Read on for legislative updates; the status of People v. Strong and potential avenues for seeking expedited dispositions; juvenile justice developments; upcoming training opportunities; new and noteworthy panel victories; and opportunities on a misdemeanor appeals panel.
New Legislation Update
This past Friday, September 30th, was the last day for the Governor to act on bills passed in this year’s legislative session.
Throughout the year, we’ve been tracking relevant bills on our Pending Issues and Legislation page, and we’re aware of dozens of recently enacted criminal, juvenile, and civil commitment bills relevant to our appellate practice. A few highlights include:
AB 256, which amends the Racial Justice Act (PC 745) in various defense-friendly ways, including by making its provisions retroactive to both nonfinal cases and, in phases over the course of the next several years, final cases.
AB 2275, which amends WIC 5350 to specify that failure to commence a trial on an LPS conservatorship petition by the statutory deadline “is grounds for dismissal of the conservatorship proceedings.”
AB 2644, which, effective Jan. 1, 2024, adds WIC 625.7 to expressly prohibit the use of “threats, physical harm, deception, or psychologically manipulative interrogation tactics” during a custodial interrogation of a minor.
SB 1085, which amends WIC 300 to prohibit a child from being adjudged a dependent of the court based solely on “indigence or other conditions of financial difficulty, including, but not limited to, poverty, the inability to provide or obtain clothing, home or property repair, or childcare.”
For our complete list of relevant bills enacted this year, visit the Pending Issues and Legislation page, where you can also see the bills we’ve been tracking that were not passed (e.g., AB 931 and SB 300).As noted below, we will also be providing additional information on the many new criminal, juvenile delinquency (not juvenile dependency), and civil commitment laws at our New Legislation Webinar on November 9, 2022 at 12:00 p.m. Click here to register.
People v. Strong Update: Transfers and Expedited Dispositions
For those with grant-and-hold cases behind People v. Strong (Aug. 8, 2022; S266606) 13 Cal.5th 698, FDAP’s Assistant Director J. Bradley O’Connell has prepared a new update. The Supreme Court has begun transferring cases to the Courts of Appeal, and FDAP has also initiated contact with the Attorney General’s Office about procedures for expediting dispositions in some cases. Click here for the full update.
Two Important Juvenile Justice Announcements
California’s new Office of Youth and Community Restoration (OYCR)
Created in 2021 with the closing of intake to the Division of Juvenile Justice and the transition of justice-involved youth to programs in local communities, OYCR is a new state agency charged with improving youth and public safety outcomes by: reducing the transfer of youth into the adult criminal justice system, reducing racial and ethnic disparities, and increasing community-based responses and interventions. In addition to assessing the efficacy of local programs, OYCR has an Office of the Ombudsperson. The OYCR Ombudsperson’s job is to confidentially investigate complaints from youth in juvenile facilities about treatment and conditions. Defenders and the community can also contact the Ombudsperson about poor treatment, programming and conditions of confinement. We encourage all appellate defenders representing youth in juvenile facilities to provide information about the OYCR Ombudsperson, here in English and in Spanish, to their clients and families, along with a reminder to limit communications with OYCR staff to conditions of confinement.
New legislative changes to rules governing transfer of youth to adult court
On September 15, the Governor signed Assembly Bill 2361 which amends section 707 of the Welfare and Institutions Code by: (1) requiring the finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court to be supported by clear and convincing evidence and (2) requiring the transfer order to state the reasons supporting the court’s finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court. The amendment will take effect January 1, 2023, and because it constitutes ameliorative legislation, it will be retroactive to all cases not yet final on appeal under In re Estrada (1965) 63 Cal.2d 740. If you have a pending transfer appeal, you should argue that a remand is required. Contact us for sample briefing.
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.
A164435 – [Unpublished Opinion | Panel Attorney Mara Bernstein] The Court of Appeal agreed with father that the juvenile court’s order granting mother joint legal custody was in error. The court found the order was not based on evidence but on off-the-record discussions and unsworn statements of mother’s counsel regarding mother’s sobriety. The court reversed the joint legal custody order and remanded the matter for a new WIC 364 hearing.
A163270 – [Unpublished Opinion | Panel Attorney Matthew Watts] In a case in which officers approached a parked car in a parking lot and discovered that the owner (not appellant) was on probation and subject to a search condition, the Court of Appeal held that the trial court erred by denying one of appellant’s motions to suppress because, after searching appellant and finding nothing, the police prolonged his detention, without independent articulable suspicion of criminal conduct, for an additional 23 minutes while the officer searched the driver’s car.
A163958 – [Unpublished Opinion | Panel Attorney Jonathan Roberts] Because the tolling triggered by summary revocation does not keep a probation term from running, the Court of Appeal reversed the trial court’s probation revocation order, finding that appellant’s probation had ended by operation of law when AB 1950 took effect, eight days before he committed the purported violation. The Court further held that appellant’s agreement to extend his probation as part of a negotiation disposition did not estop him from invoking the benefit of AB 1950.
Upcoming MCLE Opportunities & Training Announcement
FDAP is offering two webinars in October and November:
Avoiding Adverse Consequences for Your Client in Dependency Appeals
Thursday, October 13, 2022,12:00 – 1:00 p.m.
Join FDAP Staff Attorney Louise Collari on Thursday, October 13, 2022 from 12:00 to 1:00 p.m. for a presentation on the possible unintended adverse consequences that may arise during the appeal and which must be considered in light of our ethical duties to the client. This webinar is eligible for 1.0 hours of ethics MCLE credit. Register here.
New Legislation Webinar 2022
November 9, 2022, 12:00 p.m. – TBD
As in past years, there has been a flurry of new legislation signed at the end of the legislative session. To stay on top of it all, 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. 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.”
Finally, 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.
Misdemeanor Appeals Panel Accepting Applications
Alternate Defenders, Inc., the Marin County criminal conflicts panel, is looking for attorneys to accept appointments in misdemeanor appeals. The rate is $90/hour. Please contact Mary Stearns at (415) 492-1039 and/or email@example.com for further details.