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Fourth Appellate District Practice
division 2

CONTACT THE COURT

3389 Twelfth Street, Riverside, CA 92501
Phone: (951) 782-2500, Fax: (951) 248-0235

Clerk's office hours: 9:00 a.m. to 4:30 p.m.

Assistant Clerk Administrator: Paula Garcia

 

GENERAL INFORMATION

  • Division Two Internal Operating Practices and Procedures: Division Two's IOPP's are not on the court website, but can be accessed in standard Rules of Court publications. (Warning: The court tells us the IOPP's are not online because the version currently published in books is not up to date. Check with the court clerk if in doubt.)
  • Division Two Forms & Rules (external site link)
  • Fourth District Practices & Procedures (external site link)
  • Miscellaneous orders: Division Two issues miscellaneous orders every year. They are not on the court website, but ADI has posted the 2017 orders (PDF). They include:
    1. Superior court must receive purported notice of appeal.
    2. Benoit order must be in clerk's transcript.
    3. Time for reporter's transcript is automatically extended.
    4. ADI and appointed counsel have access to confidential files.
    5. Attorney in trial court will not be appointed on criminal appeal.
    6. Oral argument is limited to 15 minutes unless court permits longer time.
    7. Appointed counsel may not execute substitution of counsel except with court order.
    8. Transcripts in dependency writ must be delivered within 12 days of notice of intent.
    9. Reporter's transcript: length of volumes, covers, indexes, pagination of confidential transcripts.
    10. In case eligible for appointed counsel, ADI must determine whether attorney purporting to be retained is in fact retained.
    11. Police reports must be included in clerk's transcript.
    12. Transcripts in multi-defendant appeals.
    13. No automatic appointment of non-appealing minor's counsel.
    14. Reporter to indicate (a) dates of related proceedings for which the reporter has no notes and (b) estimated number of pages the reporter will prepare.
    15. Notice of appeal or application to file one from vexatious litigant is to be sent to the Court of Appeal.
    16. Multi-document attachments to augment and judicial notice requests.
  • Superior court dockets online: Both Riverside and San Bernardino superior courts have an online docket.

 

NOTICE OF APPEAL

  • ADI notice of appeal forms: ADI's sample notices of appeal are based on Fourth District practices and are preferred.
  • General Forms & Samples page (under "Notice of Appeal Forms")
    • Criminal
    • Delinquency (Welf. & Inst. Code, § 601 or 602)
    • Dependency
    • Extended commitment - MDO, SVP, juvenile
    • Family Code section 7800 et seq.
    • LPS conservatorship
    • Not guilty by reason of insanity
  • Dependency Forms page (under "Notice of Appeal")
    • Delinquency (Welf. & Inst. Code, § 601 or 602)
    • Dependency
    • Extended commitment - MDO, SVP, juvenile
    • Family Code section 7800 et seq.
  • Late notice of appeal and/or CPC request: Division Two requires that an application to file a late notice of appeal under In re Benoit (1973) 10 Cal.3d 72 be filed as a habeas corpus petition if the case has no Court of Appeal number. If a case number is assigned, it may be submitted as a motion. The ADI Manual, chapter 2, § 2.113 et seq., gives guidance on "Remedies for Untimely or Defective Filing of Notice of Appeal and Failure To Obtain Certificate of Probable Cause."

 

EXTENSIONS, AUGMENTATIONS, CORRECTIONS, AND SETTLEMENTS

The ADI Manual, chapter 3, gives guidance on these topics.

  • Forms
    • Extensions of time: ADI's Forms & Samples page has an "Extension of Time" sample for general cases. The Dependency Forms page has one under "Extension of Time Request."
    • Augment motion: ADI's Forms & Samples and Dependency Forms pages have samples, "Augment Request." The samples include a request for extension of time in connection with the augment.
    • Correction of record: ADI's Forms & Samples page has a sample "8.340(b) Correction of Record Letter."
    • Settlement motion: ADI's Forms & Samples page has two samples. The "Settled Statement Request" is for filing in the superior court. The "Settled Statement Augment" is for filing in the Court of Appeal.
  • Correction of record procedures
    • Preliminary step – calling Court of Appeal: Attorneys who find pages missing should call the Court of Appeal before filing a record correction (completion) letter. Sometimes the court's copy will have the missing pages, and the court can copy those pages without need of a formal letter. Kelly Conn (951-248-0204) and Ann Dee Smith (951-248-0214) are the current contact clerks for such omissions. If it is necessary to send a letter to the superior court, be sure to send a copy to the Court of Appeal.
    • Where to send correction request
      San Bernardino: 247 West 3rd Street, San Bernardino, CA 92415-0063
      Riverside: Criminal and general appeals – Hall of Justice, Appeals Division, 4100 Main Street, Riverside, CA 92501. Juvenile appeals – Juvenile Court, 9991 County Farm Rd., Riverside, CA 92503.
      Inyo: Department 1, Post Office Drawer U, Independence, CA 93526
  • Augment request – timing: The court expects augment motions to be filed within 40 days or less of the filing of the record or the appointment order, whichever is later, in a criminal or delinquency case. The comparable period in a fast-track dependency case (termination of parental rights) is 15 days or less, as required by rule 8.416(d)(2). The augment motion should not include a request for exhibits; these have separate requirements.
  • Checklist at conclusion of augment request: Attorneys should conclude augment requests with a list of documents requested. Do not just mention the documents in the text of the request. A checklist facilitates the clerk's preparation of the record and reduces errors. ADI's Forms & Samples and Dependency Forms pages have samples, "Augment Request," illustrating this format.
  • Combined augmentation and correction of record: If counsel needs to request both augmentation and correction of the normal record on appeal, counsel should do a combined augmentation request for all the needed records, instead of doing separate augment and correction requests.
  • Envelopes with extension request unless faxed: Rule 850(c) requires an extension request to include self-addressed, stamped envelopes for mailing the court's order. But this does not apply to faxed requests (external site link): orders will not be mailed, and therefore counsel should check online. Do not use fax filing if you need a conformed copy.
  • Post-augment extension of time: Fourth District courts do not stay the appeal or automatically issue a time extension upon granting an augment request. If counsel needs an extension of time, counsel must request it with the augment. ADI's Forms & Samples and Dependency Forms pages have sample "Augment Request" forms illustrating this format.
  • Extension after "no further extensions": Even if a court issues a "no further extensions" order, counsel may still be granted an extension of time if he or she has good justification for it.
  • Settlement motion: Rule 8.346(a) states that a "party may serve and file in the superior court an application for permission to prepare a settled statement." Division Two's preference is for the party to file a request in the Court of Appeal for an order directed to the superior court to settle the record.

SUPERIOR COURT FILES AND EXHIBITS

The ADI Manual, chapter 3, gives guidance on appellate records.

  • Viewing files and exhibits through ADI representative
    • Availability: To save time and reduce expenses, an ADI division "ambassador" (attorney who visits the court regularly – Lynelle Hee or David Rankin) can review court files and exhibits and make copies for the appointed attorney. If the appointed attorney wants to view the file or exhibit in person, the attorney should consult with ADI first.
    • Procedure: The appointed attorney must contact the staff attorney assigned to the case and provide case name, appeal number, superior court number, the matters to be viewed or copied, and the number of copies needed. Appointed attorneys should make such requests well in advance, especially if files or exhibits must be transferred from a branch court to the central court.
    • ADI access to superior court files: A Division Two miscellaneous order (PDF) gives ADI representatives access to superior court files, including confidential ones, to minimize travel for panel attorneys.
  • Viewing by appointed attorney: After consulting with ADI, the attorney should call the superior court to make arrangements and ascertain the location of the needed file or exhibit. Some may be stored off-site. The attorney may also be able to request the court clerk to send copies of documents.
  • Exhibits: ADI's article on procedures for handling exhibits by Anna Jauregui-Law gives guidance on this matter. See preceding entry on viewing and copying files or exhibits.
    • Transmission to Court of Appeal: Division Two procedures differ from rule 8.224.
      • Court form: On appointment the attorney receives a form, to be filed with the AOB, listing all exhibits referred to in the brief. The Court of Appeal arranges for the transfer from the superior court.
      • ADI forms: ADI has sample forms on its Forms & Samples page under "Exhibits–Late Transmission Court of Appeal" and "Exhibits–Motion to Unseal."
  • Court order for transcript of exhibits (Div. 2 only): In unusual circumstances, attorneys may file a motion with the court for an order directing the superior court to compile documentary exhibits into a supplemental transcript. But the court wants attorneys to try to obtain copies through ADI first.

 

BRIEFS

The ADI Manual, chapter 5, gives guidance on briefing.

  • Default notice issued before appointment: If a default notice under rule 8.360, 8.412(d), or 8.416(g) had issued before counsel's appointment, Division Two rescinds the notice upon appointment of counsel, and the order will not be counted against counsel's briefing schedule.
  • Electronic transmission of briefs to court: The court requires counsel submit an electronic version of their briefs to the court, in addition to the usual paper copies. The brief should be submitted on the E-Submissions page of the court website. ADI's Forms & Samples page has a sample "Proof of Service" showing e-submission, in addition to regular service.
  • Electronic service: ADI has an e-service program with the Attorney General's Office and the San Diego County Counsel. E-service on ADI is required.
  • Supplemental brief
    • Supplemental brief versus new opening brief: Ask to file a separate supplemental brief, unless there are multiple corrections on different pages. If there are, then move to strike the AOB and file a combined brief. (Rule 8.200(a)(4).) ADI has sample forms (next).
    • Forms: ADI has samples on the Forms & Samples page under "Strike Brief and File New Brief Request" and "Supplemental Briefing Request." See also "Erratum Letter" and "Erratum Motion."
  • Pro per briefs: Except in non-dependency Wende cases, the court does not accept pro per briefs and will therefore send them to appointed counsel to handle.

 

TENTATIVE OPINIONS

Division Two is the only California appellate court that sends a tentative opinion to counsel at the conclusion of briefing. The program is described in the ADI Manual, chapter 6, § 6.10 et seq.

  • Subject to change: The tentative opinion is truly tentative. It is subject to change after submission of the case, with or without oral argument, both as to the merits and publication status.
  • Purpose: The court sends the tentative opinion to assist counsel in deciding whether to request or waive oral argument. It also serves to focus argument, if it is requested.

 

ORAL ARGUMENT

The ADI Manual, chapter 6, gives guidance on oral argument. The court posts its calendars online (external site link).

  • Court notice of oral argument (Div. 2 only): The tentative opinion will be accompanied by one of two letters.
    • Court will schedule argument on its own: One letter tells counsel that the court believes oral argument will assist the court and will schedule oral argument.
    • Court will not schedule argument on its own: The other letter, more frequently sent, tells counsel the court will not schedule argument on its own and instead invites counsel to request oral argument if counsel so wishes.
  • Request: Oral argument must be requested as the court notice indicates.
  • Late request: If the attorney decides to orally argue after the period for requesting oral argument has expired, he/she may file a late request with a cover letter briefly explaining the delay.
  • Changing calendar position: The court is unable to accommodate requests to move oral argument from the morning to the afternoon calendar and vice-versa, although it might grant a request to trail a case to later in the calendar.
  • Cancellation: A request for oral argument may be cancelled (the earlier the better). Thus attorneys unsure that oral argument will be necessary may choose to file a request within the time limit and later cancel it on deciding not to orally argue.
  • Oral argument time limit: Division Two has a 15-minute default time limit for oral argument. Permission for a longer time must be specially requested. (See rule 8.256(c); misc. order (pdf) number 6.)
  • Associate counsel for oral argument: Preapproval from the court and ADI is required. The request must state that associate counsel is qualified and will be adequately prepared. If the notice is necessarily at the last minute, contact the Court of Appeal and ADI immediately. The court may grant a continuance or allow associate counsel, if qualified and prepared, to appear. See April 2012 ADI news alert (PDF) on this topic.
  • Directions: The court website has directions.
  • Lodging: If an overnight stay is necessary, the Mission Inn in Riverside has an informal practice of charging the government rate to attorneys upon showing the appointment order, bar card, and driver's license. Summer rates may be even less than the government rate. It is at 3649 Mission Inn Ave, Riverside, CA 92501, (951) 784-0300.

 

PETITION FOR REHEARING

The ADI Manual, chapter 7, § 7.33 et seq., gives guidance on petitions for rehearing.

  • Pro per petitions: The court may not allow represented clients to file a pro per petition for rehearing, even in a Wende case. If there is time, however, and counsel has decided to proceed no further, the client can attempt it. Counsel may assist by asking to be relieved, so that the client is no longer represented. If counsel believes a petition for rehearing is necessary under rule 8.500(c)(2) to preserve the client's petition for review rights, counsel should do it; that is a legitimate ground for rehearing. (ADI Manual, chapter 7, § 7.35.)
  • Answer to petition for rehearing: Rule 8.268(b)(2) does not allow an answer to a petition for rehearing unless the court requests it.

 

CHANGE OF ADDRESS

  • Attorney: Attorneys must comply with rule 8.32(b) in sending notice of a changed address or telephone number. The notice may list all cases for which the attorney is counsel of record, but counsel should include one copy for each case. Counsel must notify ADI, too.
  • Client: Attorneys need not notify the court of a client's current or changed address, unless Wende brief has been filed. In a Wende situation the court must send its pro per briefing notice to the client. If the Wende brief is not being sent to the client (because, for example, it contains information that might jeopardize the client's security), counsel should send a letter to the court with the client's address for the Wende order.

 

SEE ALSO

Resources and Information on Court Website
Division One Practice
Division Three Practice

 

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*The material found on this Web site is for informational purposes only. It should not be considered to be legal advice and is not guaranteed to be complete or up to date. Use of this Web site is not intended to create, and receipt of it does not constitute, an attorney-client relationship between the user and Appellate Defenders, Inc. (ADI) or any of the firm's attorneys. Readers should not rely upon or act upon this information without seeking professional counsel. See full disclaimer.