Criminal Appeal

"This is an appeal run amok."

"[A]n appeal run amok" is how California's Third Appellate District described a child dependency appeal in the first sentence of a published opinion filed yesterday. In the second sentence of the decision, authored by Presiding Justice Scotland, the court noted that "Not only does the appeal lack merit, the opening brief is a textbook example of what an appellate brief should not be." I couldn't even begin to identify or summarize all the defects and ethical violations the court went on to describe as it addressed each of 19 issues. I'll just mention a couple of unusual aspects of the opinion: the panel identifies the counsel at fault by name in the body of the opinion, the court chides the presiding justice of the court (who happens to also be the author of the opinion) for allowing the oversized brief (76,235 words), and the court directed the clerk to send a copy of the opinion to the state bar.

I do wonder, however, whether it was necessary to so publicly rebuke the attorney in a published opinion. The individual attorney could have been dealt with through the state-bar referral. The problems identified, while not completely isolated to this case, are hardly rampant in appellate briefs in California. And a published opinion is hardly necessary to remind most appellate practitioners of such basics as abiding by court rules, not mis-representing the record, citing authority in support of arguments, and not raising non-cognizable issues. The court itself noted how few applications it gets for leave to file oversized briefs.

For those who need a primer on appellate brief-writing or who enjoy a little appellate-practice rubbernecking, the opinion is worth a read.

Cal. Supreme Court Addresses CPC Requirement for PC 654 Claims

People v. Shelton, no. S124503 (Cal. Supreme Court, Jan. 5, 2006, argued Nov. 9, 2005)

The question addressed is whether a defendant required to obtain a certificate of probable cause in order to claim on appeal that the manner of calculating the maximum sentence he agreed to in a plea agreement violated Penal Code section 654.

I'll post later on the holding.

This is a follow-up of People v. Hester, no. S077187 (2000).

Update. Here's the holding:

inclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant’s right to urge that the trial court should or must exercise its discretion in favor of a shorter term. Accordingly, a challenge to the trial court’s authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause.

Justice Werdeger dissented, expressly a different view of a "lid":

In exchange for his agreement to plead no contest to  two of the five felony counts charged, defendant was promised a sentence  maximum, or “lid,” of three years and eight months.  As memorialized by the trial  court, the plea agreement expressly reserved defendant’s right to “argue for  something less than three years and eight months.”  Nothing in the agreement  limited the grounds upon which defendant could argue for a lesser prison sentence,  nor did the agreement include any determination that imposition of the lid  sentence (or any longer sentence) was authorized under Penal Code section 654  (section 654).  For this reason, defendant’s appeal based on section 654 is not an  attack on the validity of the plea; he therefore was not required to obtain a  certificate of probable cause to pursue it.

"[T]he appellate procedural case from hell." That's how Presiding Justice David G. Sills (4th Dist., Div. 3) describes Quest International, Inc. v. ICODE Corp., G032276. Read more about it at The Legal Reader.

"Any trial court aggrieved by the complexity of these procedures may petition the Legislature for relief." California's Third Appellate District is, again, insisting on compliance with all the fines and fees the legislature requires upon a criminal conviction. After the defendant-appellant filed a no-issue brief (Anders/Wende), the court of appeal, without supplemental briefing, ordered the abstract of judgment corrected to reflect an omitted surcharge: "In the interest of judicial economy and because the trial court’s errors and the appellate remedies are clear, we modify the judgment without requesting supplemental briefing." The court allowed that "any party aggrieved by this procedure may petition for rehearing." People v. Taylor, no. C045469 (Cal.Ct.App. (3d Dist.) May 10, 2004).

While it may be more economical to omit the briefing stage of an appeal, the Third District does know that sometimes it gets it wrong without briefing and rehearing is required.