February 2023 Panel Bulletin

Read on for important information about FDAP’s 2023 in-person annual seminar, other upcoming training opportunities, Bruen challenges, Delgadillo sample briefing, a reminder about FDAP’s new address, recent panel victories, and employment opportunities. 

FDAP’s Annual Seminar: Save the Date!

When: Friday, April 14, 2023
What: FDAP Annual Training Seminar
Where: Preservation Park (Nile Hall) in Oakland
MCLE credit: Approximately 5 hours of MCLE credit
Bonus: Post-seminar open house at FDAP’s new office space

We are excited to welcome the panel back to an in-person training event at a new location followed by an open house at FDAP’s new office space. Please note the training will not be recorded or live-streamed.

More details coming soon.

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.

CADC’s 29th Annual Conference and Seminar

California Appellate Defense Counsel’s annual seminar is scheduled to be held via video on March 17 and 18, 2023. 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. The conference will also feature the CADC annual membership meeting; a report and Q&A with CADC’s lobbyist; the Appellate Project Directors Roundtable, and Milo Shapiro’s presentation on Public Speaking: Get A’s not Zzzzzz’s.

The seminar qualifies for up to 8 hours of general MCLE; 7 hours of criminal specialization; 8 hours of appellate specialization; 1 hour of recognition of bias, 1 hour of competence and 1 hour of ethics credits. Registration is open through March 14, 2023.  Details are available here.  

Bruen Challenges To Firearm Offenses 

Last June, the United States Supreme Court issued its blockbuster decision in New York State Rifle & Pistol Association, Inc. v. Bruen (2022) __ U.S. __ [142 S.Ct. 2111]. Bruen greatly expanded Second Amendment protections and provided a new analysis for assessing the constitutionality of firearm laws and regulations. FDAP recommends that all panel attorneys review any case that involves firearm-related offenses for potential Bruen challenges. FDAP Staff Attorney Richard Braucher has prepared a helpful analysis of Bruen and how it might apply to a particular offense.

Delgadillo And No-Issues Briefs in Section 1172.6 Appeals

In People v. Delgadillo, the California Supreme Court recently clarified procedures for appellate review of section 1172.6 resentencing appeals where counsel files a no-issues brief.  FDAP has prepared an update on the procedures for filing no-issues briefs in these cases; a sample client letter and brief are also available on the Forms & Samples section of the FDAP website. 

Reminder: FDAP’s New Address

FDAP is moving to new offices in downtown Oakland. Panel attorneys mailing and shipping materials to FDAP should now use the new address: 

  First District Appellate Project
     1212 Broadway, Suite 1200
     Oakland, CA 94612

We do not expect any interruption in operations that would have an impact on panel attorneys. Our phone numbers remain unchanged.  

Recent 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.

A163906 – [Unpublished Opinion | Panel Attorney Kelly Martin] The Court of Appeal held that the admission of the alleged victim’s conditional examination violated appellant’s Sixth Amendment confrontation rights because the prosecution failed to establish it exercised due diligence in securing the alleged victim’s presence at trial. In reaching this conclusion, the Court noted that there was no evidence before the trial court (other than the prosecution’s unsubstantiated claim) that the alleged victim, who was living in Guatemala, had no plans of returning to California and, more importantly, the record did not establish that the prosecutor made any efforts to procure her attendance at trial.

 A164302 – [Unpublished Opinion | Panel Attorney Michelle Danley] In an appeal from the termination of reunification services, the Court finds mother’s limited progress was the result of the Agency’s delay in providing necessary individual and family therapy services, rather than mother’s lack of effort or cooperation. The order terminating service was remanded with directions, in the absence of contradictory evidence, to provide mother with an additional period of reunification services consistent with the opinion.

A160739 – [Unpublished Opinion | Panel Attorney Karriem Baker] The Court of Appeal remanded the matter for resentencing to allow the trial court to (1) exercise the discretion conferred on it by Assembly Bill 518 and any other applicable recent changes to sentencing laws, (2) impose sentence on three counts and then stay the execution of those sentences pursuant to section 654, unless the court elects to impose sentence on one of these counts, in which case it should impose sentence and stay execution of the sentences on any remaining counts, (3) amend the abstract of judgment to show that appellant is entitled to additional presentence credits, and (4) amend the abstract of judgment to show that appellant’s conviction for making a criminal threat was reversed after appellant’s first appeal and never retried.

Employment And Panel Opportunities 

First District Court of Appeal

The First District Court of Appeal is planning to hire as many as four new attorneys on central staff.  Information about the positions and the application process can be found by searching job no. 5815 on Judicial Council careers website

San Francisco Post-Conviction Panel

The Post-Conviction Unit of the Bar Association of San Francisco’s Court Appointment Program is seeking up to six additional attorneys with appellate experience in serious felony and homicide cases for appointment on post-conviction matters involving Penal Code sections 1172.1 (CDCR or DA-initiated resentencing); 1172.6 (felony murder resentencing); 1172.75 (resentencing for one-year prison priors); and 3051 (Franklin youth offender parole hearings.) 

BASF’s post-conviction unit provides extensive in-house paralegal support including records/discovery retrieval, review, and summarization; a robust list of qualified social workers and mitigation experts who can be retained to assist in cases; bi-monthly training opportunities on post-conviction matters; and case conferencing with attorneys specializing in post-conviction representation.

The rate for these appointments is $148/hour, less a five percent administrative fee. These cases require some in-person court appearances in San Francisco Superior Court. Proof of malpractice insurance is required. Interested attorneys should contact Elizabeth Fraser (efraser@sfbar.org) for more information and to learn about the court’s application process.

San Mateo County Post-Conviction Panel

The San Mateo County Private Defender Program is seeking attorneys interested in taking appointments in post-conviction trial court proceedings related to Penal Code sections 1172.1, 1172.6, 1473.7, and 3051. Those interested in joining the panel for these appointments, or who have a current case in San Mateo County that might qualify for funding under the BSCC Public Defense Pilot Program, should contact Mitri Hanania, assistant managing attorney of the San Mateo County Private Defender Program: mitrih@smcba.org or 650-298-4008.