ANNOUNCEMENTS:
2023 has again brought new criminal statutes and/or statute revisions. Some are already law and others go into effect January 1, 2024, which could/should be retroactive to cases now on appeal. So, it is important to be familiar with the changes, to review any open cases, including those with Petitions for Review pending or recently denied or on grant an hold status, to determine whether additional briefing or steps need to be taken to ensure application of the new laws to client’s whose cases are not yet final. CAP-LA panel members should check their email for information from CAP-LA on these new statutes.
Practice Tools
CAP'S Dos & Don'tS:
CAP COPIES: CAP no longer requests a hard copy of the briefs filed (AOB, REPLY, PFR) in every case. Rather, we request that all documents filed in either the superior or appellate court for which counsel will request compensation be served via email to our service address: capdocs@lacap.com.
WENDE/DELGADILLO BRIEFS: Always obtain approval from CAP before filing a Wende/Delgadillo brief. CAP will need to review the record and the draft AOB first. After getting approval to file the brief, CAP requests that attorneys use the suggested language in our sample Wende/Delgadillo briefs for the applicable law in the argument section as well as the attorney declaration.
CONFIDENTIAL TRANSCRIPTS: Don't forget to specifically indicate on the cover page of an AOB when you are asking the Court of Appeal to review confidential transcripts pursuant to Pitchess or Hobbs.
ABANDONMENTS: CAP requests to review the record and give approval before an independent attorney files an abandonment. Thereafter it is recommended that the client and the attorney both sign any abandonment form submitted to the Court of Appeal.
RECORD COMPLETION ORDERS: Don't forget that Local Rule 4 requires that any motion or application (NOT JUST AUGMENTS) must include a proposed order.
REQUESTS FOR BRIEFING: Please DO contact CAP if you get a letter from the Court of Appeal asking for additional briefing after a case has been fully briefed. We may have insights that can help.
COURT’S FORMS: DO use the Second District's fillable forms for EOTs and proposed orders for Augments. No need to re-invent the wheel and the clerks prefer the standardized form that includes all of the required information.
TRUE FILING: DO use TrueFiling for most pleadings filed in the Second District and pre-grant pleadings in the Supreme Court. In the TrueFiling section on our website, see the list of limited items that can be emailed to the Second District. Note there are still some pleadings that are not TrueFiled in the Supreme Court. Check the Supreme Court's website before you file.
WRIT COMPENSATION: Do obtain approval before drafting a writ. Without obtaining prior approval from either CAP or the Court of Appeal, the Second District Court of Appeal will not compensate work done on a writ. Where the writ is to be filed in conjunction with an appellant’s first appeal of right, counsel may be compensated for up to 15 hours for researching the writ and drafting the memo seeking approval for filing it without any prior approval. Before doing any work on preparing the writ itself, however, counsel must get approval for it, even if both research and drafting can be completed within 15 hours. In order to secure compensation for any work done on a writ to be filed in any situation other than in conjunction with a first appeal of right, you must get approval from the court before doing any work at all. The details of the policy for writs filed in conjunction with first appeals of right are outlined in CAP’s policy on compensation for writs of habeas corpus. Please note that that memo was last updated May of 2018, but the policy has changed with respect to the 15 hours being limited to pre-drafting activities. Feel free to contact CAP with any questions.
SAMPLE BRIEFS AND PETITIONS
Extension of Time Request (PDF)
AOB (PDF)
Reply (PDF)
Wende Brief (PDF)
1172.6 Delgadillo Brief with request for record review (PDF)
1172.6 Delgadillo Brief (PDF)
Non-1172.6 Delgadillo Brief (PDF)
Abandonment (PDF)
Petition for Rehearing (PDF)
Petition for Review (PDF)
Petition to Exhaust State Remedies (PDF)
Credits/Fines/Fees Issues
Pursuant to Penal Code sections 1237.1 and 1237.2, if a financial or credits calculation error is the only issue you plan to raise in an appeal, you must first attempt to correct it in the trial court. By statute, a credits error needs to be raised in a motion in the trial court. On the other hand, according to the statute, an informal letter is an acceptable way to raise the fines/fees error, though you likely will need to follow up with the court's clerk to get a timely response. Include in your motions/letters the due dates on your AOB.
Second District Forms & Local Rules
Court approved forms for filing requests for extensions of time and proposed augment orders, among other things, are available for download on the Second District's website, found at the link above. Also familiarize yourself with Local Rules 1-9, relating to record correction and deadlines, which are also found on the above button link, after the forms.
The Second District requires that an attorney provide his/her email address and State Bar number on every brief and document filed with the Court of Appeal. (Rule 8.40(c).)
EXTENSIONS OF TIME: Although other districts permit using the default period in lieu of an additional request for extension of time, this practice is DISFAVORED in the Second Appellate District. Rather, the court prefers that an extension of time request be filed.
SERVING THE DISTRICT ATTORNEY: The LA County District Attorney's Office has created an email for electronic service. Going forward, please either serve them electronically at: truefiling@da.lacounty.gov or via regular mail at:
Los Angeles County District Attorney's Office
Hall of Justice
211 W. Temple Street, Ste. 1200
Los Angeles, CA 90012
REcord Correction/Expansion
Rule 8.320 (adult) and Rule 8.407 (juvenile) describe what should be provided by the Superior Court as part of the normal record on appeal. Additionally, Local Rule 1 (see above button link) describes additional materials considered part of the normal record in the Second District.
Pursuant to Local Rule 2, appellant should file a record correction letter immediately and any motion to augment within 30 days of the filing of the record or appointment of counsel. A timely filed record correction letter stays the briefing. A proposed order describing the materials to be added to the record must be provided to the Court of Appeal with the motion to augment.
Contacting Your Client
Remember, some prisons will not send out a client's letter to his or her attorney unless the address for the attorney matches the attorney's address as it appears on the State Bar website. So, be sure that the address that you give to your client is the same as the address that is given to the State Bar for their website.
Confidentiality
Juvenile Filings: Documents filed in juvenile proceedings must protect the anonymity of any juveniles involved. The identity of a minor involved in juvenile or appellate court proceedings should be protected by use of the minor’s first name and the initial of the minor’s surname in the caption and body of the briefing. If the parent’s surname is the same as the minor’s, the parent’s surname should be protected in the same way. If the minor’s name is particularly distinctive or unusual, only the minor’s initials should be used. (California Rules of Court, Rule 8.401; California Style Manual, § 5:10.)
For guidance in determining whether a name is particularly distinctive or unusual, see In re Edward S. (2009) 173 Cal.App.4th 387, 392, fn. 1, which lists Social Security Administration website as source of whether name is “unusual”, according to standard used by Reporter of Decisions (in top 1,000 most popular names for any year of birth within last nine years) within meaning of Rule 8.401 - www.ssa.gov/cgi-bin/babyname.cgi
Victims Generally: The anonymity of minors who are victims or witnesses in adult criminal cases and adult victims of sex crimes should also be protected. A juvenile victim or witness should be referred to by first name and last initial in court filings. (California Style Manual, § 5:9)
The California Style Manual's Editorial Policy for Official Reports "B." provides a series of "Protective Nondisclosure of Identity" rules covering other protected individuals, including jurors and conservatees. For a more detailed discussion of confidentiality issues go to "Confidential Records" found under "Practice Tools" on ADI's website.
Pro Per PETITIONS FOR REVIEW
Your representation includes the filing of a Petition for Review in the California Supreme Court, but if you do not plan to file a petition you must inform the client, in a timely manner, how he or she can file one in pro per.
HANDBOOK FOR Appointed COunsel
EXHIBITS
Matrix of Case Number Prefixes and Courthouse Locations for LA County
Per Rule of Court 8.320(e), exhibits are already part of the record on appeal, however, you need to make additional efforts to view them. Transcripts of an audio or video played for the jury, are part of the normal record on appeal and, if missing, can be obtained with a Rule 8.340 letter citing Rule 8.320(b)(11).
Documentary exhibits must be made part of the Clerk’s Transcript pursuant to Second Appellate District Local Rule 1, subdivision (a)(7), as follows:
“The Clerk's Transcript shall include all documentary exhibits admitted in evidence, refused, or lodged in the case in the superior court, including copies of any demonstrative exhibits that were shown to the trier of fact if those copies were lodged in the superior court. The demonstrative exhibits to be included in the clerk’s transcript shall include copies of computer slide presentations (such as PowerPoint presentations) that were shown to the trier of fact, whether or not the presentations were marked as exhibits if copies were lodged in the superior court. Each admitted exhibit shall be clearly identified and sequentially numbered.”
Also, if you refer to an exhibit that you want the Court of Appeal to view when considering your brief, pursuant to Rule 8.224(a), you need to write a letter and have the exhibits transferred within 10 days of the Respondent's Brief being filed.
Viewing or Copying Exhibits Generally:
If you are not local, email Sylvia (sylvia@lacap.com) for assistance obtaining your requested exhibit(s).
If you are local, you can view exhibits in person at the courthouse where they are held. You should call the exhibit room for an appointment and take your Court of Appeal Appointment Order, your Bar Card and your Driver's License for identification
In Los Angeles County:
To view a non-audio or video exhibit, contact Central Exhibits, (213) 628-7972, ask for the phone number for the Exhibits Clerk at the courthouse where your client's trial occurred. Call and make an appointment to view the exhibits.
To copy an exhibit normally viewed in the exhibits room, you will need a court order. See the attached memo (PDF) (WPD) (DOC) for suggestions and a sample order.
To view audio/video exhibits played in court, email Sylvia (sylvia@lacap.com) to facilitate having the exhibit transferred to the Court of Appeal exhibit viewing room. Alternatively, you could write a letter to the Court of Appeal asking to have the exhibits transferred to their exhibit viewing room. **Please note, this could take up to 30 days as exhibits are only delivered to the Court of Appeal once per month. Once the exhibit has been transferred, you can make an appointment at the Court of Appeal to view the exhibit.
For a copy of an audio/video exhibit, contact Sylvia (Sylvia@lacap.com).
In San Luis Obispo County:
To view exhibits or the superior court file, call Andrea Solis, Appellate Clerk, to make an appointment.
In Santa Barbara County:
Adults - Santa Barbara Courthouse: If you just want to view a non-audio or video exhibit, contact Christine Estrada, (805) 882-4731, to make an appointment to view them. To view a audio/video exhibit, you must bring your own laptop. The clerk will make copies of paper exhibits upon request. To get a copy of audio/video exhibit you will need to seek a court order.
Adults - Santa Maria Courthouse
To review exhibits in a case tried in Santa Maria, email the clerk to make an appointment to view them. The clerk's email address is: northcountyrecords@sbcourts.org. On the subject line write "Exhibits."
Your email should include the name of the client, the superior court case number, an explanation that you are appellate counsel and would like to review the exhibits, and the date and time that you are requesting and/or available to review them. The clerk will then get back to you by email to confirm the date and time when the exhibits may be viewed. If there are audio/video exhibits, the clerk will arrange for a laptop for reviewing them; you must bring your own earbuds for listening.
If a small number of copies of paper exhibits are requested, the clerk will make copies while you wait. Copies of lengthy documents or audio/video exhibits will be made by the clerk after the visit and provided to you later.
You must have your appointment order, bar card, and identification with you and present it to the clerk before you will be permitted to review the exhibits.
Juveniles - Santa Maria
To review juvenile exhibits contact the appeals clerk for Santa Barbara County, Patricia Frutos, at the Santa Barbara Superior Court.
In Ventura County:
Adult: To view any exhibit, call Exhibits, (805) 289-8671, to make an appointment. The clerk will then have the exhibits ready for review at the time of the appointment. The clerks have equipment for reviewing audio/video exhibits. If you need copies, request them from the clerk. Court-appointed attorneys should bring the appointment order and identification to obtain a fee waiver.
Juvenile: To review exhibits or the superior court file just walk into the juvenile court clerk's office with your identification to verify that you are appointed counsel. Copies may be requested at that time. Remember that the Juvenile Court is on Vineyard in Oxnard, separate from the adult court.