June 2022 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 2021 update.
Recall of sentence. Effective January 1, 2022, AB 1540 (Stats 2021, ch 719) adds Pen C §1170.03(a) to replace former Pen C §1170(d), which was deleted by SB 567 (Stats 2021, ch 731). See §§1.7, 1.40, 9.29.
Certificates of probable cause. Effective January 1, 2022, Cal Rules of Ct 8.304(b) identifies exceptions to the certificate of probable cause requirement, including an appeal that challenges the denial of a motion to suppress evidence under Pen C §1538.5, and an appeal that does not challenge the validity of the plea or the admission of a probation violation. See §§1.5, 1.11–1.12, 2.8, 2.31, 2.33, 3.2, 7.29, 11.30.
Covers. Effective January 1, 2022, all documents electronically filed in matters related to a case in which a judgment of death was entered must include a notation on the cover page that the filing is related to a capital case. See Cal Sup Ct Rules Regarding E-filing 10(a)(4) in §3.28.
CASE LAW DEVELOPMENTS
Appealable judgments and orders. In People v Esquivel (2021) 11 C5th 671, the California Supreme Court held that a judgment is not final for purposes of applying a later ameliorative change in the law when probation is granted and execution of sentence is suspended, if the defendant may still timely obtain direct review of an order revoking probation and imposing sentence. See §§1.9, §4.38.
Certificate of probable cause. For a recent case discussing how a certificate of probable cause failed to address the enforceability of a waiver to the right to appeal, see People v Codinha (2021) 71 CA5th 1047 in §§1.14, 2.8.
Postjudgment order affecting substantial rights of prosecution. The prosecution is entitled to appeal an order vacating a defendant’s murder conviction under Pen C §1170.95. See People v Hampton (2022) 74 CA5th 1092 in §1.24.
Obtaining a complete record. In Tamplin v Muniz (9th Cir 2018) 894 F3d 1076, the Ninth Circuit found ineffective assistance of appellate counsel for the failure to include the record of a second hearing on defendant’s request for self-representation. See §3.7. An appellate record is inadequate only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute their appeal. See People v Roberts (2021) 65 CA5th 469 in §§3.10, 8.42.
Mootness. In People v Mount (2021) 66 CA5th 599, the court of appeal dismissed as moot an appeal when no effectual relief could be granted to the deceased defendant, and there was no showing of a wider public interest in redesignating the felony convictions of deceased defendants. See §5.19. In In re Marti (2021) 69 CA5th 561, the court of appeal found that the matter was not moot because the disciplinary decision could impact the petitioner in the future. See §9.6.
Reduction in degree of offense on appeal. When a case is remanded to the trial court to exercise its discretion in striking an enhancement, the court may not consider the entire sentence. See People v Cervantes (2021) 72 CA5th 326 in §5.31. In People v Ramirez (2021) 72 CA5th 550, the court of appeal modified the judgment to strike an enhancement improperly imposed under Pen C §186.22. See §5.30.
Finality of decisions. For a recent case discussing how an order that a lower court makes affecting an order or judgment on appeal is null and void if it is made before the remittitur issues, see People v Burhop (2021) 65 CA5th 808 in §5.34.
Death penalty cases. In In re Friend (2021) 11 C5th 720, the supreme court held that provisions of Proposition 66 that place strict limitations on successive petitions do not bar a capital petitioner from filing a second or subsequent petition that raises new claims that could not have been raised in the initial petition. See §§6.1, 10.31.
Postconviction discovery. For a recent case discussing how a petition for writ of mandate may be used to challenge a ruling by the trial court on the defendant’s motion for postconviction discovery under Pen C §1054.9, see People v Superior Court (Jones) (2021) 12 C5th 348 in §7.28.
Custody requirement. In People v Rodriguez (2021) 68 CA5th 301, the court of appeal concluded that the legislature did not intend to bar persons from moving under Pen C §1473 to vacate a conviction at a time when they are in custody for another, unrelated conviction. See §9.4.
False evidence. Unless the expert repudiates the testimony, for the testimony to be false under Pen C §1473(e)(1), the petitioner must show that the underlying facts essential to the expert’s inferential method and opinion no longer support that method or opinion in light of new scientific understanding or technology. See In re Parks (2021) 67 CA5th 418 in §9.41.
Ineffective assistance of counsel. In Dunn v Reeves (2021) ___ US ___, 141 S Ct 2405, the U.S. Supreme Court found that a state court reasonably determined that the petitioner failed to prove that trial counsel was ineffective when he did not call counsel at an evidentiary hearing to give counsel an opportunity to explain trial strategy. See §13.33. In Noguera v Davis (9th Cir 2021) 5 F4th 1020, the Ninth Circuit found that counsel did not have an undisclosed conflict of interest, after he was retained by the defendant’s mother with an agreement not to bring up family problems, because the petitioner did not show there was a plausible alternative defense theory that counsel failed to pursue. See §13.33. For two Ninth Circuit cases finding ineffective assistance of counsel, see Rogers v Dzurenda (9th Cir 2022) 25 F4th 1171, and Sanders v Davis (9th Cir 2022) 23 F4th 966, in §13.33.
Disproportionate penalty. In Jones v Mississippi (2021) ___ US ___, 141 S Ct 1307, the U.S. Supreme Court held that a life sentence for a juvenile was constitutional even though the trial court did not make any express findings of incorrigibility. See §13.40.
Failure to disclose exculpatory evidence. For a recent case discussing how there was no controlling authority on whether disclosing exculpatory material after delay, but before trial, violated due process, see Hooper v Shinn (9th Cir 2021) 985 F3d 594 in §13.42.
Custody requirement. If the petitioner is in custody on a conviction that required proof of a prior predicate offense, federal habeas is not available to challenge that predicate if the sentence for the predicate has expired. See Alaska v Wright (2021) ___ US ___, 141 S Ct 1467 in §§14.6, 14.7. A convicted felon who has completed their sentence but is required by state law to register as a sex offender is not “in custody” within the meaning of 28 USC §2254. See Munoz v Smith (9th Cir 2021) 17 F4th 1237 in §14.7.
Exhaustion of claims. In Bolin v Baker (9th Cir 2021) 94 F3d 1154, the court of appeals held that defective performance of counsel can constitute good cause to stay and abey the federal proceedings until state remedies are exhausted. See §14.36.
Nonretroactivity rule. A “new rule” is one that breaks new ground or imposes a new obligation on the states or the federal government, or one that is not dictated by precedent existing at the time the petitioner’s conviction became final. See Edwards v Vannoy (2021) ___ US ___, 141 S Ct 1547 in §§15.35, 15.40.