Welcome FDAP’s New Associate Attorneys; Wende or Serrano Review in 1170.95 and Other Post-Conviction Appeals; Proposed Raise For Panel Attorneys; Resources on FDAP’s New Website; Training Opportunity: Associate Justice Joshua P. Groban and Supreme Court Staff to Address Petitions for Review

February 23, 2021

Welcome FDAP’s New Associate Attorneys

FDAP is pleased to announce that two associate attorneys joined our staff in February 2021.

Rachel Belden joins us from the Contra Costa County Public Defender’s office, where she was a deputy public defender. She graduated from the University of California, Hastings College of the Law, with a concentration in Social Justice Lawyering. While in law school, she interned at the California Appellate Project and the San Francisco Public Defender’s Office. She also participated in the Hastings Appellate Project, where she represented an indigent noncitizen in an immigration appeal in the Ninth Circuit Court of Appeals.

Jason Stenson is a Bay Area native, born and raised in Richmond, California. He is a graduate of University of California, Hastings College of the Law. Prior to joining FDAP, Jason was a coordinator and fellow for Young Defenders, Opportunities for All, a San Francisco program that provides paid internships for youth from underrepresented populations to build leadership and job skills. Jason previously worked as a post-bar law clerk and as a reentry and employment specialist for the San Francisco Public Defender’s office.

FDAP’s Associate Staff Attorneys work for two years in the FDAP office, immersed in indigent appellate practice. Associates have their own caseloads, writing appellate briefs in criminal, delinquency, dependency, and civil commitment appeals, and appearing for oral argument in the Court of Appeal. There is no better preparation for a career as an appellate practitioner, including a future as a panel attorney accepting appointed appeals.

Please join us in welcoming Megan and Jason to indigent appellate practice as part of the FDAP team!

Wende or Serrano Review in 1170.95 and Other Post-Conviction Appeals?

The California Supreme Court recently granted review to address whether an appellant is entitled to an independent Wende record review of a Penal Code section 1170.95 resentencing denial and other post-conviction appeals. (See People v. Delgadillo, S266305, rev. granted Feb. 17, 2021)

There is disagreement in the appellate courts as to whether a court should independently review the record in 1170.95 appeals under People v. Wende (1979) 25 Cal.3d 436, or whether such appeals should be dismissed under People v. Serrano (2012) 211 Cal.App.4th 496, where the defendant fails to file a supplemental brief. (See People v. Flores (2020) 54 Cal.App.5th 266 [appellate court can and should independently review the record on appeal]; but see People v. Cole (2020) 52 Cal.App.5th 1023, 1039 [no independent duty to review the record].)

Most First District divisions are exercising discretion to conduct an independent Wende review in 1170.95 appeals, even while acknowledging that such review is not mandated under Serrano and Cole. Going forward, we recommend panel attorneys who wish to file a Wende brief in a section 1170.95 appeal should do the following:
Acknowledge the Supreme Court’s grant of review on these questions in People v. Delgadillo, S266305;
Argue that, regardless of whether Wende-like independent record review is mandatory, the appellate court clearly has discretion to conduct such a review and it “should do so in the interests of justice.” (People v. Flores, supra, 54 Cal.App.5th at p. 266, accord People v. Gallo (2020) 57 Cal.App.5th 594, People v. Allison (2020) 55 Cal.App.5th 449.)
As always, if you have any questions about this issue, feel free to reach out to your FDAP consulting attorney.

Proposed Raise For Panel Attorneys

The Administrative Presiding Justices Advisory Committee (APJAC) met earlier this month and approved seeking a Budget Change Proposals (BCP) for fiscal year 2022-2023 with a $12/hour rate increase for the panel. If the BCP makes it through the many additional steps for approval, the panel increase would be effective July 1, 2022.

The next steps for the approval of this increased funding are:

  • Judicial Branch Budget Committee (spring/summer 2021)
  • Judicial Council (July/August 2021)
  • Governor’s initial proposed budget (Jan 2022)
  • Governor’s revised proposed budget (May 2022)
  • Final budget approved by legislature and governor (by June 20, 2022, assuming no impasse.)

As you can see, this is a very attenuated process. While we believe there is institutional support for an increase, the big question is whether the state will have sufficient revenue. We will keep you posted. 

Resources on FDAP’s New Website

FDAP encourages all panel attorneys to regularly review FDAP’s website, which is continuously updated with new features, news and resources. For example, our Legal Resources/Practice and Legal Guides page includes the following recently-uploaded materials from non-FDAP training events with important information for panel attorneys:

  • January 28, 2021: An Appellate Defender’s Guide to Mental Competence Issues
  • December 17, 2020: Après le Déluge: Emerging Appellate Issues in Covid-Era Trials
  • December 8, 2020: Issue Spotting in Dependency Appeals During a Pandemic

We are continuously updating sample briefs and motions, the latest panel alerts, pandemic news, and recent victories. The website also includes a robust collection of client and family resources, information about building an appellate practice and the nuts and bolts of handling an appeal.

FDAP hopes the website will serve as a valuable resource for the panel, families, and clients. Please feel free to contact us with any feedback about adding to or improving the content on the website. 

Training Opportunity: Associate Justice Joshua P. Groban and Supreme Court Staff to Address Petitions for Review

On March 5, 2021, the California Lawyers Association will host a one-hour lunch-time webinar on Petitions for Review; A View from Inside the Supreme Court of California. “Justice Groban and the Deputy Director of the Criminal Central Staff, Jessica Barber, provide their perspectives on what makes a successful petition for review, answer, and reply.” More information here.