home

Fourth Appellate District Practice
division 3

CONTACT THE COURT

601 W. Santa Ana Blvd., Santa Ana, California 92701
Mailing address: PO Box 22055, Santa Ana, CA 92702
Phone: (714) 571-2600, Fax: (714) 664-0897

Filing hours: 9:00 a.m. to 4:30 p.m.
Telephone hours: 8:00 a.m. to 5:00 p.m.

Assistant Clerk Administrator: W. Kevin Stinson

 

GENERAL INFORMATION

 

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 Three 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. 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.
    • 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: ADI’s Forms & Samples page has a sample "8.340(b) Correction of Record Letter."
  • Correction of record procedures
    • Preliminary step – calling Court of Appeal: Division Three has not taken a position yet on whether attorneys should contact the Court of Appeal before seeking correction for missing documents, because of the possibility the original record sent to the court may be more complete.
    • Where to send correction request
      Criminal and general appeals: Central Justice Center, Felony Appeals Division, Orange County Superior Court, 700 Civic Center Drive West, Santa Ana, CA 92701.
      Juvenile appeals: Lamoreaux Justice Center, 341 The City Drive South, Orange, CA 92868.
  • 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 Three's preference is for the party to file first in the superior court. If the party encounters problems, such as the superior court not acting on the motion, counsel may pursue relief from the Court of Appeal.

 

SUPERIOR COURT FILES AND EXHIBITS

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

  • Contents and form of juvenile transcripts: Division Three has a miscellaneous order (external PDF link) prescribing additional contents of dependency clerk’s transcripts.
  • Viewing files and exhibits through ADI representative
    • Availability: To save time and reduce expenses, ADI's Division Three "ambassador," Neil Auwarter, can review and copy documentary exhibits for an appointed attorney during a monthly trip to Division Three. 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: An ADI representative can access to superior court files 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 (PDF) 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 Three follows rule 8.224 on the procedures for transmitting exhibits to the Court of Appeal.
    • ADI forms: ADI has sample forms on its Forms & Samples page under "Exhibits–Transmission Request Superior Court." That page has additional exhibit-related forms: "Exhibits–Late Transmission Court of Appeal" and "Exhibits–Motion to Unseal."

 

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 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.
  • 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: Move to strike the AOB and file a new brief with the added issue. 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.

 

ORAL ARGUMENT

The ADI Manual, chapter 6, gives guidance on oral argument. The court posts its calendars online.

  • 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: If counsel’s schedule is tight, the court may be able to accommodate requests to move oral argument from the morning to the afternoon calendar and vice-versa. Or 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: Rule 8.256(c)(2) limits oral argument to 30 minutes. Counsel may request permission for a longer time.
  • 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.

 

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. To permit, but not require, an answer, by court order (external PDF link).

 

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: The court wants to know the appellant’s current address. To this end, if ADI receives notice the appellant has moved, it will inform both the court and appointed counsel of this new address. If counsel receives information (not from ADI) that the appellant has moved, counsel should inform the court and ADI of this address change.

 

SEE ALSO

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

 

Back to Top

 

*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.