March 2023 Panel Bulletin

March 1, 2023

Read on for important information about the planned memorial for Mat Zwerling; new DOJ post-conviction unit; Second Amendment litigation updates; training opportunities (including the newly-announced lineup for FDAP’s annual seminar); recent panel victories, and more.

Mat Zwerling Memorial on March 31, 2023

We will be joining Mat Zwerling’s family in honoring his memory with an in-person memorial the morning of March 31, 2023. The memorial will be held at Nile Hall at Preservation Park, in downtown Oakland. Please save the date. More details will come soon.

DOJ Forms Post-Conviction Justice Unit

Last month, Attorney General Rob Bonta announced the formation of a post-conviction justice unit. It’s small and not yet staffed (only two DAGs will initially be hired for the unit). We applaud this effort and look forward to working with the DOJ to proactively remedy injustices.

The unit will have these priorities:

  • reviewing cases handled by the DOJ as the prosecuting agency or on appeal;
  • reviewing claims of innocence, wrongful conviction, integrity issues, and potential resentencing where the local authority does not operate a conviction integrity unit or otherwise needs assistance; and
  • providing statewide leadership and coordination to encourage best practices and foster integrity, transparency, and efficacy. 

The appellate projects and the panel will have to wait until the unit is staffed, processes established, and priorities set before we can refer cases to the new unit. 

Bruen Litigation Update: Challenges to Firearms Restrictions for Persons Subject to Restraining Orders

Assistant Director J. Bradley O’Connell has prepared an update on challenges under Bruen to state prohibitions on firearm possession by certain groups. In particular, the Fifth Circuit’s recent decision in United States v. Rahimi, which struck down a federal statute criminalizing firearm possession by persons subject to domestic violence restraining orders, may provide grounds for challenging the constitutionality of Penal Code section 29825. Staff Attorney Richard Braucher’s original article on the implications of Bruen is available here.

Upcoming Training Opportunities

Thorny Ethical Issues on Appeal

Join FDAP Staff Attorneys Richard Braucher and Lauren Dodge as they identify and explore recurring ethical issues that arise in appellate litigation. They will discuss challenging ethical scenarios and work through potential solutions to help attorneys zealously represent their clients without running afoul of the Rules of Professional Conduct. The seminar will be held via Zoom on March 9, 2023, from 12 to 1:30 p.m. It is eligible for 1.5 hour of MCLE ethics credit. Register here.

California Appellate Defense Counsel’s 29th Annual Conference and Seminar

Registration is now open for CADC’s Annual Conference and Seminar March 17-18, 2023, which will be held virtually. The two-day conference will be filled with informative and inspiring presentations, including the Project Directors Roundtable, a report from CADC’s lobbyist, and criminal and dependency break-out sessions, providing a total of up to 8.0 hours of MCLE credit. This year’s seminar will feature several FDAP attorneys, including Assistant Director Brad O’Connell on Mysteries of the California Supreme Court and FDAP Staff Attorneys Deborah Rodriguez and Nat Miller on 2022’s New Legislation. For more information and to register, please visit CADC’s website.

FDAP’s Annual Seminar: Friday, April 14, 2023 

FDAP is excited to welcome the panel back to an in-person training event at a new location, Preservation Park (Nile Hall) in Oakland. The seminar will feature a moderated discussion with three justices from the First District Court of Appeal: Gordon B. BurnsCarin T. Fujisaki, and Jeremy M. Goldman. The seminar will also feature a series of presentations providing up to 5.0 hours of MCLE credit. These include: 

  • Prejudice 202: Tips, Tools, and Tirades for Arguing Prejudice Under Any Standard with FDAP Assistant Director J. Bradley O’Connell;
  • Recent Legal Developments with Staff Attorneys Stephanie Clarke and Deborah Rodriguez;
  • Effectively Arguing Prosecutorial Misconduct on Appeal with Staff Attorneys Lauren Dodge and Nat Miller;
  • Effectively Arguing Ineffective Assistance of Counsel Claims on Appeal with Staff Attorney Jeremy Price and a panel of attorneys with experience on both sides of an IAC claim: Erin Keefe, Sangeeta Sinha, and Matt Siroka;
  • The Role of Relatives in Dependency Proceedings and Their Relevance on Appeal with Staff Attorney Louise Collari;
  • New Legal Developments in Dependency Law with Jan Sherwood;
  • Working with Trial Counsel in Dependency Cases with Staff Attorney Louise Collari and trial attorney Dawn McMahan.

Seminar registration information and a detailed syllabus will be available soon. Please note the training will not be recorded or live-streamed. 

Sixth Amendment Center Releases Report on Lake County Indigent Defense Services

The Sixth Amendment Center recently released a report evaluating Lake County’s system for providing trial level representation to indigent criminal defendants. Commissioned by Lake County, the report describes multiple deficiencies in the County’s provision of indigent defense services and a lack of oversight for the program. FDAP has additional materials related to the Lake County indigent defense system. Panel attorneys considering litigating challenges to the representation a client received in Lake County should consult closely with FDAP. 

Counsel Declarations Accompanying Delgadillo
and Wende Briefs

When filing a no-issues brief in a criminal, civil commitment, or juvenile delinquency appeal, counsel must ensure that their declaration indicates that they have informed the client of their right to file a supplemental brief within 30 days of the filing of the no-issues brief.  The court has noted that some counsel declarations do not include a statement that counsel has advised the client of the 30-day deadline. Samples of no-issues briefs (including counsel declarations) and client letters are available on the Forms & Samples section of the FDAP website.

Consolidation Motions and Local Rule 7

As a reminder, First District Local Rule 7 requires parties requesting consolidation of related cases on appeal to “include a statement indicating whether the other party or parties agree with the proposed consolidation.” A motion to consolidate may be denied if this statement is not included. A sample consolidation motion that complies with Local Rule 7 is available on the Forms & Samples section of the FDAP website.

Panel Victories 

Below are a few noteworthy First District victories from this past month. These victories and many more can be found on the Panel Victories page of FDAP’s website.

A161564 – [Published Opinion | Panel Attorney Lillian Hamrick] Defendant was convicted of assault with force likely to cause great bodily injury (Pen. Code, § 245(a)(4)) after the trial court, over defense objection, instructed the jury that this was a lesser included offense of the charged offense of assault with a deadly weapon (Pen. Code, § 245(a)(1)). The Court of Appeal reversed the conviction, finding that, under both the elements test and the accusatory pleading test, assault with force likely was not a lesser included offense. The court further found that, assuming the “material variance” test also applies, “the variance between the accusatory pleading and [the] conviction was material and prejudicial.”

A164438 – [Unpublished Opinion | Panel Attorney Pamela Tripp] In an appeal from disposition, the Court agreed that the ICWA notice was insufficient because paternal great-grandfather’s name was not included and the Agency did not comply with its duty of inquiry. The error was not harmless because the information missing from the notice was the identity of the person of potential Indian heritage. The order was conditionally affirmed and remanded for compliance with the ICWA and relevant California law.

A162946 – [Unpublished Opinion | Panel Attorney Gabriel Bassan] The Court of Appeal held that the trial court committed reversable error by conducting an inadequate Faretta colloquy where appellant had twice been found incompetent to stand trial and had spent roughly two years at the state hospital in Napa, and where the trial court judge asked only four substantive questions during the Faretta colloquy, none of which “adequately informed appellant of the consequences of self-representation or inquired about his well-documented mental health issues.”