Read on for a new year’s message from FDAP and important information about recent California Supreme Court opinions, using AI in appellate practice, upcoming trainings, and panel victories.
Happy New Year from All of Us at FDAP
Happy New Year to all! The past year was marked by hallucinations, a long-awaited rate hike, a fabulous in-person training in Oakland, and—for the second year in a row—a FDAP loss being the bench’s gain.
In 2025, we welcomed Staff Attorneys Nicole Kalum and Liv Gee, Legal Fellow Eleanor Mammen, and Administrative Assistant Judith Mondragon. The office is thriving and the new energy is infectious.
At a time when the pay remains unconscionably low and the workload oppressively high, we are especially grateful to our 260 FDAP panel attorneys (part of a 630-attorney statewide network) who continue to advocate fiercely for their indigent clients.
The $10/hour rate increase in 2025 was the result of steadfast advocacy by the appellate projects, panel attorneys, advocacy groups, and the Judiciary. From testimony at legislative budget hearings to meetings with the Governor’s staff to public statements, the message landed: increased funding is essential to combat the recruitment and retention crisis which is causing the depletion of the ranks of attorneys handling appointed appeals. In 2026, we will continue to advocate in Sacramento for fair compensation.
To the FDAP community of clients, attorneys, partner appellate projects, colleagues and partners in the Judiciary, we wish you all a happy new year and look forward to continued collaboration.
In re S.R.
Congratulations to panel attorney, Sean Burleigh, for her written and oral advocacy in In re S.R.
In In re S.R. (S285759), the California Supreme Court addressed whether a parent’s appeal from a juvenile court’s jurisdictional finding survives a mootness challenge where the parent shows that the allegation underlying the court’s finding is reportable for inclusion in the Child Abuse Central Index (CACI). The CACI lists persons who have substantiated reports of child abuse or severe neglect against them. The CACI listing plays an integral role in obtaining many rights under California law, including employment, licenses, volunteer opportunities, and even child custody.
In S.R., the Court found that mother’s appeal of the jurisdictional findings was not rendered moot by subsequent events. Mother was able to show an ongoing harm because the sustained allegation of child abuse met the requirement for inclusion in the CACI. The S.R. Court stated it was proper to presume an agency will fulfill its reporting duty. Because there is no time limit regarding this duty to report, it is possible that an agency will forward a report following the resolution of juvenile dependency and appellate proceedings. Accordingly, the appeal was not moot as the parent could demonstrate “a specific legal or practical consequence that would be avoided upon reversal of the jurisdictional findings.”
Justice Liu wrote a concurring opinion explaining why a person’s conduct toward a minor that constitutes lawful self-defense cannot provide a basis for including that person in the CACI.
People v. Kopp
In People v. Kopp (S257844), the California Supreme Court addressed whether trial courts must consider a defendant’s ability to pay before imposing certain court-ordered payments. The Court limited its analysis to payments that, by statute, do not expressly require an ability-to-pay determination, and categorized court-ordered payments into three distinct types, each governed by different constitutional principles.
- Punitive Fines: Punitive fines are imposed as punishment for criminal conduct. The Court held that the criminal laboratory fee (HS 11372.5), restitution fine (PC 1202.4), and parole revocation fine (PC 1202.45) are punitive in nature and therefore subject to the federal and state Excessive Fines Clauses. Because the defendant did not raise an excessive-fines challenge in the trial court, the case was remanded to allow that claim to be litigated. The Court reaffirmed that when a statute expressly requires consideration of ability to pay, the trial court must conduct that inquiry before imposing the fine.
- Ancillary Costs and Assessments: Court operations (GC 1465.8) and court facilities (GC 70373) assessments are nonpunitive and are intended to fund the courts. The Court concluded that equal protection principles apply because the Legislature allows ability-to-pay waivers for comparable civil assessments but not for criminal ones. As a result, upon a defendant’s request, trial courts must consider inability to pay before imposing these criminal assessments.
- Victim Restitution: Victim restitution is constitutionally distinct and is not subject to an ability-to-pay determination.
In summary, Kopp holds that punitive fines are governed by the Excessive Fines Clause unless the statute independently requires an ability-to-pay finding, while ancillary court assessments require an ability-to-pay inquiry upon request under equal protection principles. Victim restitution remains mandatory regardless of ability to pay.
Using AI Carefully in Appellate Practice
AI tools are increasingly part of everyday professional life, including legal practice. Their use in appointed appellate work, however, requires particular caution.
If used at all, AI should be limited to supportive, non-substantive tasks, such as organizing an argument outline or revising existing text for clarity and readability. Like sample briefing, AI can pose risks if not reviewed with a careful eye, such as relying on outdated or overruled law. Unlike sample briefs, however, AI may also invent facts or legal authority and can raise confidentiality concerns if client information is shared.
Core ethical duties remain unchanged. Uploading client data raises confidentiality issues. Relying on AI output without independent verification risks factual or legal error and implicates candor to the tribunal. The duty of competence requires attorneys to understand and supervise any tools they use, and responsibility for all work product remains with counsel—not AI.
Courts and the Judicial Council have begun issuing guidance on AI use, with additional direction likely to follow. The takeaway is familiar: professional judgment must guide the use of any reference tool, and FDAP remains available to support panel attorneys in a careful, client-centered way.
Upcoming Trainings
New Legislation Webinar 2025 (FDAP) – NOTE DATE CHANGE
January 8, 2026, 12:00 p.m. – TBD | Remote
In 2026, a host of new legislation relevant to our work and the people we serve will take effect. Please join FDAP Staff Attorneys Kaiya Pirolo and Liv Gee for an overview of new criminal, juvenile delinquency, and civil commitment laws. This webinar is eligible for MCLE credit, including appellate and criminal specialization credit. The length of the webinar is yet to be determined, depending on the number and complexity of new laws enacted this year.
Appellate Practice Selected Topics (CAP-LA)
January 20, 2026 | Remote & In-person
Join CAP-LA for a full day seminar on zoom or in-person at the DTLA California Endowment’s conference center. Topics include Recently Decided Cases and Cases Pending Review, Lesser Included Offenses, Guilty Plea Cases, Compassion Fatigue, Ethical Use of Unpublished Opinions, and Ethical Use of AI Update. Approximately 5 hours of MCLE will be provided, including 1.0 hour of Ethics and 1.0 hour of Wellness Competency.
Dependency Case Law Update (ADI)
January 28, 2026,12:00 – 1:00 p.m. | Remote
ADI Staff Attorneys Laura Furness and Christy Peterson will cover new California dependency cases, discuss trends, and share successes in dependency appeals. 1.0 hour of general and appellate specialization MCLE credit is offered for this training.
Panel Victories
Below are a few noteworthy First District victories from this past month. There were other victories that could not be included. Please visit the FDAP website for a complete list of panel victories.
A172181 – [Unpublished Opinion | Owen Martikan] The Court of Appeal vacated portions of a restitution award that were not proximately caused by appellant’s criminal act of receiving stolen property (a van). The trial court’s order included $17,373 of damages for lost property attached to and inside the van. But appellant’s conduct could not be deemed a substantial factor in causing those losses without evidence he possessed any property “other than the van itself[.]”
A172629 – [Unpublished Opinion | Sterling Tipton] The Court of Appeal vacated a lifetime ban on pet ownership imposed as part of appellant’s guilty plea to animal cruelty. The ban on appellant from owning, tending to, or handling animals “for life … not just [as] a term of the probation,” was unauthorized because it extended past the maximum statutory term of probation. The Court ordered the trial court to modify the condition to expire with appellant’s probation term or else allow withdrawal of the plea.
A166181 – [Unpublished Opinion | Brian McComas] The Court of Appeal vacated and remanded appellant’s upper-term sentence because the trial court violated PC 1170(b). Reconsidering the case under People v. Wiley (2025) 17 Cal.5th 1069, the Court held the trial court improperly relied on the number of prior convictions without a jury finding or admission. Although the prejudice question was “debatably close,” the Court determined there was prejudice because numerosity is context dependent.