June 2023 Panel Bulletin

Read on for important information about “dual use” errors in S.B. 567 resentencings, an important RJA victory in Contra Costa, reminders about Delgadillo and no-issues briefs, claims guidance for printing and scanning records, recent panel victories, and an upcoming training opportunity.

Watch for “Dual Use” Errors in S.B. 567 Sentencings

We have seen a number of instances recently in which sentencing judges have attempted to bypass the jury adjudication mandate of S.B. 567 and revised PC 1170(b)(2) by imposing upper terms based on aggravating factors assertedly reflected in the jury’s verdicts in a pre-S.B. 567 trial.

In assessing a court’s reliance on such factors, appellate counsel should consider “dual use” proscriptions against aggravating a sentence based on elements of the conviction offense (rule 4.420(h)) or of an imposed enhancement (§ 1170(b)(5); rule 4.420(g)), in addition to PC 1170 itself. FDAP Assistant Director Brad O’Connell has prepared a helpful discussion of how to spot and raise such challenges, available here. 

Judge Finds Racial Bias In Contra Costa DA’s Charging Decisions – Review Your Records

On May 19, 2023, Contra Costa Judge David Goldstein dismissed gang enhancements charged against four defendants under the Racial Justice Act (PC 745(a)(3)), ruling that Contra Costa prosecutors have disproportionality charged Black people with gang-related special circumstances (PC 190.2(a)(22)) that carry enhanced sentences of LWOP or death. 

Judge Goldstein relied on data, ranging from 2015-2022, which showed Black people had either a 32% or 44% greater likelihood of being charged with gang-related special circumstances than people who were not Black. Based on this data, Judge Goldstein found that there is a “significant statistical disparity [in the DA’s charging practices] within the meaning of the Racial Justice Act, and one that is more likely than not correlated and caused by a defendant’s race than random chance alone.”

This order calls into question dozens of other criminal cases where gang-related special circumstances were charged against Black defendants. If counsel has such a case (whether currently on appeal or long final), they should reach out to their FDAP consulting attorney to discuss next steps.

Delgadillo Brief Cover Pages and No-Issues Brief PDF File Names

When filing a no-issues brief pursuant to People v. Delgadillo, counsel should clearly indicate on the cover page of the brief that it is a Delgadillo brief rather than a Wende brief.  This ensures that the Court of Appeal follows the correct procedures in notifying the appellant of their right to file a supplemental brief.

For all types of no-issues briefs (Wende, Delgadillo, Ben C., and Sade C.), FDAP requests that the file name of the PDF clearly indicate that the brief is a no-issues brief rather than a substantive opening brief.  Using “NIS” (no-issue statement) or “WBF” (Wende brief) instead of “AOB” helps us more efficiently process the filed briefs and counsels’ compensation claims.  For example, a dependency no-issue statement PDF file name might be “A######_ParentInitials_NIS,” and a criminal appeal Wende brief PDF file name might be “A######_LastName_WBF.”

Statewide Claims Manual Updates: Printing and Scanning Records

The statewide claims manual has been updated to add guidance for printing and scanning records. Attorneys should take note of the following:

Printing a Digital Record: If the superior court provides the record only in digital format, counsel will not be reimbursed for the cost of printing the record for the client unless (1) the attorney requested a print copy and the superior court declined to provide it (or the superior court has a standing policy of only providing digital) and (2) the client is unable to receive the record electronically. Moreover, in addition to the circumstance when the client can receive the record electronically, there may be additional circumstances when it is not necessary or appropriate to print a digital record and ship it to the client, such as when the client does not want the record or where the client is unlikely to actually receive it. Accordingly, in such or similar circumstances, in order to ensure reimbursement, it is recommended that counsel consult with the appellate project before printing a digital record and shipping it to a client. Whether it is reasonable and necessary to print a digital record for shipping to the client will depend on a number of factors. In some districts consultation with the appellate project may be required or recommended prior to printing a digital record for shipment to the client. 

Scanning a Paper Record: Counsel will not ordinarily be compensated for their time or reimbursed for the cost of scanning a paper record. If counsel believes special circumstances warrant compensation or reimbursement for this task, they should consult with the appellate project prior to spending the time or incurring the expense. 

Panel Victories

Below are a few 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.

A152028 – [Unpublished Opinion | Panel Attorneys Athena Shudde & Barry Karl] In this consolidated appeal, the Court of Appeal held that the trial court erred by instructing the jury on CALCRIM No. 417 (liability for acts of coconspirators), which allowed a murder conviction as the natural and probable consequence of an uncharged drug conspiracy (without proof of malice), and that the error was not harmless beyond a reasonable doubt. The Court further held that the gang enhancements must be reversed because the instructions at trial did not comport with the new requirements of PC 186.22; none of the predicate offenses occurred “within three years of the date the current offense is alleged to have been committed,” and the jury was permitted to rely on the charged offenses in determining whether a pattern of criminal gang activity had been proven.

A166150 – [Published Opinion | Panel Attorney Linda Votaw] In a lengthy opinion, the Court of Appeal reversed the jurisdictional findings and orders as to father, as well as the related dispositional orders regarding removal and substance abuse testing and treatment. The Court found that substantial evidence did not support the finding that the anger management/domestic violence allegation and past history of substance allegation presented a substantial risk of physical harm to the minor. The matter was remanded to the juvenile court with directions to dismiss the petition as to father. The Court found that even though mother did not appeal, father’s challenges to the jurisdictional allegations were not moot as they formed the basis for the dispositional orders.

A166315 – [Unpublished Opinion | Panel Attorney James Donnelly-Saalfield] 
In light of recent amendments to W&I 707, the Court of Appeal held that the minor was entitled to a new juvenile transfer hearing because, at the time of his initial hearing, the burden of proof was lower: preponderance of the evidence as opposed to clear and convincing evidence. 

Training Opportunity

Webinar: Invalid Priors Triggering Full Resentencings (SB 483)
Office of the State Public Defender IDID, June 8, 2023, 12:15 p.m. 

The OSPD describes the training as follows: “SB 483 required CDCR to remand thousands of cases to the superior courts across the state, triggering full resentencings to remove now invalid one and three year priors.  Prosecutors are seeking to block resentencings for our clients using variations of the same arguments. Nick Kross of the Riverside Public Defender’s Office and Tommy Hartnett of the Ventura Public Defender’s Office, have identified some of the most common DA arguments and have recommendations for ways to respond and get our clients the full resentencing hearings they deserve.  Hear about issues that may be coming up in your cases and get ideas for litigation strategies.”

Register here. This training is eligible for 1.25 hours of MCLE and legal specialization credit.