Read on for important information about the interim claims policy, California Supreme Court news, the FDAP training video library, upcoming MCLE opportunities, recent panel victories, and more.
Interim Claims Policy Made Permanent
Effective January 1, 2023, the additional interim claims policy – initially established as a result of the COVID-19 pandemic and currently in effect through December 31, 2022 – will be made permanent. Under this policy:
(1) An additional, pre-AOB interim claim may be submitted where: (a) the record on appeal exceeds 1,500 pages; or (b) counsel has been waiting for an augmented or corrected record for longer than 90 days. For this type of claim, only record review time may be claimed.
(2) An additional, post-AOB interim claim may be submitted after the reply brief is filed. For this type of claim, only reply brief time and time spent reviewing the opposing brief may be claimed.
Judge Kelli Evans Confirmed to California Supreme Court
Alameda County Superior Court Judge Kelli Evans has been confirmed as an associate justice of the California Supreme Court. Justice Evans will fill the seat to be vacated by Justice Patricia Guerrero when she assumes the role of Chief Justice in January 2023.
FDAP Training Video Library
Video recordings of many FDAP webinar presentations are available on the Training Videos section of the FDAP website. Recordings are generally posted a few weeks after the webinar and are eligible for MCLE self-study credit. A certificate of attendance is not provided, and attorneys must keep their own record of self-study events pursuant to State Bar rules. To access the video library, attorneys must complete a short registration form. Any questions about the registration process or the training videos should be directed to firstname.lastname@example.org.
Upcoming MCLE Opportunities
Sixth District Appellate Program
Virtual Appellate Seminar: Dec. 1, 10 a.m. – 12 p.m; Dec. 8, 10 a.m. – 12:15 p.m.
SDAP will hold its annual appellate seminar via Zoom on Thursday, December 1st, 2022 and Thursday, December 8th, 2022. The seminar, which is free to all panel attorneys, is eligible for 4.0 hours of general MCLE credit. Registration information and further details about speakers and seminar topics are available on SDAP’s website. Attendees must register separately for the December 1st and December 8th sessions.
Office of the State Public Defender
Using the Racial Justice Act in Juvenile Court: Dec. 6, 2022, 12:15 p.m.
This session will give youth defenders an overview of how to use the Racial Justice Act in juvenile court. Topics will include how to spot racial bias in probation reports, use of detention, ankle monitoring, gang profiling, sex cases, lack of access to programming for monolingual clients, and probation violations from school suspensions/expulsions. Presenters will also cover how to find and use data to support Racial Justice Act claims. The webinar is eligible for 1.0 hours of MCLE and legal specialization credit. Register here.
Post-Conviction Immigration Relief (PC 1473.7): Dec. 8, 12:15 p.m.
In 2016, California enacted Penal Code section 1473.7, a critical post-conviction relief vehicle for people no longer in criminal custody to move to eliminate prior convictions with devastating immigration consequences. The law has been amended several times and relief now no longer requires a finding of ineffective assistance of counsel. Come hear experienced attorneys Carla Gomez and Nereyda Higuera talk about ways to use the law to benefit our former clients, as well as their insights and suggestions on emerging immigration issues in criminal defense. The webinar is eligible for 1.25 hours of MCLE and legal specialization credit. Register here.
Appellate Defenders, Inc.
New Laws 2023 – Summary and Open Forum: Dec. 7, 12 – 1 p.m.
Description from ADI:
“This virtual program will be led by ADI Staff Attorney Jill Kent and Assistant Director Cindi Mishkin. During the first half hour, Cindi and Jill will discuss several new laws taking effect in the new year. One-half hour (0.5) of MCLE and appellate specialization credit will be given for this portion of the program.
The second half-hour will be an open forum for staff and panel attorneys. We encourage panel attorneys to discuss/brainstorm any specific issues they are currently encountering with their cases including how the recent changes in the law can be utilized. In anticipation of this discussion, panel attorneys are encouraged to email any specific questions or topics they would like to discuss to Michelle Rogers (email@example.com.)
Due to State Bar rules, ADI cannot offer MCLE credit for the second portion of the program. It will not be recorded. “
Please contact Omar Palacio (OAP@adi-sandiego.com) for a registration link, which will be generated shortly before the event.
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.
A162395 – [Unpublished Opinion | Panel Attorney Sandra Gillies] The Court of Appeal held that the trial court gave an erroneous kill zone instruction because it did not require the jury to find, as is required for application of the kill zone theory, that appellant intended to kill everyone in the area around the primary target as a means of killing that primary target. Nor did the instruction enumerate the circumstances the jury should consider in assessing a defendant’s intent to create a zone of fatal harm and the scope of that zone. The court further held that the error was prejudicial even under the less stringent Watson standard, and that one of appellant’s attempted murder convictions must be vacated as a result.
A163046 – [Published Opinion | Panel Attorney John Schuck] In an appeal following resentencing, the Court of Appeal found that the trial court abused its discretion by denying the defense a reasonable continuance in order to develop facts in support of a discovery motion under the Racial Justice Act (Pen. Code, § 745).
A164363 – [Unpublished Opinion | Panel Attorney Jeffrey Glick] The Court of Appeal remanded for a new hearing on the motion to transfer the minor from juvenile court to adult criminal court in light of A.B. 2361 (2021-2022 Reg. Sess.), which requires the prosecution to demonstrate by clear and convincing evidence, rather than preponderance of the evidence, that “the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court” before transferring a minor’s case to adult criminal court, and requires a court ordering a transfer to recite the basis for its decision. In so doing, the court agreed with the parties that A.B. 2361 applies retroactively to non-final cases.
The University of San Francisco Racial Justice Clinic is hiring an Assistant Professor/Supervising Staff Attorney. The position will focus on (1) representing people whose cases have been referred to the trial court by the CDCR for resentencing and (2) implementing the RJA, with a specific focus on death penalty and LWOP cases. More information can be found here.