May 2023 Panel Bulletin

Read on for a post-seminar thank you from FDAP, important information about electronic records, the 2023 edition of CALCRIM, First District news, reviewing records in light of police misconduct in the First District, an employment opportunity, upcoming training opportunities, and recent panel victories.

FDAP’s 2023 Seminar: Thank You! 

Thank you to everyone who joined us for FDAP’s annual seminar on April 14th. It was wonderful to be back in person and reconnect with our colleagues on a picture-perfect spring day. The materials are posted and available on FDAP’s website. We look forward to next year’s event!

Electronic Records in the First District

Appointed appellate counsel is entitled to one copy of the record, in either paper or digital form. Because the client is entitled to receive the record on conclusion of the representation and incarcerated clients are generally unable to access digital records, a standing order of the Court of Appeal requires superior courts to provide the defense copy of the record in print form. 

For most attorneys, however, digital records are more useful because they are searchable and bookmarked. That is especially true in long record appeals. Because counsel will not be reimbursed for the time or expense of scanning a paper record, counsel should consider requesting a courtesy digital copy of the record, especially in long record cases. More information about making such an informal request is available here.

2023 CALCRIM

Earlier this month, the Judicial Council published the 2023 edition of CALCRIM, which can be downloaded here.

The set of eleven new instructions starting with No. 3224 on aggravating sentencing factors may be of the most interest to appellate defenders. Attorneys reviewing cases where these instructions were given should consider whether to challenge the instructions on vagueness or other grounds (such as the structure of the unanimity language offered in each instruction or the definitions provided for certain key terms). Additionally, when analyzing cases where the aggravating factor instructions given do not track the new CALCRIM versions, counsel should consider drawing the Court’s attention to the discrepancies. More information about the 2023 CALCRIM and potential challenges is available here.

First District News Roundup

There are a few items of note from the First District Court of Appeal:

Three changes to the First District Local Rules have been approved and will take effect on June 5, 2023.  The rules modifications relate to oral arguments and clarify the requirements for the information counsel must include in elections to present oral argument and requests to continue argument.

Justice Tracie L. Brown has been confirmed as the presiding justice of Division Four, filling the vacancy created by the retirement of Presiding Justice Stuart R. Pollack.

Finally, in March the court issued two Miscellaneous Orders.  Order 2023-1 lifted the requirement that those attending argument wear face coverings.  Order 2023-2 suspended in-person argument during courtroom renovations, anticipated to be completed in late May.

Police Misconduct in the First District: Review Your Records

In the wake of two recent, high profile revelations of egregious police misconduct, FDAP is urging panel attorneys to review the records in all non-final cases to assess whether the implicated officers had any role in the investigation or prosecution of their clients. 

In Antioch, at least 45 officers in the Antioch Police Department were involved in racist and homophobic text chains over a two-year period between 2019 and 2022. The Contra Costa District Attorney’s office, which is conducting a joint investigation with the Federal Bureau of Investigation, has released two redacted investigative reports (available here and here) detailing the racist texts and listing the names of the officers involved. The Contra Costa District Attorney’s Office is working to identify potentially compromised cases, and will initiate “a detailed review process for potential dismissal, resentencing, or the preservation of convictions.”

In Oakland, homicide detective Phong Tran has been charged with perjury and bribery for allegedly paying a key witness to present false testimony in a homicide prosecution. The Alameda District Attorney is working with the Northern California Innocence Project to review 125 cases in which Tran was involved as an investigator.  

If counsel learns the implicated officers were involved in a case currently on appeal, they should reach out to their FDAP consulting attorney to discuss next steps, including any potential investigative needs. 

Employment Opportunities

The Sixth District Appellate Program (SDAP) is hiring a full-time staff attorney to begin employment this summer. More information can be found here.

And Appellate Defenders, Inc. (ADI) is hiring a full-time, criminal law staff attorney. More information on the ADI position is here

Upcoming Training Opportunities 

California Lawyers Association
2023 Litigation and Appellate Summit
May 4th, 2023 through May 5, 2023

The 2023 Litigation and Appellate Summit returns to in person!  The Summit features a variety of programs of interest to all trial and appellate practitioners, including a keynote address by U.C. Berkeley School of Law Dean Erwin Chemerinsky; our “Updates” panel of important rule, legislative, and case law changes for litigators, appellate lawyers, and ADR practitioners; a live voir dire demonstration from Master Trial Attorneys; a judicial roundtable luncheon with key judicial officers from throughout the state; a presentation by Trial Lawyer Hall of Fame recipient John Sweeney on The Art of Storytelling; and more!

Earn up to 13.25 hours of MCLE credit, including Implicit Bias and Legal Ethics and 5.25 hours of Legal Specialization in Appellate Law – plus access to an additional 12 hours of MCLE credit through our library of programs in order to fulfill all your CLE compliance requirements. Full details and link to registration here

Office of the State Public Defender
Understanding CDCR Policies: Credits and Classification
May 4, 2023, 2:30 to 3:15 p.m.

At both the trial and post-sentencing levels of indigent defense, understanding how the CDCR calculates credits and makes classification decisions is necessary for case negotiation and client advisement. Heather MacKay, appellate attorney and author of numerous Prison Law Office information documents, will share her expertise and experience in deciphering what the CDCR is doing and why. Questions will be answered at the end of the presentation. Register here.

Panel Victories

Below are a couple of 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.

A165407 – [Unpublished Opinion | Panel Attorney Joseph Elford] In this case, the trial court sentenced appellant to a term in excess of that which was negotiated in his original plea agreement after he violated his Cruz waiver. The Court of Appeal remanded, finding that the Cruz waiver was invalid because it was obtained three months after appellant’s plea (and not at the time of his plea). Upon remand, the Court ordered the trial court to either give appellant the opportunity to withdraw his plea (if the court decides to impose a sentence in excess of the plea agreement), or resentence him in accordance with the original plea bargain. 

A164064 – [Unpublished Opinion | Panel Attorney Leila Moncharsh] The Court of Appeal struck the term “improper sexual relations” as used in an electronics search condition on the ground that it was unconstitutionally vague and unnecessary to comport with the trial court’s stated intent – to determine whether the minor was engaging in solicitation and prostitution.