June 2023 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 2022 update.
Postjudgment orders. Effective June 30, 2022, AB 200 (Stats 2022, ch 58) renumbers Pen C §1170.01 as Pen C §1172; Pen C §1170.03 as Pen C §1172.1; Pen C §1170.95 as Pen C §1172.6; Pen C §1171 as Pen C §1172.7; and Pen C §1171.1 as Pen C §1172.75. See §§1.7, 1.40.
Habeas corpus. Effective January 1, 2023, under Pen C §1473(b)(4), habeas corpus relief is available when a significant dispute has emerged or further developed in the petitioner’s favor regarding expert medical, scientific, or forensic testimony that was introduced at trial and contributed to the conviction, such that it would have more likely than not changed the outcome at trial. See §9.41A.
CASE LAW DEVELOPMENTS
Sentences. A sentence unauthorized by law may be challenged at any time, even after a judgment of conviction has become final and been affirmed on appeal, as long as the court still has jurisdiction over the judgment. See People v King (2022) 77 CA5th 629 in §1.8.
Waiver of right to appeal. Although a written plea agreement is not required to establish an enforceable waiver, its absence may undermine any conclusion that the appellate waiver was a fully informed, bargained-for term of the plea agreement. See People v Orellana (2022) 74 CA5th 319 in §1.15.
Appointed counsel. In People v Delgadillo (2022) 14 C5th 216, the supreme court set the procedures appointed counsel and the courts of appeal must follow when counsel determines that an appeal from a denial of a Pen C §1172.6 petition lacks merit. See §2.26.
Remand with directions. For a recent case discussing how a court of appeal found that remand was not necessary when the trial court would not impose a more favorable sentence on remand, see People v Berdoll (2022) 85 CA5th 159 in §5.31.
Recall of remittitur. A remittitur can be recalled on the ground of ineffective assistance of appellate counsel for failing to file a supplemental brief or a petition for rehearing requesting remand for resentencing based on a change in the law. See People v Gerson (2022) 80 CA5th 1067 in §5.37.
Discovery. For a recent case discussing how Pen C §745 can be used to obtain evidence from the prosecution relevant to a potential violation of the California Racial Justice Act (CRJA), see Young v Superior Court (2022) 79 CA5th 138 in §7.27.
Retroactivity. In In re Milton (2022) 13 C5th 893, the California Supreme Court looked at the retroactivity tests of both Teague v Lane (1989) 489 US 288, 109 S Ct 1060, and In re Johnson (1970) 3 C3d 404 to determine the retroactivity of People v Gallardo (2017) 4 C5th 120, while declining to decide which test applies to a new procedural rule. See §9.28.
Federal habeas corpus. In Brown v Davenport (2022) ___ US ___, 142 S Ct 1510, the U.S. Supreme Court held that when a state court has ruled on the merits of a state prisoner’s claim, a federal court cannot grant relief without first applying Brecht v Abrahamson (1993) 507 US 619, 113 S Ct 1710, and the deferential AEDPA standard in reviewing the state court’s determination of prejudice. See §§13.2, 17.22.
Right to confrontation. In Hemphill v New York (2022) ___ US ___, 142 S Ct 681, the U.S. Supreme Court held that the Confrontation Clause does not permit the admission of testimonial hearsay merely because the defendant “opened the door.” See §13.31.
Right to effective assistance of trial counsel. In Michaels v Davis (9th Cir 2022) 51 F4th 904, the Ninth Circuit has found that counsel had a duty not to disclose confidential incriminating information. See §13.33.
Pretrial publicity. For a recent case discussing how a trial court need not question each potential juror about pretrial publicity, see U.S. v Tsarnaev (2022) ___ US ___, 142 S Ct 1024 in §13.50.
Equal protection. A federal court may engage in comparative analysis to determine if the state court decision was reasonable. See Hoyos v Davis (9th Cir 2022) 51 F4th 297 in §13.66.
Statutory tolling. If a California court finds that a petition is untimely, and later a higher California court issues a postcard denial of that petition, the postcard denial will be interpreted by the federal court as a tacit affirmation of the lower court’s finding of untimeliness. See Flemming v Matteson (9th Cir 2022) 26 F4th 1136 in §15.3.
Procedural default. A petitioner who has procedurally defaulted is barred from raising a claim in federal court unless petitioner can demonstrate cause for the procedural default and actual prejudice from the alleged constitutional violation. See Shinn v Ramirez (2022) ___ US ___, 142 S Ct 1718 in §§15.13, 15.35, 17.14.