November 2022 Panel Bulletin

November 2, 2022

Read on for news about pending review grants related to recent legislation, important upcoming dependency oral arguments, a summary of changes to the California Racial Justice Act made by AB 256, in-person oral argument, upcoming training opportunities, and panel victories of note.

California Supreme Court Considers Multiple Issues Related to Recent Legislation

FDAP’s Assistant Director J. Bradley O’Connell has prepared an update on the California Supreme Court’s consideration of several issues related to the interpretation of recent legislation, including AB 333 (gang enhancement), SB 567 (sentencing), and AB 1950 (probation terms).

Dependency News of Note: Important Upcoming Oral Arguments

There are two oral arguments scheduled this month that could have wide-ranging implications on dependency law:

California Supreme Court: November 2, 2022 at 9:00 a.m.
In re D.P. S267429
Issues: (1) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she has been or will be stigmatized by the finding? (2) Is an appeal of a juvenile court’s jurisdictional finding moot when a parent asserts that he or she may be barred from challenging a current or future placement on the Child Abuse Central Index as a result of the finding? The argument can be watched live or by recording on the court’s website

United States Supreme Court: November 9, 2022 at 10:00 a.m. EST
Haaland v. Brackeen
Issues: (1) Whether the Indian Child Welfare Act of 1978’s placement preferences — which disfavor non-Indian adoptive families in child-placement proceedings involving an “Indian child” and thereby disadvantage those children — discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement — the “virtually exclusive province of the States,” as stated in Sosna v. Iowa — and otherwise commandeering state courts and state agencies to carry out a federal child-placement program. The argument can be streamed here.

AB 256: Summary of Amendments to the Racial Justice Act

The California Racial Justice Act (“CRJA”), a groundbreaking law providing relief to those convicted or sentenced based on race, ethnicity, or national origin, is now retroactive with the passage of Assembly Bill 256.

AB 256 expands the CRJA to cases where judgment was entered prior to 2021, creating a staggered timeline to seek relief, starting in 2023 for people sentenced to death, those with non-final cases, and those with actual or potential immigration consequences.

The bill makes a series of other changes to the CRJA, including adding a Chapman harmless error standard to certain claims, expanding the types of evidence that can establish disparities in convictions or sentences, and adding an express waiver provision for failing to bring a timely motion in the trial court.

There will be a series of statewide trainings in the coming months about AB 256, and developing CRJA claims on habeas and appeal. In the meantime, the Northern California Innocence Project has created a helpful summary of the changes made by AB 256 for attorneys to familiarize themselves with the expanded law.

In-Person Oral Argument Resumes In the First District, California Supreme Court

The Court of Appeal, First Appellate District, has announced that in-person oral argument in the courtroom is now available to either or both parties. Counsel or parties may elect to present oral argument either by personal appearance in court or by remote appearance on BlueJeans. Hybrid arguments, where one party is in the courtroom and the other remote, are available.  

FDAP strongly encourages in-person argument because it fosters a superior opportunity for discourse with the justices, allows for eye contact, and avoids distracting audio and video technology glitches. That said, FDAP is mindful that there may be reasons that justify remote argument, including health or travel concerns.

The California Supreme Court has also announced that in-person argument will resume starting in November. As in the First District, counsel will also have the option to appear remotely via videoconference.  

Upcoming Training Opportunities

New Legislation Webinar 2022: Please join FDAP Staff Attorneys Deborah Rodriguez and Nat Miller for an overview of new criminal, juvenile delinquency, and civil commitment laws. The webinar is scheduled for November 9, 2022 at 12:00 p.m. and is eligible for MCLE credit, including appellate and criminal specialization credit. The length of the webinar is to be determined, depending on the number and complexity of new laws enacted. Register here.

In addition, panel attorneys may be interested in the Bi-Annual View From the Bench, offered by the Appellate Section of The Bar Association of San Francisco on November 4, 2022.  This is a full-day program on appellate practice with the Justices of the First District. Register here. Panel attorneys are eligible for the reduced rate of $100 even if they are not section members; to take advantage of the reduced rate, register as a “FDAP Attorney.” 

The Sixth District Appellate Program is offering its Virtual Appellate Seminar via Zoom on December 1st and 8th.  More details and registration information are available here.

Finally, a reminder that unlike in prior years, FDAP’s annual seminar will not take place in January or February 2023. We will provide updated information regarding the date and location of the seminar in the coming months.

Panel Victories

Below are a couple of 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.

A163882 – [Published Opinion | Panel Attorney Aida Aslanian] Division Two found the failures on the part of the social services agency and the juvenile court to comply with the due diligence, notice and parentage inquiry requirements were so pervasive that they denied due process to the noncustodial alleged father of the child. As a result, father was deprived of critical information about his rights and ability to participate in the dependency proceeding which was a violation of his rights to due process.

A162419 – [Unpublished Opinion | Panel Attorney Jason Stenson] Following Young v. Superior Court (2022) 79 Cal.App.5th 138, the Court of Appeal held that the minor established a plausible justification for discovery under Penal Code section 745(d) where, among other things, defense counsel provided statistical data specific to the Marin County juvenile justice system about vastly higher rates of referrals, wardship, and institutional placement for Latinos compared to white youth; attested based on information from two local high school students and police records that teens trespassing on school athletic facilities (one of the offenses in this case) are often let go with just a warning; and showed that the arresting officer in a subsequent shoplifting case made a comment suggesting the officer may have assumed the minor was in a gang. The Court of Appeal therefore reversed the denial of the minor’s discovery motion and remanded for the juvenile court to determine the scope of that discovery.