If you have been arrested for any criminal offense, or if you have been convicted of a criminal charge, you absolutely, positively need an attorney who knows how to prosecute either a pre-trial writ (habeas corpus, mandate or prohibition), or an interlocutory or post-trial appeal, and who will pursue justice in your case, and who can and will protect both your liberty interests in an appellate court of law. At the MAYO LAW CLINIC we vigorously defend individuals who have been either arrested or convicted of any number of criminal offenses before all courts, including appellate courts. CALL US AT (530) 898-8468 TO SCHEDULE YOUR FREE CONSULTATION!

ABOUT WRITS: PRE-TRIAL AND POST-TRIAL

Extraordinary writs (sometimes referred to as prerogative writs) are, in most instances, merely verified pre-trial appellate briefs filed on limited issues, and on a limited record.  Typically, the record in a writ petition will consist of the verified petition, the applicable pleadings, coupled with a hearing transcript. Most pre-trial writs are reviewed at the sole discretion of the reviewing court. Of course, most (but not all) of these writ petitions are summarily denied on the basis that a party has adequate and alternative relief in the form of a right to appeal any adverse judgment after trial (i.e., in the event the defendant is convicted of an offense).   However, there are certain issues which are more routinely granted review status in writ proceedings than others (for example, speedy trial writ petitions, etc.). The three primary types of pre-trial writs are habeas corpus, mandamus and prohibition (although, habeas corpus may also be a post-trial writ).  An alternative writ or peremptory writ is not an extraordinary writ at all, rather, it is merely an order of the reviewing court commanding the other party to show cause why the relief prayed for should not be granted. In other words, an alternative writ, a peremptory writ, or order to show cause granted by a reviewing court, act as a form of summons to the other party (Real Party In Interest) to respond (file a return) to the initial writ petition.  Procedures for filing pre-trial extraordinary writs in the appellate division of each superior court vary from county to county, however, the law and motion rules usually apply to the filing of such extraordinary writs.

Article VI, §10 of the California Constitution provides for original jurisdiction in the Supreme Court, the courts of appeal and the superior courts, and their judges in habeas corpus proceedings, and in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition.   The appellate division of the superior court has original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition directed to the superior court in causes subject to its appellate jurisdiction. Superior courts have original jurisdiction in all other causes except those given by statute to other trial courts (CCP §1084, et seq.).   Prohibition and mandate writs are oftentimes used interchangeably, with the petitioner seeking to either restrain a lower tribunal (usually, the trial court) from taking certain action in a particular case or, alternatively, compelling the lower tribunal to perform a certain act in that particular case.

With the exception of the superior courts review of a state agency's administrative action (review hearing must be held), after a verified writ petition is filed in the reviewing court, the court has the discretion to either deny the petition summarily (a destiny suffered by the majority of petitions); or request informal opposition; or advise the parties it may issue a peremptory writ in the first instance; or issue an alternative writ and set dates for receipt of the return (the filing of an answer and brief by the Real Party In Interest). The reviewing court also has broad powers to issue any appropriate temporary orders (bail, O.R., a temporary stay order, etc.)  If no return is filed by the Real Party In Interest, the allegations contained within the verified writ petition are deemed admitted.  If the writ is summarily denied, no oral argument is permitted prior to the court making such a determination. However, following the full briefing of the matter at hand, and similar to an appeal, oral argument of the writ cause is customarily allowed.

Following the decision on the writ petition, or the rehearing decision if a rehearing was requested, a party may file a writ petition with the next higher court.  In the case of a denial by the court of appeal, a party may file either an original extraordinary writ petition or, alternatively, a petition for review in the California Supreme Court.  The customary practice, however, is to file a petition for review and not an original writ.

HABEAS CORPUS

Called the "Great Writ", the writ of habeas corpus has also been called "the safe-guard and the palladium of our liberties." (In re Begerow (1901) 133 C. 349, 353.)  It is "'regarded as the greatest remedy known to the law whereby one unlawfully restrained of his liberty can secure his release . . . .'" (In re Clark (1993) 5 C4th 750, 764, quoting Matter of Ford (1911) 160 C 334, 340.)  A conviction may be challenged by a petition for writ of habeas corpus based on newly-discovered evidence. (In re Clark, supra, 5 C4th at p. 766.)  To warrant issuance of a writ, the new evidence must not merely weaken the prosecution's case, it must create fundamental doubt in the accuracy of the proceedings and "point unerringly to innocence or reduced culpability." (People v. Gonzalez (1990) 51 C3d 1179, 1246; In re Hall (1981) 30 C3d 408, 417.) 

STATE HABEAS CORPUS - PC §1473, et seq.

Penal Code (PC) §1473, et seq., provides that a writ of habeas corpus may be filed in order to challenge the lawfulness of any order confining a person (denial of reasonable bail, etc.), or challenging the conditions of confinement, or any other actual or potential court order restraining the personal liberty of the petitioner.  A writ of habeas corpus therefore may be employed as either a pre-trial or a post-trial writ.  A habeas corpus writ is normally not available as a substitute for a remedy at law such as a direct appeal.  However, habeas corpus is used in concert with an appeal when a party desires to challenge an issue that requires some evidentiary support from outside the record on appeal (such as a Brady issue).  Article I, §11 of the California Constitution provides that the writ of habeas corpus may not be suspended unless required by public safety in cases of rebellion or invasion.

Habeas corpus proceedings are begun by the filing of a verified petition.  Habeas corpus warrants its own category, because the rules on habeas are different from the rules for other petitions.  Every judge in California has habeas corpus jurisdiction and, thus, wherever the petitioner is held, the habeas corpus petition can be filed anywhere.  The law used to be that the judge before whom the petition was filed was supposed to determine whether it shows a prima facie case for relief, and could transfer it only if there was a prima facie showing and a substantial reason for transfer. (Griggs v. Superior Court (1976) 16 C3d 341.)  However, in new rules adopted in 2002, the court is authorized (but not required) to transfer the matter to another county if the petition challenges a judgment in that county, or if the defendant challenges conditions of detention in that county. (Calif. Rules of Court, Rule 4.552(b)(2).)   Griggs indicated that a transfer might be appropriate in order to facilitate an evidentiary hearing, but that is not now a basis for transfer.  This rule is applicable only to habeas corpus petitions filed in the superior court.  Consequently, Griggs would still appear to be applicable if the habeas petition is filed in the Court of Appeal, where the transfer could be to a court of lower jurisdiction.  However, in In re Ramirez (2001) 89 CA4th 1312; 108 CR2d 229, the Court of Appeal exercised its discretion and dismissed (without prejudice) a petition it found should have been filed in the superior court.  It appears that now the proper response would be for the appellate court to merely transfer the petition, rather than dismiss it.

Per Ramirez, habeas corpus petitions arising from misdemeanor cases are filed in the superior court, not the appellate division, although the appellate division may assign a judge of its court to hear these petitions.  In general, a petition should be filed in the lowest available court.  This is of benefit to the petitioner, because if a petition is heard and denied, further petitions on the same issue can be filed only in higher courts (PC §1475).  In Ramirez, supra, the Court of Appeal ruled that this procedure is not affected by the general rule that review of a judge’s orders can only be by a court of higher jurisdiction, since review in habeas corpus is not appellate review.  Consequently, under Ramirez, every petition for writ of habeas corpus, whether contesting a court order or not, and whether in a misdemeanor or felony case, must first be filed in the superior court. The Appellate Division of the superior court does not have habeas corpus jurisdiction, and thus whether the case is a felony or a misdemeanor, jurisdiction to hear habeas corpus lies in the superior court (i.e., a single-judge writ court).  Editor's Note:  It would appear that habeas review by the same judge who issued a challenged order is barred by PC §859c, which prohibits any review authorized by the Penal Code, not just appellate review, which would seem to include habeas corpus petitions.   There is one older case which authorized a judge hearing habeas corpus challenges to that judge’s own orders, but it does not discuss either of these statutory rules. (See, In re Elias (1962) 209 CA2d 262, 264.)

If the court issues an alternative writ or an order to show cause, the respondent or real party in interest (the government) then files a return.   In the court of appeal, if the return does not take issue with the accuracy of any of the petitioner's documentary evidence, but just denies the allegations, the court may rule on the petition without holding an evidentiary hearing.  In the superior court, any material allegation of the petition not controverted by the return is deemed admitted.   The petitioner must reply to the return by filing a traverse (also called a denial) if the court issues an order to show cause or an alternative writ.  Failure to file a traverse can be fatal to the petitioner's cause.  The reviewing court will respond to a petition for habeas corpus in any of three ways: summarily deny the petition, issue an alternative writ, or issue an order to show cause.  If the court issues an alternative writ or an order to show cause, it may also order an evidentiary hearing.   When a habeas petition filed in the court of appeal requires the taking of evidence, the evidentiary hearing is held in the superior court.   The court has broad powers to fashion relief in habeas cases (criminal conviction vacated, bail reduced or petitioner released on O.R., case remanded to superior court, etc.).

Although the granting of habeas corpus relief is an appealable order, denial of habeas is not.  The proper remedy if a petition is denied in the superior court is to file a new petition for writ of habeas corpus in the Court of Appeal.  Although the new petition should set out the lower court proceedings, the Court of Appeal’s review is not of the order denying relief, but of the challenged order or proceedings.  (See In re Richard M. (1975) 14 C3d 783, 789-790.)  If the Court of Appeal denies relief, a petition for writ of habeas corpus could be filed in the California Supreme Court.  However, those who work for the court have made it clear that they much prefer that such cases be presented to them in a petition for review, rather than in a new habeas petition.

In re Roberts (2003) 29 C4th 726; 60 P.3d 165; 128 CR2d 762, the California Supreme Court has given a "two-thumbs down" to convicted killer Larry Roberts in his bid to overturn his conviction for a 1980 jailhouse murder.  In August, 1999 the California Supreme Court ordered an evidentiary hearing on Roberts habeas corpus petition.  The appointed Referee, Solano County Superior Court Judge Franklin R. Taft, found that three prosecution witnesses testified falsely at trial, but that the prosecutor, S.F. Deputy Attorney General Charles Kirk (aka "Mad Dog" around the courts), did not attempt to induce the false testimony. "A judgment of conviction based on testimony known by representatives of the state to be perjured deprives the defendant of due process of law [citations] and may be attacked on habeas corpus [citations].  In making such an attack, however, petitioner must establish by a preponderance of the evidence that perjured testimony was adduced at his trial, that representatives of the state knew that it was perjured [citations], and that such testimony may have affected the outcome of the trial [citations]." (In re Imbler (1963) 60 C2d 554, 560.)  While not adopting all of the findings of the appointed Referee, the Court adopted those findings that held the petitioner failed to carry his burden of proof.  A habeas writ may also issue if a conviction was based on false testimony that was substantially material and there is a reasonable probability that the result would have been different if it had not been introduced.  This ground does not require that the prosecution know the testimony was false. (PC §1473(b)(1); In re Sassounian (1995) 9 C4th 535, 546.)  In order to make the second finding (that the testimony at trial was not false), the court disregarded most of the Referee's findings.  "Despite the findings of the referee, petitioner is not entitled to relief based upon the claim that his conviction is based upon false testimony."

Collateral Estoppel/Double Jeopardy Issue In In re Cruz (2003) 104 CA4th 1339; 129 CR2d 31, the Court of Appeal held that there was no collateral estoppel effect based upon an evidentiary hearing in a habeas corpus proceeding.  Thus, in criminal cases the doctrine of collateral estoppel is derived from the double jeopardy clause in the Fifth Amendment. (Ashe v. Swenson (1970) 397 U.S. 436, 445.)  Double jeopardy bars successive trials for the same offense, but allows retrial of a defendant whose first conviction is set aside through direct appeal or collateral attack for reasons other than legal insufficiency of the evidence. (E.g., Lockhart v. Nelson (1988) 488 U.S. 33, 38; U.S. v. DiFrancesco (1980) 449 U.S. 117, 131.)  Although analytically distinct from double jeopardy, the doctrine of collateral estoppel is an equitable component of it, and bars relitigation of previously determined issues. (People v. Santamaria (1994) 8 C4th 903, 912, fn. 3.)  Collateral estoppel prohibits the same parties from retrying an "issue of ultimate fact" identical to an issue actually and necessarily decided in a prior proceeding that resulted in a final judgment on the merits. (Ashe v. Swenson, supra, 397 U.S. at p. 443; People v. Santamaria, at pp. 912, 916.)  An "issue of ultimate fact" is a fact that must be proven beyond a reasonable doubt at trial, including each of the essential elements of the charged offense.  (People v. Santamaria, at p. 921; U.S. v. Bailin (7th Cir. 1992) 977 F.2d 270, 280.)  Here, the Court of Appeal held that the Defendant could be re-tried on murder charges on the theory that he was an aider or abettor  to the murder.  (People v. Santamaria, at p. 918 and Santamaria v. Horsley (9th Cir., 1998) 133 F.3d 1242).  The Court concluded that a successful habeas petition necessarily contemplates and virtually always permits a retrial.  (See In re Martin (1987) 44 C3d 1, 53; People v. Kasim (1997) 56 CA4th 1360, 1388.)  The possibility of a retrial is often assumed without discussion. (See In re Hall (1981) 30 C3d at p. 435 [remand after writ granted based on newly-discovered evidence of factual innocence]; see also People v. Garcia (1993) 17 CA4th 1169, 1186.)

FEDERAL HABEAS CORPUS - 28 USC §2241, et seq.

A habeas corpus petition in federal district court (28 USC §2241, et seq.) allows a person who is in custody to challenge his or her continuing confinement by alleging that the confinement violates the federal constitution.  There is also a special habeas corpus procedure for capital cases (28 USC §2261, et seq.).  The petition is typically, but not always, brought by a state or federal inmate who has already been convicted of a crime.  The person sued is the warden of the particualr penal institution wherein the inmate is held.  State prisoners (state adjudications) are brought under 28 USC §2254, which provides that a petition shall not be granted unless the petitioner has a) exhausted his State court remedies, and b) a State corrective process is lacking (or such process is ineffective).  The petition shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.  The district court may appoint counsel for indigent prisoners, but releif may not be granted on the basis of any ineffective-assistance-of-counsel claim during Federal or State collateral post-conviction proceedings.

Ineffective-Assistance-Of-Counsel Claims  In order to resolve a split between the various Circuit Courts of Appeal, a unanimous U.S. Supreme Court in Massaro v. U.S. (2003) 538 U.S. ___; 123 S. Ct. 1690, overruled the Second Circuit Court of Appeals and held that an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under 28 USC §2255 (federal habeas corpus petition), whether or not the petitioner could have raised the claim on direct appeal.  Requiring a criminal defendant who is represented by new appellate counsel to bring ineffective-assistance claims on direct appeal does not promote the procedural default rule’s objectives: conserving judicial resources and respecting the law’s important interest in the finality of judgments.  Applying that rule to ineffective-assistance claims would create a risk that defendants would feel compelled to raise the issue before there has been an opportunity to fully develop the claim’s factual predicate, and would raise the issue for the first time in a forum not best suited to assess those facts, even if the record contains some indication of deficiencies in counsel’s performance.  A 28 USC §2255 motion is preferable to direct appeal for deciding an ineffective-assistance claim.  The Court reasoned that when a claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record that is not developed precisely for, and is therefore often incomplete or inadequate for, the purpose of litigating or preserving the claim.  A defendant claiming ineffective counsel must show that counsel’s actions were not supported by a reasonable strategy and that the error was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668.)  The evidence introduced at trial, however, will be devoted to guilt or innocence issues, and the resulting record may not disclose the facts necessary to decide either prong of the Strickland analysis.  Under the rule announced here, ineffective-assistance claims ordinarily will be litigated in the first instance in the district court, the forum best suited to developing the facts necessary to determining the adequacy of representation during an entire trial.  The court may take testimony from witnesses for the defendant and the prosecution and from the counsel alleged to have rendered the deficient performance.   In addition, the 28 USC §2255 motion often will be ruled upon by the district judge who presided at trial, who should have an advantageous perspective for determining the effectiveness of counsel’s conduct and whether any deficiencies were prejudicial.  The Supreme Court, however, did not hold that ineffective-assistance claims must be reserved for collateral review, as there may be cases in which trial counsel’s ineffectiveness is so apparent from the record that appellate counsel will raise the issue on direct appeal, or in which obvious deficiencies in representation will be addressed by an appellate court sua sponte.  In such cases, certain questions may arise in subsequent 28 USC §2255 proceedings concerning the conclusiveness of determinations made on the claims raised on direct appeal; but these implementation matters were not presently before the Court.

Right To Speedy Trial  In McNeely v. Blanas (2003) (4/18/03; 03 C.D.O.S. 3247; ___ F.3d ___), on a pre-trial detainee's habeas petition (28 USC §2241)*, the Ninth Circuit reviewed the petitioner's Sixth Amendment right to a speedy trial claim per Barker v. Wingo (1972) 407 U.S. 514, 530, wherein the U.S. Supreme Court articulated a four-part test to determine when government delay has abridged one's Sixth Amendment right to a speedy trial.  The factors to be considered include: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s assertion of the right to speedy trial; and (4) the prejudice caused by the delay.   No single factor is necessary or sufficient.  In addition, the Court deternmined that the burden of proof (i.e., showing no such infringment) rested with the government.  After considering the factors, the Ninth Circuit reversed the decision of the district court, remanding the case with directions to grant the petition for writ of habeas corpus, noting that because his Sixth Amendment right to a speedy trial has been violated, the petitioner was to be immediately released from custody with prejudice to re-prosecution of the criminal charges. (Strunk v. United States (1973) 412 U.S. 434, 439-40 - holding that a violation of one's Sixth Amendment speedy trial rights requires dismissal).  The order, however, was made without prejudice to the institution of such civil commitment proceedings as may be appropriate under state law (SVP laws) to be commenced within 30 days of the issuance of the mandate.  *Editor's Note:  The Court in McNeely pointed out that the parties characterized the petition as falling under 28 USC §2254.  However, because the petitioner was a pre-trial detainee, he was not being held “pursuant to the judgment of a State court.” (28 USC §2254)  Therefore, his claim fell under 28 USC §2241 per Braden v. Judicial Circuit Court (1973) 410 U.S. 484, 503 (Rehnquist, J., dissenting) (“Section 2254 pertains only to a prisoner in custody pursuant to a judgment of conviction of a state court.  Thus, in the context of the attempt to assert a right to a speedy trial, there is simply no §2254 trap to ‘ensnare’ petitioner, such as the court below felt existed.  The issue here is whether habeas corpus is warranted under §2241(c)(3); that section empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding.”); Jacobs v. McCaughtry, 251 F.3d 596, 597 (7th Cir. 2001) (explaining that a state court defendant attacking his pretrial detention should bring a habeas petition under 28 USC §2241); Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998) (same).

For purposes of determining when a writ of habeas corpus is "pending," the U.S. Supreme Court held in Woodford v. Garceau (2003) 537 U.S. ___, that in Lindh v. Murphy, 521 U.S. 320 (1997), the Court held that amendments made to chapter 153 of Title 28 of the U.S. Code by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, did not apply to cases pending in federal court on April 24, 1996 — AEDPA’s effective date.  In Woodford, supra, the Court held that a capital habeas case becomes “pending” for purposes of the rule announced in Lindh when a petition on the merits is actually filed.  Thus, a habeas corpus petition case does not become "pending" until an application for federal habeas corpus relief is filed in federal court, and an application filed after the AEDPA effective date (April 24, 1996), is subject to AEDPA amendments.  Whether AEDPA applies to a state prisoner turns on what was before a federal court on the date AEDPA became effective.  If, on that date, the state prisoner had before a federal court an application for habeas relief seeking an adjudication on the merits of the petitioner’s claims, then amended §2254(d) does not apply.  Otherwise, an application filed after AEDPA’s effective date should be reviewed under AEDPA, even if other filings by that same applicant—such as, for example, a request for the appointment of counsel or a motion for a stay of execution—were presented to a federal court prior to AEDPA’s effective date.  As a consequence, the U.S. Supreme Court once again reversed the Ninth Circuit and its ruling that any filing (for appointment of counsel, etc.) prior to the AEDPA's effective date, would suffice to make a habeas corpus case "pending" in terms of consideration of the post-April, 1996 amendments.

Well, seemingly as fast as the Supreme Court can possibly reverse the Ninth Circuit, the Ninth Circuit can likewise keep up the pace.  In another reversal of a California "Three-Strikes" conviction (with a sentence of 55 years to life) based upon the granting of a federal writ of habeas corpus, the Ninth Circuit held in Gill v. Ayers (2003) 322 F.3d 678, that the trial court's refusal to permit the defendant to testify at the time of his sentencing in order that he could explain or refute the statements attributed to him in a probation report (which report formed part of the documentation of one of the "strikes") violated the defendant's federal right to due process of law.  The Court went on to hold that because the violation of the defendant's due process right was not harmless, and since it was in clear violation of long-standing U.S. Supreme Court law on the subject, the Court was required to reverse the defendant's state court conviction.

In Lockyer v. Andrade (2003) 537 U.S. ___, the Supreme Court again reversed the Ninth Circuit Court of Appeal's grant of petitioner's writ of habeas corpus on the basis that the petitioner's sentence of 25-years-to-life under California's Three-Strikes law for stealing $150 worth of videotapes did not violate the U.S. Constitutional prohibition (8th Amendment) against cruel and unusual punishment, nor was the state court's ruling affirming petitioner's sentence contrary to, or an unreasonable application of, the U.S. Supreme Court's clearly established law within the meaning of 28 USC §2254(d)(1).

In Clay v. U.S. (2003) 537 U.S. ___, the U.S. Supreme Court held that for federal criminal defendants who do not file a petition for certiorari with the U.S. Supreme Court on direct review, the one-year limitation period (statute of limitations) for a 28 U.S.C. §2255 petition starts to run when the time for seeking such review expires.  Under this rule, appellant Clay’s §2255 petition was timely filed, as it was filed one year to the day after such time had elapsed.  The Court went on to state that finality has a long-recognized, clear meaning in the post-conviction relief context: Finality attaches in that setting when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.  (citing Caspari v. Bohlen, 510 U. S. 383, 390)  Because the Court presumes “that Congress expects its statutes to be read in conformity with this Court’s precedents,” United States v. Wells, 519 U. S. 482, 495, the Court’s unvarying understanding of finality for collateral review purposes would ordinarily determine the meaning of “becomes final” in §2255.  Accordingly, the previous split in the federal appellate courts on this issue has now been resolved by the Supreme Court.  Therefore, the judgment of the US Court of Appeals for the Seventh Circuit was reversed, and the case was remanded for further proceedings consistent with the Court's opinion.

In Miller-El v. Cockrell (2003) 537 U.S. ___, the U.S. Supreme Court held that before a prisoner seeking post-conviction relief under 28 USC §2254 may appeal a district court’s denial or dismissal of the petition, he must first seek and obtain a certificate of appealability (COA) from a circuit justice or judge.  This is a jurisdictional prerequisite.  A COA will issue only if §2253’s requirements have been satisfied.  When a habeas applicant seeks a COA, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims. (Slack v. McDaniel, 529 U.S. 473, 481)   This inquiry does not require full consideration of the factual or legal bases supporting the claims.  Consistent with this Court’s precedent and the statutory text, the prisoner need only demonstrate “a substantial showing of the denial of a constitutional right.” (§2253(c)(2).)   He satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his case or that the issues presented were adequate to deserve encouragement to proceed further. (Slack v. McDaniel (2000) 529 U.S. 473, 484.)  He need not convince a judge, or, for that matter, three judges, that he will prevail, but must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.

Since petitioner’s (Miller-El) claim rests on a Batson violation (Batson v. Kentucky (1986) 476 U.S. 79), resolution of his COA application requires a preliminary, though not definitive, consideration of the three-step Batson framework.  The State now concedes that petitioner satisfied step one, and petitioner acknowledges that the State proceeded through step two by proffering facially race-neutral explanations for these strikes.  The critical question in determining whether a prisoner has proved purposeful discrimination at step three is the persuasiveness of the prosecutor’s justification for his peremptory strike. (Purkett v. Elem (1995) 514 U.S. 765, 768 (per curiam).)  The issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible.  Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.  A plurality of this Court has concluded in the direct review context that a state court’s finding of the absence of discriminatory intent is “a pure issue of fact” that is accorded significant deference and will not be overturned unless clearly erroneous. (Hernandez v. New York (1989) 500 U.S. 352, 364–365.)   Where 28 USC §2254 applies, the Court’s habeas jurisprudence embodies this deference.  Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary (§2254(e)(1)), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding (§2254(d)(2)).  Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review.  In the context of the threshold examination in this Batson claim, it can suffice to support the issuance of a COA to adduce evidence demonstrating that, despite the neutral explanation of the prosecution, the peremptory strikes in the final analysis were race based. (Cf. Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133 - an age discrimination case.)

On review of the record at this stage, this Court concluded that the district court did not give full consideration to the substantial evidence petitioner put forth in support of the prima facie case.  Instead, it accepted without question the state court’s evaluation of the demeanor of the prosecutors and jurors in petitioner’s trial.  The Fifth Circuit evaluated petitioner’s COA application in the same way.  In ruling that petitioner’s claim lacked sufficient merit to justify appellate proceedings, that court recited the requirements for granting a writ under §2254, which it interpreted as requiring petitioner to prove that the state-court decision was objectively unreasonable by clear and convincing evidence.  This was too demanding a standard because it incorrectly merged the clear and convincing evidence standard of §2254(e)(1), which pertains only to state-court determinations of factual issues, rather than decisions, and the unreasonableness requirement of §2254(d)(2), which relates to the state-court decision and applies to the granting of habeas relief.  More fundamentally, the court was incorrect in not inquiring whether a “substantial showing of the denial of a constitutional right” had been proved, as §2253(c)(2) requires.  The question is the debatability of the underlying constitutional claim, not the resolution of that debate.  In this case, debate as to whether the prosecution acted with a race-based reason when striking prospective jurors was raised by the statistical evidence demonstrating that 91% of the eligible African-Americans were excluded from petitioner’s venire; by the fact that the state trial court had no occasion to judge the credibility of the prosecutors’ contemporaneous race-neutral justifications at the time of the pretrial hearing because the Court’s equal protection jurisprudence then, dictated by Swain, did not require it; by the fact that three of the State’s proffered race-neutral rationales for striking African Americans—ambivalence about the death penalty, hesitancy to vote to execute defendants capable of being rehabilitated, and the jurors’ own family history of criminality—pertained just as well to some white jurors who were not challenged and who did serve on the jury; by the evidence of the State’s use of racially disparate questioning; and by the state courts’ failure to consider the evidence as to the prosecution’s use of the jury shuffle and the historical evidence of racial discrimination by the Dallas County District Attorney’s Office.

Hot on the heels of Miller-El v. Cockrell, supra, the Ninth Circuit held in Lewis v. Lewis (2003) 321 F.3d 824, that under clearly established law set forth by the Supreme Court in Batson (Batson v. Kentucky (1986) 476 U.S. 79), courts have an affirmative duty under the third step of Batson to determine whether purposeful discrimination has occurred.  Since the Ninth Circuit determined that the California courts never fulfilled this duty, the decision of the California Court of Appeal represented an “unreasonable application of clearly established federal law, as determined by the Supreme Court.”  Accordingly, the Ninth Circuit promptly reversed defendant's conviction with instructions to grant the habeas corpus petition unless the state, within a time to be established by the district court, elects to re-try petitioner.

In Early v. Packer (2002) 537 U.S. ___, a per curiam opinion, the U.S. Supreme Court held that when a habeas petitioner’s claim has been adjudicated on the merits in state-court proceedings, 28 USC §2254(d) forecloses relief unless the state court’s adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.  In so holding, the Supreme Court reversed the Ninth Circuit on the basis that it had applied a less rigorous standard of "failed to apply clearly established Supreme Court law," Packer v. Hill (2002) 291 F. 3d 569, at 579 (reversed by Supreme Court, above) (a phrase which the opinion repeatedly and erroneously substitutes for the more demanding requirement of §2254(d)(1): that the decision be “contrary to” clearly established Supreme Court law).  By mistakenly making the “contrary to” determination and then proceeding to a simple “error” inquiry, the Ninth Circuit evaded §2254(d)’s requirement that decisions which are not “contrary to” clearly established Supreme Court law can be subjected to habeas relief only if they are not merely erroneous, but “an unreasonable application” of clearly established federal law, or based on “an unreasonable determination of the facts."  The Supreme Court then simply reversed the Ninth Circuit's decision.

In Price v. Vincent (2003) 538 U.S. ___, the U.S. Supreme Court held that at respondent’s trial on an open murder charge, defense counsel moved, at the close of the prosecution’s case in chief and outside the jury’s hearing, for a directed verdict of acquittal as to first-degree murder.  The trial judge stated that second-degree murder was "an appropriate charge,” 292 F. 3d 506, 508, but agreed to hear the prosecutor’s statement on first-degree murder the next morning.  When the prosecution made the statement, defense counsel objected, arguing that the court had granted its directed verdict motion the previous day, and that further prosecution on first-degree murder would violate the Double Jeopardy Clause.   The judge responded that he had granted the motion but had not directed a verdict, and noted that the jury had not been told of his statement.  He subsequently submitted the first-degree murder charge to the jury, which convicted respondent on that charge.  The Michigan Court of Appeals reversed, concluding that the Double Jeopardy Clause prevented respondent’s prosecution for first-degree murder.  Reversing in turn, the State Supreme Court determined that the trial judge’s comments were not sufficiently final to terminate jeopardy.  Respondent then notified the court of a docket sheet entry stating: “open murder to 2nd degree murder,” (Id., at 512).  The Michigan Supreme Court refused to reconsider its decision.  Respondent filed a federal habeas petition, and the Federal District Court granted the petition after concluding that continued prosecution for first-degree murder had violated the Double Jeopardy Clause.  The Sixth Circuit affirmed.

The U.S. Supreme Court held that under 28 USC §2254(d)(1), the Respondent did not meet the statutory requirements for habeas relief.  The parties did not dispute the underlying facts, and respondent is therefore entitled to relief only if he can demonstrate that the state court’s adjudication of his claim was “contrary to” or an “unreasonable application of” this Court’s clearly established precedents. (28 USC §2254(d)(1).)   The Sixth Circuit Court of Appeals recited this standard but then forgot to apply it, reviewing the double jeopardy question de novo.  This was error.  A state court decision is “contrary to” this Court’s clearly established law if it “applies a rule that contradicts the governing law set forth in [the Court’s] cases” or if “it confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at” a different result.  Williams v. Taylor (2000) 529 U.S. 362, 405–406.   Here, the Michigan Supreme Court identified, and reaffirmed the principles articulated in, the applicable precedents of U.S. v. Martin Linen Supply Co. (1977) 430 U.S. 564, and Smalis v. Pennsylvania (1986) 476 U.S. 140.  Nowhere did it apply a legal standard contrary to those set forth in this Court’s cases, nor did it confront a set of facts materially indistinguishable from those in any case decided by this Court.  The state court’s decision therefore was not “contrary to” the Supreme Court’s precedents.  Nor was the state court’s decision an “unreasonable application” of clearly established law.  That court applied both Martin Linen and Smalis to conclude that the judge’s comments were not sufficiently final to terminate jeopardy.  In reaching this conclusion, in addition to reviewing the context and substance of the trial judge’s comments at length, the court observed that there was no formal judgment or order entered on the record.  While it noted that formal motions or rulings were not required to demonstrate finality as a matter of Michigan law, it cautioned that a judgment must bear sufficient indicia of finality and it concluded that sufficient indicia were not present here.  This was not an objectively unreasonable application of clearly established Supreme Court law.  Indeed, numerous courts have refused to find double jeopardy violations under similar circumstances.  Even if the Supreme Court agreed with the Sixth Circuit that the Double Jeopardy Clause should be read to prevent continued prosecution under these circumstances, it was at least reasonable for the state court to conclude otherwise.

In Powell v. Galaza (2003) (on remand after a summary reversal (based on an Early v. Packer analysis, supra) by the U.S. Supreme Court (2002) 123 S.Ct. 549; 154 L.Ed.2d 422, (5/6/03; 03 C.D.O.S. 3830; ___F.3d ___), the Ninth Circuit once again held that the defendant's conviction must be vacated because the state trial court’s mid-trial instruction effectively directed the jury to find for the state on the specific intent element.  Since specific intent was the only contested issue in the case, the trial court’s instruction essentially directed a verdict of guilty and thus clearly violated the principles articulated in Carella v. California (1989) 491 U.S. 263, and Sandstrom v. Montana (1979) 442 U.S. 510.  Moreover, Sullivan v. Louisiana (1993) 508 U.S. 275, establishes that harmless error review is inapplicable.  Because the state court’s denial of relief contradicts the reasoning and result of Carella, Sandstrom and Sullivan, it is contrary to clearly established federal law, and habeas relief is warranted.  The Court therefore reversed the district court, vacated the defendant's conviction and remanded the case to the district court, with instructions to grant the writ of habeas corpus conditionally and to remand to the state court, directing that the State of California may retry Powell for failure to appear, if it is done within a reasonable period of time, consistent with the state’s speedy trial requirements.

In Hill v. Roe (2003) 321 F.3d 787 (amending earlier opinion at 298 F.3d 796 and denying rehearing or rehearing en banc on 2/5/03) the Ninth Circuit held that since its decision in Bennett v. Mueller (2002) 296 F.3d 752, 763, as an issue of first impression that: "the ultimate burden of proving the adequacy of the state bar is upon the State of California . . . . Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner."  The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule.  Once having done so, however, the ultimate burden is the state's.  Editor's Note:  Under the independent and adequate state grounds doctrine, federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."  (citing McKenna v. McDaniel (1995) 65 F.3d 1483)  "Thus, the independent [and adequate] state grounds doctrine bars the federal courts from reconsidering the issue in the context of habeas corpus review as long as the state court explicitly invokes a state procedural bar rule as a separate basis for its decision." (Id, at p. 1488)  California's In re Waltreus rule (1965) 62 C2d 218; 397 P.2d 1001; 42 CR 9, provides that "habeas corpus ordinarily cannot serve as a second appeal."  Thus, under the In re Waltreus rule, the California Supreme Court will not review in a habeas petition any claim raised on direct appeal.  The California Supreme Court's reliance on In re Waltreus does not, however, bar federal court review.  The U.S. Supreme Court held in Ylst v. Nunnemaker (1991) 501 U.S. 797, 805; 111 S.Ct. 2590; 115 L.Ed. 2d 706, that an In re Waltreus citation is neither a ruling on the merits, nor a denial on procedural grounds and, therefore, has no bearing on a California prisoner's ability to raise a federal constitutional claim in federal court.  California's People v. Hill rule (1973) 9 C3d 784; 512 P.2d 317; 109 CR 93, stands for the proposition that a petitioner may not raise an issue in a state habeas petition that has been litigated at trial and considered on direct appeal, unless it relates to innocence or guilt.  "To be 'adequate,' the state procedural rule [i. e., the People v. Hill rule] must be 'strictly or regularly followed' and 'consistently applied.' " (LaCrosse v. Kernan (2001) 244 F.3d 702)  It was the district court's erroneous placing of the burden of proving the People v Hill rule on a prisoner (versus placing the burden of proof on the State) that the rule was 'strictly or regularly followed' and 'consistently applied' which caused the Ninth Circuit to reverse the district court in Hill v. Roe, supra.  In Bennett v. Mueller, supra, the Ninth Circuit held, " the ultimate burden of proving the adequacy of the California state bar is upon the State of California ....Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner.  The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule.  Once having done so, however, the ultimate burden is the state's."

Equitable Tolling  In Smith v. Ratelle (2003) 323 F.3d 813, the Ninth Circuit held that the petitioner, a California State prisoner, was entitled to equitable tolling of the one-year AEDPA statute of limitations (for filing) because district court (here, Judge Manuel Real) erroneously dismissed a previously timely filed habeas petition without first giving the petitioner an opportunity to file an amended petition as an alternative to dismissal of his petition.  Judge Real also refused petitioner counsel.  Apparently, Judge Real told the petitioner that after the dismissal he could refile without the unexhausted claim, but in the meantime the AEDPA period had expired.  Judge Real did not inform the petitioner that he could simply withdraw the unexhausted claim and keep the petition in place.  Judge Real also had the option of staying the petition after the unexhausted claims were removed, to allow the petitioner time to exhaust the claims and then add them back to the stayed petition.  Under these circumstances, the Ninth Cicuit held that under 28 USC §2254(b)(1), a habeas petitioner may not obtain relief on a “mixed” petition that contains both exhausted and unexhausted claims.   However, in Rose v. Lundy (1982) 455 U.S. 509, 520-21, the Supreme Court recognized that a petitioner had several options to avoid a procedural default: first, he could amend the petition to drop the unexhausted claims and then obtain a decision on the merits of his remaining, exhausted claims; second, he could withdraw his petition, return to state court to exhaust his unexhausted claims, and then file a new habeas petition with fully-exhausted claims.  The Lundy opinion “contemplated that the prisoner could return to federal court after the required exhaustion.” Slack v. McDaniel (2000) 529 U.S. 473, 486.  Although, under AEDPA’s new statute of limitations, 28 USC §2244(d)(1), a state prisoner generally must file his habeas petition within one year after his state conviction became final.  As the Court noted in Anthony v. Cambra (2000) 236 F.3d 568, this limitations period may effectively bar a petitioner from exercising his options under Lundy.  The Court also cited its earlier holding in James v. Giles (2000) 221 F.3d 1074 for the proposition that the Ninth Circuit has long held that a federal habeas petitioner has a right to amend a mixed petition to delete unexhausted claims as an alternative to suffering a dismissal.   By not informing the petitioner of his alternatives, and by dismissing the petition without leave to amend at the same time, the district court failed to provide petitioner with notice of his petition’s deficiencies in time for him to seek leave to amend.  Hence, petitioner was entitled to equitable tolling of the AEDPA statute of limitations.

No Equitable Tolling  In Guillory v. Roe (2003) (5/5/03; 03 C.D.O.S. 3807; ___ F.3d ___), the exhaustion rule (28 USC §2254(b)) requires district courts to dismiss habeas petitions containing unexhausted claims. (Rose v. Lundy (1982) 455 U.S. 509, 510.  In "mixed" petitions, containing both exhausted and unexhausted claims, a petitioner is given a choice of returning to the state court to exhaust his claims or of amending or resubmitting the petition to present only exhausted claims to the district court.  Here, the district court erred by denying defendant's motion to strike unexhausted portions of his petition, but he was not entitled to equitable tolling because he waited nine months before filing a new petition in state court, and even then, he raised new claims, not the unexhausted ones.  It was some three years later before he attempted to exhaust the claims found in 1997 to be unexhausted. 

In Jenkins v. Johnson (2003) (5/20/03; 03 C.D.O.S. 4208; ___F.3d ___), the Ninth Circuit held that where a clerical error in state court results in the defendant not being notified of the dismissal of his post-conviction petition for four months, causing the defendant to miss a state-law deadline for filing a late notice of appeal, after which he pursued his state remedies as expeditiously as possible, under Oregon law, his fourth amended state petition was "properly filed" within meaning of 28 USC §2244(d)(2) and the matter was remanded to the district court for a determination whether AEDPA's one-year limitations period was tolled.  The Court relied on Artuz v. Bennett (2000) 531 U.S. 4 and Dictado v. Ducharme (2001) 244 F.3d 724 (Dictado II).  In Dictado II, a case not unlike Jenkins, the Court considered the timely filing question that the Court declined to reach in Bennett: whether a petition could be considered "properly filed" when it had been dismissed by the state supreme court as both untimely and repetitive.  The Court looked to the 5th Circuit's decision in Smith v. Ward (2000) 209 F.3d 383, which held that a time limitation is not a filing requirement as long as it contains exceptions.   According to Smith, if a statute requires the state court to look at the petition to consider whether certain exceptions might apply, then it is not an absolute bar to filing, but merely a limitation on a court's ability to grant relief. Id. at 385.  Dictado II followed the Smith holding, however, Dictado II has now been questioned by Brooks v. Walls (2002) 301 F.3d 839, a 7th Circuit decision.

In Dyas v. Poole (2003) 321 F.3d 934 (amending its earlier decision at 309 F.3d 586), the Ninth Circuit affirmed the district court's granting of a state prisoner's petition for a writ of habeas corpus on the grounds that it was both unconstitutional as well as prejudicial error for the defendant to be shackled during her jury trial.  Since the state trial court did not perform any fact-finding investigation regarding prejudice to the defendant, nor did the state appellate court, the district court performed the investigation and determined the shackling to be both prejudicial and unconstitutional.  Therefore, it granted the petitioner's writ.   The Ninth Circuit affirmed the district court's ruling.

Big Stick, Yet No Relief  In Vlasak v. Superior Court (2003) (5/14/03; 03 C.D.O.S. 4022; ___ F3d ___), the Ninth Circuit affirmed the district court's dismissal of the defendant's 28 USC §2254(d) habeas corpus petition.  The Court held that because defendant's ground for relief concerns a question of law, the state court decision (conviction) can only be reversed if it was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” (28 USC §2254(d)(1); and Alvarado v. Hill (2001) 252 F.3d 1066, 1068).  The Court held that defendant's challenge to an LA County ordinace prohibiting the possession of big sticks by demonstrators failed on its 1st Amendment facial challenge, "as applied", as well as on vagueness and overbreadth grounds.

Other Extraordinary Writs

Writs of supersedeas, error coram nobis, error coram vobis, and certiorari are the other extraordinary writs available to a party.  Error Coram nobis is a post-judgment writ which attacks the validity of a judgment and, thus, seeks to vacate or set aside the judgment (or plea).  A writ of error coram nobis is typically used when the time for filing a statutory motion to set aside a plea has lapsed (i.e., after a defendant has been sentenced), or after the statutory time to appeal has run.  A writ of error coram nobis is filed in the trial court and, if denied by the trial court, a writ of error coram vobis can then be filed in an appropriate reviewing or appellate court.  A denial of such a writ may also be appealable.   Other than in the U.S. Supreme Court, and because of its limited application, the writ of certiorari (CCP §1067) is rarely used in criminal cases.  A writ of supersedeas is merely a writ seeking to maintain the status quo of a situation and may be employed to aid the reviewing court in exercising its jurisdiction.  A writ of supersedeas is rarely used in contemporary criminal practice.

Statutorily, writs of mandate, prohibition, and certiorari can be issued only against lower courts or tribunals.  Consequently, when such a challenge is filed against a felony case pending in the superior court (i.e ., after the filing of an indictment or information), it must be filed in the Court of Appeal.  However, prior to preliminary hearing, a felony charged by complaint is not pending in a court, it is pending before a magistrate. (People v. Randall (1973) 35 CA3d 972, 974-975.)   A magistrate, while not an inferior court, is an “inferior tribunal.” (People v. Superior Court (Chico, etc., Heath Center) (1986) 187 CA3d 648, 655.) The superior court can therefore issue writs to a magistrate, and consequently, the appropriate court in which one may initially seek relief from the rulings of a magistrate, is the superior court.  Note that writs against magistrates may not be issued by the superior court’s Appellate Division.  The Appellate Division has writ jurisdiction only in cases within its appellate jurisdiction.  Felony cases do not meet this criteria. Consequently, the petition will be filed in a single-judge court.  Local rules should be consulted to determine which court that is.

The Appellate Division does have jurisdiction in mandate, prohibition, and certiorari in cases within its appellate jurisdiction.  In criminal this means misdemeanors charged by misdemeanor complaint.  There is no law on whether the Appellate Division’s jurisdiction is exclusive or is concurrent with that of the superior court, but in most counties it seems to be understood that the jurisdiction is exclusive.  The Appellate Division is a three-judge court, which means that any actions it takes must be concurred in by at least two judges. Note that this means that a strategic decision must be made in any case in which either habeas or some other relief would be appropriate as to which court would be better on the issue presented.

Decisions of the Appellate Division are not appealable.  There is a question whether the Appellate Division can publish its rulings in writ actions. (The Court of Appeal ruled in one case that the opinions are not publishable, but review was granted on a different issue. The publication issue is now again before that court upon remand.)  If they can, then published opinions are automatically reviewed by the Court of Appeal for possible transfer. If not, then a request may be made for the Appellate Division to certify its opinion to the Court of Appeal for decision. If the Appellate Division does not do so, or if it does and certification is denied, then further review in the Court of Appeal is by means of a petition for writ of mandate, certiorari, or habeas corpus. (See Auto Equity Sales. Inc. v. Superior Court (1962) 57 C2d 450, 454-455 [certiorari]; Dvorin v. Appellate Department (1975) 15 C3d 648, 650 [certiorari]; Randone v. Appellate Department (1971) 5 C3d 536, 542-543 [mandate]; In re Wallace (1970) 3 C3d 289 [habeas corpus].)

The Rules of Court also provide, as of 2003, for a new procedure to obtain Court of Appeal review of Appellate Division rulings, which is a direct request to the Court of Appeal to grant transfer.  This request can be made only if the Appellate Division has denied a request for certification and if the judgment is not published.  The request has to be made within eight days of finality of the Appellate Division ruling. (Calif. Rules of Court, Rule 64(b).)  The rules also now provide that after a case is transferred, the Court of Appeal can rule on just one of many issues, or can simply decide not to rule at all. (CRC, Rule 68.)

There is, of course, no authority yet on whether this new rule precludes the initiation of writ proceedings to contest the Appellate Division’s ruling. If so, then this would also limit the ability of the litigant to seek review in the California Supreme Court (which could be filed from the denial of a petition for writ).  Editor's Note:  Some of the above information concerning state-court writs was derived from an April, 2003, internet posting by John H. Scott, Deputy Public Defender, Los Angeles County.

Pre-Trial Discovery - Pitchess Motion  As a result of the denial of a defendant's pre-trial discovery motion, a writ of mandate is all that is available to a defendant in terms of appellate relief.  In Brant v. Superior Court (2003) (3/26/03; 132 CR2d 783; ___ CA4th ___), the Court of Appeals granted the defendant a peremptory writ of mandate, and ultimately reversed the trial court's denial of defendant's Pitchess (Pitchess v. Superior Court (1974) 11 C3d 531) motion (pre-trial discovery motion of police officer(s)' personnel files) on the basis that the lower court had abused its discretion.  The Court held that, here, the trial court ruled that the defendant failed to personally file a declaration or meet his “high burden,” and that the officers had discretion to stop the defendant.  Each of these conclusions runs contrary to the now well-established principles for evaluating Pitchess motions since, under Evidence Code (EC) §1043, the moving party demonstrates “good cause” for the disclosure (of police personnel files) by simply showing (1) the personnel records are material to the subject matter in the pending litigation, (2) a reasonable belief the governmental agency has the type of information or records sought to be disclosed, and (3) the manner in which the proposed discovery will be used in litigating the matter. (EC §1043(b)(3); City of Santa Cruz v. Muni Ct. (1989) 49 C3d 74, 83; People v. Memro (1985) 38 C3d 658, 680.) While EC §1043 requires that good cause be shown by affidavits, there is no requirement the affiant have personal knowledge of the matters stated in the declaration, which may be based merely on information and belief. (City of Santa Cruz, supra, 49 C3d at p. 86.)  Accordingly, a declaration by the defendant’s lawyer is sufficient. (People v. Memro, supra, 38 C3d at p. 676.)  The materiality of the requested information may be established by a reading of the police reports in conjunction with defense counsel’s affidavit.  (City of Santa Cruz, supra, 49 C3d at pp. 85-86.)  If the trial court finds good cause, it must make further inquiry before any information may be released.  After good cause is established, EC §1045 provides the court must examine the information “in chambers” in conformity with EC §915, that is, out of the presence of all persons except the person authorized to claim the privilege and other persons whom he or she is willing to have present.  Further, the court must exclude from disclosure several enumerated categories of information, including: “(1) complaints more than five years old, (2) the ‘conclusions of any officer investigating a complaint . . .’ and (3) facts which are ‘so remote as to make disclosure of little or no practical benefit.’ ” (Santa Cruz, supra, 49 C3d at p. 83; EC §1045(b); see also Herrera v. Superior Court (1985) 172 CA3d 1159 [defendant entitled only to information which court, after conducting an in camera review, determines is relevant to case].)

In Alford v. Superior Court (2003) 29 C4th 1033; 63 P.3d 228; 130 CR2d 672, a sharply divided California Supreme Court concluded that in a Pitchess discovery motion (Pitchess v. Superior Court (1974) 11 C3d 531) the protective order required by Evidence Code §1045(e), "that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law," limits the use of Pitchess discovery to the proceeding in which the discovery was sought.  Evidently, this means that defense counsel or a public defender may not share Pitchess discovery with other defense counsel and may not use it in other cases. (“Arguably, this specific statutory judicial obligation supersedes a public defender's office's general rules concerning distribution of authority to deputies or attribution to all deputies of knowledge gained by any one of them.”)  Also, the majority concluded that because the Pitchess procedure is, in essence, a special instance of third party discovery, the prosecutor, while entitled to notice of the date and place of a Pitchess hearing so that he or she can assist the trial court if it has any questions regarding discovery, had no right to oppose such a motion or to concurrently receive materials disclosed to the defense as a result of the granting of the motion, unless the reciprocal discovery statutes require that the prosecution be able to prepare to meet the defense case whenever defense receipt of Pitchess disclosure ripens into the intent by the defense to call a witness. (PC § 1054.3)  The Court reasoned that Pitchess discovery is integrally linked to one’s 6th Amendment right to counsel and that further right to develop a defense strategy (i.e., work product), including developing impeachment evidence, none of which is the prosecution immediately entitled to.   (See, also People v. Mooc (2001) 26 C4th 1216; 36 P.3d 21; 114 CR2d 482 (Court spells out procedure for custodian of records to follow, as well as procedure for the trial court to follow in a Pitchess motion) and Los Angeles v. Superior Court (2002) 29 C4th 1; 52 P.3d 129; 124 CR2d 202 (Pitchess discovery limited to only prior 5 years and no more).

Brady Discovery  In People v. Jordan (2003) (4/30/03; 03 C.D.O.S. 3689; ___ CA4th ___), the Court of Appeals held that the prosecution has no duty to disclose complaints of police misconduct made by defendants in other criminal cases.  The Court held that Brady v. Maryland (1963) 373 U.S. 83; 10 L.Ed.2d 215 (Brady), required that the prosecution must disclose to the defense any evidence that is “favorable” to the accused and “material” on the issue of guilt or punishment. (Ibid.; Kyles v. Whitley (1995) 514 U.S. 419, 432-433 [131 L.Ed.2d 490]; U.S. v. Bagley (1985) 473 U.S. 667, 682; 87 L.Ed.2d 481; In re Brown (1998) 17 C4th 873, 879.)  U.S. v. Agurs (1976) 427 U.S. 97, 107; 49 L.Ed.2d 342, extended Brady to impose a duty on prosecutors to volunteer exculpatory matter to the defense even without a request for such material.  The Court held that a prosecutor’s duty under Brady to disclose material exculpatory evidence applies to evidence the prosecutor, or the prosecution team, knowingly possesses or has the right to possess.  The prosecution team includes both investigative and prosecutorial agencies and personnel. (See In re Brown, supra, 17 C4th at p. 879; People v. Robinson (1995) 31 CA4th 494, 499.)  The prosecution must disclose evidence that is actually or constructively in its possession or accessible to it. (People v. Kasim (1997) 56 CA4th 1360, 1380.)  The important determination is whether the person or agency has been “acting on the government’s behalf” (Kyles v. Whitley, supra, 514 U.S. at p. 437) or “assisting the government’s case” (In re Brown, supra, 17 C4th at p. 881).  The obligation to disclose favorable evidence under Brady includes evidence that serves to impeach the testimony of a prosecution witness. (Strickler v. Greene (1999) 527 U.S. 263, 280-281 [144 L.Ed.2d 286]; U.S. v. Bagley, supra, 473 U.S. at p. 676.)  Evidence is material under Brady “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (U.S. v. Bagley, supra, 473 U.S. at p. 682.)   Although Brady disclosure issues may arise in advance of, during, or after trial, the test is always the same. (U.S. v. Agurs, supra, 427 U.S. at pp. 107-108.)  The constitutional duty that requires prosecutors to disclose exculpatory evidence to a criminal defendant under Brady is independent from the statutory duty to provide discovery under section 1054.1. (Izazaga v. Superior Court (1991) 54 C3d 356, 378; PC §1054(e).)  Thus, evidence that is material under Brady must be disclosed to the defense, notwithstanding any failure of the defense to enforce its statutory right to discovery.  As a result, the Court held that notwithstanding the prosecutor’s duty to disclose material evidence to the defense, “ ‘[t]here is no general constitutional right to discovery in a criminal case, and Brady [v. Maryland [, supra,] 373 U.S. 83 . . .] did not create one . . . .’ ” (Alvarado v. Superior Court (2000) 23 C4th 1121, 1135; 5 P.3d 203; 99 CR2d 149, quoting Weatherford v. Bursey (1977) 429 U.S. 545, 559 [51 L.Ed.2d 30].)  Thus, the prosecution has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense.” (In re Littlefield (1993) 5 C4th 122, 135.)  Editor's Note:  Contrary to the Jordan Court's opinion, evidence is deemed favorable, and thus material and subject to disclosure, if it either helps the defendant or hurts the prosecution as by impeaching one of its witnesses. (U.S. v. Bagley, supra, 473 U.S. at p. 676, 87 L Ed 2d at p. 490; In Re Sassounian (1995) 9 C4th 535, 544; In re Pratt (1999) 69 CA4th 1294, 1315-1317.)  The U.S. and California Supreme Courts have stressed that the scope of the prosecutors obligation to disclose favorable evidence extends beyond the contents of the prosecutor's case file and encompasses the duty to ascertain as well as divulge any favorable information known to the others acting on the government's behalf in the case, including the police. (In re Brown (1998) 17 Cal 4th 873, 879, Kyles v. Whitley, supra, 514 U.S. at p. 437; 131 L Ed 2d 490, 508.)  The duty to ascertain places upon the prosecutor an affirmative duty to seek out and then disclose favorable material evidence. (In re Brown, supra, 17 C4th at p. 882.)  And, lastly, the Rules of ethical conduct also prohibit suppression of evidence where the attorney is under a legal obligation to disclose. (Rules of Prof. Conduct, Rule 5-220.)

Prelimary Exam One-Session Rule Violation (PC §861)  In Stroud v. Superior Court (2000) 23 C4th 952; 4 P.3d 933; 98 CR2d 677, the California Supreme Court held that the defendant was not denied his right under PC §861 (PX to be held in one session, except where "good cause" is shown) where the magistrate presiding over the defendant's prelimiary examination continued the multi-day PX so that he (the judge) might attend an official Judicial Council function.  The Court held that such a brief continuance constituted "good cause" under the statute and, hence, the People's complaint could not be dismissed for failure to hold the defendant's PX in one session.

ABOUT APPEALS: INTERLOCUTORY AND POST-TRIAL

INTERLOCUTORY APPEALS

In a misdemeanor case, and prior to trial, both the prosecution, as well as the defendant have a right to file an interlocutory (pre-trial) appeal in the case of either the granting or denial of a statutory PC §1538.5 motion to suppress evidence. The pre-trial appeal is filed with the appellate division of the superior court (PC §1538.5(j).) Conversely, a person charged with a felony has no such comparable right of appeal of a superior courts denial of a PC §1538.5 motion to suppress evidence. The only pre-trial remedy afforded a defendant in a felony case is a writ of mandate addressed to the appropriate court of appeal (PC §1538.5(i).) Also, pre-trial motions to exclude evidence, or common law suppression motions may not be appealed prior to trial in either a misdemeanor or a felony case. In the event the prosecution proceeds by way of an interlocutory appeal, they are bound by the appellate courts decision.

In People v. Totari (2002) 28 C4th 876; 50 P.3d 781; 123 CR2d 76, the California Supreme Court held that a motion made to vacate a prior judgment on specific statutory grounds was appealable under Penal Code §1237 in the event that the trial court denied the defendant's motion.  In Mr. Totari's case, the appeal was based upon the denial of his motion to vacate his prior conviction pursuant to Penal Code §1016.5(b), which statute expressly provides that a party may move to vacate any conviction entered after December 31, 1977 on the grounds that the non-citizen defendant was not advised that conviction of the offense for which the defendant had been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.  Editor's Note:  This case raises the question of whether a motion to vacate a prior conviction made on statutory grounds (i.e., a motion to vacate a prior DUI conviction on constitutional grounds - Vehicle Code §41403) may be appealed in the event the trial court denies the defendant's motion.  Based upon the holding in People v. Totari, supra, it seems clear that the Supreme Court considers PC §1237 to grant that right to such defendants. Indeed, in People v. Kirk (1992) 7 CA4th 855, 9 CR2d 270, the Second District Court of Appeals held that the People could appeal a court's ruling striking one of the defendant's prior DUI convictions.

In People v. Dale (2003) 106 CA4th 194; 130 CR2d 530, a case where the defendant pled no contest to possessing cocaine and being under the influence of a controlled substance, but expressly denied the enhancement allegation that he suffered a "strike" prior (serious felony conviction) in Alameda County in 1991.  Thus, after his plea, the issue of the prior was tried before the court, which proceeded to find the allegation to be "not true."  Evidently, the trial court did not believe the victim's preliminary hearing testimony that defendant slashed at her with a bottle during an assault (PC §245(a)(1)) and, therefore, found the evidence insufficient to show personal use of a deadly or dangerous weapon.  The People appealed, contending that the judge "erred as a matter of law in reweighing the evidence and judging the credibility of the victim who was not before him" and in substituting his judgment for that of the magistrate at the preliminary hearing.  The Court of Appeals held that PC §1238 did not afford the People the right to appeal an adverse decision after trial by a court on the issue of truth of the defendant's prior "strike" conviction.  Editor's Note:  On April 30, 2003, the California Supreme Court granted review in the case, but held it pending a determination in a related case.  Hence, People v. Dale is currently not citable for any legal proposition.

Appealing Penal Code 17(b) Motions - At The PX In People v. Williams (2003) 105 CA4th 1329; 130 CR2d 234 (modified on 2/27/03 with no change in decision) the Court of Appeals held that a Magistrate's reduction of a felony charge to that of a misdemeanor pursuant to Penal Code §17(b)(5) (at time of the preliminary hearing), is not a dismissal under Penal Code §871 and, thus, it cannot be the subject of a motion for reinstatement of a felony complaint.   In addition, Penal Code §1238 does not provide for appellate review of a Magistrate's order reducing a wobbler felony charge to a misdemeanor under §17(b)(5).

Appealing Penal Code 17(b) Motions - At Time Of Sentencing  In People v. Statum (2002) 28 C4th 682; 50 P.3d 355; 122 CR2d 572, the California Supreme Court held that the prosecution could appeal the granting of a defense PC §17(b) motion by a sentencing court's pursuant to PC §1238(a)(6).  The court relied on People v. Superior Court (Alvarez) (1997) 14 C4th 968 and People v. Dent (1995) 38 CA4th 1726, which sustained the People’s appeal of the sentencing court’s exercise of PC §17(b) discretion when (as in the case in Statum) probation was not granted.  In People v. Douglas (1999) 20 C4th 85; 972 P.2d 151; 82 CR2d 816, the Supreme Court allowed the prosecution to appeal when the sentencing court reduced a wobbler to a misdemeanor after suspending imposition of judgment and granting probation.  In Douglas, the Court relied on PC §1238(a)(5), which authorized an appeal from an “order made after judgment, affecting the substantial rights of the people.”   Although not part of its holding, the Court observed that the reduction of a wobbler to a misdemeanor, even without a grant of probation, “has also been held appealable by the People,” citing People v. Trausch (1995) 36 CA4th 1239, 1243, footnote 5.  Accordingly, the absence of a grant of probation distinguishes Statum from Douglas and from People v. Superior Court (Alvarez).  Thus, as the People conceded, neither PC §1238(a)(5) nor PC §1238(d) would authorize review by appeal or by writ of the superior court’s decision to sentence defendant as it did.  Although dicta in both cases assumed that appellate review was nonetheless available in this circumstance, the Court was also mindful that “[t]he People have no right of appeal except as provided by statute.” (Douglas, supra, 20 C4th at p. 89.)  Having reviewed the statutory scheme, the Court concluded that the statutory authority for the People’s appeal in Statum could be found in PC §1238(a)(6), as this statute authorizes the People to take an appeal from, “[a]n order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.”  Therefore, the Court held that that the sentencing court’s reduction of defendant’s felony conviction to a misdemeanor was an “order modifying the verdict . . . by . . . modifying the offense to a lesser offense.”

Speedy Trial Issue - In U.S. v. Pitner (2002) 307 F.3d 1178, the appellate court held that the parties and the district court in this case labored under a misconception regarding the effect of Pitner's interlocutory appeal on the calculation of his Speedy Trial Act deadline.   They assumed that, at the conclusion of the appeal, a new 70-day period began.  The Act and our precedent are to the contrary.  Thus, the effect of defendants interlocutory appeal challenging the denial of his double jeopardy motion only served to interrupt the speedy trial clock, it did not restart it.

POST-CONVICTION APPEALS (POST-TRIAL & POST-PLEA)

Post-Trial Situations  In order to appeal a criminal conviction, a defendant must necessarily file a timely written notice of appeal.  In addition, because jurisdiction to review an appeal is granted by statute, only certain matters may be appealed.  In California, Penal Code (PC) §1237 provides that an appeal in a felony case may be taken from a final judgment of conviction except as provided in PC §§1237.1 (error in calculation of custody credits without first making motion before the sentencing (trial) court) and PC §1237.5 (after pleas w/o application by defendant and subsequent certificate of probable cause by the trial court); a sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment the court may review any order denying a motion for a new trial. An appeal may also be taken from any order made after judgment, affecting the substantial rights of the party.

Post-Plea Situations (Felony Cases)  When a defendant has pleaded guilty or no contest (nolo contendere) to a criminal charge, the defendant may not appeal the judgment of conviction on issues “going to the legality of the proceedings” unless, within 60 days of rendition of the judgment, he or she files with the trial court a written statement executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds for appeal and, within 20 days after that filing, the trial court executes and files a certificate of probable cause for appeal. (PC §1237.5; California Rules of Court (CRC), Rule 31(d).)   In In re Chavez (2003) (5/15/03; 03 C.D.O.S. 4058; ___ C4th ___), the California Supreme Court held that: (1) CRC Rule 45(e) does not authorize the Court of Appeal to relieve a defendant from default resulting from his or her failure to timely file a statement of reasonable grounds for appeal, and, thus, the Supreme Court did not reach the issue of whether the defendant established good cause for relief from default; and (2) the doctrine of constructive filing of an appeal is inapplicable in the circumstances of the present case.  Here, the defendant’s statement of reasonable grounds for appeal not having been timely filed, the Supreme Court further concluded that the judgment granting the defendant’s petition for writ of habeas corpus by the Court of Appeal should be reversed.  The Court reasoned that, for purposes of CRC, Rule 45(e), filing a statement of reasonable grounds for appeal per PC 1237.5; CRC, Rule 31(d), is the equivalent of filing a notice of appeal and, consequently, this rule simply does not afford a defendant relief from default in the case of an untimely filing of the required statement.

Waiver - Failing To Preserve Suppression Motion Issue  In People v. Hinds (2003) (5/16/03; 03 C.D.O.S. 4107; ___ CA4th ___), a case where the magistrate denied the defendant's suppression motion at the time of the defendant's preliminary hearing (PX) and the defendant was then bound over to answer the People's Information.  The defendant subsequently answered in the superior court and also entered into a plea bargain, pleading guilty to only one count of marijuana cultivation (H&S §11368) of a four count Information (the other counts being dismissed).  At no time after the filing of the Information did the defendant renew his motion to suppress (that was originally denied by the magistrate in the PX) in the superior court.  Instead, after several continuances in the superior court, the defendant entered into the mentioned plea bargain.  Thereafter, the defendant appealed the magistrate's denial of his suppression motion.  On appeal, the defendant conceded he did not renew his motion to suppress in the superior court and acknowledged the general rule that a defendant must do so in order to preserve the issue of the legality of a search for purposes of later appealing the court's denial order. (People v. Lilienthal (1978) 22 C3d 891, 896-897.)   Moreover, the court unification program (unification of Municipal and Superior Courts) has not altered this rule. (People v. Hoffman (2001) 88 CA4th 1, 2-3; People v. Hart (1999) 74 CA4th 479, 485-486.)  To the extent that People v. Hart, supra, permits a defendant to avoid this rule by additionally alleging an ineffective assistance of counsel (IAC) claim, the rule that an IAC claim neutralizes an otherwise obvious waiver, applies only where the defendant has gone through a jury trial after the denial of his suppression motion at the PX.  As is the case here, a plea bargain, coupled with an IAC claim, is simply insufficient to overcome the waiver.  Also, to the extent that People v. Callahan (1997) 54 CA4th 1419, may hold otherwise, the Court of Appeal here declined to follow it.  Thus, the defendant failed to preserve the issue of the legality of the search for purposes of later taking an appeal.  As a consequence, the Court held that the defendant had waived his right to appeal the suppression motion issue.

Waiver - Unconditional Plea   In U.S. v. Foreman (2003) (5/21/03; 03 C.D.O.S. 4243; ___ F.3d ___), The Ninth Circuit held that the right to appeal a pre-plea motion for substitution is waived by an unconditional guilty plea, unless the plea
itself is challenged.  Accordingly, the Court concluded that it lacked jurisdiction to consider the defendant's argument that the district court abused its discretion in denying his pre-plea motion.  Thus, the entry of an unconditional guilty plea, which “constitutes a waiver of the right to appeal all non-jurisdictional antecedent rulings and cures all antecedent constitutional defects.” U.S. v. Reyes-Platero (2000) 224 F.3d 1112, 1114.  However, the Court did note that becasue the defendant may file a habeas petition, he is not foreclosed from receiving relief for any alleged ineffective assistance of counsel claim that he might have. See Massaro v. U.S. (2003) 538 U.S. ___;123 S. Ct. 1690, supra.  Editor's Note:  It appeared that the defendant did, in fact, challenge his plea as being "involuntary" due to the district court's denial of defendant's pre-plea motion.  Evidently, though, the defendant did not elaborate more on why his plea was supposedly "involuntary."  As a consequence, the Court seemed to simply ignore this issue altogether.

Motion For New Trial  In People v. Braxton* (2003) 106 CA4th 137; 130 CR2d 418, the First District Court of Appeals held that a defendant has a right to make an oral motion for a new trial, provided that the motion was made prior to the time the defendant is sentenced.  Thus, a defendant must move for new trial before pronouncement of judgment, and must specify the ground(s) on which his motion is based. (PC §1182; Thurmond v. Superior Court (1957) 49 Cal.2d 17, 19; People v. Taylor (1967) 250 CA2d 367, 372; People v. Grake (1964) 227 CA2d 289, 292.)  Although a motion for new trial based on juror misconduct is generally supported by writings, e.g., juror affidavits (see People v. Hedgecock (1990) 51 C3d 395, 415, 419; People v. Pierce (1979) 24 C3d 199, 208), the motion itself need not be written, and, historically, may be oral. (People v. Ah Sam (1871) 41 C 645, 651; People v. Simon (1989) 208 CA3d 841, 847; People v. Haldeen (1968) 267 CA2d 478, 481; People v. Grake, supra, 227 CA2d at p. 292.) When a motion for new trial is properly before the court before pronouncement of judgment, the court must determine the motion. (PC §1182; Thurmond v. Superior Court, supra, 49 C2d at p. 19; People v. Taylor, supra, 250 CA2d at p. 372; People v. Grake, supra, 227 CA2d at p. 292.)  The court went on to state that PC §1202 expressly provides for a new trial when the sentencing court fails to rule on a defendant's motion for a new trial. *Editor's Note:  On 4/23/03, the California Supreme Court accepted Braxton for review.  Hence, this case can no longer be cited as legal authority for any proposition.

Waiver - Right to Appeal   In US v. Garcia-Lopez (2002) (49 Fed. Appx. 737; 9th Cir. 10/29/02) the appellate court held that even if a defendant has waived his right to appeal in a plea agreement, the appellate court may nevertheless hear the appeal when the government has expressly waived its right to assert the defendant's waiver.  In other words, the government can waive the waiver.

Fugitive's Right To Appeal  Ordinarily, a defendant who has been convicted and who has intentionally failed to appear for his subsequent sentencing (i.e., where the defendant becomes a fugitive) has no right to appeal his conviction or any sentencing held in absentia.  (People v. Redinger (1880) 55 C 290).  However, in People v. Kang (2003) 107 CA4th 43; 131 CR2d 447, the Court of Appeal held that where a defendant has become a fugitive, and notwith-standing the defendant's fugitive status, his defense counsel files a timely notice of appeal on his behalf (i.e., in pro per - attorney signs the notice of appeal on behalf of the client), that appeal may be properly dismissed at the discretion of the appeals court.  However, here, the defendant was subsequently apprehended (extradited from South Korea) and later moved to vacate the sentencing court's original sentence, and also renewed his motion for a new trial.  When the trial court granted the defendant's motion to vacate the prior sentence, but then denied the motion for a new trial and thereupon immediately re-senetenced the defendant to the same exact sentence (4 consecutive life sentences), the defendant could properly file his notice of appeal.  Moreover, the defendant could move to reinstate the original appeal, provided however, that there was no showing of prejudice to the prosecution.  Since the appellate court determined there was no prejudice to the prosecution, it reinstated the defendant's original appeal, and consolidated it with the defendant's timely appeal after his re-sentencing.

No Right To Appeal From Diversion  In People v. Mazurette (2001) 24 C4th 789; 14 P.3d 227; 102 CR2d 555, the California Supreme Court held that following denial of a defendant's suppression motion, and where a defendant then pleads to a divertible offense (here, H&S §11377 - possession of methamphetamine), where entry of judgment is also then deferred pursuant to PC §1000, et seq., PC §§1000-1000.4, thereafter preclude a defendant from immediately appealing the trial court’s decision denying the defendant's suppression motion.

The time to file such a notice depends on the underlying circumstances of the particular case. If the notice of appeal in any case is not timely filed, relief can only be granted by means of filing a writ of habeas corpus demonstrating compelling circumstances. Otherwise, the matter cannot be heard by a reviewing court, as the reviewing court simply lacks the jurisdiction to review the matter. If, however, the notice of appeal is timely filed with the clerk of the trial court, the matter proceeds forward with the preparation and certification of the record on appeal. The record on appeal includes both the Clerks Transcript as well as the Court Reporters transcript(s). The appellate process is slow. The record consists of a verbatim (word-for-word) account of the trial and other proceedings (motion and sentencing hearings, for example), all of which is referred to as the Reporters Transcript, and copies of the pleadings, minute orders, written motions, abstract of judgment, preliminary hearing proceedings, probation officers report, etc., all of which is referred to as the Clerks Transcript. It can take months for the court reporter to transcribe the reporters transcript when the trial was a long one. If the record on appeal needs to be augmented, then a motion must be filed in the trial court by the party seeking to augment the record. Save and except for a Brady violation, a criminal appeal is very different from a trial in that no evidence is presented to the reviewing (appellate) court, nor are any witnesses called to testify. With the exception of oral argument (which may be waived), the appeal is conducted by way of filing written briefs.

When a defendant in a criminal case appeals, the case is sent to the reviewing (appellate) court. In the case of an appeal from a state misdemeanor conviction, the appeal is heard by the Appellate Division of the Superior Court for the county wherein the case was tried. In the case of an appeal from a state felony conviction, the case is heard by one of the six state District Courts of Appeal.  In either instance, the appellate court reviews the written record of the proceedings that took place in the trial court, together with the appellants and respondents respective briefs, for the purpose of determining if any prejudicial errors (vs. harmless errors) were committed in the actual trial, or in the pre- or post-trial proceedings. In most situations, the task of the appellate court is not to decide whether the defendant was guilty or innocent, but rather, it must determine if the trial proceedings were conducted properly. The appellate court will look at what happened in the proceedings in the trial court and decide whether the defendant received a fair trial at which the law and the procedural rules were applied correctly. As a general rule, the only exception to this involves questions concerning the sufficiency of the evidence, that is, whether there was legally sufficient evidence to enable a reasonable trier of fact (either a judge or jury) to find the defendant guilty beyond a reasonable doubt. Save for the exception of the reviewing courts ability to take judicial notice of certain facts pursuant to Evidence Code §459, an appellate court will, nevertheless, be bound by the evidence admitted at trial (or hearing), and cannot make new findings of fact.

After the trial record is certified by the clerk (or by the trial court), it is forwarded to the appellate court. An appellant then files an opening brief pointing out to the reviewing court any and all issues of error in the trial proceedings that warrant a reversal of the conviction, or a modification of the sentence. Although the number of possible issues varies, typical appellate issues in a criminal appeal involve illegal searches and seizures, coerced confessions, evidence improperly excluded, evidence improperly admitted, omitted jury instructions or jury instructions that misstated the legal issues applicable to the case, and errors in sentencing. Whether any of these issues, or any other issue is applicable to the case, is something that is determined by the record on appeal. Occasionally, where an appellant is incarcerated, a writ of habeas corpus may be filed contemporaneously with any appeal. If additional time is required to file the opening brief, a motion to the reviewing court is made based upon good cause.

Once the appellants opening brief is filed, the respondent has a limited amount of time within which to file its (or his or her) brief. A reply brief, although not required, is customarily filed by the appellant in response to the respondents brief. When all the briefs have been filed, the court sets the case for oral argument. As mentioned, oral argument may be waived by any (or both) party.

The reviewing court may affirm the judgment of the trial court, in which case the conviction and sentence remain unchanged. From a statistical perspective, the majority of cases on appeal are affirmed. The appellate court can also modify the judgment. This usually means that the verdict remains the same, but some aspect of the decision, such as the sentence, condition of probation, or count is either modified or stricken. Occasionally, the court will reduce a count of conviction to a lesser included offense, instead of reversing the judgment, but this is unusual. The reviewing court can also send the case back to the trial court with directions that require the trial court to do something further to determine whether the judgment should stand or be reversed or modified. Finally, it can also reverse the judgment of the trial court, in part or entirely, but this occurs in only a minority of cases. Even if the conviction is reversed, the case may not be over. It is very rare for the Court of Appeal to dismiss a case outright, even when it reverses the trial courts decision. Typically, the case will be sent back to the trial court for a new trial. Depending on the circumstances of the reversal, resolution of the case absent another trial may be possible.

Upon submitting the case to the appellate court, either at the time of argument or after argument has been waived, the reviewing court must decide the matter within 90 days. The court will write an opinion stating whether the judgment is affirmed, reversed, or modified, and giving the reasons for its decision. A Court of Appeal opinion may be published, in whole or in part, or it may be unpublished. Opinions are published, in whole or in part, if they meet the requirements of California Rules of Court, Rule 976(b)-(c). However, if published, a Court of Appeal opinion may be ordered de-published by the California Supreme Court.

Wende Briefs  In certain circumstances, court-appointed appellate counsel may not find any significant errors in the trial court proceedings.  If this should happen, appointed appellate counsel file what is known as a Wende brief. (People v. Wende (1979) 25 C3d 436). A Wende brief sets forth a statement of the procedural history of the case (called the Statement of the Case) and a statement of the facts, and requests that the appellate court make an independent review of the record to determine whether there are any arguable issues.   Indigent defendants in that instance have a right to file their own brief, calling the courts attention to any errors they believe affected the outcome of the trial or motion.  If a Wende brief is filed by court-appointed counsel, that same counsel is required to communicate with the defendant (appellant) explaining in detail what his or her options are.  A copy of the Wende brief and the complete record on appeal should also be sent to the indigent appellant for his or her own review. Wende briefs were recently upheld by the U.S. Supreme Court as being constitutional in Smith v. Robbins (2000) 528 U.S. 259.

In People v. Shabazz (2003) (4/17/03; 03 C.D.O.S. 3258; ___ CA4th ___), the Courts of Appeals notified the defendant that he could file his own brief after appointed counsel filed a Wende brief.  The Court found that all of the defendant's arguments on appeal (three issues in total) were without merit - a) in attacking the validity of a plea, the Court held that the defendant could not appeal his conviction without first obtaining a certificate of probable cause from the trial court (People v. Moore (2003) 105 CA4th 94, 99; 129 CR2d 84), and b) the defendant waived the issue of the restitution fine imposed ($200) by not objecting to the fine in the trial court and, also, by failing to show any prejudice as a result of the trial court's imposition of the fine, and c) the defendant failed to show any prejudice by not being advised of the consequences of being placed on parole upon being released from prison (in fact, the Court found that the record reflected the defendant tried to negotiate a "no parole" condition as part of his ultimate plea bargain).  Finally, on its own, the Court of Appeal raised a fourth issue - the defendant's presentence custody credits - and requested further briefing on that issue from appointed appellate counsel.  The Court determined that, "As the Supreme Court explained in People v. Bruner (1995) 9 C4th 1178, 1191, '[A] prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period.'  Defendant’s sentence may not be credited with presentence custody time attributable to a parole or probation revocation based in part upon different criminal conduct. (Ibid., citing with approval People v. Wiley (1994) 25 CA4th 159, 165-166; People v. Purvis (1992) 11 CA4th 1193, 1196-1198; In re Bustos (1992) 4 CA4th 851, 855; In re Nickles (1991) 231 CA3d 415, 423- 424.) In Bruner, the Supreme Court concluded, '[W]here a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a ‘but for’ cause (proximate cause) of the earlier restraint.” (People v. Bruner, supra, 9 C4th at pp. 1193-1194.)  The burden is on the accused to establish entitlement to presentence custody credit. (People v. Bruner, supra, 9 C4th at pp. 1193-1194 & fn. 10; People v. Purvis, supra, 11 CA4th at pp. 1196-1198; In re Bustos, supra, 4 CA4th at p. 855.)  Here, the Court determined the defendant was not entitled to any presentence custody credit for a forgery conviction when he was already in custody on a parole violation warrant prior to the time he was arrested for the forgery charge.  That is, the defendant could not show that forgery was a "but for cause" of his presentence custody.  Editor's Note:  It appears a tad bit unfair for the Cour