Read on for a New Year’s message from FDAP and important information about personnel changes; First District news; CRPC’s new annual report; dependency updates; FDAP’s 2024 in-person annual seminar; and recent panel victories.
New Year’s Message From FDAP
FDAP extends a very happy new year to our clients, panel attorneys, and to all our partners at the Courts, the Judicial Council, the other appellate projects, and so many colleagues throughout California’s indigent representation community. 2023 was a year marked by significant collaboration, with the projects, the panels, and the judiciary stepping up to creatively and aggressively address a backlog. We also, in 2023, returned to an in-person training for our panel. It was a joy to see so many of you in person again and we look forward to seeing you all (and the wisteria) again at Preservation Park in April. Happy new year to all. Have a wonderful 2024.
Personnel Changes
Please join us in welcoming two new members to FDAP’s staff.
Dominique Armstrong graduated from UC Law San Francisco in 2023. While in law school, she interned at the California Appellate Project- San Francisco and worked as a law clerk for a FDAP panel attorney. She also served as the President of the Black Law Students Association and was an acquisitions editor for the Constitutional Law Quarterly. She joined FDAP as an associate attorney in 2023.
Michael Allen worked as a panel attorney for more than 14 years before joining FDAP as a staff attorney in 2024. During his time on the panel, he took and argued cases in each of the state’s six appellate districts. For a short time, he worked as a senior staff attorney at the Second District Court of Appeal. He graduated from UC Law San Francisco in 2007.
FDAP also congratulates two members of our team who are leaving for tremendous opportunities at the Contra Costa County Public Defender’s Office.
Jeremy Price, who joined us as a staff attorney in 2005 fresh out of law school, will be joining that office’s Research & Strategic Litigation Unit. Jeremy’s contributions to the indigent appellate representation system include being a statewide expert and frequent lecturer on civil commitments, serving on the CALCRIM committee, providing excellent and compassionate representation to countless indigent clients, and generally being an amazing resource and mentor. It was a joy, over the years, to watch someone we mentored when he was first a FDAP law clerk and then when he was a brand new attorney turn that around and do the same for so many attorneys throughout the state.
Of note, in Conservatorship of Eric B., 12 Cal.5th 1085 (2022), Jeremy’s advocacy convinced the California Supreme Court to unanimously find a potential equal protection violation in California’s failure to give people facing LPS Act conservatorship proceedings the right against compelled testimony, effectively ending the practice throughout the state.
Lauren Dodge, who joined the FDAP panel in 2016 and became a staff attorney in 2019, will be joining the CoCo Public Defender’s post-conviction unit. A fierce advocate and thoughtful mentor and trainer, Lauren served on the statewide Racial Justice Act implementation team and has been a frequent lecturer on the RJA. Lauren has provided exemplary client-centered representation in the most complex and serious cases, leaving no stone unturned in looking for errors and doggedly pursuing all forms of relief, including habeas corpus. Lauren, a former journalist, has been a key member of the FDAP communications team and will no doubt continue her nuanced and persuasive writing in her work in the Public Defender’s Office.
In People v. Rodriguez, 9 Cal.5th 474 (2020), Lauren convinced the California Supreme Court to put an end to the widespread practice of prosecutors improperly vouching for the credibility of law enforcement witnesses.
We wish Jeremy and Lauren the best in their new positions and look forward to collaborating with them in our work on behalf of our future mutual clients.
First District News
Updated Oral Argument Forms
The First District recently updated the form required to request oral argument. Counsel should use the updated Request for Oral Argument form to submit an initial request for argument. After the court notifies the parties that argument has been scheduled, counsel should use the Request for Oral Argument Appearance form to withdraw a previous request for argument or to notify the court as to whether the appearance will be in person or remote. Both forms are available on the Forms & Local Rules section of the court’s website and in the Forms & Samples section of FDAP’s website.
New Justice Nominated to First District
Judge Monique Langhorne Wilson has been nominated to serve as an Associate Justice of the First District Court of Appeal, Division One. Judge Wilson has served as a Judge at the Napa County Superior Court since 2018.
Committee on Revision of the Penal Code’s 2023 Annual Report
The Committee on Revision of the Penal Code released its 2023 Annual Report last month. The report describes the committee’s work and its recommendations for legislative changes. The recommendations are:
1. Support Law Enforcement Assisted Diversion (LEAD)
2. Improve Data Access for the Racial Justice Act
3. Create General Resentencing Procedures
4. Apply the “Nickel Prior” Reform Retroactively
5. Expand Second-Look Resentencing
6. Clarify That SB 81’s Updates to Penal Code § 1385 Apply to Strikes
7. Focus Welfare Fraud Prosecutions on the Most Serious Cases
8. Reduce the Scope of Criminal Fines and Add-On Charges
9. Lessen Unfair Pressure to Plead Guilty
10. Require or Incentivize Counties to Safely Reduce Short Prison Stays
Many of the committee’s prior recommendations have been introduced as bills and enacted into law (see, e.g., SB 81). Accordingly, it is a good idea for counsel to review the report for recommendations potentially applicable to prior or pending cases. For example, the committee’s recommendation to “Clarify That SB 81’s Updates to Penal Code § 1385 Apply to Strikes,” if enacted into law, would be applicable to a large number of pending cases.
Dependency Updates
New Legislation – effective January 1, 2024
There were several important pieces of legislation that became effective on January 1, 2024.
AB 937 Family reunification services at 18-month review hearing: Amends WIC 361.5 and 366.22.
AB 954 Court ordered services: Amends WIC 362 and adds WIC 362.8.
SB 463 Participation in court-ordered programs: Amends WIC 366.21 and 366.22.
SB 578Removal:Amends WIC 319.
Our website has a helpful table that provides a short summary of pending and enacted legislation.
California Supreme Court News
On December 14, 2023, the California Supreme Court issued its opinion in In re N.R.S274943. The Court held that under WIC 300(b)(1)(D), “substance abuse” is assigned its ordinary meaning, essentially the excessive use of drugs or alcohol. Substance abuse can be established without a professional medical diagnosis or satisfaction of DSM criteria. However, for dependency jurisdiction to exist due to substance abuse pursuant to section 300(b)(1)(D), this abuse must render a parent or guardian unable to provide regular care for a child and either cause the child to suffer serious physical harm or illness or place the child at substantial risk of suffering such harm or illness. The Court rejected the presumption that a finding of substance abuse is prima facie evidence of the inability of a parent to provide regular care to a child of “tender years.” The judgment of the Court of Appeal was reversed and remanded for further proceedings.
Practice Tip
FDAP is recommending that statements of the case and facts in First District dependency appeals now include a brief section, “Proceedings Under the Indian Child Welfare Act and Related California Law” in which facts involving ICWA inquiry, notice, and findings are set forth.
Additionally, where the only issue being raised on appeal involves ICWA, a comprehensive statement of the case and facts is not necessary. Please tailor the statement of case and facts in ICWA cases to include only the procedural history of the dependency and limit the facts to those relevant to the ICWA challenge.
Save the Date!
What: FDAP Annual Training Seminar
When: Friday April 26, 2024
Where: Preservation Park in Oakland
MCLE credit: Approximately 5 hours of MCLE credit
We are returning to Preservation Park for our annual in-person training event. We look forward to seeing you all in person!
Please note the training will not be recorded or live streamed.
More details to follow.
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.
A166362 – [Unpublished Opinion | Panel Attorney Paul Kraus] In this LPS appeal, the Court of Appeal reversed the imposition of special disabilities, finding that the record did not reflect that “the trial court was aware of the legal standards for imposing any of the special disabilities, that it considered evidence relevant to these standards, or that it made any findings utilizing those standards.”
A167035 – [Unpublished Opinion | Panel Attorney Richard Fitzer] The Court of Appeal held that the trial court erred under PC 654 in imposing consecutive sentences for both sexual assault and second-degree robbery, because the evidence showed that the sexual assault was incidental to the robbery and that both crimes were motivated by the same intent and objective. Additionally, the court ordered that upon remand the matter be reassigned to a different judge based on comments made by the trial court related to appellant’s race during sentencing, “which could be read to suggest that the trial court considered defendant’s race as a factor in imposing the maximum sentence in this case.”
A162377 – [Unpublished Opinion | Panel Attorney Alan Siraco] The Court of Appeal held that the trial court erred in holding appellant to a higher standard of needing to demonstrate a pattern of discrimination in order to establish the prosecutor violated Batson-Wheeler. Additionally, the Court noted that the trial court’s evident lack of belief in the prosecutor’s reason for excluding the challenged juror – that the prosecutor knew little about the juror, despite asking this juror almost identical questions to the other jurors and failing to ask this juror any additional questions – should have resulted in the granting of appellant’s Batson-Wheeler motion.