Division Three Practice

Miscellaneous Orders

Division Three has posted a few miscellaneous orders. They include:

The prohibition against disclosure of material in a confidential record does not apply to reference to material contained in a probation report that is part of the record on appeal.

Default Notice Before Appointment

If a default notice under rule 8.360, 8.412(d), or 8.416(g) issues before counsel’s appointment, Division Three will count the order against appointed counsel’s briefing schedule. Only one such order is issued per case. The order will not be withdrawn without a direct request/motion.

Benoit  Filings

An application to file a late notice of appeal under In re Benoit (1973) 10 Cal.3d 72/Roe v. Flores-Ortega (2000) 528 U.S. 470 should be filed as a habeas corpus petition. 

Extensions in Dependency Cases

All Division Three dependency cases are fast-track cases. Thus, counsel must show exceptional good cause for extensions, and extensions are granted only for 30 days and only for opening briefs.

Records in Penal Code Section 1172.6 Appeals

Division Three prefers a motion for judicial notice, rather than an augment motion, to incorporate the direct appeal record into the current appeal. (Note: If the trial record was marked and admitted as an exhibit, request transmission of the exhibit to the Court of Appeal.) The Attorney General’s offices across the state will obtain and share the original direct appeal records in these cases. Contact your ADI staff buddy to obtain a copy of the record.

ADI Assistance with Superior Court Files and Exhibits

Counsel should try to obtain documents via other means including asking trial counsel or filing an augment motion or rule letter. In cases where counsel cannot obtain the material and resides out of county, ADI can usually obtain superior court documents and exhibits for counsel . Counsel should contact the assigned staff attorney.