July 2022 Bulletin: Renumbered Statutes; New Analysis on Resentencing Proceedings and Finality; Panel Victories; Dependency Training Opportunity

July 5, 2022

Read on for important information about renumbered resentencing statutes, including § 1170.95; new analysis on resentencing proceedings and finality; new and noteworthy panel victories; and an upcoming dependency training opportunity.

Resentencing Statutes Renumbered July 1, Including § 1170.95

The Public Safety omnibus trailer bill (AB 200), which took effect on July 1, 2022, has renumbered a series of important resentencing statutes. The bill creates a new article of the Penal Code, Article 1.5 Recall and Resentencing, and renumbers the following statutes:

•        Pen. Code, § 1170.03 (created by AB 1540), originally 1170, subd. (d)) is now § 1172.1;
•        Pen. Code, § 1170.95 (created by SB 1437) is now § 1172.6;
•        Pen. Code, § 1171 (created by SB 483) is now § 1172.7;
•        Pen. Code, § 1171.1 (created by SB 483) is now § 1172.75.

In addition, the bill fixes an organizational problem with Penal Code section 1385, without making any substantive changes to that section; makes substantive changes to juvenile law to conform with the closure of DJJ; and contains information regarding grant funding. Paragraph (7) of the Digest explains the reason for the changes.

People v. Padilla – New Analysis Available for Supreme Court Case Confirming a Client’s Entitlement to the Retroactive Benefits of Ameliorative Legislation on Resentencing

In a rare 4-3 decision (with Justices Liu, Kruger, Groban and Jenkins in the majority), the California Supreme Court recently held that when a collateral attack on a long final judgment via habeas petition results in a resentencing, the judgment is rendered nonfinal for Estrada purposes and the defendant is entitled to the retroactive benefit of ameliorative legislation. (People v. Padilla (2022) 13 Cal.5th 152 [293 Cal.Rptr.3d 623].) Padilla involved Proposition 57 resentencing, but the majority opinion appears broad enough to cover most resentencing remands (at least any situation in which sentence is vacated) and hopefully other proceedings that can result in new sentencing hearings.

For more information about Padilla, and how it might affect cases on appeal, FDAP Assistant Director J. Bradley O’Connell has prepared a detailed analysis of the opinion and its potential implications.

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.

A164056 – [Unpublished Opinion | Panel Attorney S. Lynne Klein] The Court of Appeal found the Agency failed to satisfy its inquiry and notice obligations under the Indian Child Welfare Act (ICWA) and related California law. The Agency was informed that the maternal grandmother had Native American ancestry, but made no effort to investigate family members. Notice to the tribes was also incomplete. The “affirmative duty to gather relevant information . . . is critical to ensure that the notice requirements are satisfied in a meaningful way.” Thus, the order terminating parental rights was conditionally reversed and remanded to ensure compliance with the ICWA.

A160025 – [Published Opinion | Panel Attorney Tiffany Gates] The Court of Appeal held that insufficient evidence supported a conviction for dissuading a witness by threat (Penal Code, § 136, subd. (c)(1)) where the threat of violence only involved self-harm, and thus did not constitute a threat to any “witness or victim or any third person,” as required by section 136.1, subdivision (c)(1).

A159741 – [Unpublished Opinion | Panel Attorney Stephen Bedrick] The Court of Appeal held that the trial court erred in failing to hold a new competency hearing where defense counsel repeatedly declared a doubt as to appellant’s competence after returning from Napa State Hospital, the trial court became aware that appellant had stopped taking his psychotropic medication (a condition mental health experts reported and testified appellant’s competence depended on), and appellant’s mental condition had observably deteriorated. The Court further found that a retrospective competency hearing would not be an appropriate remedy under the circumstance of this case and reversed the judgment of conviction.

A161519 – [Unpublished Opinion | Panel Attorney Christopher Haberman] The Court of Appeal held that the record did not affirmatively show that appellant’s waiver of his jury trial right was voluntary and intelligent where appellant said “yes” when the court asked if he understood his right to a jury trial and that, in waiving that right, the judge rather than a jury would decide whether a conservatorship should be granted, but the court gave no additional information explaining the nature of what appellant was giving up by having the judge alone decide his fate. The court reached this decision despite appellant having been the subject of conservator appointments in the past because “none in at least the prior decade had involved a trial at which he would have been informed of his jury trial rights.”

Covid-19 Interim Claims Policy Extended Through December 31, 2022

The interim claims policy has been extended.  As explained on FDAP’s website, additional interim claims are permitted in some circumstances, and time claimed is limited to certain categories of work.

ADI MCLE Program: The Art of Storytelling in Dependency Appeals

On Wednesday, July 20, 2022 at 12 p.m., ADI will present a one-hour virtual program about the art of appellate storytelling in dependency cases. During the first half hour, ADI’s newest dependency staff attorney Elena Min will offer tips and tricks on how to present a compelling and persuasive story in dependency appeals. One half hour of MCLE credit will be offered for this portion of the program.

The second half hour will be an open forum for all participants. ADI’s dependency staff attorneys will share their thoughts and insights on persuasive brief writing. Participants will be encouraged to share and discuss their writing styles and how they have made their briefs impactful as well. Due to State Bar rules, ADI will not be able to offer MCLE credit for this part of the program.

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

Have Training Ideas?

If there are specific topics you’d like to see covered or have suggestions for speakers, please let us know by emailing mcle@fdap.org.