April 2022 Bulletin: In-Person Oral Argument; Annual Training Series Follow-Up; Legislation Updates; No-Issues Briefs; Upcoming Training Opportunities

April 1, 2022

We write with important information about oral argument in the First District, a follow-up on FDAP’s annual training series, updates on new and pending legislation, legal developments related to appealability of no-issue briefs, and upcoming training opportunities.

First District Now Offers Option for In-Person Oral Argument

Some news about the resumption of in-person oral argument in the First District: While the default option continues to be remote appearance via BlueJeans, the court recently began to issue oral argument notices offering the option of appearing in person. The notices state that to request in-person argument, the participating parties must jointly file a motion within 10 days of the oral argument notice. If the parties decide to appear in person, the court may reschedule argument for a different date.

Under the new policy, the court requires all persons entering the courtroom to be either vaccinated or masked. Both in-person and remote arguments will continue to be recorded and live-streamed via the court’s website.

The long-term goal for the courtroom, which is used by both the First District and Supreme Court, is to provide for hybrid appearances where some justices and counsel are present in the courtroom and others appear remotely. The courtroom technology does not currently facilitate hybrid appearances, and it is unclear when that plan will be implemented. In the meantime, feel free to contact your consulting attorney if you would like to discuss whether remote or in-person appearance is preferable in your particular case.

2022 FDAP Training Series Follow-Up: Materials, Videos, and Evaluation Forms

Thanks to everyone who attended FDAP’s 2022 annual training series. The materials for the dependency and criminal sessions are available on the FDAP website.

Video recordings of the dependency and criminal sessions should be available to view in the next few weeks. We will be launching a new area of our website where panel attorneys will be able to watch prior webinars. Details coming soon!

As a reminder, please return the evaluations forms to mcle@fdap.org if you have not done so yet. The evaluations are very helpful to us as we plan our upcoming trainings for the panel.

Updates on New and Pending Legislation

FDAP is continuing to update our website’s Pending Issues and Legislation page with information on new and pending state legislation.

For the many new ameliorative criminal and delinquency bills that took effect January 1, 2022 (e.g., Assembly Bill 333, Assembly Bill 518, Senate Bill 567), we are continuing to update the page with citations to some of the recent appellate decisions addressing retroactivity of the bills.

We’ve also updated the page with dozens of currently pending bills that have been introduced since January 1, 2022. We’ve endeavored to include all bills that are directly relevant to our practice. Since the last day for bills to be introduced was February 18, 2022, the page should include the complete universe of directly relevant legislation for the 2022 session. Some of the more broadly-applicable bills include:

Assembly Bill 2417, which would expand the rights and services guaranteed to youths held in juvenile justice facilities;

Assembly Bill 2435, which would require a trial court, upon request by the defendant, to instruct on a “closely related” lesser offense where supported by the evidence; and

Senate Bill 1304, which would increase the payment given to prisoners upon release from $200 to $2,589.

If you’re aware of currently pending, relevant bills that aren’t included on the page, please let us know, so we can add them to the website.

No-Issues Briefs: People v. Williams and Acknowledging Adverse Authority

On February 24, 2022, Division Five of the Second District Court of Appeal decided People v. Williams (Feb. 24, 2022, B311161) ___ Cal.App.5th ___ [2022 WL 556906], an appeal taken from the denial of a former Penal Code section 1170, subdivision (d)(1) recall petition. After appellate counsel filed a no-issues brief in accordance with People v. Serrano (2012) 211 Cal.App.4th 496, the Williams court dismissed the appeal, citing authority that a defendant-initiated recall petition is not an appealable order when not filed within 120 days of sentencing. (People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726; People v. Loper (2015) 60 Cal.4th 1155, 1165-1166.)

Of note, the Second District decided to publish the opinion “to emphasize an attorney’s duty of candor to this court.”  In the Court’s view, appellate counsel’s failure to acknowledge the above-referenced case authority related to appealability – both in the Statement of Appealability and in response to a supplemental briefing order directing him to address appealability – violated his duty of candor to the Court.  Williams cited rule 3.3(a)(2) of the Professional Rules of Conduct, which “prohibits an attorney from (1) failing to disclose to (2) a tribunal (3) legal authority in this State that is (4) known to the lawyer to be directly adverse to the position of the client and (5) not disclosed by opposing counsel.”

The Wiliams court rejected appellate counsel’s position that “he personally made no affirmative representation in the opening brief that the order appealed from is an appealable order” and that “his duty to refrain from arguing against his client trumps the duty of candor he owes to this court.”  Williams suggested that future failures to disclose adverse authority on the threshold jurisdictional question of appealability could be met with a referral for “disciplinary review by the State Bar or other corrective action.” On March 8, 2022, the Court of Appeal denied appellant’s rehearing petition (which was supported by a letter signed by dozens of defense attorneys.)

FDAP’s policy in this situation has been, and remains, as follows: When appointed appellate counsel has an appeal where case law suggests the order under review is not an appealable one – and there do not appear to be grounds for distinguishing the adverse case law or arguing it was wrongly decided – the Statement of Appealability in a no-issues brief must acknowledge the unfavorable authority on appealability.

Attorneys need not concede appealability. For example, the Williams court offered the following language as acceptable for the Statement of Appealability: “‘Although there is authority finding a similar order nonappealable (People v. Chlad (1992) 6 Cal.App.4th 1719, 8 Cal.Rptr.2d 610), this court should decline to follow that authority and permit the appeal to proceed as one taken from an order after judgment affecting substantial rights.’”  Appellate counsel can also cite relevant adverse case law on appealability and ask the reviewing court to construe the no-issues brief as a petition for writ of habeas corpus.  (See People v. Richardson (2021) 65 Cal.App.5th 360.)

This problem should arise infrequently, as the overwhelming majority of cases with fatal appealability flaws generally do not result in the appointment of appellate counsel.  Nevertheless, if a panel attorney receives an appeal that appears to arise out of a nonappealable order, they should contact their consulting FDAP attorney to discuss the appealability issue – both when the appeal does and does not seem to have any arguable appellate issues.  FDAP may have suggestions as to how to argue the order is in fact appealable or how to collaterally attack the judgment.  Further, should a panel attorney determine there are no arguable appellate issues, when submitting the record to FDAP for a no-issues review under WendeSerranoBen C., or Sade C., attorneys should include a draft Statement of Appealability to ensure the filed brief will comply with Williams.

Upcoming Training Opportunities

Appellate Law Section: Roundtable Q&A with Justice Rodriguez (BASF)

On April 4 from 12 to 1 p.m., the Bar Association of San Francisco (BASF) will host an open roundtable discussion via Zoom with Justice Victor Rodríguez. Justice Rodríguez joined the First Appellate District, Division Three in October of 2021. The program will feature a free-flowing conversation with Justice Rodríguez about his new role on the Court of Appeal, the Court’s evolving response to Covid-19, and other topics.

This event will be hosted via Zoom. Registration and other details are available here.

Appellate Defenders, Inc.

ADI will offer a series of Zoom trainings in April and May which are open to FDAP panel members.

1.  April 6: Dependency Case Law Update, Part Two:  The seminar will be presented by Staff Attorney Laura Furness.  It will cover new California cases, and discuss trends in recent case law with a special focus on cases involving the ICWA, and successes in dependency appeals. The program is pre-approved for one hour of general MCLE credit and appellate specialization credit. The seminar will be recorded and posted on ADI’s website for later viewing and self-study MCLE credit. Registration is available here.

2.  April 7: Criminal Case Law Discussion and Open Forum:  During the first half hour, ADI Staff Attorneys Michelle Rogers and Howard Cohen will discuss a few recent decisions, and provide suggestions about how the new legal developments are likely to affect pending appeals.  This portion of the program qualifies for 0.5 hour of general MCLE credit and appellate specialization credit.  The second half-hour will be an open forum for staff and panel attorneys to discuss how recent changes in the law can be applied to current cases. This portion of the program does not qualify for MCLE credit. Registration is available here.

3. May 18:  Reply Briefs:  ADI Panel Attorney Tom Robertson will discuss a variety of topics relating to reply briefs. He is soliciting input from the panel for the discussion.  Proposed questions and discussion topics can be emailed to ADI Staff Attorney Siri Shetty, sds@adi-diego.com. The program is pre-approved for one hour of general MCLE credit and one hour of appellate specialization credit.

Registration will open a few days before this training. For a registration link, email Omar Palacio at OAP@adi-sandiego.com.

California Lawyers Association: Litigation and Appellate Summit 

The Litigation Section of the California Lawyers Association will hold its annual Litigation and Appellate Summit virtually on May 12 and 13, 2022. Included in the seminar are sessions from the Committee on Appellate Courts concerning appeals. Erwin Chemerinsky will speak. There is a special rate for staff attorneys at the appellate projects and for panel attorneys who work with the appellate projects or the CJA system. Early bird registration rate expires March 18. MCLE credit is available. Registration and program details are available here.