June 2019 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 2018 update.
Bail. Operative October 1, 2019, designated pretrial assessment services will replace the current bail system. See Stats 2018, ch 244 (SB 10) (repealing Pen C §§1268–1320.5, amending Govt C §27771, and adding Pen C §§1320.6–1320.34). Referendum 18–0009, which seeks to overturn SB 10, has qualified for the November 3, 2020, ballot. Qualification of this referendum suspends enactment of the legislation. See Cal Const art II, §9; Rossi v Brown (1995) 9 C4th 688, 703. The California Supreme Court has also granted review in In re Humphrey (review granted May 24, 2018, S247278; superseded opinion at 19 CA5th 1006) to determine whether, in setting bail, a court must consider the client’s ability to pay bail, nonmonetary alternatives to bail, and public safety concerns. See also In re Webb (review granted Apr. 25, 2018, S247074; superseded opinion at 20 CA5th 44); In re White (review granted May 23, 2018, S248125; superseded opinion at 21 CA5th 18); In re Avignone (2018) 26 CA5th 195 (following Humphrey, court of appeal found that increase of bail amounted to pretrial detention order). See §9.15.
California Rules of Professional Conduct. On May 10, 2018, the California Supreme Court issued an order approving the new Rules of Professional Conduct, which went into effect on November 1, 2018, and includes a renumbering of the rules. See §§2.18, 2.30, 3.38, 4.1, 6.20.
CASE LAW DEVELOPMENTS
Irregularities in proceedings. The failure to raise a penalty assessment claim during an appeal that includes at least one other claim waives that claim for later appeals. See People v Jordan (2018) 21 CA5th 1136 in §§1.8, 5.16.
Certificate of probable cause. A defendant who has waived the right to appeal as part of a plea agreement must obtain a certificate of probable cause to appeal on any ground covered by the waiver, regardless of whether the claim arose before or after the entry of the plea. See People v Espinoza (2018) 22 CA5th 794 in §§1.11, 1.14. A defendant is also not required to obtain a certificate of probable cause when a retroactive statute that applies to all nonfinal cases allows for the trial court to strike an enhancement. See People v Hurlic (2018) 25 CA5th 50 in §1.14. However, in People v Kelly (2019) 32 CA5th 1013, the court of appeal held that a certificate of probable cause was required to challenge a 5-year enhancement in a stipulated sentence. See §1.14.
Waiver of right to appeal. A specific waiver of sentencing error in a stipulated sentence does not preclude an appeal based on later changes to the sentencing statute. People v Wright (2019) 31 CA5th 749. But see People v Barton (2019) 32 CA5th 1088 (waiver of right to appeal stipulated sentence includes future sentencing error based on change in law). See §1.15.
Order granting habeas corpus relief. When the prosecution appeals the grant of a new trial on a habeas petition, the trial court retains jurisdiction to dismiss for failure to bring the defendant to trial within 60 days, unless the prosecution seeks and is granted a stay. See People v Bilbrey (2018) 25 CA5th 764 in §§1.28, 1.30, 10.32.
Right to counsel. The appellate division of the superior court is required to appoint counsel for an indigent defendant charged with a misdemeanor offense on an appeal by the prosecution. Gardner v Appellate Div. of Superior Court (Mar. 28, 2019, S246214) 2019 Cal Lexis 2043. See §2.1.
Duty when appellate counsel finds no arguable issues. In People v Garcia (2018) 24 CA5th 314, the court of appeal held that there is no constitutional requirement that the issues arguably supporting an appeal be listed in a Wende brief. See §2.26.
Certification of the record for completeness and accuracy. Although an incomplete record violates Pen C §190.9, no presumption of prejudice arises from the absence of materials from the appellate record. When the record is incomplete the defendant bears the burden of demonstrating that the record is inadequate to permit meaningful appellate review. See People v Woodruff (2018) 5 C5th 697 in §§6.2, 6.27.
Postconviction discovery. For a recent case discussing motions to preserve evidence potentially discoverable under Pen C §1054.9 during an automatic appeal of a capital case, see Shorts v Superior Court (2018) 24 CA5th 709 in §§6.21, 7.28, 8.64.
Challenge to denial of Pen C §995 motion. The most frequent use of prohibition is to prevent further proceedings, including trial, after denial of a motion under Pen C §995 to set aside the information or indictment. See Heidary v Superior Court (2018) 26 CA5th 110 in §7.34.
Challenging length or conditions of confinement. For a recent case discussing Proposition 57 parole eligibility relief, see In re Edwards (2018) 26 CA5th 1181 in §9.22.
Double jeopardy. In Currier v Virginia (2018) ___ US ___, 138 S Ct 2144, the United States Supreme Court held that a defendant who agrees to sever charges and have two trials cannot argue that second trial invokes double jeopardy. See §13.28.
Right to effective assistance of trial counsel. For a recent case discussing how the Ninth Circuit upheld the state court’s denial of relief on ineffective assistance grounds, see Ellis v Harrison (8th Cir 2018) 891 F3d 1160 in §13.33. If the absence of a tactical reason for trial counsel’s arguably incompetent act or omission is not evident on the face of the record, it is preferable to raise ineffective assistance of counsel in a petition for a writ of habeas corpus, even if the error and its consequences are evident on the face of the record. See, e.g., People v Arredondo (2018) 21 CA5th 493, 500 (counsel stating in closing argument that defendant was guilty). §4.34.
Right to self-representation. The right to self-representation is not waived by acquiescence to the court’s denial. See Tamplin v Muniz (9th Cir 2018) 894 F3d 1076 in §13.35.
Mootness and custody. The court may convert a petition under 28 USC §2254 into a petition under 28 USC §2241 if a petitioner’s conviction was vacated during the pendency of the petition and the petitioner became a pretrial detainee. See Dominguez v Kernan (9th Cir 2018) 906 F3d 1127 in §§14.9, 14.15.
Exhausting state remedies. Under the “look through” doctrine of Ylst v Nunnemaker (1991) 501 US 797, 111 S Ct 2590, federal courts assessing whether 28 USC §2254(d) bars relief will “look through” the summary denials in these higher courts to the reasoning of the superior court. See Wilson v Sellers (2018) ___ US ___, 138 S Ct 1188 in §14.30.
Equitable tolling. For a recent case discussing how a petitioner reasonably relied on unsettled state of the law, see Williams v Filson (9th Cir 2018) 908 F3d 546 in §15.4.
Amending petition after limitation period. In Ross v Williams (9th Cir 2018) 896 F3d 958, the court of appeals found that there was no relation back because the petition contained no facts. See §15.8.
AEDPA restrictions on successive petitions. Because the factual predicate accrues when a constitutional violation occurs, a Brady violation occurs when the exculpatory evidence should have been disclosed. See Brown v Muniz (9th Cir 2018) 889 F3d 661 in §15.9. For a recent case discussing how the petitioner failed to exercise due diligence in discovering exculpatory evidence, see Solorio v Muniz (9th Cir 2018) 896 F3d 914 in §15.9.
State court denial of relief without explanation. In Sexton v Beaudreaux (2018) ___ US ___, 138 S Ct 2555, the United States Supreme Court held that the court of appeals failed to consider reasonable grounds to support of the state court’s summary decision. See §15.17.