June 2020 Update
The current update includes changes that reflect recent developments in case law, legislation, court rules, and jury instructions. Summarized below are some of the more important developments included in this update since publication of the 2019 update.
Responses to COVID-19 pandemic. Effective April 4, 2020, Cal Rules of Ct 8.66(a) was amended to allow, if made necessary by the occurrence or danger of an earthquake, fire, public health crisis or other public emergency, or by the destruction of or danger to a building housing a reviewing court, the chair of the Judicial Council may toll for up to 30 days or extend by no more than 30 days, or authorize specified courts to toll for up to 30 days, or extend by no more than 30 days, any time periods specified by the Rules of Court. In addition, in mid-March 2020, the supreme court and the courts of appeal issued orders extending by 30 days the time in which to do any act required or permitted under the Rules of Court. In addition, in-person oral argument has been temporarily suspended in the courts of appeal and the supreme court. See §§3.21, 5.2, 5.43, 5.49, 6.44, 6.53.
Prisoners’ rights and conditions of imprisonment. Effective July 1, 2020, Stats 2019, ch 25 establishes a Department of Youth and Community Restoration (YCR) in the California Health and Human Services Agency (HHS), and abolishes the Division of Juvenile Justice (DJJ). The YCR is vested with all the powers, functions, duties, responsibilities, obligations, liabilities, and jurisdiction of the Division of Juvenile Justice. Govt C §12821(a). Any reference in statute, regulation, or contract to DJJ, Division of Juvenile Facilities (DJF), or California Youth Authority (CYA) should be considered references to the YCR. Govt C §12821(b). See §§1.24, 5.36, 9.32.
Form and format requirements for briefs. Effective January 1, 2020, Cal Rules of Ct 8.74 applies to all electronically filed documents. In addition, effective January 1, 2020, an electronic document must not have a color cover. See §§3.26., 3.28.
Oral argument. Effective January 1, 2020, under Cal Rules of Ct 8.885(a)(2), oral argument in the appellate division of the superior court may not be set in an appeal in which no arguable issue is raised under People v Wende (1979) 25 C3d 436. In addition, for appeals that raise no arguable issues under Wende, the cause is submitted when the time has expired to file all briefs and papers, including any supplemental brief permitted by the court. See §5.7A.
Preparation of petition for writ of certiorari. Effective July 31, 2019, under US Sup Ct R 14.1(b)(3), the petition must contain a list of all proceedings in state and federal trial and appellate courts, including proceedings in the supreme court, that are directly related to the case before the court. See §§12.28, 12.31B.
CASE LAW DEVELOPMENTS
Defendant’s right to notice. Prejudice is presumed when counsel fails to file an appeal even if the plea agreement contains an appeal waiver. See Garza v Idaho (2019) 586 US ___, 139 S Ct 738 in §§1.3, 2.6, 13.33.
Postjudgment orders. Because SB 180 does not authorize resentencing after a conviction was final, the denial of a motion for resentencing did not affect the defendant’s substantial rights and was not appealable. See People v Chamizo (2019) 32 CA5th 696 and People v Fuimaono (2019) 32 CA5th 132 in §1.7.
Issues appealable without certificate of probable cause. The California Supreme Court has granted review in People v Kelly (review granted June 12, 2019, S255145; superseded opinion at 32 CA5th 1013) and People v Stamps (review granted June 12, 2019, S255843; superseded opinion at 34 CA5th 117) to determine whether a certificate of probable cause is required for a defendant to challenge a negotiated sentence based on a later ameliorative, retroactive change in the law. See §1.14. For a recent case discussing how a plea agreement gave the sentencing court discretion to impose a sentence of up to 51 years, see People v Allison (2019) 39 CA5th 688 in §1.14.
Waiver of right to appeal. For a recent case discussing how probation search conditions fell outside the scope of appellate waiver, see People v Patton (2019) 41 CA5th 934 in §1.15.
Order setting aside indictment or information. A magistrate’s dismissal can be challenged by a petition for an extraordinary writ in appropriate cases. See People v Sanchez (2019) 41 CA5th 261 in §1.20.
Postjudgment order affecting substantial rights of prosecution. In People v Montellano (2019) 39 CA5th 148, the court of appeal held that an order finding defendant eligible for resentencing under Pen C §1170.126 was not appealable. See §1.24.
Court-appointed counsel. An appellant who was represented by appointed counsel in a trial court is not required to establish again indigency in the appellate division. See Wolf v Appellate Div. (2019) 38 CA5th 699 in §2.24.
Remand with directions. For a recent case discussing how remand was not required because the trial court intended to impose the most stringent sentence possible, and it was clear that the trial court would not dismiss the prior serious felonies even if it had discretion to do so, see People v Jones (2019) 32 CA5th 267 in §5.31.
Jurisdiction of courts to consider writ petitions. The California Supreme Court has granted review in Molina v Superior Court (review granted Aug. 21, 2019, S256394; superseded opinion at 35 CA5th 531) to determine whether the court of appeal erred in ruling that a petitioner could not seek relief by petition for writ of mandate in the superior court from a concededly invalid conviction under Pen C §186.22(a) because a superior court judge who imposes a judgment is not an inferior tribunal to the superior court considering the petition. See §7.2.
Denial of fundamental rights. In In re Hernandez (2019) 33 CA5th 530, habeas relief was granted because counsel failed to advise the petitioner that a guilty plea would result in mandatory deportation and the evidence showed she would not have pleaded guilty if property advised. See §§9.27, 10.6.
Prosecution’s appeal from order granting writ. Any conclusions of law or resolution of mixed questions of fact and law that the referee provides are subject to independent review. See In re Masters (2019) 7 C5th 1054 in §§10.5, 10.26, 10.32.
Discovery. In Satele v Superior Court (2019) 7 C5th 852, the court of appeal held that a showing of good faith is not required for court documents, because they are “generally open to public inspection and may be released subject to such conditions the court deems necessary to safeguard their integrity.” See §10.17.
Death penalty. For a recent case discussing how a petition filed in the California Supreme Court before the enactment of Proposition 66 was later transferred to the superior court, see In re Robinson (2019) 35 CA5th 421 in §10.31.
Reasons for granting writ. The excessive fines clause of the Eighth Amendment applies to the states. See Timbs v Indiana (2019) 586 US ___, 139 S Ct 682 in §13.40.
Statutory tolling. For a recent case discussing how a petitioner failed to demonstrate good cause for a delay of almost 1 year in filing a second state petition, see Valdez v Montgomery (9th Cir 2019) 918 F3d 687 in §15.3.
AEDPA restrictions on successive petitions. In Morales v Sherman (9th Cir 2020) 949 F3d 474, the court found that the issuance of an amended abstract of judgment after the petitioner’s successful petition under Proposition 47 resulted in a new intervening judgment. See §15.9. For a recent case discussing how the court denied an application to file a second or successive petition because the Supreme Court decision did not announce a new rule of constitutional law made retroactive, see Young v Pfeiffer (9th Cir 2019) 933 F3d 1123 in §15.9.
Procedural default doctrine. When a state post-conviction court has erroneously applied a procedural bar, the claim is not procedurally barred in the federal habeas action. See Spreitz v Ryan (9th Cir 2019) 916 F3d 1262 in §15.12.
Showing actual prejudice. If a petitioner was represented by counsel in the state collateral review proceedings, he or she must show not only the procedurally defaulted claim of ineffective assistance of trial counsel is substantial, but that there is a reasonable probability that it would have succeeded had it been raised. Rodney v Filson (9th Cir 2019) 916 F3d 1254. For a claim to be substantial, a petitioner must show that “reasonable jurists could debate whether the issue should have been resolved in a different manner or that the claim was adequate to deserve encouragement.” Ramirez v Ryan (9th Cir 2019) 937 F3d 1230. A petitioner can present new evidence that was not presented in state court to establish an excuse to procedural default of a claim, and that new evidence can be considered with respect to both the excuse and the merits of the claim. Jones v Shinn (9th Cir 2019) 943 F3d 1211. See §15.35.