July 2023 Panel Bulletin

Read on for important information about FDAP and First District news, ICWA developments, pending legislation, an upcoming training, employment opportunity with the USF Racial Justice Clinic, and more.

A Warm FDAP Welcome to Bill Robinson

FDAP is pleased to welcome to our staff a stalwart of the appellate defense community, Bill Robinson. Bill, a graduate of UC Davis School of Law and a one-time tenants’ rights attorney and UCSC graduate student in the History of Consciousness, commenced his career in criminal appeals before there were appellate projects and was a first generation member of the the FDAP, SDAP and CCAP panels. He joins us following a long stint—including eight years as the Assistant Director—at the Sixth District Appellate Program. Bill brings a wealth of experience in appellate practice and substantive criminal law, and many in the California appellate defense community consider him a mentor and a friend. Bill’s expertise is vast and includes homicide law, prior-conviction challenges, and the myriad of new ameliorative sentencing laws. Please join us in welcoming Bill to FDAP.

First District News

Judge Danny Y. Chou has been confirmed as an associate justice of the First District Court of Appeal, Division Five, to fill the vacancy created by the retirement of Justice Henry E. Needham. Prior to his appointment to the Court of Appeal, Justice Chou served as a San Mateo County Superior Court judge.  More information can be found here.

FDAP Website Updates

We’ve made some updates to the Recent Opinions and Review Grantsand Pending Issues and Legislation pages of our website.

The Recent Opinions and Review Grants page contains short summaries of all recent published opinions issued by the California Supreme Court, Courts of Appeal, and Appellate Divisions – and all recent review grants issued by the California Supreme Court – in criminal, juvenile, and civil commitment cases. We generally post the summaries within 1-2 work days of issuance of the opinion or review grant. We recently updated the page to make the summaries sortable, including by practice area (criminal, delinquency, dependency, civil commitment) and date (all, last 7 days, last 30 days, last 180 days). We’ve found this page to be a valuable resource for staying abreast of new cases and as a starting point for researching potential issues. We hope the new sorting function makes the page even more useful.

The Pending Issues and Legislation page includes, among other things, a table of new and pending legislation showing all relevant criminal, juvenile, and civil commitment legislation from the current legislative session. We recently updated this table to make it sortable and searchable and to add legislation from the 2023-2024 regular session. We’ve found the table to be another valuable resource for staying abreast of legal developments, and we plan to keep it as up-to-date as possible as the 2023 legislative session draws to a close in October. Highlights from bills currently pending in this legislative session include the following:

AB 600, which would amend PC 1172.1 to authorize a court to resentence a defendant on its own motion “at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.”

AB 852, which would enact PC 17.3 to declare the Legislature’s “intent … to rectify the racial bias that has historically permeated our criminal justice system,” and to require a court, in determining the appropriate sentence, to “consider the disparate impact on historically disenfranchised and system-impacted populations.”

AB 1118, which would amend the Racial Justice Act (PC 745) to clarify that a claim under the act may be raised on direct appeal from the conviction or sentence.

AB 1186, which would remove the ability of a juvenile court to order a minor to pay victim restitution.

AB 1310, which would enact PC 1385.2 to create a recall and resentencing process for persons “who, on or before January 1, 2018, suffered a conviction, whether by trial or plea, of an enhancement under PC 12022.5 or 12022.53.”

SB 43, which would amend WIC 5008 to expand the definition of “gravely disabled” for the purposes of the LPS Act to include “a condition in which a person, as a result of a mental health disorder or a substance use disorder, or both, is at substantial risk of serious harm or is currently experiencing serious harm to their physical or mental health.” The bill would also add WIC 5122 to provide that a hearsay statement by a health practitioner included in the medical record is not hearsay when related by an expert witness in an LPS trial.

U.S. Supreme Court Upholds the ICWA

On June 15, 2023, in a 7-2 decision, the Supreme Court in Brackeen v. Holland 599 U.S.___(2023) upheld the constitutionality of the Indian Child Welfare Act. The Court ruled that Congress had the power to enact the law under Article I of the Constitution, which authorizes Congress to “regulate Commerce” with Indian tribes. The majority rejected the plaintiffs’ central claims that provisions of ICWA exceed Congress’s “plenary powers” to pass legislation governing tribal affairs while “commandeering” states to follow federal law. Based on lack of standing, the Court did not address two of petitioners’  claims: 1) whether non-Native adoptive parents’ equal protection rights are violated when tribal members are prioritized in foster care and adoptive placements, and 2) a nondelegation challenge to § 1915(c) which allows tribes to alter the placement preference.

In a concurring opinion, Justice Gorsuch provided historical context to the creation of the ICWA in 1978. Similar to the recent California decision of In re S.S. (2023) 90 Cal.App.5th 694, Justice Gorsuch recounted the “mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties” which “had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of Tribes.” In enacting ICWA, Congress exercised its lawful authority to “secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”

Additional analysis of the Brackeen decision can be found here.  

In California, our Supreme Court will soon determine what constitutes reversible error when a child welfare agency fails to make the statutorily required inquiry concerning a child’s potential Indian ancestry. (In re Dezi C. (S275578).) The case is fully briefed and is awaiting a date for oral argument. 

In addition, pending AB 81 would amend various provisions of the Family, Probate, and Welfare and Institutions Codes to state that California is committed to protecting essential tribal relations by recognizing a tribe’s right to protect the health, safety, and welfare of its citizens. 

Panel attorneys should continue to raise ICWA claims as appropriate. 

Upcoming Training

“The Robotic Courtroom: Artificial Intelligence, Machine Learning, and the Future of the Law”

Webinar on July 13, 2023, 12:00-1:30 PM

SDAP is hosting this webinar led by Dr. Beth Redbird, a computational social scientist and Assistant Professor of Sociology at Northwestern University, and a faculty fellow with the Institute for Policy Research.  Dr. Redbird’s research examines the interaction of place and inequality on a national scale. Her current project utilizes computer vision (machine learning models that identify the content of images) to detect mechanisms of state surveillance (e.g., police cameras, license plate readers, shot listeners, etc.). She couples these models with big data on human movement to (1) measure how often individuals from different areas across the country are captured on state surveillance, (2) explore racial, economic, and citizenship-based inequalities in privacy and state monitoring, and (3) understand what determines high levels of state surveillance. 

In this talk, Dr. Redbird will address what machine learning and artificial intelligence are – without (much) math; how such tools are currently used, and where they will be seen in the future; how to ethically, safely, and effectively interact with artificial intelligence; how to understand, use, and critique the evidence created by machine learning; and why these tools are likely the most consequential thing humans will ever invent.

The link to register is available here.

Employment Opportunity

The USF Racial Justice Clinic is seeking an Assistant Professor and Supervising Attorney to implement the California Racial Justice Act (RJA). The position will consist of:  (1) direct representation of clients with colorable claims under the RJA;  (2) case consultation with attorneys working on RJA claims; (3) managing the RJA implementation working group; (4) conducting RJA trainings statewide; (5) supervising USF Racial Justice Clinic students; and (6) co-teaching the weekly clinic class.  

More information is available in the job posting.