New Attorney General Rob Bonta: Update Your Templates
New Attorney General Rob Bonta officially assumed office on April 23, 2021. Be sure to review your templates and proofs of service to ensure they are up to date. Note that Mr. Bonta refers to himself professionally as “Rob” not “Robert.”
CDCR Implements Increased Credit-Earning Schemes For Our Clients
The CDCR has enacted new emergency regulations that will significantly increase the credit-earning opportunities for our clients, including those serving sentences for violent offenses. Effective May 1, 2021, clients serving sentences for violent felonies, previously limited to 20 percent good conduct credit (1 day of credit for every 4 days served), can now earn 33.3 percent credits (1 day for every 2 days served.) Nonviolent second and third strikers, previously limited to 33.3 percent credits, can now earn 50 percent credits (1 day of credit for every 1 day served.) The new regulations are designed to comply with Proposition 57, the Public Safety and Rehabilitation Act of 2016. CDCR, acting pursuant to the Act, adopted the emergency order to incentivize incarcerated people to “take responsibility for their own rehabilitation by providing credit-earning opportunities for sustained good behavior, as well as in-prison program and activities participation.”
The regulations also establish additional credit-earning opportunities for working in conservation camps; completing rehabilitation or job training programs; participating in self-help and public service activities; and earning a high school diploma. Details are available on the CDCR website.
New Supreme Court Clarification of Rule Regarding Review-Granted Opinions
Late last month, the Supreme Court issued an administrative order modifying how rule 8.1115 of the California Rules of Court should be construed (without actually modifying the rule itself). As written, the rule allows citation to published opinions after review has been granted by the Supreme Court, but only for persuasive value. Such opinions have no binding effect. Now, if the review-granted published Court of Appeal decision conflicts with another published decision, trial courts may also cite the review-granted opinion “for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”
Prior to this rule change, if there was a unfavorable published decision on the books, and the Supreme Court granted review on a more recent published decision that was favorable, per rule 8.1115, the grant of review de facto eliminated the conflict. This meant trial courts had to follow the adverse decision. Now, trial courts are free to follow the review-granted published decision, even though it is not binding authority and would carry no precedential value if there were no conflict. The opposite is also true, meaning this rule modification will allow trial courts to follow adverse decisions that they were not free to follow in the past.
Note, as indicated in the new Advisory Committee comment to rule 8.1115, this change is not retroactive. It applies only to opinions where review was granted on or after April 21, 2021. The full Advisory Committee Comment is worth reading, as it sets forth a more nuanced description of the scope of the rule change.
Pre-AOB Contact With the Attorney General’s Office for First District Cases
It may be necessary to contact the Attorney General early in a case, before a particular deputy has been assigned to the appeal. If an attorney needs to discuss a pre-AOB matter such as consolidation, FDAP has been advised that for First District cases the attorney should reach out to the AG’s paralegal team at SFAWTParalegals@doj.ca.gov. The office has a rotating pre-AOB assignment for deputy attorney generals, and the paralegals will forward the inquiry to the appropriate pre-AOB deputy.
Supporting Declarations In Wende Briefs
We are getting word from the First District that some attorneys are filing Wende briefs without stating in the supporting declaration that they have informed the client of the right to file a supplemental brief within 30 days. In some cases, the Court has issued an order noting the incomplete declaration and giving leave to the client to file a supplemental brief pursuant to People v. Kelly (2006) 40 Cal.4th 106, 124. Please double-check your Wende template to ensure it contains the full advisements. A sample Wende brief and supporting declaration with the required advisements is available on FDAP’s website.
Case Requests
An increasing number of attorneys have been contacting FDAP requesting a case. We acknowledge the unique challenges of panel work during the pandemic, with the number of criminal cases on appeal down by about 40 percent. We are asking for patience and that attorneys refrain from contacting our office with individual case requests. Our case assigners are working diligently to ensure that cases are being assigned as fairly as possible under the circumstances. With COVID-19 cases dropping, and jury trials starting back up with greater frequency in several counties, we are hopeful this caseload trend will soon reverse and be on its way to pre-pandemic levels. We appreciate your dedication to this work and your understanding.
Training Opportunities
There are several upcoming trainings that may be of interest to the panel:
Practicing Appellate Law in the Public Sector: Insights into Federal, State, and Local Public Service Careers (May 18, 2021)
The Bar Association of San Francisco, Appellate Law Section, is hosting an online training addressing opportunities for appellate lawyers outside of private practice. The panelists will discuss the types of public service jobs for appellate lawyers, pathways to government service, transitions to and from private practice, and the benefits and downsides to practicing in the public sector. Speakers include Justice Brian Hoffstadt of the Second District Court of Appeal; Aileen McGrath, Senior Counsel, Akin Gump Straus Hauer & Feld; and Helen Hong, Deputy Solicitor General for the State of California. The discussion will be moderated by Andrea Russi, BASF Appellate Section, Executive Committee Member and senior counsel, Horvitz & Levy.
The online training is scheduled for Tuesday, May 18, 2021 from 12:00 to 1:15 p.m. It is eligible for one hour of general MCLE credit. Registration details are available here.
CDCR New Credits Regime (May 21, 2021) [For CADC members only]
California Appellate Defense Counsel (CADC) is hosting a members-only Zoom webinar presented by CDCR staff member Heidi Dixon, Chief, Correctional Case Records Services, who will address the new credits regime and answer other questions from the CADC membership. The webinar is scheduled for Friday, May 21, 2021 at 12:00 PM Pacific Time. This program will qualify for one hour of general MCLE. The program is free for CADC members. Registration details are available here.
Save the Date: Rethinking Habeas Investigations – Lessons from the Northern California Innocence Project (June 16, 2021)
The Northern California Innocence Project (NCIP) has a remarkable record of obtaining habeas relief — and often full exonerations — in cases posing serious questions of actual innocence, even under circumstances in which the claims might appear barred or face other obstacles. FDAP Assistant Director J. Bradley O’Connell will interview senior NCIP attorney Paige Kaneb on NCIP’s approach to habeas investigation and presentation of claims. This “in conversation” program will explore possible lessons from NCIP’s approach for our own consideration and investigation of possible habeas claims as appointed appellate counsel. The webinar will be held on June 16, 2021 from 12 to 1 p.m. Registration information will be sent out at a later date.