial court would have imposed the upper term.
We are starting to see appeals filed in cases where the sentencing (or resentencing) proceedings took place in 2022. Please review these records carefully to ensure the trial court complied with all new laws and imposed sentence with a full understanding of its sentencing discretion and responsibilities. As a reminder, when a case is remanded for resentencing as to one aspect of the sentence, a full resentencing in accordance with current law is appropriate. Also, SB 81’s amendments to Penal Code section 1385, subd. (c), strongly favoring dismissal of enhancements when certain factors are present, is now in effect. Because these laws substantially changed sentencing procedures, sentencing decisions are likely to present issues on appeal.
This is an area ripe for creative thinking on the part of appellate counsel! Please reach out to your consulting attorney if you would like help working through potential issues.
Panel Victories
Below are a few noteworthy First District victories from this past month. These opinions and many more can be found on the Panel Victories page of FDAP’s Website.
A162357 – [Unpublished Opinion | Panel Attorney Roberta Simon] The Court of Appeal held that the search of appellant’s person and truck was neither supported by probable cause nor subject to the good faith exception to the exclusionary rule where the sole justification for the search was an erroneous dispatch report that appellant was a convicted felon, but the prosecution presented insufficient evidence to show the error did not result from “deliberate, reckless, or grossly negligent conduct or recurring or systemic negligence.”
A162654 – [Unpublished Opinion | Panel Attorney Jamie Moran] The Court of Appeal found that, without any evidence that father’s functioning was impaired at work or at home, his “modest” beer consumption was not a sufficient basis to find a serious risk of physical harm or neglect supporting jurisdiction or clear and convincing evidence of substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being sufficient to support a removal order. The Court also found the father’s jurisdictional challenge to be justiciable because, even though there was a separate ground for jurisdiction, the jurisdictional findings at issue were the basis for the challenged dispositional order. Finally, the Court noted the distinction between substance use and abuse, finding that past or current substance use alone will not support a jurisdictional finding under Welfare and Institutions Code section 300, subdivision (b).
A153332 – [Unpublished Opinion | Panel Attorney Janice Lagerlof] The Court of Appeal reversed (subject to retrial) the true finding on the criminal street gang enhancement in light of Assembly Bill No. 333 (2021-2022 Reg. Sess.), which, among other things, amended Penal Code section 186.22 by redefining key terms and requiring additional elements to establish a criminal street gang enhancement. The Court therefore remanded the matter and, upon remand, directed the trial court to also strike: the 75-year-to-life term (Pen. Code, § 667, subd. (e)(2)(A)(i)), finding that the Three Strikes Law excludes LWOP sentences from being doubled or tripled; (2) one of two five-year prior serious felony enhancements (Pen. Code, § 667, subd. (a)) because the convictions on which those enhancements rested were not brought and tried separately; (3) both of the three-year prior prison term enhancements (Pen. Code, § 667.5, subd. (a)), finding the same prior convictions cannot serve as the basis for both prior serious felony enhancements (§ 667) and the prior prison term enhancements (§ 667.5); and (4) the 45-year minimum parole eligibility term (Pen. Code, § 186.22, subd. (b)(5)) because appellant was sentenced to life without parole. Finally, the court directed the trial court to determine whether to exercise its discretion to strike the firearm enhancement.