June 2018 Update
The current update includes changes that reflect recent developments in case law, legislation, court rules, and jury instructions. Summarized below are some of the more important developments included in this update since publication of the 2017 update.
California Supreme Court Rules of Court 1–13. Effective February 1, 2018, unless the court grants a motion for an excuse under Cal Sup Ct Rules of Ct 6, all attorneys representing a party in a matter before the California Supreme Court must electronically file documents relating to petitions for review, petitions for habeas corpus, and matters arising from a judgment of death. See Cal Sup Ct Rules of Ct 3. Electronic filing is voluntary for self-represented litigants and trial courts, as well as for amicus curiae letters and requests for depublication. See Cal Sup Ct Rules of Ct 4. For each electronically filed petition for review, the filer must also submit 1 unbound paper copy of the document. Cal Sup Ct Rules of Ct 5(a)(1). See §§3.41A, 8.58.
CASE LAW DEVELOPMENTS
Appellate review. The finality of a conviction is not necessarily tolled while imposition of sentence remains suspended. In People v Superior Court (Rodas) (2017) 10 CA5th 1316, defendant’s failure to appeal an imposition of probation under Proposition 36 was deemed final for later retroactivity purposes. See §1.9.
Right to attorney on appeal. The California Supreme Court has granted review in Morris v Appellate Div. of Superior Court (review granted Feb. 28, 2018, S246214; superseded opinion at 17 CA5th 636) to determine whether the Appellate Division is required to appoint counsel for an indigent defendant charged with a misdemeanor offense on an appeal by the prosecution. See §2.1.
Postconviction review in death penalty cases. In Briggs v Brown (2017) 3 C5th 808, the California Supreme Court rejected several constitutional challenges to Proposition 66, but it struck the implementation of mandatory time limits, holding them to be merely directory. See §§6.1. 9.7, 10.26, 10.31.
Writ of mandate or prohibition. For a recent case discussing how the prosecution was entitled to writ review because the lower court’s action was in excess of jurisdiction, see People v Superior Court (Lara) (2018) 4 C5th 299 (challenging trial court’s retroactive application of Proposition 57 to juvenile charged in adult court) in §7.10.
Invalid or excessive sentences. In In re Kirchner (2017) 2 C5th 1040, the California Supreme Court held that Pen C §1170(d)(2) did not provide an adequate remedy at law for Miller error (see Miller v Alabama (2012) 567 US 460, 132 S Ct 2455), and that a petitioner may obtain a Miller resentencing as a form of habeas corpus relief. See §9.29.
Writs of error coram nobis and coram vobis. In certain circumstances, the court of appeal may treat an appeal of an order denying a petition for coram nobis as a petition for coram vobis. See People v Forest (2017) 16 CA5th 1099 in §§11.1, 11.6, 11.11.
Court-appointed counsel. In Davila v Davis (2017) ___ US ___, 137 S Ct 2058, the Supreme Court declined to extend the rule of Martinez v Ryan (2012) 566 US 1, 132 S Ct 1309, to procedurally defaulted claims of ineffective assistance of appellate counsel. See §13.10.
Right to effective assistance of trial counsel. Three recent United States Supreme Court cases discussing the Sixth Amendment right to the effective assistance of counsel are: Weaver v Massachusetts (2017) ___ US ___, 137 S Ct 1899 (actual prejudice must be shown; attorney error cannot be considered reversible per se); Lee v U. S. (2017) ___ US ___, 137 S Ct 1958 (ineffective assistance when counsel failed to tell client plea meant certain deportation; even with no viable defense, reasonable probability that client would not have pleaded); Buck v Davis (2017) ___ US ___, 137 S Ct 759 (counsel was ineffective for presenting expert who provided unfavorable testimony). See §13.33.
Juror bias and misconduct. For a recent case discussing juror bias or misconduct, see Tharpe v Sellers (2018) ___ US ___, 138 S Ct 545, in §13.51.
Federal habeas; equitable tolling. A petitioner may wait until late in the statutory year to prepare the habeas petition; a delay at that point is only acceptable if petitioner demonstrates diligence during the time that the “extraordinary circumstance” occurred. See Grant v Swarthout (9th Cir 2017) 862 F3d 914 in §§15.4, 16.11.
Second or successive petitions. Federal Rules of Civil Procedure 60(b) allows a habeas petitioner to reopen a judgment for extraordinary circumstances. See Buck v Davis (2017) ___ US ___, 137 S Ct 759, in §15.11A.
Issues of state law. Federal law does not clearly establish that specific performance is constitutionally required when the prosecution breaches a plea agreement. See Kernan v Cuero (2017) ___ US ___, 138 S Ct 4, in §15.42.