June 2021 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 2020 update.
Court-appointed counsel. Effective September 1, 2020, under Cal Rules of Ct 8.851(a)(1), the appellate division of the superior court must appoint appellate counsel for a defendant who was represented by appointed counsel in the trial court or establishes indigency, and who was convicted of a misdemeanor and is subject to incarceration or a fine of more than $500, including penalty and other assessments, or who is likely to suffer significant adverse collateral consequences as a result of the conviction; and is charged with a misdemeanor and the appeal is at a critical stage of the criminal process. See §2.24.
Filing and service. Effective January 1, 2021, once a document is received electronically, the court is required to send confirmation of receipt. Cal Rules of Ct 8.77(a)(1). If the electronically submitted document received by the court complies with filing requirements, the document is deemed filed on the date and time it was received by the court as stated in the confirmation of receipt. Cal Rules of Ct 8.77(a)(2). When the court files an electronically submitted document, it must arrange to promptly send the electronic filer confirmation that the document has been filed. Cal Rules of Ct 8.77(a)(3). See §8.58.
Excerpts of record. Effective December 1, 2020, 9th Cir R 30–1.1—30–1.7, concerning excerpts of record, have been amended. Ninth Circuit Rule 30–2, concerning the failure to comply with excerpts of record requirements, has been abrogated. See §§18.35–18.39.
CASE LAW DEVELOPMENTS
Appealable judgments and orders. In People v Gentile (2020) 10 C5th 830, the California Supreme Court held that Pen C §1170.95 is the exclusive mechanism for retroactive relief due to the changes in murder liability. See §1.6.
Final judgments. Penal Code §1237.2 does not apply after the defendant’s direct appeal has concluded. See People v Torres (2020) 44 CA5th 1081 in §§1.8, 5.16.
Probation orders. In People v McKenzie (2020) 9 C5th 40, the California Supreme Court held that a defendant who is placed on probation after imposition of sentence is suspended and does not timely appeal from the order granting probation, may take advantage of ameliorative statutory amendments that take effect during a later appeal from a judgment revoking probation and imposing sentence. See §§1.9, 4.38.
Certificates of probable cause. In People v Stamps (2020) 9 C5th 685, the California Supreme Court held that a certificate of probable cause is not required for a defendant to challenge a negotiated sentence based on a later ameliorative, retroactive change in the law. See §1.14. For a discussion of how a certificate of probable cause is not required to challenge a trial court’s failure to consider pretrial mental health diversion under Pen C §1001.36, see People v Hill (2021) 59 CA5th 1190 in §1.14.
Waiver of right to appeal. For a recent case discussing how a stipulated sentence made the petitioner ineligible for relief under Pen C §1170.91(b)(1), see People v King (2020) 52 CA5th 783 in §1.15.
Appellate court jurisdiction. A newly imposed sentence under Pen C §1170(d)(1) constitutes an appealable final judgment of conviction. See People v Arias (2020) 52 CA5th 213 in §1.40.
Duty when appellate counsel finds no arguable issues. Wende/Anders review procedures are not applicable to appeal a denial of a motion to vacate a judgment under Pen C §1473.7. See People v Ramirez (2021) 60 CA5th 163 in §2.26. They are also not applicable to an appeal from an order revoking and reinstating PRCS. See People v Freeman (2021) 61 CA5th 126 in §2.26. In an appeal from a summary denial of a Pen C §1170.95 petition, an appellate court is not required to independently review the entire record, but the court can do so in the interests of justice. See People v Gallo (2020) 57 CA5th 594 and People v Flores (2020) 54 CA5th 266 in §2.26.
Failure to object. In People v Brooks (2020) 53 CA5th 919, the court of appeal held that the failure to object may be considered to determine if the defendant was prejudiced by an attorney’s failure to raise the issue. See §4.28.
Remand with directions. For a recent case discussing how remand may be used to grant defendant benefit of ameliorative legislation regarding eligibility for mental health diversion, see People v Frahs (2020) 9 C5th 618 in §5.31.
Habeas corpus proceedings in reviewing courts. In Salcido v Superior Court (2020) 44 CA5th 998, the court of appeal found that a case transferred by the supreme court to the superior court that imposed the sentence could not be transferred again to another court. See §§6.22, 10.31.
Issues unique to capital cases. The Eighth Amendment does not prevent a state appellate court from reweighing aggravating and mitigating circumstances, even when the state appellate court previously committed Eddings error by not considering all relevant mitigating evidence. See McKinney v Arizona (2020) 589 US ___, 140 S Ct 702, in §6.56.
Writs of mandate and prohibition. For a recent case discussing how a defendant may obtain immediate pretrial appellate reversal by writ of mandate, without demonstrating prejudice stemming from the delay of trial, when the trial court erroneously denies a motion to dismiss, see Salari v Superior Court (2020) 49 CA5th 325 in §7.6.
Delay in seeking relief. In Robinson v Lewis (2020) 9 C5th 883, the California Supreme Court held that a delay of up to 120 days, between denial of a petition in the superior court and the filing of a new petition in the court of appeal, or between a denial of a petition in the court of appeal and the filing of a new petition in the supreme court, is not substantial delay. See §§9.14, 10.5, 10.6, 10.26, 10.30, 15.3.
Bail. In In re Humphrey (2021) 11 C5th 135, the California Supreme Court held that a court must consider the defendant’s ability to pay when determining the amount of bail. See §9.15.
Changes in law with retroactive effect. For a recent case discussing whether the three-factor test of In re Johnson (1970) 3 C3d 404 governs retroactivity instead of the standard in Teague v Lane (1989) 489 US 288, 109 S Ct 1060, see In re Rayford (2020) 50 CA5th 754 in §9.28.
Return to petition. In In re Duval (2020) 44 CA5th 401, the court of appeal held that if a return does not dispute the material factual allegations, the court may take them as true, and resolve the issues without an evidentiary hearing. See §10.19.
Review in the United States Supreme Court. A petitioner whose application for leave to file second or successive petition may file an original petition for habeas corpus with the U.S. Supreme Court. See Chades v Hill (9th Cir 2020) 976 F3d 1055 in §§12.3, 15.11.
Federal review of state court decisions. For two recent U.S. Supreme Court cases discussing how a petitioner must show that the state court’s ruling on the claims being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law “beyond any possibility for fair-minded disagreement,” see Mays v Hines (Mar. 29, 2021, No. 20–507) 2021 US Lexis 1736 and Shinn v Kayer (2020) ___ US ___, 141 S Ct 517, in §13.25.
Unconstitutional confessions and privilege against self-incrimination. For a recent case discussing how the state court was reasonable in deciding that an interrogation of a 15-year-old defendant was not coercive, see Balbuena v Sullivan (9th Cir 2020) 970 F3d 1176 in §§13.29, 15.9.
Right to effective assistance of trial counsel. In Andrus v Texas (2020) 590 US ___, 140 S Ct 1875, the U.S. Supreme Court found that counsel was ineffective for failing to investigate readily available mitigating evidence. See §13.33.
Right to jury trial. A unanimous verdict is necessary for conviction. See Ramos v Louisiana (2020) ___ US ___, 140 S Ct 1390, in §13.39.
Equitable tolling. The petitioner must show diligence not only during the time that the extraordinary circumstance caused a delay in filing, but also before and after that time, and until the date of filing the petition. See Smith v Davis (9th Cir 2020) 953 F3d 582 in §15.4. A district court can consider whether a petitioner’s mental impairment caused the delay even if the petitioner was represented by counsel. See Milam v Harrington (9th Cir 2020) 953 F3d 1128 in §15.5.
Amending petition after limitation period. Relation back can be appropriate if the later pleading restates the claim with greater particularity, amplifies the details of the transaction alleged in the initial petition, or pertains to the same episode. See Ross v Williams (9th Cir 2020) 950 F3d 1160 in §15.8.
Second or successive petitions. In Colbert v Haynes (9th Cir 2020) 954 F3d 1232, the Ninth Circuit Court of Appeals found that removal of a victim restitution condition from the judgment did not create a new judgment. See §15.9. A motion to alter or amend a judgment under Fed R Civ P 59(e) does not qualify as a successive petition. See Banister v Davis (2020) ___ US ___, 140 S Ct 1698, in §15.11A.
Determination of merits of petitioner’s claim for relief. For a recent case discussing how a state court made crucial erroneous factual determination in linking crimes and failed to consider the entire record, see Kipp v Davis (9th Cir 2020) 971 F3d 939 in §17.21.
Certificate of appealability. A petitioner must obtain a certificate of appealability not only to appeal a denial of a petition, but also to appeal a denial of a motion to enforce a conditional writ of habeas corpus under Fed R Civ P 70. See Rose v Guyer (9th Cir 2020) 961 F3d 1238 in §18.10.