Index The symbol" f” after a section number indicates that a form appears in the section, Abandonment of Appeal Appellant's filing of, 2.28, 5.20 Course of representation, effect of ‘counsel abandoning defendant during, 2.6 Duties of appellate counsel after, 5.51 Federal habeas corpus, attorney abandonment as grounds for tolling statute of limitations for filing, 15.5 Form, abandonment of appeal, 2.40f Habeas corpus petition, effect of failure to file, 9.14 Abuse of Discretion. See Discretion of Court Addresses Appellate projacts, 2.21 California Appellate Project (CAP), 617 United States Supreme Court, 12.2 Website addresses. See Websites Admissibility of Evidence. See Evidence Admissions and Confessions Fifth Amendment prohibiting admission ‘of compelled incriminating testimony, 13.29 Affidavits and Declarations Brief, declaration for extension of time to file, 3.25 Certificate of probable cause, declaration in support of, 2.34f Certiorari, declaration of mailing of petition for writ of, 12.23f Coram vobis petition, reference to accompanying affidavits, 11.19f Dismissal of appeal, declaration accompanying motion for, 5.22 Federal habeas corpus. See Federal Habeas Corpus In forma pauperis, affidavit or declaration in support of request to proceed in, 12.17f, 16.16f Appeals Writs Mandate or prohibition. See Contents ‘of Writs (Mandate or Prohibition) Record on appeal. See Record on Appeat Stay of proceedings, inclusion of declaration in support of motion for, 8.15 Affirmative Defenses. See Defenses Alcohol. See Intoxication Aliens Ineffective assistance of counsel, inability of tawful resident alien facing deportation to vacate plea on basis of, 9.5 Plea negotiations, prosecutors fequired to consider avoidance of adverse immigration consequences in, 9.5 Alternative Writs (Mandate or Prohibition) Generally, 8.64 Burden of proof on respondent to rebut prima facie showing of abuse of discretion, 8.74 Form, 8.66f Inadequacy of remedy on appeal, issuance of alternative writ as determination of, 78 Right to oral argument before issuance. of alternative writ, 8.73 ‘Stay of trial court proceedings, use of alternative writ of prohibition for, 7.32, 8.4 Written return to alternative writ or order to show cause, 8.68 Amendments and Modifications Federal habeas corpus petition, amendment of. See Federal Habeas Corpus Finality of reviewing court's decision, subsequent modification of decision by reviewing court prohibited, 5.33, bet 67Amendments and Modifications —cont Habeas corpus petition in capital case, amendment of, 9.8 Jurisdiction to modify judgment if defendant remains in custody pending appeal, trial court's lack of, 2.17 Lesser degree of offense or lesser included offense, modification of conviction to, 5.30 Record on appeal, correction of. See Record on Appeal Statement on appeal, corrections or modifications of, 3.18 Verdict or finding, modification of. See Verdicts Verification of petition, amendment of. 8.40 Amicus Curiae Briefs, 3.24 Answers California Supreme Court, answer by party opposing petition for review by, 5.45 Federal habeas corpus petition, state's answer to. See Federal Habeas Corpus Rehearing, answer to petition for. See Rehearings Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Federal Habeas Corpus. Appealable Judgments and Orders Generally, 116 Coram nobis, appeal of order denying writ of. See Coram Nobis or Vobis Dismissal of felony, prosecution's appeal of Generally, 127 ‘Suppression of evidence, ‘appealing pretrial dismissal order based on. 1.26 Federal habeas corpus, appeal of district court's order granting or danying petition for writ of. See Federal Habeas Corpus Guilty or nolo contendere plea in felony cases, defendant's appeal atter Fifing notice of appeal after guilty plea, 2.8 Scope of appellate review, 1.11 ony Index + 12 Guilty or nolo contendere plea in felony cases, defendant's appeal after—cont. Waiver ot right to appeal, requirements for valid, 1.15 Habeas corpus. See Federal Habeas Corpus; Habeas Corpus New trial, appeal of order granting. See New Trial Not guilty plea in felony case, defendant's appeal after Generally, 15 Final judgment of conviction, appellate review of order denying new trial on appeal from, 16 Insanity plea, defendant's appeal of commitment order in felony case, 1.10 Postjudgment orders, appeaiability of, 1.7 Prejudgment orders, review of, 16 Probation, appeal of order granting or denying, 1.9 Sentence imposed on defendant, appealability of, 1.8 Notice of appeal. See Notice of Appeal Posttrial order in misdemeanor case, appeal of, 118 Pretrial order in misdemeanor case, appeal of, 1.17 Protrial right in felony case to appeal motion to suppress evidence, defendant's lack of, 1.17 Prohibition, appeltate review of denial of writ. See Prohibition, Writ of Prosecution appeals in falony casos Demurrer to indictment, accusation, oF information, prosecution's appeal of order sustaining, 121 Dismissal of felony (see Dismissal of folony, prosecution's appeal of, above) Habeas corpus, prosecution's appeal of order granting, 1.30, 10.32 Indictment or information, order setting aside, 1.2013 + Index Appealable Judgments and ‘Orders—cont. Prosecution appeals in felony cases—cont. Modification of death sentence to life imprisonment without Possibility of parole, prosecution's appeal of court order, 1.25 Motion in arrest of judgment, appeal of order granting, 1.23 New trial, order granting, 1.22 Order arresting judgment, prosecution's appeal of, 1.23 Probation, appeal of order granting, 1298 ‘Questions of law in felony cases appealable by prosecution and defense, 1.4 Reinstatement, prosecution's appeal of order denying. See Reinstatement ‘Scope of appeal, 1.19 ‘Substantiat rights of prosecution, postiudgment order affecting, 124 Unlawful sentence, imposition of, 129 Verdict or finding, order modifying, 125 Prosecution appeals in misdemeanor cases Generally, 1.31 Dismissal, order of, 133 Probation order, nonappealability of, 1.32 Reopening direct appeal, effect on finality of decision, 15.2 Applications Bail, application for. See Bail and O.R. Release Carfificate of probable cause, application for, 2.33f Sealed records, application fo unseal, 851 Stay of execution of judgment pending ‘appeal, application for, 2.38f, AATF, 12.12f ‘Stay order, motion to extend, 8.61 Appointment of Counsel See also Right to Counsel Attorney fees for appointed counsel Death penalty cases, compensation of appointed counsel in, 6.15, 10.31 Faderal habeas corpus proceedings, compensation for appointed attorneys in, 13.13 Indigent defendants. See Indigent Defendants Mandate, petition for writ to award fees to appointed counsel, 731 Collateral proceeding as first ‘opportunity to claim ineffective assistance of counsel, effect of state court's failure to appoint counsel for, 2.1 Confiict of interest, no right to new attorney for preparation of federal habeas corpus petition, 24 Constitutional aw Collateral attack on judgment, lack of constitutional right to appointed counsel, 2.1, 9.2 Due process requiring appointed counsel for appellant in criminal case, 1.1 Death penalty, appointment of counsel for automatic appeal. See Death Penalty Federal habeas corpus. See Federal Habeas Corpus Habeas corpus. See Habeas Corpus Indigent defendants, appointment of counsel for. See Indigent Defendants Mandate, petition for writ to secure appointment of counsel, 727 Misdemeanor and infraction appeals, right of indigent defendants to ‘obtain counsel for, 2.1, 2.9, 2.24 Misdemeanor appeal, court appointing new counsel after original counsa’’s failure to file opening brief, 3.43 Motion for appointment of counsal on appeal, 2.36f No arguable issues on appeal, appointed counse''s failure to find, 2.26 en7Index + b4 Arguable Issues on Appeal Briefs. See Briefs Effective assistance of counsel. See Effective Assistance of Counsel Identifying arguable issues Generally, 4.5 Charged offense, issues involving statute defining, 4.12 Complete reporter's transcript lacking, possible grounds exist i341 Eyewitness identification procedures, problems involving, 49 Fifth Amendment privilege against self-incrimination, violations of, 47 Joinder of defendants or counts, prejudice resulting from, 4.11 Jury trial, right to, 4.14 Mental condition of defendant during interrogation or trial, issues involving, 4.13 Procedural irregularities in conduct of criminal trial, 4.6 Right to counsel under Sixth ‘Amendment, violations of, 4.10 Search and seizure in violation of Fourth Amendment, 4.8 Sentencing error, 4.20 List of issues, appellate attorney creating, 4.2 Misconduct Judicial misconduct. 4.19 Prosacutorial misconduct, 4.18 No arguable issues on appeal, ‘appointed counsef's fallure to find, 2.26 Pretrial publicity as, 4.14 Triat questions Generally, 4.15 Evidence, errors in admission or exclusion of, 4.16 Jury instruction, errors in, 4.17 Misconduct (see Misconduct, above) Presence of jury, errors made in, 415 Sixth Amendment right to trial by jury, violation of, 4.14 67 Attachment Brief, attachment of exhibits and other materials to, 3.40 Attorney-Client Privilege In camera hearing to review claims of attorney-client privilege, writ of manage requiring tria} court to conduct, 731 Waiver of attorney-client privilege in action involving ineffective assistance of counsel, 9.38 Attorney-Client Relationship Breakdown of attorney-client ‘communications caused by client's mental competence, effect on appeal, 2.30 Duty to client surviving termination of, 620 Prohibition, use of writ to correct violation of attomey-ctient relationship by state, 7.44 Attomey General Coram nobis, serving petition on Attorney General, 11.9 District attorney's brief, serving copy ‘on Attorney General, 3.41 Federal habeas corpus. See Federal Habeas Corpus Habeas counsel's reply to Attorney General's informal response, 6.37 Trial court rulings, Attorney General's request for review of, 1.4 Attorneys Appointed counsel. See Appointment of Counsel Attomey General. See Attorney General Conflict of interest. See Conflict of Interest ‘Criminal appetiate process, informing olient of, 4.1, 4.45f Disciplinary action against attorney for failing to deliver case files to former client or substituted counsel, 6.20 Discussion of case with trial counsel, 44 Effective assistance of counsel. See Effective Assistance of Counsel Fees. See Attorneys’ Fees+5 * Index Attorneys —cont. Habeas corpus. See Habeas Corpus Lttor to clients concerning criminal appeals, 4.457 Notice of appeal, trial counsel's duty to file. See Notice of Appeal Privilege. Soe Attorney-Client Privilege Right to counsel. See light to Counsel Self-representation by defendant, no Tight to advisory counsel, 13.35 Termination of appeal, appellate counsel's duties after, 5.51 ‘Trial counsel, ongoing duties of, 6.20 Verification of petition, attorney signing, 8.40 Withdrawal of counsel Death penalty case, withdrawal of ‘counsel as attorney of record, 6.14 ‘Time limit for filing motion to withdraw as counsel after filing notice of appeal, 18.18 Work product, writ of mandate requiring trial court to conduct in camera hearing to review claims of, 731 Attorneys’ Fees Appointed counsel. See Appointment of Counsel Indigent defendants, fees for representing. See Indigent Defendants Nonappealability of order denying request for fees, 1.7 Referral to another attorney, client's ‘consent to fee sharing arrangement, 2.18 Setting fees for representing defendant ‘on appeal, 2.19 ‘Written fee contract, requirement of, 2.20 Audio Recordings. See Video or Audio Recordings Augmentation of Record. See Record ‘on Appeal Automatic Appeal in Death Penalty Cases. See Death Penalty Bail and .R. Release Application for bait Generally, 2.12 Application for bail—cont. Criteria for granting bail, 2.13-2.14 Federal habeas corpus (see Federal habeas corpus, below) Form, application for bail on appeal, 2.37f, 4.46f Misdemeanor convictions, right to bail in, 2.14 Reversal of judgment, mation for bail on appeal or release on ‘own reconnaissance after, 5.26 Stay of execution of judgment and bail pending appeal, application for, 2.38f Custody, bail or O.R. release within definition of, 14.3 Death panalty, unavailability of bail for defendant sentenced to, 6.3, 9.15 Discretion of court Felony convictions (see Felony convictions, below) Habeas corpus, court's discretion to grant ball or OLR. release of petitioner pending determination of writ, 10.24 Federal habeas corpus Appeal, release of petitioner without bail pending, 18.23 Declaration in support of application for bail, 13.20f Denia! of bail by district court, filing petition for writ of mandamus for review of, 13.17 Determination of petition for wrt, application for bail pending, 13.19f Proof of service, 13.21f Requests for bail or O.R. release, 13.16 Falony convictions: Discretion of court, generally, 9.15 Discretion of court to grant bail pending appeal, 2.13, 9.16 Motion for bail pending appeal, 212 Habeas corpus Generally, 9.15 Discretion of court to grant bail or release petitioner on own recognizance ponding determination of writ, 10.24 67Index + 16 Bail and O.A. Release—cont Habeas corpus—cont. Felony conviction, habeas petition challenging denial of bail pending appeal cf, 9.16 Juvenile proceedings, detention without bail in, 9.48 Misdemeanor conviction, habeas petition challenging reasonableness of bail pending appeal from, 9.17 Jail time as condition of probation, abuse of discretion if defendant denied bail or release pending appeal, 4.46 Misdemeanors. See Misdemeanors and infractions Mootness of postconviction bail issues, 945 Trial court's retention of jurisdiction to deal with bail applications pending appeal, 1.40 Banks and Bank Accounts Redacting of financial account numbers in all pleadings and papers filed with courts, Rules ‘of Court requiring, 8.17 Bias See also Prejudice Federal habeas corpus. See Federal Habeas Corpus Judges. See Judges Brady Violations. Soe Prosecution Briefs Amicus curiae briefs, 3.24 Argument Authority, analysis and discussion of, 4.44 Contents of brief, 3.35-3.39 Exhaustiveness of argument and supplementation of opening brief, 4.42 Organization of argument, 3.36, 4.43, Attachment of exhibits and other matarials to brief, 3.40 California Supreme Court and courts of appeal, drafting briefs for Generally, 3.21 Amicus curiae briefs, 3.24 California Supreme Court and courts of appeal, drafting briefs for—cont. Filing briets in California Supreme Court or courts of appeal, 3.27, 3.47 New briefs on merits, filing in California Supreme Court after petition for review granted, 5.48 Noncomplying briefs, court's actions regarding, 3.42 Reply brief filed by appellant, 3.22 ‘Supplemental briefs (see ‘Supplemental briefs, below) Contents of brief Adverse authorities, attorney's ethical obligation to cite, 3.38 Argument, 3.35-3.39 Gitation of authorities, 3.38 Citations to record, requirement of, 3.30 Conclusion summarizing argument, 3.39 Format of argument, 3.36 Headings and tables, 3.29 Issues on appeal, 3.34 Previous brief, prohibition against citing authorities existing at time of, 3.38 Section headings, 3.37 Statement of appealability, 3.32 ‘Statement of fact, 3.33 ‘Statement of the case, 3.31 Summary of argument, 3.35 Death penalty case. See Death Penalty Drafting briets Generally, 4.40 California Supreme Court (see Califomia Supreme Court and courts of appeal, drafting briefs for, above) Contents of brief (see Contents of brief, above) Death penaity case, drafting opening brief in. See Death Penalty Length of brief (see Length of brief, restrictions on, below) Statement of facts, 4.41, 6.42 Electronic filing of briefs Generally, 2.39, 3.4147 = Index c™ Briefs—cont. Form and format requirements for Electronic fing of briefs—cont. briefs Courts of appeal adopting system Generally, 3.26 of electronic brief fling, 3.26 Amicus curiae brief, cover for, 3.24 Extension of time to file brief, party Covers, 3.24, 3.28 electronically filing in Ninth Length of brief, limits on, 3.27 Circuit, 18.32 ‘Superior court, form and format Noncomplying brief, requirement requirements for brieis filed in clerk notify electronic filer of appellate division of, 3.44 rejection, 3.42 Joining co-appellant's briaf, True Filing for briefs, appeliate ‘considerations in, 3.21 districts utilizing, 3.414 Length of brief, restrictions on Extension of time to file brief California Supreme Court and Generally, 3.25 courts of appeal, briefs filed Application for extension of time, with, 3.27 3.51f, 5.48 Death penalty cases, maximum Electronic fling of extension to file length of briets in, 6.2 brief in Ninth Circuit, 18.32. Misdemeanor or infraction case Federal habeas corpus appeal, transferred from superior court's extension of time for filing brief appellate division to court of for, 18.32 appeals, length of brief for, 3.45, Good cause, extension of time ‘Superior coun, briefs fled with oN based on, 3.21 - appellate division of, 3.44 Large briets, extension of time for Misderneanors and infraction cases, filing, 6.32 appeals in Mandate or prohibition, extension Generally, 3.43 of time for requesting or Court of appeal, briet for cases ‘opposing statement of decision, transferred to, 3.45 876 rex 5 Form and format requirements for Me fe Df, otee augment record, fect of, briets filed in appeliate division of superior court, 3.44 Opening brief for appeltant, eriete. fine ecretitut ‘extension of time to file, 6.32, Nomen one’s fling constiutng aa ineffective assistanc Federal habeas corpus. See Federal counsel, 226 ; Habeas Corpus Notice of intent to raly on brief fled in Filing and serving briet court of appeal when filing brief Califomia Supreme Court and 2 Calforia Supreme Court, courts of appeal, filing briefs in, ‘ wa enn Number of copies of briat required, Duty of appellate counsel to opening bret prepare and file, 2.25-2.26 Electronic fling of briefs (see ‘Gontempt sanctions for falture to 9.25 Electronic filing of briefs, above) Rolative or attomey for defendant, serving brief on, 3.41 Superior Count, filing briefs in [™ appellate division of, 3.43. Time timits for, 3.45 Final judgment, requirernent that briet ‘state appeal taken from, 15 Death penalty case, drafting opening brief in. See Death Penalty Exhaustiveness and ‘supplementation of, 4.42 Time limit for service and filing of, 3.45 6n7Briefs—cont. Reply brief California Supreme Court and courts of appeal, filing reply brief with, 3.22 Death penalty cases, See Death Penalty Federal habeas corpus. See Federal Habeas Corpus Raising contention for first time in reply brief, 3.22 Time fimit for service and filing of, 3.45 Sanctions for failing to file brief on time, 3.21, 18.33 Service of brief (see Filing and serving brief, above) Supplemental briefs Generally, 8.73 Filing with permission of presiding justice of reviewing court, 3.23 Review by California Supreme Court, fling supplemental brief, 5.48 Transfer of casa back to court of appeal by California Supreme Court, parties’ right to fle supplemental briefs, 5.7 Unbriefed issues, court of appeals request for supplemental briet on, 5.9 Time Amicus curiae brief, time for fling, 3.24 ‘Appellant's and respondent’ bret, ‘ime limit for fling, 3.21, 3.45 Extension of time to file brief (see Extension of time to file brief, above} Reply brief, time timit for appellant to file, 3.22 Unpublished opinion, citing in brief, 3.40 Wende brief, limitations on and procedures for, 2.26, 2.39f Burden of Proof See also Evidence Coram nobis hearing, burden of proof at, 11.27 Error Appellant's burden of proving, 3.21, 421, 4.82 67 Index = 1-8 Error—cont. Constitutional violations, prosecution's burden of proving harmless error beyond reasonable doubt, 4.21, 4.31 Federal habeas corpus. See Federal Habeas Corpus Habeas patitioner’s burden of proo!, 9.41, 10.4, 10.15 Inadequate representation by counsel, defendant in plea case proving, 13.33 Incompetency to stand trial, defendant's burden to show, 13.48 Mandate or prohibition, petitioner's burden of proof in petition for writ of, 8.74. Record on appeal. See Record on Appeal California Appellate Defense Counsel (caDc) Website for, 4.37 California Appellate Project (CAP). See Death Penalty California Habeas Corpus Resource Center. See Death Penalty California Rehabilitation Center (CRC) Elimination of, 1.10 California Supreme Court Appellate jurisdiction of court Generally, 1.34 Discretionary review by court, 1.37 Briefs. See Briefs Death penalty cases. See Death Penalty Electronic filing, no mandatory requirements for, 10.10 Extension of time. See Extension of Time Finality of decision. See Finality of Decision Habeas corpus. See Habeas Corpus Mandate. See Mandate, Writ of Notice, petition for review Brief filed in court of appeal, notice of intent to rely on, 5.48 Oral argument, notice of, 5.49 Opinions. See Opinions Prohibition. See Prohibition, Writ of Pro per petition for review by, 5.42rN California Supreme Court—cont. Record on appeal. See Record on Appeal Rehearings. See Rehearings Remittitur. See Remittitur Review, petition for ‘Answer by party opposing review, 5.45 Appellate court denying Request for Transter, Supreme Court's lack of authority to entertain Petition for Review, 3.45 Assignment of petition to criminal ‘or civil central staff, 5.47 Brief on merits, petitioner or ‘opposing party filing new, 5.48 Exhaust stale remedies, petition for review to, 5.44, 5.54 Form, patition for review, 5.54f Grounds for review, 5.41 Necessity of fing petition for review, evaluation of, 5.42 Number of judges required to grant review, 5.47 Opinion by court, filing of, 5.50 Oral argument, 5.49 Order granting or denying review, 5.46-5.47 ‘Qwn motion, Supreme Court ordering review of court of appeal decision on, 5.46 Procedural rules, 5.43-5.46 Purpose for filing petition, 5.43, ‘Submission of case for decision, 5.50 ‘Time limit for fing petition and answer, 5.43-5.45 ‘Service of petition for review Generally, 5.43-5.44 Answer by party opposing review, service of, 5.45 Time. See Extension of Time; Time ‘Transfer of proceedings back to court of appeal. See Transfer of Proceedings ‘Writ jurisdiction of court, 1.39 California Youth Authority (CYA). See Division of Juvenile Justice (Dus) Capital Cases. See Death Penalty Certificates and Certification Certiorari, certificate of service of petition for writ of, 12.24F Court of appeal, certifying case to, 138, Federal habeas corpus, certificate of appoalabitity. See Federal Habeas Corpus Good standing, certificate of, 12.7 Interested entities or persons, serving and fling of certificate of, 8.41 Motions. See Motions Probable cause, certificate of. See Probable Cause Record on appeal, certification of. See Record on Appeal Stay of execution of judgment, court clerk issuing cartificate of, 2.17 Certiorari, Writ of Certificate of service, 12.24f Contempt order against atorney, using writ of certiorari to review, 7.44, 9.21 Death penalty. See Death Penalty Declaration of mailing, 12.23f Docketing, 12.22 Federal habeas corpus Generally, 12.1 Certificate of appeal for federal habeas corpus, fing writ of certiorari for, 18.16 Circuit court order, petition for writ of certiorari to United States Supreme Court for review of, 18.57 Effect of petition for certiorari on federal habeas corpus time limits, 12.5, Exhaust state remedies, petitioner not raquired to petition for writ in order to, 14.33 Filing requirements, 12.20 Format of documents, 12.19 Further review, decision to seek, 12.46 Original jurisdiction of courts over petition for writ of certiorari, 1.39 Preparation of petition for writ Appendix, 12.41 Constitutional provisions, treaties, and statutes, 12.38 Contents of patition, summary of, 12.28 Cover, 12.29fCertiorarl, Writ of—cont. Preparation of petition for writ—cont. Inside caption and prayer for relief, 12.34, 12.37f Jurisdiction, grounds for, 12.36, 12.37f Opinions and orders betow, 12.35, 12.37f Parties to proceeding, 12.317 Pro se petitioners, less rigorous compliance allowed for, 12.27 Questions presented, 12.30f Reasons for granting writ, 12.40 Statement of case, 12.39 Table of authorities, 12.33 Table of contents, 12.32 Rehearing after denial of petition for writ, filing petition for, 12.45 Service, 12.21, 12.24F Time to file petition for writ Generally, 1.41, 12.25, 15.2 Extension of time, 12.26, 18.57 Charged Offense Arguable issue on appeal, issues involving charged offense as, 4.12 Charts, Checklists, Questionnaires, and Tables Federal habeas corpus petition, proparation and filing of, 16.44 Citizenship Death penalty counsel's duty to determine citizenship status of defendant, 6.25 Civil Rights Federal habeas corpus, civil rights lawsuit as alternative for prisoner seeking relief outside core of, 13.68 Class Action Fedora! habeas corpus petition, filing lass action to avoid mootness issue, 14.13 ‘Clemency Habeas counsel's duty to represent defendant in clemency procaadings before govemor, 6.42 Clerks of Court. See Court Clerks: Commitment Orders Habeas corpus, testing legality of civil commitment, 9.42 67 Not guilty by reason of insarity, defendant's appeal of ‘commitment order in felony case, 1.10 ‘Common Law Constructive fling, common faw doctrine of. 2.7 Federal habeas corpus, common law origins of, 13.2 Mandate, common law origins of writ of. 216 ‘Commutation of Sentence Habeas corpus proceeding to determine reasonableness of conditions attached to, 9.20 ‘Competency. See Incompetent Persons ‘Complaints Answers. See Answers Reinstatement of complaint, order denying prosecution's motion for, 128 Computers Electronic fling. See Electronic Filing U.S. Supreme Court oral arguments ‘and opinion announcements, apps for smart devices featuring, 12.2 Conclusions of Law. See Findings of Fact and Conclusions of Law Confessions, See Admissions and Confessions Confidentiality Jurors, confidentiality of identifying information regarding, 3.4, 3.19 Mandate or prohibition, sealing or unsealing confidential records in petition for writ of. See Contents of Writs (Mandate or Prohibition) Record on appeal of confidential proceedings, 3.4 Termination of appeal, appellate ‘counsel's duty concerning confidentiality after, 5.51 Conflict of interest ‘Adequacy of trial counsel's representation, trial counsels confict of interest in evaluating for purposes of appeal, 2.4 Termination of appeal, appellate counsel's duty concarning conflict of interest after, 5.51Lit = Index ‘Consent Federal habeas corpus, parties’ consenting to jurisdiction of magistrate judge, 16.13A, Referral of client to another attorney, client's consent to fee sharing arrangement, 2.18 Service by electronic means, consent to, 8.59, Conservatorship and Guardianship Habeas corpus, challenging placement or conditions of placement of conservatee through use of, 9.42 WenderAnders review procedures, inapplicability to conservatorship appeals, 2.26 Constitutional Law Appointment of counsel, right to See Appointment of Counsel Dus process Admission of coerced confession as violation of, 13.29 Appointed counsel for appellant in criminal casa, due process requiring, 1.4 Death penalty cases. See Death Penalty Effective assistance of appellate counsel, due process: guaranteeing right to, 13.34 Federal habeas corpus. See Federal Habeas Corpus Loss of questionnaires of prospective non-seated jurors for comparative analysis not denial of due process, 3.1 Prosecutorial misconduct as violation of, 4.36 Retroactive application of judiciat decision, due process: restrictions on, 4.38 Effective assistance of counsel. See Effective Assistance of Counsel Eighth Amendment issues Death penalty. See Death Penalty Fedoral habeas corpus. See Federal Habeas Corpus Ex post facto. See Ex Post Facto Fifth Amendment violations: Arguable issue on appeal, violation of privilege against ‘self-incrimination as, 4.7 Double jeopardy, constitutionat protections against, 13.28 Federal habeas corpus. See Federal Habeas Corpus Fourth Amendment Federal habeas corpus, restrictions on raising Fourth Amendment claims based on exclusionary rule, 15.41 ‘Search and seizure in violation of, 48 Habeas corpus. See Federal Habeas. Corpus; Habeas Corpus Harmless error analysis of federal constitutional errors, 4.21, 4.31, 1722 Miscellaneous uses of writ, 7.44 Prejudice ciaims tor constitutional claims, 17222 Prohibition. See Prohibition, Writ of Record of proceedings, defendant's constitutional right to, 3.1 Retroactive application of laws. Sea Retroactive Application of Laws Reversal of judgment based on errors resulting in violation of constitutional rights, 4.31 Aight to appeal in criminal cases, constitutional basis of, 1.1 ‘Sixth Amendment Arguabie issue on appeal, violation of Sixth Amendment right to trial by jury as, 4.14 Effective assistance of counsel. ‘See Effective Assistance of Counsel Federal habeas corpus. See Federal Habeas Corpus Right to confront witnesses, affect ‘of hearsay objection on right to appeal admission of evidence in violation of, 4.28 Flight to counset on appeal. See Right to Counsel Speedy sentencing hearing, no ‘Sixth Amendment right to, 13.30 Speedy trial. See Speedy Tr 67Constitutional Law—cont. State law errors characterized as federal constitutional errors, 436 ‘Statement of reasons, California Constitution requirement for appellate courts to issue written opinion containing, 5.8 Substantial showing of denial of constitutional right, construction of, 18.11 Construction and Interpretation See also Definitions ‘Custody, construction of, 13.1 Depublication of opinion, order for, §.15 Etfective assistance of counsel, 2.2 Ex post facto clause, narrow construction of, 4.38 Federal habeas corpus ‘Actual innocence of defendant, analyzing differing standards applied by courts for second or successive petitions seeking to prove, 15.9, 15.36 Cortificate of appealability, construction of, 18.12 “In custody? broad construction of, 13.1 Letter and motion for appointment ‘of counsel, court construing as notice of appeal, 18.7 State court decision denying claim, federal habeas court construing decision based on merits, 15.12 State plea agreements, federal courts construing in accordance with state contract law, 15.42 Toling of timitations period for filing habeas petition, datermining unreasonable delay between filings, 15.3 Felony appeal, construction of, 1.4 Guilty plea wronghully induced, liberal construction of motion to withdraw, 11.5 Notice of appeal, liberat construction of, 16,.2.7.2.9 Principle of statutory exclusion, 11.2 Pro se petitions, construction of. See Pro Se Right to appeal, 1.1 67 Index = 142 Substantial showing of denial of constitutional right, 18.11 Suggestive Palma notices, 8.65 Contempt Certiorari, petition for writ to review contempt order against attorney, 744, 9.24 Death penalty cases, contempt citation for failure to file opening brief in, 645 Habeas corpus proceeding for review of contempt order against attorney, 744, 9.21 Opening brief, contempt sanctions for failing to file, 3.25 Oral argument, failure to appear punishable by contempt, 5.49 Prohibition, use of writ to challenge contempt order, 7.44 Contents of Writs (Mandate or Prohibition) Generally, 8.17 Absence or inadequacy of other remedies and need for relief, allegation concerning Need for relief, allegation concerning need for, 8.37F No right of appaal, 8.357 Remedy on appeal inadaquate, B.36f Affidavits or declarations Facts outside record, affidavits or declarations containing, 6.43 Trial court record, atlomey’s declaration explaining unavailability of, 8.45 Allegations Absence or inadequacy of other remedies (see Absence or inadequacy of other remedies and need for relief, atlegation concerning, above) Diligence (see Diligence, allegation of, below) Exhaustion of remedies (see Exhaustion of remedies, allagation concerning, below) Grounds for reliet (see Grounds for relief, allegations specifying, below) Introductory allegations (see Introductory allegations, below)113 © Index Contents of Writs (Mandate or Prohibition}—cont. California Rules of Court governing, B1 Closing matters Certificate of interested entities or persons, serving and filing of, 8.41, 8.68 Prayer for relief, 8.38, 8.39f Verification of petition, 8.40f Confidential information (see Sealing or unsealing of trial court records, below) Cover or title page of writ petition Appellate courts, cover for use in, B.7, 8.10f Appellate division of superior court, Ba Attorney's fax number and e-mail address, effect of including on brief cover, 8.7 Binding requirements, 8.10 California Supreme Court, 8.7 Pagination of cover page, 8.7 Superior court, format for documents fled in, 8.9 Superior court, tite page in, 8.11F Declarations {see Affidavits or declarations, above) Diligence, allegation of Generally, 8.32 Expiration of time for appeal, allegation concerning, 8.33f Nonappealable order, allegation when petition challenges, 8.34f Exhaustion of remedies, allegation conceming Generally, 8.29 Objection impossible or futile, allegation when, 8.31f Objection raised below and rejected or not ruled on, allegation when, 8.30f Exhibits Affidavits (see Affidavits or declarations, above) Format of exhibits, 8.44 Transcripts (see Transcripts, below) ‘Trial court record, contents of, 8.42 Unavailability of record, procedures in event of, 8.45 General guidelines for drafting writ petition, 8.2 Grounds for relief, allegations specifying Factual and legal basis for claim, 8.28 Prima facie case for relief, 8.27 inadequacy of remedy (see Absence or inadequacy of other remedies and need for relief, allegation concerning, above) Introductory allegations Generally, 8.20 Beneficial interest of petitioner and capacity of respondent and reat party in interest, allegation concerning, 8.217 Criminal defendant, avoiding alleging facts incriminating, 8. Higher court, allagation explaining ‘why relief previously sought in, 8.26f Lower court, allegation expiaining why petition not brought in, a25f Prior petitions, 8.24f Respondent, allegation concerning, B22f Venue, allegation concerning, a.23f Memorandum in support Gonerally, 8.52 Court of appeal and Supreme Court, form and content of momorandum in, 8.53 Drafting considerations, 8.55 Maximum length of, 8.12, 8.56— 8.57 Preliminary opposition to petition, memorandum for, 8.67 Reply to preliminary opposition, Inclusion of memorandum with, 8.70 Return, memorandum supporting, 8.68 Superior court appallate division, form and content of memorandum in, 8.54 Unrepresented, nonattomey petition not requirad to file memorandum in support of petition, 8.54 67Index «© ba Contents of Writs (Mandate or Prohibition)—cont. ‘Objections (see Exhaustion of remedies, allegation concerning, above) Opening paragraph, 8.19f Pages of petition Consecutive numbering, requirement of, 8.7 Memorandum in support, maximum page length for, 8.12 Points and authorities (see Memorandum in support or opposition, above) Salutation, 8.187 Sealing or unsealing of trial court records Generally, 8.47 Filing seated records under seal in reviewing court, 8.48 Findings required to place record under seal, 8.50 Motion to unseal records sealed by ‘rial court, 8.51 Requesting reviewing court to file record under seal, 8.49 Table of authorities, 8.12, 8.14F Table of contents, 8.12, 8.13f Title page (see Cover or title page of writ petition, above) ‘Transcripts Declaration by counsel explaining unavailability of, 8.45 ‘Sample requast for preparation of transcript for pretrial wrt petition (Superior Court), 8.467 ‘Trial court records Attorney's declaration explaining unavailability of, 8.45 Contents of, 8.42 Exhibits (see Exhibits, above) Sealing or unseating of (see ‘Sealing or unseating of trial court records, above) Continuance Federal habeas corpus relief, denial of continuance as grounds for, 13.47 Preliminary hearing, petition for writ of mandate or prohibition review improper continuance of, 77 Controlied Substances See also Intoxication ‘Commitment of defendant to California Rehabilitation Center (CRC) for controlied substance addiction, 1.10 Coram Nobis or Vobis Generally, 11.1 Appeal of order denying writ of Generally, 11.29 Basis for appeal, 1.7 California Supreme Court, petition for review in, 11.33 Certificate of probable cause, no requirement of, 17.30 Misdemeanor or infraction, 1129 Presumptions on appeal, 1132 Right to counsel on appeal, 11.31 Diligence in presenting petition, 11.3, 11.15f Distinguishing coram nobis and coram vobis, 11.1 Errors of law, inapplicability of coram nobis to correct, 9.5 Filing petition for writ Court of appeal, filing petition in, 11.11 Fees for filing petition, lack of, 11.24 Form, court and cause in trial court, 11.40f Procedure for filing petition, 11.9 Venue for filing petition, 11.9 Guilty plea wrongfully induced, use of weit to withdraw, 115 Hearing and counsel Generally, 11.25-11.26, Burden of proof at hearing, 11.27 Notice of motion for hearing on petition, 11.24 Issuance of writ, effect of, 11.28 Limits on use of writ, 11.7-11.8 Miscellaneous uses of writ, 11.6 Misrepresentation (see Pleadings in trial or appellate court, below) Origins of weit, 11.1 Pleadings in trial or appellate court Affidavits, reference to accompanying, 11.19f ‘Common facts and grounds, 11.13 Diligence of petitioner, 11.15f Exhaustion of remedies, 11.20f$150 © index Coram Nobis or Vobis—cont. Pleadings in trial or appellate court—-cont. Facts not appearing of record, t.19f Free will of petitioner overcome, t1.16f Grounds for writ, misrepresentation and corroboration, 11.14f Memorandum accompanying petition, 11.23 Meritorious defense, existence of, WATE Opening paragraphs, 11.12f Other available remedies, lack of, T.20f Prayer for relief, 1.21f Reliance on misrepresentation by patitioner, 11.18F Verification of petition, 11.22f Presumptions Appeal of order denying petition for writ, presumptions on, 11.32 Hearing, petitioner's burden in overcoming presumptions, 11.27 Procedural barrier to bringing writ of coram nobis, 11.3 Service of petition Generally, 11.24 Atlorney General, service of patition on, 119 ‘Statutory exclusion, principle of, 11.2 Vacating judgment, treating motion as proceeding for writ of coram nobis, 1.4 Costs See also Expenses and Expendi- tures; Fees Improper calculation of costs, requirements for appealing, 1.8 In forma pauperis proceedings, petitioner's right to receive documents without cost, 16.11 Probation related costs, defendant's failure to challange resufting in waiver of claim of error on appeal, 18 Court Clerks Conflict between reporter's transcript of court's oral proceedings and Rotice of clark included in clerk's transcript, resolution of, 3.148 Federal habeas corpus petition, filing with clerk of district court, 16.9 Remitiitur, clerk's issuance of, 5.36 Court Reporters Information on request for reporter's transcript, 3.7 Courts of Appeal Appellate jurisdiction of court Generally, 1.40 Appeal of right, 1.35 Discretionary review by court, 1.38 Briefs. See Briefs Certifying case to, 1.38 Electronic filing, appellate districts requiring, 8.58, 10.9 Finality of decision. See Decision Habeas corpus. See Habeas Corpus Mandate. See Mandate, Writ of Opinions, See Opinions Oral argument. See Oral Argument Prohibition. See Prohibition, Writ of Record on appeal. See Record on Appeal Rehearings. See Rehearings Remititur. See Remittitur Writ jurisdiction of court, 1.39, 72 Credit for Time Served. See Prisons and Prisoners ity of Death Dismissal of appeal, defendant's death as ground for, §.18 Death Penalty ‘Appointment of counsel for automatic appeal Certiorari, appointed counse'’s duty to prepare petition for writ of, 66 ‘Compensation of counsel, 6.15, 10.31 Criteria for appointment of counsel (see Criteria for appointment of counsel in capital appeals and habeas corpus proceedings, below) Expenses, payment of, 6.15 on7Death Penalty—cont. Appointment of counsel for automatic appeal—cont. Governing law, 6.4 Private counsel (see Private counsel, appointment of, below) Right of indigent defendants to ‘appointed counsel, 6.4 State Public Defender, appointment of, 6.5, 6.8 Vacating appointment as sanction for failure to fle opening brief, 6.45 Withdrawal of counsel as atlorney of record, 6.14 ‘Automatic appeal Generally, 6.3 Appointment of counsel (see Appointment of counsel for automatic appeal, above) Stay of execution of judgment panding automatic appeal, 2.15, 63 Bail, unavailability in death penalty cases, 6.3, 9.15 Briefs Dratting opening brief (see Opaning brief, below) Maximum length of, 6.2 Opening brief (see Opening brief, below) Reply briefs (see Reply briefs, below) Sanctions for failing to file, 6.45 California Appellate Project (CAP) Generally, 6.17 Appeliate counsel and habeas corpus counsel's duty to cooperate with, 6.24 Eligibility of CAP for appointment in both direct appeal and habeas: proceedings, 6.8 Record on appeal, delivery to CAP, 6.27 Website and workshops offerad by, 6.19 California Haboas Corpus Resource Center Generally, 6.18 Appellate counsel and habeas ‘corpus counse'’s duty to cooperate with, 6.24 6n7 Index + 1-46 California Habeas Corpus Resource Center—cont. Eligibility for appointment as ‘counsel in capital habeas corpus proceedings, 6.8 Employment of attorneys by, 6.4 Record on appeal, delivery to Habeas Corpus Resource Center, 6.27 Website and workshops offered by, 6.19 California Supreme Court procedures to assure timeliness in capital cases Extensions of time for fling appellant's opening brief, 6.32, 6.44 ‘Sanctions for failing to file brief, 645 Status reports, 6.43 Certiorari, writ of Generally, 6.41 Appointed counsel's duty to prepare petition for writ, 6.6 Stay of execution panding writ of cartiorari review by United States Supreme Court, 6.3, 12.42f Criteria for appointment of counsel in capital appeals and habeas corpus proceedings Generally, 6.8 Alternate qualifications for appointment of counsel, 6.14 Dual appointment of atiomey to represent defendant in both death penalty appeal and habeas corpus proceedings, 6.13 Lead counsel, responsibilities of, 69 Multiple attomeys, appointment of, 6.13 ‘Qualifications for appointment as habeas corpus counsel, 6.10 Qualifications for appointment of appellate counsel, 6.9 ‘Supervised counsel, use of, 6.12 Cruel and unusual punishment (seo Eighth Amendment considerations, below)M7 © Index Death Penalty—cont. Due process. Lesser included offense instructions in death penalty cases, duo process requiting, 13.57 Sentencing, due process at, 6.60 Duties of habeas corpus counsel Attorney General's informal response, habeas counsel's reply to, 6.37 Certiorari, filing petition for writ of, 641 Citizenship status of defendant, determination of, 6.25 Clemency proceedings before governor, duty of habeas ‘counsel to represent defendant in, 6.42 Filing habeas corpus petition, 6.36 investigation, duty of, 6.22 Order to show cause, habeas counsel consulting with assisting organization or attorney after issuance of, 6.38 Rleply brief, duties of habeas ‘corpus counsel afer filing ‘opening brief and before filing of, 6.35 ‘Scope of representation, 6.22 ‘Status reports, appointed habeas counsel filing with California Supreme Court, 6.43 Timeliness standards, importance of meeting, 6.23 Duties of postconviction counsel Appaltate counsel, duties of, 6.21, 6.39 Assisting organization or attorney, duty of all postconviction counsel to cooperate with, 6.24 Citizenship status of defendant, determination of, 6.25 Habeas corpus counsel, duties of (see Duties of habeas corpus counsel, above) Habeas corpus issues, appellate coungal's duty to compile and maintain list of, 6.21 Private counsel's duties, 6.6 Record on appeal (see Record on appeal, below) Duties of postconviction counsel—cont. Status reports, appointed appellate counsel fling with California Supreme Court, 6.43. Timeline of tasks (see Timeline of tasks for postconviction counsel, below) Tria! counsel, ongoing duties of, 6.20 Eighth Amendment considerations Generally, 6.54 California lethal injection protocol, premature to rule on constitutionality if protocol not in Place, 6.62 Certain classes of crimes, death penalty as disproportionate penalty for, 6.57 Error at guilf phase of capital trial implicating Eighth Amendment's requirement of reliability, 6.52 Individualized determination by ‘sentencer concerning appropriatonass of death penalty in tight of circumstances of case, 6.56 Minors or intellectually disabled defendants, prohibition against execution of, 6.57, 13.40 Mitigating evidence, sentencer's consideration of, 6.56 Reliability in determination of death as appropriate punishment, 658 Standards for evaluating constitutional claims in death penalty cases, 6.54 Uniformity or non-arbitrariness in imposition of death penalty, 6.55 Evidence Extraneous evidence, effect of trial court relying on, 6.61 Habeas corpus investigation, appellate counsel's duty to preserve evidence relevant to, 621 Mitigating evidence, sentencer's consideration of, 6.56 6/17index + 18 Death Penalty—cont. Expenses ‘Automatic appeal, payment of ‘expenses for appointed counsel, 6.15 Habeas corpus investigation, restrictions on reimbursement of expenditures on, 6.22 Extension of time Appellant's opening brief, extension of time to file, 6.32, 6.44 Record on appeal, extension of time for requesting corrections or additions to, 6.28, 6.44 Rehearing petition, extension of time to file, 6.40 Reply brief, extension of time for filing, 6.34 Fee requests, status reports accompanying, 6.43 Habeas corpus Appellate counsel's duty to preserve evidence relevant to habeas corpus investigation, 621 California Appellate Project (see California Appeliate Project (CAP), above) California Habeas Corpus Resource Center (see California Habeas Corpus Resource Center, above) Criteria for appointment of counsel (see Criteria for appointment of counsel in capital appeals and habeas corpus proceedings, above) Default based on failure to file habeas corpus petition in death ponaity case, effect on consideration of defendant's habeas claims in federal court, 6.45 Duties of habeas corpus counsel (see Duties of habess corpus counsel, above) Federal habeas corpus. See Federal Habeas Corpus Informal response (see Informal fesponse to habeas corpus Petition, below) 67 Habeas corpus—cont. Investigations (see Investigations, below} Opening brief, habeas corpus counsel's duties, 6.32-6.33 Private counsel (see Private counsel, appointment of, below) Record on appeal, habeas corpus counsel's role in preparing, 6.28, 6:30-6.31 Reply brief, habeas corpus counsels duties, 6.34 ‘Self-representation, no right in capital habeas proceedings, 6.16 Stay of execution pending writ of habeas corpus or certiorari review by United States Supreme Court, 6.3, 12.12f Timeliness standards for filing petition, 6.23, 6.36, 10.31 Indigent defendants Automatic appeal, appointment of ‘counsel for, 6.4 California Habeas Corpus Resource Center, representation of indigent defendants by, 6.18 Discretion of court to appoint attorney other than State Public Defender to represent indigent appellant, 6.5 Informal response to habeas corpus petition Extension of time for habeas corpus informal briefing, 6.44 Habeas counsels reply to Attorney General's informal response, 6.37 Instructions to jury (sae Jury instructions, below) Investigations Appellate counset's duty to preserve evidence relevant to habeas corpus investigation, 621 Habeas corpus counsel's duty to investigate, 6.22, 6.24 Logal claims, counse?’s duty 10 investigate, 9.2119 * Index Death Penalty—cont. Jury instructions Lesser included offense instructions in death penalty cases, due process requiring, 13.57 Nonstatutory mitigating evidence, judge instructing jury to consider, 6.56 Jury selection, 6.59 Method of execution, challenges to, 6.62 Modification of sentence Prejudicial error resulting in remand for new hearing on automatic motion to modify verdict, 6.61 Prosecutor's appeal of court order ‘modifying death sentence to life imprisonment without possibility of parole, 1.25 Opening briet Appellate counsel and habeas ‘corpus counsel, duties of, 6.32-6.33 Argument, 6.50-6.52 Cross-referencing within brief between “cluster arguments? 6.51 Drafting arguments, 6.51 Extension of time to file, 6.32, 6.44 lesues, identification of, 6.50 Length of, 6.46 Organization of, 6.47 Prejudice, discussion of, 6.52 Previously rejected issues, briefing of, 6.48 ‘Statement of case and statement of facts, 6.49, 6.52 Time fimit for filing, 6.32. Oral argument Generally, 6.53 Appellate counsel's duties before oral argument, 6.39 Parole. See Parole Postconviction counsel Appointment of counsel (see Appointment of counsel for automatic appeal, above) Duties of postconviction counsel (s0@ Dutios of postconviction counsel, above) Postconviction counsel—cont. Timoline af tasks (see Timeline of tasks for postconviction counsel, below) Postconviction review in death penalty casos Generally, 6.1 ‘Automatic appeal (see Automatic appeal, above) Differences between capital appeals and noncapital appeals, 6.2 Discovery of materials in possession of prosecution and law enforcement authorities, 6.22 Postconviction counsel (see Postconviction counsel, duties ot, above) Proposition 66, temporary injunction against implementation of, 6.1 Stay of execution, 6.3, 12.12f Prejudice ‘Automatic motion to modify verdict, Prejudicial error resulting in remand for new hearing on, 661 ‘Opening brief's discussion of, 6.52 Record on appeal, no presumption Of prejudice arising from absence of materials fram, 6.2 Private counsel, appointment of Direct appeal or retated state habeas corpus proceedings, counsel accepting appointment limited to, 6.6 Duties of counsel, 6.6 Habeas corpus counsel, appointment of, 6.7 Indigent appellant, appointment of private counsel if State Public Defender refuses to represent, 65 Public detender (see State Public Defender, betow) Record on appeal ‘Absence of materials from record, ‘no presumption of prejudice arising ftom, 6.2 Appellate counsel, duties of, 6.28, 6.30 67Index * 1-20 Death Penalty—cont. Record on appeal~ cont. Certification of record for completeness and accuracy, ‘counsel's duty to ensure, 6.2, 6.26 Defivery of record, 6:27 Extension of time for requesting corrections or additions to record, 6.28, 6.44 Habeas counsel's role in preparing, 6.28, 6.30-6.31 Trial counsel, duties of, 6.27 Recusal of appellate judge who approved decision to seek death penalty as chief prosecutor, 13.52 Reply briefs Duties of appellate counsel and habeas corpus counsel, 6.34 Duties of habeas corpus counsel after fiting opening brief and before filing of reply brief, 6.35 Resources California Appellate Project (see California Appellate Project, above) California Habeas Corpus Resource Center (see California Habeas Corpus Resource Center, above) Miscellaneous resources, 6.19 Sel{-representation, no right to, 6.16 Service of documents on clients, 6.44 State Public Defender Appellate counsel and habeas corpus counsel's duty to cooperate with, 6.24 Appointment of, 6.5, 6.8 Discretion of court to appoint attorney other than State Public Defender to represent indigent appellant, 6.5 Stay of execution ‘Automatic appeal, stay of execution pending, 2.15, 6.3 Request for stay of execution, Justice Kennedy referting to entire court, 12.11 eT Stay of execution—cont. United Statas Suprame Court, stay of execution pending wrt of habeas corpus or certiorari review by, 6.8, 12.12f Strategies for pursuing petition for rehearing, necessity of consulting experienced legal counsel regarding, 6.40 Time Certiorari, time limit for fling ation for writ of, 6.44 Date of execution, time limit for selting, 6.3 Extension of time (see Extension of time, above) Habeas corpus petitions, timeliness ‘standards for filing, 6.23, 6.36, 10.31 Opening brief of appellant, time limit for filing, 6.32 Opinion, time limit for filing after complation of briafing, 6.39 Record on appeal, time limit for certifying after imposition of death sentence, 6.27 Rehearing petition, time limit for filing, 6.40 Reply brief, time limit for filing, 6.34 ‘Strategies for pursuing certiorari, necessity of consulting ‘experienced legal counsel regarding, 6.41 Supreme court procedures to assure timeliness in capital cases (see California Supreme Court procedures to assure timeliness in capital casas, above) Timetine of tasks for postconviction counsel Generally, 6.29 Appellate counsel's duties betore oral argument, 6.39 Briafs (see Briefs, above) Certification of record on appeal, duties of appellate and habeas ‘corpus counsel, 6.30-6.31 Certiorati, petition for writ of, 6.44 Habeas corpus counsel (see Dutias of habeas corpus counsel, above)121 = Index Death Penalty—cont. Timeline of tasks for postconviction counsel—~cont. Rehearing, petition for, 6.40 Waiver possibilty arising from automatic motion for mocification of death penalty, 6.61 Declarations. See Affidavits and Declarations Default and Default Judgments Federal habeas corpus petition, state's failure to file response not resulting in default judgment, 179 Habeas corpus petition default in death penalty casas, effect of, 6.45 Settled statement on appeal from misdemeanor or infraction, relief from default caused by failure to comply with rules concerning, 3.18 Defenses Affirmative defenses Exhaustion of remedies as affirmative defense, See Exhaustion of Remedies Federal habeas corpus, respondent pleading independent and adequate state procedural bar to relief as affirmative defense, 15.21, 15.27 Federal habeas corpus. See Federal Habeas Corpus Habeas corpus, 9.26 Meritorious defense, existence of, WA7f Definitions See also Construction and Inter- pretation Actual innocence, 15.36 Adverse consequences (of pursuing appeal), 2.28 Appeliant, 18. Appellate brief, 4.40 Appellee, 18.1 Conditional sentence, 1.9 Custody, 14.2 Engross, 3.18 Exhaustion petition, 9.9 False evidence, 9.41 Fares letter, 314A, 3.21 Federal habeas corpus, 13.1 Final judgment, 4.5 Forfeiture, 4.26 Grant and hotd, 5.47 Habeas corpus petition, 10.4 lnvited ertor, 4.29 Magistrate, 72 Motion in arrest of judgment, 1.23 New evidence, 9.40 Noxt friend, 16.6 Objectively unreasonabie, 18.25 Premature notice of appeal, 2.7 Principal brief, 18.30 Procedural default on state court claim, 15.12 Procedural history (of appellant's case), 3.31 Properly fled, 15.3, Publicly filed papers, 8.49 Reasonable possibility standard, 4.32 Remittitur, 5.34 Return, 8.68, 9.8 Right to counsel, 4.1 Special housing unit, 13.9 ‘Structural error, 4.30 Substantial rights of defendant, 1.7 Suggestion (for rehearing en banc consideration), 18.55 Traverse, 9.8, 17.10 Unauthorized sentence, 2.28 Unlawful sentence, 1.29 Waiver, 4.26 Wobbler, 8.5 Demurrers Prosacution's appeal of order sustaining demurrer to indictment, accusation, or information, 1.21 Diligence Coram nobis or vobis, diligence in presenting potition for, 113, tASf Mandate, writ of. See Mandate, Writ of Prohibition, writ of. See Prohibition, Writ of Disabled Persons Execution of inteltectuatly disabled prohibited, 6.57, 13.40 67Discharge of Defendant Reversal of judgment based on insufficiency of evidence, discharge of defendant following, 5.30 Disciplinary Action Former client or substituted counsel, disciplinary action against attorney for failing to deliver case fles to, 6.20 Disclosure Amicus curiae brief drafters or financial undenwriters, rules regarding disclosure of, 3.24 Federal habeas corpus relief, prosecution's failure to make required disclosures as grounds for. See Federal Habeas Corpus Habeas corpus challenging prosecutor's failure to disclose material evidence, 9.35 ‘Writ of prohibition used to compel dismissal if prosecutor faits to disclose Brady material, 744 Discovery Death penalty case, defendants right to discovery of materials in possession of prosecution and law enforcement authorities, 6.22 Federal habeas corpus proceedings, party's request for discovery in, 1715 Habeas corpus proceeding, restrictions on discovery in, 10.17 Inevitable discovery issues, resolving on appeal, 1.26 Mandate or prohibition, writs of Improper prosecutorial discovery, writ of prohibition to béock court order allowing, 7.44 Orders granting discovery, petition for writ to review, 77, 717 New trial motion granted, continuing jurisdiction of trial court over discovery matters, 4.40 Prohibition, writ of (see Mandate or prohibition, writs of, above) ey Discretion of Court ‘Abuse of discretion Burden of proof on respondent to rebut prima facie showing of abuse of discretion, 8.74 Federal habeas corpus case, review of denial of discovery request for abuse of discretion, 715 Jail time as condition of probation, abuse of discretion if defendant denied bail or release pending appeal, 4.46 Mandate, petition for writ to correct abuse of court's discretion, 716 Standard of review for, 4.25 ‘Adequacy of remedy on appeal, reviewing court's discretion to determine, 78 Appellate courts discretionary review, 1.38 Arguable issue on appeal, courts discration in allowing joinder of defendants or counts as, 4.11 Bait in felony cases, court's discretion to grant. See Bail and O.R. Release California Supreme Courts discretion over case accepted for review, 547 Death penalty case, court's discretion to appoint attorney other than State Public Defender to represent indigent appellant in, 65 Habeas corpus petition. See Federal Habeas Corpus; Habeas Corpus Judicial notice of document or record, court's discretion to except contents as true, 4.35 Jurors, court's discretion to identity by number, 3.4 Late filing of writ, discretion to allow rarely exercised, 8.32 Moot issues, reviewing courts discretion to hear appeal despite, 5.19 Question not preserved for review, appellate court's discretion to address, 4.261-23. © Index Discretion of Court—cont. Recall of remitttur, courts discretion to onder, 5.37 Dismissal of Action Federal habeas corpus petition, dismissal of. See Federal Habeas Corpus Magistrate's dismissal of counts in felony complaint, appealability to court of appeal, 121 Mandate, petition for writ to review denial of motion to dismiss, 77 Misdemeanor or infraction cases. prosecution's appeal of order dismissing, 1.33 Moot case, dismissal of, 9.6 Nonstatutory motion fo dismiss for ‘errors committed during praliminary hearing not appearing on face of transcript, Prosecution's decision not to proceed to trial after court's evidentiary ruling, court's dismissal of action based on, 127 Dismissal of Appeal Certificate of clerk of superior court or affidavit attached to petition to dismiss, 5.22 Final decision, involuntary dismissal of appeal constituting, 5.33 Grounds for dismissal Death of defendant, 5.18 Escape of defendant from custody, 5.17 Irregularities in proceedings, 5.16 Mootness as ground for dismissal, 5.19 Voluntary dismissal by defendant, 2.28, 5.20 Motion and supporting memorandum, 521 Disposition of Appeal on Merits Generally, 5.22 Affirmance of appeal, 5.23 Lesser degree of offense or lesser included offense, modification of conviction to, 5.30 Remand of case to trial court with directions, 5.31 Disqualification Mandate or prohibition, petition for writ to review denial of motion for disquatiication of judge, 1.6, 77, 724 Division of Juvenile Justice (DJ) ‘See also Juvenile Court Proceed- ings Prosecution’s appeal of order returning defendant to, 1.24 Remittitur, transmission to Division of Juvenile Justice, 5.36 DNA Testing Mandate or prohibition, petition for writ to review grant or denial of defendant's motion for DNA testing, 77 Double Jeopardy Federal habeas corpus petition based ‘on violation of Fifth Amendment protection against double Jeopardy, 13.28, 15.47 Implied acquittal, effect of, 5.28 Insufficiency of evidence as grounds for reversal af conviction on appeal, retrial barred by double jeopardy clause, 5.27 Jury trial Attachment of double jeopardy with swaaring in of jury, 13.28 Erroneous discharge of single juror, effect on double jeopardy prohibition, 5.28 Prohibition, use of writ fo prevent double jeopardy, 741 Retrial, circumstances permitting, 13.28 Sentencing after retrial, effect of double jeopardy on, 5.25, 5.27 Drugs. See Controlled Substances Due Process. See Constitutional Law Effective Assistance of Counsel ‘See also Right to Counset Adverse consequences of pursuing appeal, duty of appellate counsel to advise client of, 2.28 Arguable issues on appeal Generally, 4.10 Brief, counsel's duty to raise arguable issues in, 2.25-2.26 Counsel's duty to raise, 2.25 67Index + 1-24 Effective Assistance of Counse!—cont. Arguable issues on appeal—cont. No arguable issues (see No arguable issues, appellate ‘counsel's duty on finding, below) Collateral proceeding as first opportunity to claim ineffective assistance of counsel, offect of state court’ failure to appoint counsel for, 2.1 Communications with client, appellate counsel's duty concerning, 2.30 ‘Constitutional right to Generally, 2.2 Due process guaranteeing right to effective assistance of counsel, 13.94 Criteria for determining ineffective assistance of counsel, 2.25 Due process guaranteeing right to, 13.34 Error Invited error, defendant estopped from claiming ineffective assistance of counsel on basis: of, 4.29 Waiver of error by trial counsel as basis for ineffective assistance of counsel claim on appeal, 4.34 Examples of ineffective assistance of counsel, 13.33, Facts outside trial record, appellate counsal filing habeas corpus petition based on, 2.29 Federal habeas corpus petition to review violation of right to. See Federal Habeas Corpus Habeas corpus challenging ineffective assistance of counsel. See Habeas Corpus immigration consequences, requirement defense counsel provide accurate and affirmative advice about, 9.5 Independent examination of evidence by appellate court in reviewing claim of ineffectiveness of counsel, 8.71 6n7 No arguable issues, appellate counse''s duty on finding Appointed counsel, 2.26 Private counsel, 2.27 Wende brief, 2.26, 2.39f Prejudice standard for, 1723 Presumption of competence in claims involving ineffective assistance of counsel, 9.38 Referral of detendant fo State Public Defender or another lawyer for advice conceming competency of trial counsel's representation, 25 Remittitur, ineffective assistance of appellate counsel as grounds for recall of, 5.37 Restraints or other security measures, ineffective assistance of counsel claim basad on defense counsel's failure to object to, 19.55 ‘Tiial counsel's conflict of interest in evaluating adequacy of trial counsel's representation for purposes of appeal, 2.4 Vacating plea on basis of ineffective assistance of counsel, inability of lawful resident alien facing deportation to move for, 9.5, Electronic Filing Appellate district requiring, 8.58, 10.9 Briefs. See Briefs: California Supreme Court not requiring mandatory e-filing, 10.10 Confirmation of receipt of electronically filed document, requirement court send, 8.58 Deemed completion of slectronic ‘service, 8.59 Federal habeas corpus. See Federal Habeas Corpus Fee for, 3.41 Habeas corpus petition, Rules of Court requiring bookmarking sections of documents filed, text searchable POF files, and consecutive pagination, 10.9 Registering with court's e-fiing sarvice in advance, 8.68 Rules of court. See Rules of CourtElectronic Filing—cont. Service by electronic means Certiorari, electronic service of writ of, 12.21 Consent fo service by electronic means, 8.59 Electronic records, service of, 3.41A, 8.58 Extensions on electronic service, 8.59 Proof of service, 8.60 Self-represented parties, prohibition against requiring electronic filing or service of documents by, 8.58, 10,9-10.10 Time limits for seeking relief, effect of electronic service of orders. by court on, 8.32 Signature, effect of filing document electronically, 3.414 ‘Submission of electronic copy of document, court requiring, 8.44 Enhancement of Sentence. See Sentences and Sentencing Error Arguable issues. See Arquable Issues on Appeal Burden of proof. See Burden of Proof Clerical errors, appellate court's herent power to correct, 1.4 Credit for time served, appealability of error in calculating, 17 Doubie jeopardy prohibition, effect of ‘erroneous discharge of single juror on, 5.28 Effective assistance of counsel. See Effective Assistance of Counsel Federal habeas corpus. See Federal Habeas Corpus Forfeiture of arror, faiture to object at trial resulting in, 4.26-4.28 Guilty or nolo contendere plea resulting in waiver of errors concerning defendant's guilt, att Harmless error. See Harmless Error Information or indictment, time limits for nonstatutory motion for writ of prohibition to dismiss for errors committed during praliminary hearing not appearing on face of transcript, 738 Invited error, party estopped from raising on appeal, 4.29 Mandate, issuance of writ to correct erroneous orders, 725 Prejudicial error Death penalty verdict, prejudicial error resulting in remand for new hearing on automatic motion to modify, 6.61 Lesser degree of offense or lesser included offense, prejudicial error as grounds for modification of original conviction to, 5.30 Reversal of judgment, prerequisite of projudicial error for, 4.21 Watson rule, burden on appellant to show reasonable possibility that result would have been more favorable in absence of error, 4.21, 4.32 Remittitur recalled in error, appellate court vacating recall order, 5.37 Reversal of judgment based on error. See Reversal of Judgment Sentencing errors. See Sentences: and Sentencing Standard of review. See Standard of Review ‘Tiial courts retention of jurisdiction to correct clerical errors, 1.40 Waiver of error Ineffective assistance of counsel claim on appeal, trial counsel's: waiver of error as basis for, 4.34 ‘Sentencing errors, waiver of, 18 Estoppel Invited error, party estopped from raising on appeal, 4.29 Ethics. Seo Legal Ethics Evidence See also Burden of Proot Death penalty cases. See Death Penalty en7Evidence—cont. Definitions False evidence, 9.41 Now evidence, 9.40 Evidentiary hearing. See Hearings Exclusion of evidence ‘Arguable issues on appeal, errors in admission or exclusion of evidence as, 4.16 Forfeiture of issue, effect of failing to raise argument for exclusion of evidence at trial resulting in, 428 Failure to object to evidence at trial, effect of, 4.26-4.28 Federal habeas corpus. See Federal Habeas Corpus Habeas corpus. See Habeas Corpus Hearsay objection, effect on right to appeal admission of evidence in violation of right to confront witnesses, 4.28 Insufficient evidence Lesser degree of offense or lesser included offense, insufficient evidence supporting conviction of, 5.30 Reversal, insufficient evidence as grounds for. See Reversal of Judgment Per se reversible error, failure to ‘conduct competency hearing if substantial evidence of defendant's incompetence introduced as, 4.30 Search and seizure. See Search and Seizure Exculpatory Evidence. Soe Federal Habeas Corpus Execution of Documents. See Signatures Exhaustion of Remedies Coram vobis petition, allegation of ‘exhaustion of remedies, 11.20f Federal habeas corpus relief, exhaustion of state remedies as prerequisite for seeking. See Federal Habeas Corpus Habeas corpus relief, exhaustion of appellate remedies as prerequisite for. Soa Habeas Corpus ez Index * 1-26 Mandate or prohibition, allegation concerning exhaustion of remedies in petition for writ of. Soe Contents of Writs (Mandate or Prohibition) Petition for review to exhaust state remedies, 5.44, 5.54 Exhibits Appellate attorney's review of exhibits introduced at trial, 4.3 Augmenting documentary exhibits, 3.9 Brief, attachment of exhibits to, 3.40 Habeas corpus petition, attaching exhibits to, 10.9 Mandate or prohibition, exhibits attached to petition for wrt of. See Contents of Writs (Mandate or Prohibition) ral argument in court of appeal, use of trial exhibits during, 5.3 Record on appeal, including exhibits in, See Record on Appeal ‘Transcript of tape recording, maintaining as exhibit, 3.9 Ex Parte Federal habeas corpus proceedings, ex parte requests in, 13.15 Expenses and Expenditures See also Costs; Fees Death penalty cases. See Death Penalty Experts and Expert Witnesses Forfeiture of issuo, failure to object to expert witness resulting in, 4.28 Habeas corpus relief, expert's false testimony as grounds for, 9.41 Mandate, petition to obtain public funds for indigent defendant to hire experts, 727 Ex Post Facto See also Retroactive Application of Laws Categories of ex post facto laws, 4.38 Federal habeas corpus reliet Harmless error rule, ex post facto violations in sentencing not ‘subject to, 1723. U.S. Constitution, federat habeas corpus relief based on ex post facto clause of, 13.65 Relief for ex post facto violation, 17231-27 + Index Expungement of Conviction Mandate, petition for writ to compel court o expunge conviction, 728 Extension of Time Briefs, extension of time to file. See Briefs California Supreme Court (Onder for review of court of appeal decision, extension of time for issuing, 1.37, 5.46 Patition for review, prohibition against extension of time for filing, 5.43 Certiorati, extension of time for fling petition for writ of, 12.26, 18.57 Death penalty cases, See Death Penalty Electronic service, extensions on, 8.59 Federal habeas corpus. See Federal Habeas Corpus Record on appeal, extending time for preparation of. See Record on Appeal Rehearing, extending date of finality to tule on petition for, 5.39 Reporter's transcript, extension of time to prepare, 3.19 Extradition Habeas corpus petition for reviewing extradition proceedings, 9.19 Miranda, inapplicability to extradition proceedings, 13.29 Extraordinary Writs Federal habeas corpus. See Federal Habeas Corpus Habeas corpus. See Habeas Corpus Information or indictment, using extraordinary writ of mandate after partial dismissal of, 1.20 Mandate. See Mandate, Writ of Misiabeling of writ, effect on requested relief, 74 Prohibition. See Prohibition, Writ of Facsimile Rules of Court authorizing service by fax, 8.58 Federal Courts Federal habeas corpus. See Federal Habeas Corpus Jurisdiction to hear habeas corpus Petitions brought by state prisoners, 1.41 Federal Habeas Corpus See also Habeas Corpus Generally, 13.1 Adjudication of claims in state court, federal court deciding reasonableness of state court decision, 17.14 Affidavits and declarations Bail, declaration in support of application for, 13.20f Extension of time to fle appellate brief, declaration supporting request for, 18.32, 18.44f Live testimony at hearing, submission of affidavits or declarations in place of, 17.168 Alternative remedies, 13.1 Amendment of wrt petition Deficient petition (see Deficient petition, amendment of, below) Dismissal of petition, court giving petitioner opportunity to amend petition after, 17.4 Limitations period, amending writ petition after expiration of, 15.8 Answer Gonerally (see Response to habeas petition by state, below) Electronic filing system, requirement counsel use for answer to patition, 178 Rehearing petition, restrictions on answer to, 18.53 Reply by petitioner (petitioner's traverse), 12.10, 1727 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA} Evidentiary hearings under, 17.21 Jurisdiction of U.S. Supreme Court to entertain habeas petitions filed as original maiters, effect of Acton, 12.3 ‘Successive habeas corpus petitions, Act restricting, 75.9 ‘Transfer, statute of limitations beginning on denial of petition for, 141 ‘Appealing grant or denial of petition Generally, 18.1 67Index + 1-28 Federal Habeas Corpus — cont Appealing grant or denial of petition—cont. Appointment of counsel for appeal, 18.18 Briets (see Briefs for appeat, below) Certificate of appealability (see Certificate of appealability (COA), below) Custodial status of inmate (see Custodial status of inmate, effect of appeal on, below) Electronic filing requirements, 18.19 Excerpts of Record, submission of, 18.19 Hearing (see Hearing on appeal, below) In forma pauperis. See In Forma Pauperis Now habeas petition, fling in response to denial of original petition, 15.3 Notice of appeal (see Notice of appeal, below) Postappeliate review (see Postappeliate raview, below) Record on appeal (see Record on appeal, below) ‘Successive habeas petition, no appeal from denial of permission to file, 15.11 ‘Summary denial of state habeas corpus petition without ‘comment as denial on merits requiring deferential review in faderat court, 13.22 Untimely petition, effect of fing in ‘state court, 15.3 Vacating and re-entering judgment by district court to restore ‘opportunity to appeal, 18.3 Appointment of counsel Appeal, appointment of counsel for, 18.18 ‘Compensation of appointed counsel, 13.13. Contlict of interest, no right to new attorney for preparation of federal habeas corpus petition, 24 67 Appointment of counsel--cant. Discovery, appointmont of counsel for indigent petitioner to assist with, 1715 Noncapital habeas corpus proceedings. right to counsel in, 13.10-13.13 Options ‘or attorney appointed in state court regarding representation of indigent petitioner, 13.12 Request for appointment of counsel, 13.11, 13.15 Stay of proceedings to permit ‘appointment of counsel, 13.18 Assignment of case to judge or magistrate Generally, 16.13A, 17.1 Delay in taking action on petition, petitioner writing to assigned judge regarding, 17.3 Related case rule, effect on assignment of habeas petitions, 16.13A, 1217 Temporary unavailability of assigned judge, referra! of case to another judge, 171 United Statos magistrate, district court judge's referral of potition to, 172 Attomey General Memorandum in support of answer to habeas petition, Atomey General filing, 17.7 Order to show cause, Attorney General filing motion for dismissal as alternative to answer, 176 Availability of writ, 13.1 Avoiding procedural default bar to federal review Claimed violation of federal law resulting in prejudice as prerequisite for federa! court review, 15.31, 15.35 Factors in determining if procedural default bars consideration on merits, 15.29 Fundamental miscarriage of justice, exception to cause and projudice requirement in cases of, 15.361-29 = Index Federal Habeas Corpus—cont. Avoiding procedural default bar to federal review—cont. Inefiective assistance of counsel, procedural default as basis of claim, 15.30 Showing cause for procedural default as prerequisite for federal court review, 15.31— 15.34 Trial-state procedural defaults in state court proceedings, remedies for, 15.28 Bail. See Bail and O.R. Release Bias (see Due process violations as grounds for relief, below) Briefs for appeat Appellants opening brief, 18.50f Contents of brief (see Contents of brief for appeal, below) Electronic case filing, rules resulting from mandate for, 18.31, 18.36 Filing brief (see Filing brief for appeal, below) Format requirements, 18.29 Length of bret, limits on, 18.30 Number of briefs, 18.34 ‘Order to show cause requiring respondent file copies of all briois, 175 Possible motions, examples of and rules regarding, 18.258 Reply brief (see Reply brief, below) Service of brief, 18.31 Burden of proof Equitable tolling of staute of limitations, litigant's burden of proving applicability of, 15.4 Factual allegations, petitioner's burden to provide record to support, 1721 Certificate of appealability (COA) Generally, 18.10 Briefing certified and uncertified issues, 18.26 Certiorasi, fling writ for certificate of appeal, 18.17 Denial of counsel, inapplicability of COA if appealing order regarding, 18.11 Certificate of appealability (COA)—cont. Denial of unauthorized second or successive petition, Certificate of Appealability as requirements for appealing, 15.11 District court, filing COA in, 18.13 District court's denial of COA, petitioner filing motion in Circuit, 18.14 Expansion of COA, motion for, 18.15 'ssue-specification requirement, 18.15. Scope of, 18.12 ‘Standards for issuing, 18.11 United States Supreme Court, fling writ of certiorari for COA, 18.16 Certiorari, writ of. See Certiorari, Writ of Civil rights lawsuit as alternative for prisoner seeking relief outside core of habeas corpus, 13.68 Class actions Bringing class action to obtain habeas corpus relief, 16.13A Mootness issue, effect of class action on, 14.13, ‘Common law origins of, 13.2 Conditions of imprisonment, Unavallabilty of federal habeas relief for, 13.1 Confinement, habeas corpus as exclusive remedy for prisoner seeking relief from, 13.68 ‘Consequences of fing habeas petition in state supreme court first, 14.30 Constitutional grounds for habeas relief Generally, 13.27 Due process (see Due process violations as grounds for relief, ‘below) Eighth Amendment as grounds for relief, penalty disproportionate tocrime, 13.40 Equal protection grounds, chatlenging exclusion of jurors on, 13.66 Ex post facto. See Ex Post Facto jinth GATIndex * 1-30 Federal Habeas Corpus—cont. Constitutional grounds for habeas telief—cont. Fith Amendment (see Fifth ‘Amendment violations as grounds for relief, below) Muttiple constitutional errors justifying habeas relief, 13.27 Sixth Amendment (see Sixth ‘Amendment violations as grounds for relief, below) Vagueness and overbreadth of statute as grounds for habeas relief, 13.64 Construction and interpratation. See Construction and Interpretation Contents of brief for appeal Appellant's brief, 18.26 Appellee's brief, 18.27 Roply brief, 18.28 Core of, 13.68, Court-appointed counsel (see Appointment of counsel, above) ‘Custodial status of inmate, effect of appeal on Release pending appeal, 18.23 ‘Stay of judgment (see Stay of judgment, below) Transfer of custody pending appeal, 18.24 Custody. petitioner in Consecutive or concurrent sentences, 14.4 Construction of custody, 13.1 Date federal habeas corpus petition filed, requirement that petitioner be in custody on, 14.8 Definition of custody, 14.2 Examples of cases in which custody found to exist. 14.3- 145 Examples of cases in which custody not found to exist, 146-147 Further restraints, 14.5 Mootness (see Moomess versus custody, below) Pretrial custody (see Pratrial custody, petitioner challenging, below) 6n7 Custody, petitioner in—cont. Prior conviction used to enhance sentence for current conviction, 146 Death penalty Default based on failure to file habeas corpus patition in death penalty case, effect on consideration of defendants habeas claims in federal court, 6.45 Response to habeas corpus patition, 176 State proportionality review of death sentence, limits on federal habeas corpus review of, 6.57 Stay of execution pending review of federal habeas corpus, 12.9, 18.22 Dectarations (see Affidavits and declarations, above) Defenses Affirmative defense, respondent pleading independent and adequate state procedural bar to relief as, 15.21, 15.27 Grounds for relief, denial of right to presont defense as, 13.36 Deficient petition, amendment ot Generally, 16.12 Dismissal of deficient patition, effect of statute of limitations on filing amended petition, 17.4 Delay Due process violations (see Due process violations as grounds for relief, below) Petitioner's options in responding to court's delay in disposition of petition for writ, 173 Disclosures, prosecution's failure to make required (see Due Process violations as grounds: {or ralief, bolow) Discretion of court Appointment of counsel in noncapital casas, 13.10 Conditioning judgment granting release of petitioner, courl’s discretion in, 172431 © Index Federal Habeas Corpus—cont. Discretion of court—cont. Unverified petition, court’s petition to dismiss or ignore defect, 16.4 Dismissat of action ‘Amendment of petition after dismissal, court giving petitioner opportunity for, 174 Appeal, failure to file brief resulting in dismissal of, 18.33. Defective or frivolous petition, dismissal of, 16.12 Electronic filing system, Tequiremant counsel use for dismissal motion, 178 Failure to exhaust state remedies, dismissal without prejudice, 15.13 In forma pauperis proceedings. See In Forma Pauperis Proceedings (Order to show cause, Attorney General fing motion for dismissal as alternative to answer, 176 Prior law requiring dismissal of petition containing exhausted and unexhausted state claims, 14.35 Procedural default, effect of dismissal of wrt petition for, 16.13 ‘State's motion for dismissal, 176, 1726f Statute of limitations (see Statute of limitations, below} ‘Sua sponte, court’s authority to dismiss petition, 174 Summary dismissal, 174 Unverified petition, dismissal of, 164 Disposition of petition Appealing denial of petition (see ‘Appealing grant or denial of peiition, above) Conditional writ remanding case to state court, 17.24 Denial of petition for writ, 1724 Discretion of court in conditioning judgment granting release of petitioner, 1724 Disposition of petition—cont. Dismissal of action (see Dismissal of action, above) Prompt disposition, requirement of, 173 Release of prisoner after granting writ, 1724 Remand of habeas petition to state court, 1724 Res judicata effect of district court's habeas decision, 1725 District court proceedings Burden on petitioner to provide record to support factual allagations, 1721 Discovery, party's request for, 1715 Evidontiary hearing (see Evidentiary hearing, below) Merits of petitioner's claim for relief {sae Marits of petitioner's claim {or relief, determination of, below) Presumption of correctness of state court fact finding, 17.21 Unreasonable determination of fact by state court, 1714, 1721 Due process requiring district judge hold evidentiary hearing before rejecting magistrate judge's credibility finding, 16.12B Due process violations as grounds for reliet Adequate record for state appeliate review, failure to provide, 13.61 Appeal, trial counsel's failure to protect defendant's right to, 13.62, Competency to stand trial or plead guilty, 13.48 Continuance, denial of, 13.47 Effective assistance of appellate counsel, due process guaranteeing right to, 43.34 Evidence supporting verdict, sufficiency of, 13.58 Exculpatory evidence, failure to collect or preserve, 13.43 Exculpatory evidence, failure to disclose, 13.42 Forced medication of defendant during trial, 13.56 ezFederal Habeas Corpus—cont. Due process violations as grounds for relief—cont. impermissibly suggestive identification procedures, 13.44 Involuntary guilty plea, 13.46 Jail-issued clothing worn by defendant at tral, petition challenging, 13.54 Judicial bias, due process requiring rocusal, 18.52 Juror bias and misconduct, 13.51 Jury instructions, limits on federal habeas corpus review of, 13.57 Magistrate judge's credibility finding, requirement district judge hold evidentiary hearing before rejecting, 172 Plea bargain, violation of, 15.47 Present at trial proceedings, defendant's right to be, 13.53 Pretrial publicity, 13.50 Prior conviction, use in subsequent proceeding, 13.60 Processing appeal, delay in, 13. Prosecutorial misconduct, 13.41 Prosecutorial or judicial vindictiveness, 13.45 Psychiatric assistance, right to, 13.49 Restraints and security measures used on defendant at trial, 13.65 ‘Sentencing procedures, challenging unconstitutionality of, 13.59 Eflective assistance of counsel (see Sixth Amendment violations as grounds for relief, below) Electronic filing Briefs for appeal, 18.31, 18.35 ‘Case Management/Electionic Case Files (CM/ECF) filing system, federal district courts in California requiring attorneys to file pleadings using, 16.9 Dismissal motion or answer to. petition, requirement counsel use court’ electronic fing system, 17.8 Grant of derial of petition, appeal from, 18.19 en7 Index» 132 Enhancement of sentence, petition challenging prior conviction Used for purposes of, 13.60, 14.6 Equitable tolling of limitations period {or filing habeas petition Generally, 15.4 Actual innocence, effect of petitioner demonstrating, 15.7 Dovolop factual record supporting ‘equitable tolling, court required 10, 15.6 Dus diligence by petitioner, requirement of, 15.5 Extraordinary circumstances, requirement of, 15.5 Enor Harmless error (see Harmless error standard applicable to federal habeas corpus actions, below) Impermissible bases of habeas claim, errors in postconviction proceedings as, 15.45 Evidence considered by federal court, limitations on Generally, 1212 Diligence by petitioner in efforts to develop factual basis of claim as precondition for introducing additional evidence, 17.13 State court decision, effect on petitioner's ability to introduce additional evidence, 17.14 Evidentiary hearing ‘Affidavits or declarations in place of evidentiary hearing, 17.16 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), evidentiary hearings under, 9724 Conduct of, 1717-1720 Counsel, petitioner's right to, 1219 Court-appointed investigator after evidentiary hearing ordered for habeas petition, 1719 Credibility of evidence, court holding hearing to determine, 1216 Discovery before evidentiary hearing, court order authorizing, 1218£33 > Index Federal Habeas Corpus—cont. Evidentiary hearing—cont. Factors in determining if petitioner entitled to evidentiary hearing, T13 Factual record, district court not required to hold evidentiary hearing to further develop, 15.6 Failura to timely request evidentiary hearing resulting in waiver of right to have hearing, 1710 Federal Rules of Evidence and Federal Rules of Civil Procedure, applicability in habeas corpus proceedings, 1718 ury trial, no right to, 17.17 Physical restraint of petitioner attending evidentiary hearing, 1720 Present at hearing, petitioners right to be, 1720 United States magistrate holding, 172, W717 United States magistrate’s credibility finding, requirement that district judge hold evidentiary hearing before rejecting, 16.138 Witness credibility, district court conducting new evidentiary hearing to ascertain, 172 Excerpts of record, preparation and filing of Contents of excerpts, 18.35 Failuro to comply with excorpts of record requirements, effect of, 18.38 Format requirements for excerpts, 18.36 Pro se parties, exemption from filing requirements, 18.39 Supplemental excerpts of record, appellee filing, 18.37 Exculpatory evidence (see Due process violations as grounds for relief, above} Execution of sentences, unavailability of federal habeas relief for challenging, 13.1 Exhaustion of state remedies Generally, 13.3, 14.1, 14.18 Exhaustion of state remedies—cont. Additional facts, petitioner's presentation in federal court, 14.25, Consideration of merits by court despite improper presentation of claim, effect of, 14.23 Direct appeal, raising issues on, 14.29 Dismissal of action (see Dismissat of action, above) Examples of fair presentation of factual basis of claim, 14.26 Factual basis of claim, fair presentation of, 14.24-14.26 Failure of court to address claim, effect of, 14.22 Failure to exhaust state remedies (see Failure to exhaust stato remedies, below) Fair presentation of claim to state's highest court with jurisdiction to hear claim, 14.20-14.27 Federalizing issues, 4.36, 13.3 Felony cases, exhaustion of state semedies in, 13.3, 14.29-14.30 Legal basis of claim, fair presentation of, 14,21-14.23 Misdemeanor cases, exhausting State remedies in, 14.31 Presenting claims to state court more than once, no requirement of, 14.92 Procedural default and exhaustion requirement, relation between, 15.14 Requirements for exhausting federal claim in state court, 14.19-14.27 Respondent's duty to allege nonexhaustion, 14.28 ‘Writ of certiorari, petitioner not required 10 petition for, 14.33 Expanding the record by adding materials to federal court record, 1716 Ex parte requests, 13.15 Ex post facto. See Ex Post Facto Extension of time for filing notice of appeal Generally, 18.9 6n7Federal Habeas Corpus—cont. Extension of time for fling notice of appeal—cont. Declaration in support of motion for order extending time for appeal, 18.32, 18.44f Motion for order extending time for appeal, 18.43f ‘Order extending time for appeal, 18.45F Failure to exhaust state remedies Circumstances excusing failure to exhaust state remedies, 14.37-14.40 Effect of, 14.34 Ineffectivaness of state remedies, exhaustion requirement excused by, 14.39 Mixed petitions held in abeyance pending exhaustion of state remedies, 14.36 Mixed petitions, prior law requiring dismissal of, 14.35 Nonstatutory exceptions to exhaustion requirement, 14.40 Petitions containing both exhausted and unexhausted claims, 14.35-14.36 Statutory exceptions to exhaustion requirement, 14.38-14.39 ‘Waiver of exhaustion requirement by state, 14.37 Fees Filing fee, 12.20 Notice of appeal, 18.7 Petition for writ, 16.10 Transcript, fee for, 12.25 Fifth Amendment violations as grounds for relief ‘Compelled incriminating testimony, Filth Amendment prohibiting admission of, 13.29 Double jeopardy, 13.28, 15.47 Filing brief for appeal Generally, 18.31 Extension of time for fling brief, 18.32 Failure to file brief, consequences of, 18.93 Filing habeas petition Calculation of 1-year period for filing petition, 15.2 oz index + 1-34 Filing habeas petition—cont California Supreme Court, fling habeas petition not precondition to filing for federal habeas corpus relief, 3.45 Chart, preparing and filing federal habeas corpus petition, 16.14 Copies, 16.9 Jurisdiction, 16.7 Separate petition to challenge judgment of second state court, 168 Venue, 13.5, 16.7 Grounds for habeas corpus relief Constitutional grounds (see Constitutional grounds for habeas relief, above) Pretrial relief, grounds for, 14.16 Guilty plea Due process (see Due process violations as grounds for ralief, above) ‘Scope of habeas corpus, effect of guilty piea on, 15.47 Harmiess error standard applicable to federal habeas corpus actions Generally, 1722 Examples of harmless trial errors, 1723 Exceptions in which harmless error rule not applicable, 17.23 Hearing on appeal ‘Oral argument, 18.40 ‘Standard of raview, 18.41 United States magistrate holding evidentiary hearing, 17.2, 1717 Hearings Evidentiary hearing (see Evidentiary hearing, above) Priority for habeas corpus appeals, 18.1 Impermissible bases of habeas claims Federal statutory and supervisory power issues, 15.43 Fourth Amendment claims based ‘on exclusionary rule, 15.41 innocence, claims of, 15.46 New ruies of constitutional criminal procedure (see Naw rules of constitutonal criminal procedure as impermissible bases of habeas corpus, below)1-35» Index Federal Habeas Corpus—cort. Impermissible bases of habeas claims~cont. Postconviction proceeding, errors in, 15.45 Preliminary hearing, lack of ‘constitutional right to, 15.44 State law issues, 15.42 Indigent defendants, appointment of counsel for (see Appointment of counsel, above) In forma pauperis. See In Forma Pauperis Procesdings Innocent petitioner Claim of innocence, restrictions on basing petition for habeas refief on, 15.46 Equitable exception to limitations period for filing habeas petition, effect of petitioner demonstrating actual innocence, 15.7 Procedural default barring federal review, exception to cause and plejudice requirement for fundamental miscarriage of justice, 15.36 Judges Assignment of case to judge (sea Assignment of case to judge or magistrate, above) Circuit judges’ concurrent jurisdiction with district courts to issue writ, 16.7 Due process, judicial vindictiveness, as violation of, 13.45 Jurisdiction Appeal, filing jurisdictional ‘statement with brief, 18.26 Authorization for second or successive habeas petition, effect of petitioner's failure to obtain on district courts jurisdiction to consider petition, 15.14 Certificate of appealability, effect of deiects on court of appeals’ jurisdiction, 18.10 Circuit judges’ concurrent jurisdiction with district courts to issue writ, 16.7 Jurisdiction—cont. Exhaustion of state remedy, fair prasentation of claim to state's highest court with jurisdiction to hear claim, 14.20-14.27 Filing habeas petition, jurisdictional issues, 16.7 Lack of jurisdiction over petitioner, petition based on claim of, 13.67 Loss of federal jurisdiction, petitioner's unconditional release resulting in, 14.9 Magistrate judge, parties consenting to jurisdiction of, 16.138 Jury instructions, limits on federal habeas corpus review of, 13.57 Jury trial Equal protection grounds, challenging exclusion of jurors on, 13.66 Evidentiary hearing, no right to jury trial in, 17.17 Juror questionnaires and transcripts of trial court proceedings not presented to state court of appeal, federal courts deciding jury discrimination claims considering, 1714 Potitioner's lack of right to jury trial in habeas proceeding, 17.17 Sixth Amendment right to jury trial, violation of, 13.39 Legal research Controlling legal principles, 13.7 Practice aids, 13.6 Pro se legal research (see Pro se legal research, below) Lessor conviction, inappropriate for habeas writ to specify, 17.24 Limitations on use of federal habeas corpus, 13.1-13.2 Location of courts and prisons by federal judicial district and county, 13.5 Magistrate (see United States magistrate, below) en7Index * 1-36 Federal Habeas Corpus—cont. Mail Institution's internal mailing system, prisoner filing paper by depositing in, 15.2, 18.6 Prison mailbox rule, effect of, 15.3, 18.6 Mandate, writ of, See Mandate, Writ of Memorandum in support or opposition Attorney General filing memorandum in support of answer to habeas petition, 17.7 Reply by petitioner with supporting memorandum of points and authorities, 1710 Merits of petitioner's claim for relief, determination of Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), substantive limitations imposed by, 1721 Clearly established federal law, determining if state court erred under, 17.14 Evidentiary hearing (see Evidentiary hearing, abave) Harmless error (see Harmless error standard applicable to federal habeas corpus actions, above) Unreasonable determination of facts by state court, effect of, 17.14, 17.21 Misconduct (see Due process violations as grounds for relief, above) Mootness versus custody Class action, affect on mootness issue, 14.13, Collateral consequences, effect of conviction having, 14.10 Collateral consequences, petitioner alleging to overcome mootness barrier, 14.12 Exception to mootness doctrine, 14.44 Federal jurisdiction, petitioner's unconditional release resulting in loss of, 14.9 Termination of challenged sentence rendering habeas corpus Petition moot, 14.11 67 Motions seeking appellate relief from federal district court's denial of habeas, examples of and rules governing possible, 18.254 New rules of constitutional criminal procedure as impermissible bases of habeas corpus Generally, 15.37 Definition of naw rule, 15.39 Exceptions to nonretroactivity rule, 15.40 Finality of conviction, determining date of, 15.98 Notice, generally Defendant's right to fair notice of crimes charged, violation as grounds for federal habeas corpus petition, 13.38 Dismissal of petition, court notifying patitioner of, 174 Related cases, counsef's duty to notify court about, 16.13 Notice of appeal Calculating due date for entry of judgment, 18.4 Calculating due date when post-judgment motion fled, 18.5 Contents of notice, 18.7 Copies, required number for filing, 18.42 District court, filing notice of appeal in, 18.2 Extension of time (see Extension of time for filing notice of appeal, above) Fees, 18.7 Form, notice of appeal, 18.42f Incarcerated litigant, timeliness of notice by, 18.6 Mailbox rule for incarcerated pro se. litigant filing notice of appeal, 18.6 Reopening time for filing notice of appeal, 18.9 ‘Service of notice of appeal, 18.8 Time limit for filing notice, generally, 18.3 Transeript, time limit for ordering, 18.25 Oral argument Hearing on appeal, 18.401:37 «© Index Federa! Habeas Corpus—cont. ‘Oral argument—cont. Rehearing petition, no oral ‘argument on, 18.51 Orders Extension of time for appeal, 18.45f In forma pauperis. See In Forma Pauperis Proceedings Writ of certiorari to United States ‘Supreme Court for review of federal habeas corpus order, 18.57 Physical restraints Due process violation, restraints and security measures used on defendant at trial constituting, 13.55 Evidentiary hearing, physical restraints on petitioner attending, 1720 Plea bargain, See Plea Bargain Postappeliate review Rehearing (see Rehearing on appeal, below) Writ of certiorari to United States ‘Supreme Court for review of federal habeas corpus order, 18.57 Prejudice Due process violations (see Due process violations as grounds {or relief, above) Procedural default bar to federal review (see Avoiding procedural default bar to federal review, above) Preparation of habeas petition Chart, preparing and filing federal habeas corpus petition, 16.14 Clerk of district court, fling petition with, 16.9 Content requirements, 16.3, Form requirements, 16.1 Next friend petition, 16.5 Obtaining forms, 16.2 Official form, petition for writ of habeas corpus by person in state custody, 16.15f Parties to petition, 16.5-16.6 Petitioner, 16.5, Respondent, 16.6 Preparation of habeas petition—cont. Stay of proceedings to allow proparation of petition, 13.18 Verification of petition, 16.4 Prerequisites for seeking habeas reliet Generally, 14.1 Cognizabitity of claim in federal court, 14.17 Custody (see Custody, petitioner in, above) Developing state of federal habeas law, knowledge of, 6.2 Exhaustion of state remedies (see Exhaustion of state remedies, above) Grounds for habeas corpus relief (see Grounds for habeas corpus relief, above) Presumptions. Fact finding by state court, presumption affecting correctness of, 1721 Federal authority, no presumption state court failed 0 follow controlling federal law based on failure to cite, 13.25 Pretrial custody, petitioner challenging Governing statute for, 14.15 Grounds for pretrial relief, 14.16 Procedural default on state court claim Affirmative defense, respondent pleading independent and adequate state procedural bar to relief as, 15.21, 15.27 Avoiding procedural default bar to federal review (see Avoiding procedural default bar to federal review, above) Both state and federal grounds, eftect of state court denying relief on, 15.16 ‘Consequences of procedural default, 15.13 Consistency of state procedural bar used to deny rele in petitioner's case, 15.21 Definition of procedural defaut, 15.12 Determining if claim procedurally defaulted, 15.16-15.18 67Index + 1-38 Federal Habeas Corpus—cont. Procedural default on state court claim—cont. Determining if state procedural bar independent of federal law, 15.20, Direct appeal, bar on claims presented and denied on, 15.26 Exhaustion of state remedies requirement and procedural default, relation between, 15.14 Independent and adequate state law grounds for denial of petitioner's federal claim, 15.19-15.26 Pretermitted claims, rules barring, 15.25 Purpose of, 15.15 Review of defaulted claim by state court under more stringent ‘standards than would ordinarily apply, offoct of, 16.18 Specific California procedural bars, independence and adequacy of, 15.22-15.26 Successive petition bar, 15.244 Sufficiency of evidence claims, bar on habeas review of, 15.23, Untimetiness bar, 15.24 Without explanation, state court's denial of relief, 15.17 Prosecutorial actions violating due process (see Due process violations as grounds for relief, above) Pro se legal research ‘Access to legal materials for prisoners, 13.9 Basic legal research tools, 13.8 Pro se petitioners Generally, 13.14, 16.1 Appointment of counsel for appeals, pro se petitioner seeking, 18.18 Excerpts of record, pro se parties ‘exempt from requirement of fling, 18.39 Notice of appeal by incarcerated litigant, timeliness of, 18.6 Oral argument, Ninth Circuit deciding pro se appeals without, 18.40 67 Pro se petitioners —coni. Subsequent petition filed before adjudication of first petition ‘treated as amendment of first petition, 15.9 ‘Questions of law, standard of review for Examples of Ninth Circuit cases, 13.26 State court decision contrary to federal law, determining if, 18.24 Unreasonable application of federal law, 13.25 U.S. Supreme Court haldings, federal law determined by, 13.28 Record on appeal Generally, 18.25 Affidavits (see Affidavits and declarations, above) Excarpts of racord {soe Excorpts of record, preparation and filing of, above) Rehearing on appeal Answer, 18.53, Content and form requirement for tehearing petition, 18.51 Disposition of petition for rehearing, 18.54 En bane consideration, request for, 18.55 Form, petition for rehearing, 18.58f Mandate of court, 18.56 Service and filing requirements for rehearing petition, 18.52 Release of prisoner, federal court's power limited to ordering, 17.24 Reply brief Contents of, 18.28 Length of brief, limits on, 18.30 Time for filing, 18.31 Response to habeas petition by state ‘Answer to petition, 177 Default judgment, state's failure to ‘ile response not resulting in, 179 mation to, 176, 1726f Order to show cause requiring state to respond to habeas petition, 175 Service and filing of response, 1781-39 © Index Federal Habeas Corpus—cont. Restraints (see Physical restraints, above) Restraints on liberty from causes other than conviction and sentencing, Patition for relief challenging, 13.68 Retroactive application of laws. See Retroactive Application of Laws Right to counsel Appointment of counsel (see ‘Appointment of counsel, above) Competency of defendant, petition for roliof chalionging ruling on, 13.48 Petitioner's right to counsel, 1719 Sixth Amendment, violations of (see Sixth Amendment violations as grounds for relief, below) Rules governing petition for writ of habeas corpus, 13.69 Rules of court. See Rules of Court Sanctions. Brief for appeal, sanctions for failura to fle, 18.33 Excerpts of record, sanetions for failure to fle, 18.38 Scope of, 13.1 Service of papers Brief, service of, 18.31 Notice of appeal, service of, 18.8 Rehearing petition, 18.52 State's response to habeas petition, service of, 178 ‘Sixth Amendment violations as grounds for relief Counsel, right to, 13.32 Defense, right to present, 13.36 Effective assistance of trial counsel, right to, 13.10, 13.33 Failure to exhaust state claims due 10 ineffective assistance of postconviction counsel as good cause to stay and absy federal proceedings until state Tamedies exhausted, 13.10 Jury trial, right to, 13.39 ‘Sixth Amendment violations 2s grounds for reliaf—cont. Misconduct demonstrating juror bias as violation of Sixth Amendment tight to fair and impartial jury, 13.56 Notice of crimes charged, violation of defendant's right to, 13.38 Post-conviction counsel's ineffectiveness as cause for procedural default of ineffective assistance of counsel claim, 15.35 Procedural default as basis of claim for ineffective assistance of counsel, 15.30 Self-representation, violation of fight to, 13.95 Speedy trial, denial of, 18.30 ‘Testify, defendant's right to, 13.37 Witnesses, right to call, 13.96 Witnesses, rignt to confront, 13.37 Standard of review De novo review for claims state court did not adjudicate on merits, 18.22 Highly deferential standard of review for evaluating state court rulings, 13.22 ‘Questions of law (see Quastions of law, standard of review for, above) State remadies, exhaustion of (see Exhaustion of state remedies, above) Statute of limitations Actual innocence, effect of proving, 15.36 ‘Amending writ petition after limitations period, 15.8 Antiterrorism and Effective Death Penalty Act, statute of limitations beginning on denial of petition for transfer, 1.41 Calculation of 4-year period for filing petition, 15.2 Dismissal of deficient petition, effect of statute of limitations on filing amended petition, 174 6n7Federal Habeas Corpus—cont. Statute of limitations—cont. Dismissal of state habeas petition, statute of limitations for filing federal habeas corpus petition alter, 9.14 ‘+-year statute of limitations for filing Petition for federal habeas corpus, 15.1 Postconviction federal habeas petitions, statute of limitations for filing, 13.2 Tolling (see Tolling of limitations period for filing habeas petition, below) ‘Waiver of statute of limitations defense by respondent, effect of, 15.1 Stay of judgment Capital case, stay of execution in, 12.9, 18.22 District court judgment, stay of, 18.21 ‘State court proceedings or judgment, stay of, 12.9, 18.20 Stay of proceedings Generally, 13.18 Appeal, circuit court of appeals power to stay implementation of conditional writ pending disposition of, 17.24 Failure to exhaust stato claims due 40 ineffective assistance of postconviction counsel as good ‘cause to stay and aboy federal proceedings until state remedies exhausted, 13.10 ‘New evidence, stay of federal habeas corpus proceadings to allow state court to consider, 13,28, 1715 ‘Order granting stay to allow state habeas petitioner to exhaust claims in state court, nonappealability of, 14.36 Petition for habeas ralief containing exhausted and unexhausted state claims, stay pending ‘exhaustion of state remedies, 14.36, ey Index + 140 Strategies for pursuing federal habeas, necessity for obtaining experienced legal advisors on, 62 Successive federal habeas corpus petitions Permission to file second or successive habeas petition, petitioner obtaining, 15.11 Restrictions on, 15.9 ‘Summary adjudication, resolution of habeas corpus cases by, 1711 ‘Summary judgment motion, either party bringing, 1711 Time Brief for appeal, time for filing (see Filing brief for appeal, above) Certificate of appealability, time limit for filing request in Ninth Circuit for, 18.14 In forma pauperis, time limit for filing motion in Ninth Circuit for leave to proceed, 18.48 Mandate of court, time limit for issuance of, 18.56 Notice of appeal (see Notice of appeal, above) Rehearing petition, time limit for filing, 18.55 Statute of limitations (see Statute of limitations, above) United States magistrate's findings of fact and law, time limit for filing objections to, 16.138, 172 Tolling of limitations period for filing habeas petition Equitable tolling (see Equitable tolling of limitations period for filing habeas petition, above) Statutory tolling, 15.3 United States magistrate Assignment of case to, 172 Evidentiary hearing, magistrate holding (see Evidentiary hearing, above) Jurisdiction of magistrate judge, 16.13B Powers of, 172 United States Supreme Court, filing original petition for writ of habeas corpus with, 12.3 Venue for fling petition, 13.5, 16.7It Index Federal Habeas Corpus—cont. Verdict, sufficiency of evidence supporting, 13.58 Waiver Evidentiary hearing, failure to timely request resulting in waiver of right to have, 17.10 Exhausting state remedies, state's waiver of requirement, 14.37 Magistrate's findings and recommendations, effect of ‘ailing to file objections to, 16.13B Time limit to fle petition, effect of respondent not raising statute of limitations defense, 15.1 Witnesses Credibility of witness, district court conducting new evidentiary hearing to ascertain, 172 Due process violations (see Due process violations as grounds or relief, above) Sixth Amendment violations (see Sixth Amendment violations as ‘grounds for relief, above) Federalizing Issues, 4.36 Fees See also Costs; Expenses and Expenditures Attornay fees. See Attorneys’ Fees Booking fees, defendant's failure to challenge resulting in waiver of claim of error on appeal, 1.8 Coram nobis petition, lack of filing fees for, 1124 Death penalty cases, status reports accompanying fee requests, 6.43 E-filing service, fee for registering with, 8.58 Electronic fling, fee for, 3.41 Federal habeas corpus. See Federal Habeas Corpus improper calculation of fees, requirements for appeating, 1.8 Indigent's right to appellate process without payment of fling fees, 24 Mandate or prohibition, lack of filing {fee for petition for writ of, 8.3 Probation related fees, defendant's failure to challenge resulting in waiver of claim of error on appeal, 18 United States Supreme Court bar, fee for admission, 12.7 Felonies Appealabie judgments. See Appealable Judgments and Orders Bail, See Bait Definition of felony proceeding, 8.5 Federal habeas corpus, exhausting statement remedies in felony cases, 13.3, 14.29-14.30 Indigents, See Indigent Defendants Mandate. See Mandate, Writ of Not guilty by reason of insanity, defendant's appeal of commitment order, 1.40 Notice of appeal. See Notice of Appeal Fifth Amendment. Sea Constitutional Law Finality of Decision California Supreme Court and courts of appeal Date of finality, 5.33 Modification of decision after finality prohibited, 5.33 Superior courts appellate division, finality of decision in, 5.38 Final Judgment. See Judgments Findings of Fact and Conclusions of Law Federal habeas corpus petition, ‘objections to United States magistrate’s findings of fact and law, 172 Seal, findings required to place record under, 8.50 ‘Standard of review for findings of fact Generally, 4.22 Prohibition, standard for reviewing trial counts factual findings using writ of, 8.75 Fines See also Penalties Bail pending appeal of fine, 2.18-2.14 Custody, payment of fine not constituting, 14.7 67Fines—cont. Habeas corpus challenging imprisonment of indigent unable to pay fine, 9.27 Improper calculation of fines, fequirements for appealing, 18 ‘Trial court's retention of jurisdiction to correct errors in fines, 1.8 Forfeiture Sentencing errors, forfeiture of, 4.26-4.28 Fourth Amendment, See Constitutional Law Fraud and Misrepresentation Coram nobis, misrepresentation as grounds for. See Coram Nobis or Vobis, Remitttur, fraud as grounds for recall of, 5.37 Frivolous Petitions, 12.15, 18.12 Grand Jury Prohibition, use of writ to challenge unconstitutional composition of grand jury, 744 Guardianship. See Conservatorship and Guardianship Gullty or Nolo Contendere Plea Appeal by defendant after guilty plea. ‘Seo Appealable Judgments and Orders Federal habeas corpus. See Federal Habeas Corpus Habeas corpus. See Habeas Corpus Plea bargain. See Plea Bargain Probable cause. See Probable Cause Waiver ‘Appeal, requirements for valid waiver of right 10, 1.15. Certificate of probable cause, effect of obtaining, 2.8 Constitutional rights or knowledgs of collateral consequences, habeas corpus challenging guilty plea made without waiver of, 9.27 Errors concerning defendant's guilt, guilty or nolo contendere plea resulting in waiver of, 4.11 ‘Withdrawal of guilty plea ‘Coram nobis petition to withdraw ‘wrongfully induced guilty plea, 11.5 en Index» 1-42 Withdrawal of guilty plea—cont, Retrial, imposition of more severe sentence after withdrawal of guilty plea, 2.28 Habeas Corpus See also Federal Habeas Corpus ‘Amended or supplemental patitions, 28 Appeal outside appellate record, use ‘of writ in conjunction with Generally, 9.35 Ineffective assistance of counsel, claims of, 9.38 Issue cannot be adequately raised ‘on appeal due fo inadequacy of record, 9.37 Procedure for raising issues outside appellate record, 9.36 Appointment of counsel Application to expand appointment of counsel to inolude filing petition for writ, 4.497 Consulting with appellate project ‘operating in district before filing habeas petition, 9.96 No right to appointed counsel for state habeas proceedings, 6.4 Attorneys Appointed counsel (see Appointment of counsel, above) Contempt orders against attorneys, habeas corpus proceeding to review, 7.44, 9.21 Bail. See Bail and O.R. Release Burden of proof on petitioner, 9.41, 10.4, 10.15 California Rules of Court governing. See Rules of Court California Supreme Court Generally, 10.30 Death penalty cases, habeas review in, 10.31 Misdemeanor appeal, California ‘Supreme Court considering petition for habeas corpus brought on grounds stated in, 3.45 Procedures for fling habeas petition in, 10.6 Requirements for fing habeas patition in, 10.101-43. © Index Habeas Corpus—cont. ‘Challenging judge assigned to hear habeas petition, 9.8, 10.5, 10.13 Court of appeal Conjunction with appeal, fing habeas petition in, 10.28 Consolidation of habeas corpus petition with appeal, 9.36 Evidentiary hearing ordered by court of appeal, superior court holding, 10.29 New petition for habeas corpus, in court of appeal after denial of petition in superior court, 10.26 Original habeas petition, fling in court of appeal, 10.27 Procedures for filing habeas corpus petition in, 10.6 Requirements for filing petition in, 10.9 ‘Sample petition for writ of habeas cospus to appellate court, 10.34f Credit for time served, habeas corpus petition challenging denial of, 3.21, 9.29 Custody, requirement of Actual custody, no requirement of, 93 Mootness, effect on petition for habeas corpus, 9.6 Petitioner not in actual or constructive custody when petition filed, effect of, 9.5 Restraint or loss of liberty, sufficiency of, 9.4 Death penalty. See Death Penalty Definition of habeas corpus petition, 10.4 Denial of petition for writ Finality of denial, 5.33 Nonappealability of denial of writ, 17.9.7, 106 Res judicata, inappticability of doctrine to denial of habeas petition, 9.7 Statement of reasons for denial, requirement superior court judge give, 14.30 Timeliness grounds, denial of petition on, 15.3 Discretion of court Court of appeal's discretion to deny petition on grounds it was not presented to lower court. 10.27 Discovery, court's discretion to order, 10.17 Setting bail or releasing petitioner ‘on own recognizance pending determination of writ, 10.24 ‘Transfer of habeas petition to county in which judgment rendered, court's discretion to order, 10.7 Effective assistance of counsel Appeal outside appellate record (see Appeal outside appellate record, use of writ in conjunction with, above) Facts outside trial record, appellate counsel fing habeas corpus petition based on, 2.29 Failure to raise ineffective assistance of counsel claim, effect of, 15.33 Raising claim of ineffective assistance of counsel in habeas corpus petition, 2.25 Waiver of attorney-client privilege in action involving ineffective assistance of counsel, 9.38 Evidence Death penalty case, appellate ‘counsel's duty to preserve evidence relevant to habeas corpus investigation, 6.21 Evidentiary hearing (see Evidentiary hearing, below) Examination of evidence against petitioner, habeas corpus proceeding for, 9.1 False evidence introduced in court or material to guilty plea, habeas relief based on, 9.41 Newly discovered evidanca as basis for habeas refief, 9.40 Evidentiary hearing Generally. 9.8, 10.5, 10.23, 10.29 Principles of appellate review, applicability to appeal from order granting habeas corpus petition after evidentiary hearing, 10.32 67Habeas Corpus—cont. Exhaustion of appellate remedies as requirement for habeas corpus relief Generally, 9.10 Claims rejected on appeal, petitioner prohibited from raising in habeas corpus petition, 9.11-9.12 Exhaustion petition, 9.9 Expert witness's false testimony as grounds for habeas relief, 9.41 Filing petition for writ (see Preparing, filing, and opposing petition, below} Guilty piea False evidence introduced in court or material to guity plea, habeas relief based on, 9.41 Waiver of constitutional rights or knowledge of collateral consequences, habeas corpus challenging guilty plea made without, 9.27 Informal opposition from respondent and petitioner's reply, court requesting Generally, 9.8, 10.14-10.15 Death penalty case, extension of time to file informal response 10 habeas corpus petition, 6.44 Jurisdiction Excess of court's jurisdiction, availability of habeas corpus relief, 9.39 Federal court of appeal's jurisdiction to hear habeas ‘corpus petitions brought by state prisoners, 1.41 Lowor court's lack of jurisdiction to try defendant, 9.26 Probation revocation proceeding, jurisdictional defect in, 9.30 Selection of court for fling habeas potition (see Selecting court in which to file petition, belaw) ‘Superior court appellate division's tack of jurisdiction over habeas corpus matters, 1.39 ‘Tia! courts’ and reviewing courts’ habeas jurisdiction, 10.5 67 Index + bd Jurisdiction —cont. ‘Trial court's retention of jurisdiction ‘over habeas corpus petition filed concurrently with appeal, 140 Mislabeling of wri, effect on requested relief, 74 Notice and request for ruling, petitioner filing, 10.13 ‘Opposing petition (see Preparing, filing, and opposing petition, below) Order to show cause (OSC) Alternative to issuance of writ, OSC as, 9.8, 10.16 Death penalty case, habeas counsel consulting with assisting organization or attorney atter issuance of OSC, 638 Form, order to show cause re writ of habeas corpus, 10.35f Return to petition, filing ater service of OSC (see Return to petition, below) Petition for writ of habeas corpus, 10.33f Postconviction use of habeas corpus Absolute defenses, 9.26 Appeal outside appellate record (see Appeal outside appellate record, use of writ in conjunction with, above) Appeal, praservation of rights on, 9.33 Civil commitment, use of habeas corpus to test lagatity of, 9.42 ‘Confinement, challenging length or conditions of, 9.22, 9.32 Evidenes (see Evidence, above) Fundamental rights, denial of, 9.27, 9.34 Inadequacy of appellate remedy, habeas corpus challenging deprivation of fundamental right, 9.34 Jurisdiction of court (see Jurisdiction, above) Parole. See Parole Probation, chaltenging invalid orders affecting, 9.30}45 * Index Habeas Corpus—cont. Posteonvietion use of habeas. corpus—cont. Retroactive effect of changes in law, 9.28-9.29 Rights of prisoners, habeas proceeding to protect or declare, 9.22, 9.32 Sentences. Sea Sentences and Sentencing Preparing, fling, and opposing pelition Generally, 10.1 Attorney-drafted petition, requirements for, 10.3 California Supreme Court, fling habeas petition in (see California Supreme Court, above) Contents of petition, 10.4, 10.34 Court of appeal, fling petition in (see Court of appeal, above) Death penalty case, extension of time to file informal response to habeas corpus petition, 6.44 Exhibits, attaching to patition for wit, 10.9 Facts outside trial record, appellate ‘counsel fling habeas corpus petition based on, 2.29 Jurisdiction (see Jurisdiction, above) Paper petition and memorandum, number of copies required for court of appeal, 10.9 Pro se petition by incarcerated person, 10.2, 10.9, 10:33f Selection of court (see Selecting ccourt in which to file patition, below) Superior court (see Superior court, habeas corpus procedures in, below) Protrial uses of habeas corpus Bail. See Bail and O.R. Release Constitutionality of statute, use of habeas corpus to challenge, 9.23 Extradition proceadings, habaas corpus for raview of, 9.19 Probable cause, determination of, 9.24 Pretrial uses of habeas corpus—cont. Speedy trial, habeas corpus as remedy for pretrial review of denial of right to, 9.25, 9.27 Prior conviction, restrictions on using habeas corpus to challange sentence enhanced by unlawful, 9.5,9.29 Procedural rules governing habeas corpus petitions Generally, 9.9 Delay in seeking relief, effect of, 9.14 Exhaustion of appellate remedies (see Exhaustion of appellate remedies as requirement for habeas corpus relief, above) Second or successive pelition, ground rules for, 9.13 Prohibition and habeas corpus, procedural differences between, 98 Prosecution. See Prosecution Record on appeal (see Appeal outside appellate record, use of writ in conjunction with, above) Return to petition Generally, 9.8, 10.18 Affirmative pleading, 10.20 General denial of petition’s allegation, insufficiency of, 10.19 Responding to allegations in petition, requirement of, 10.21 Right to counsel Judgment, lack of right to counse! in collataral attack on, 9.2 Violation ot right to counsel, haboas corpus petition asserting, 9.27 Role of habeas corpus proceedings, 91 Selecting court in which to file petition Courts of appeal and Supreme Court, procedures for filing habeas petition in, 10.6 ‘Superior court, requirements for filing petition in, 10.8 ‘Supreme court, requirements for filing petition in, 10.6, 10.10 Trial courts’ and reviewing courts’ habeas jurisdiction, 10.5 et7Habeas Corpus—cont. Selecting court in which to file petition—cont. Venue for habeas corpus jurisdiction, 10.7 Service of petition, 10.11 Stages of habeas corpus proceedings, 98 Statutory procedure, 9.7 Statutory tolling for intervals between petitions, 15.3 ‘Superior court appellate division's lack of jurisdiction over habeas corpus matters, 1.39 ‘Superior court, habeas corpus: procedures in Generally, 9.36, 10.12 Assignment of habeas petition to superior court judge, 10.13 Denial (traverse) filed by petitioner, 10.22 Discovery, restrictions on, 10.17 Evidontiary hearing, 10.23 Informal response, court requesting respondent to file, 10.14 ‘Order denying petition, inclusion of statement of reasons for, 10.25 ‘Order to show cause, issuance of, 10.16 Reply to informal responso, 10.15 Requirements for filing, 10.8 Return to petition (see Return to petition, above) ‘Supreme court (see California Supreme Court, above) Time. See Time Traverse, petitioner's answer to fespondent's return, 9.8, 10.22 Verification of habeas corpus petitions, 10.94 Handicapped Persons. See Disabled Persons Harmiess Error Chapman rule, prosecution's burden of showing error beyond reasonable doubt, 4.31 Federal constitutional errors, harmless error analysis of, 4.21, 4.31, 17.22 Federal habeas corpus. See Federal Habeas Corpus a7 Index + 1-46 Hearings Coram nabis. See Coram Nobis or Vobis Evidentiary hearing Federal habeas corpus. See Federal Habeas Corpus Habeas corpus petition. See Habeas Corpus Federal habeas corpus. See Federal Habeas Corpus Mandate, writ of. See Mandate, Writ of Marsden hearings, transcript of. See Transcripts Por se reversible error, failure to conduct competency hearing if substantial evidence of defendant's incompetence introduced as, 4.30 Preliminary hearing, See Preliminary Hearing Prohibition, hearing on petition for writ of, 8.71 Record on appeal. Soe Record on Appeal ‘Suppression of evidence, hearing on, 1.26 Hearsay Objection to hearsay, effect on right to appeal admission of evidence in violation of right to confront witnesses, 4.28 Immigrants. See Aliens inadequacy of Appeliate Remedy Alternative writ, issuance of, 78 Habeas corpus challenging daprivation of fundamental right, 9.34 Mandate. See Mandate, Writ of Prohibition. See Prohibition, Writ of In Camera Hearing Attorney-client privilege and work product, writ of mandate requiring trial court to conduct in camera hearing to review claims of, 731 Incompetent Persons Arguabie issue on trial, defendants mental condition as, 4.13 Breakdown of attorney-client communications caused by dlient's mental competence, effect on appeal, 2.30147 + Index Incompetent Persons —cont. Faderal habeas corpus petition challenging ruling on defendant's competency, 13.48 Per se reversible error, failure to conduct competency hearing if ‘substantial evidence of defendant's incompetence introduced as, 4.30 Self-representation, effect of finding of competency to stand trial on competency for, 13.35 Indictment. See Information or Indictment Indigent Defendants. Appointment of counsel Death penalty case, appointment of counsel in. Sea Death Penalty Federal habeas corpus proceedings, appointment of counsel for. See Federal Habeas Corpus Fees {see Attorney feas for appointed counsel, below) Felonies, (see Felonies punishable by imprisonment, appointment of counsel for defendant charged with, below) ‘Time lirnit for trial court clerk to forward request for appointment of counsel for indigent’s appeal, an Attorney fees for appointed counsel Felony case, 2.23 Misdemeanors and infractions, 2.24 Felonies punishable by imprisonment, appointment of counsel for defendant charged with Generally, 2.21 Attorney fees, claim for, 2.23 Independent contractor status of attorneys appointed to handle felony appeals, 2.22 Filing fees, indigent right to appellate process without payment of, 2.1 Habeas corpus challenging imprisonment of indigent unable to pay fine, 9.27 Mandate, petition for writ to obtain Public funds for investigation and other pretrial preparations, Tar ‘Misdemeanors and infractions Appointment of counsel to represent defendants, 2.1, 2.9, 224 Verbatim transcript, indigent misdemeanor defendant's ‘entitlement to record in appellate court equivalent to, 316 Notice of appeal, trial counsel's duties in representing indigent defendant, 2.11 Record for state appellate review, requirement state provide indigent defendant with, 13.64 Rlight to counsel Generally, 2.1, 2.11 Misdemeanors and infractions cases, appointment of counsel to represent defendants in, 2.1, 2.9, 2.24 Motion for appointment of counsel ‘on appeal, 2.36f Transoripts, 1.1, 2.4 Ineftective Assistance of Counsel. See Effective Assistance of Counsel Inferences. See Presumptions and Inferances Informal Opposition to Habeas Corpus Potition. See Habeas Corpus In Forma Paupetis Proceedings Califomia Suprema Court, pro par petition for review by, 5.42 Dismissal of federal habeas corpus petition (see Federal habeas ‘corpus, below) Federal habeas corpus Generally, 12.13, Affidavit or declaration in support of sequest to proceed in forma pauperis, 12.17f, 16.16f Appeal of district court ruling, motion for leave to proceed in forma pauperis, 18.17 Briefs, required number for filing, 18.34 Certificate of service, 12.18f BATIndex * 1-48 In Forma Pauperis Proceedings —cont. Federal habeas corpus—cont. Frivolous or malicious petition, 12.15 Motion for leave to proceed in forma pauperis (Ninth Circuit), 18.48f Motion for leave to proceed in forma pauperis (United States Supreme Court), 12.14, 12.16f, 18.57 Motion for leave to proceed on appeal in forma pauperis (Federal District Court), 18.46f Order granting leave to proceed on appeal in forma pauperis (Ninth Circuit), 18,497 Order granting leave to prosecute appeal in forma pauperis, (Federal District Court), 18.47f Request to proceed in forma pauperis, 16.11 Transcript for appeal, 18.25 Frivolous or malicious petition, denial ‘of leave to proceed in forma pauperis when, 12.15 Orders (see Federal habeas corpus, above) Information or Indictment Setting aside information or indictment Appeal of order setting aside indictment or information, 1.20 Prohibition, petition for writ preventing further proceedings attar denial of motion to set aside Information or indictment. See Prohibition, Writ of Speedy trial, right to commencing on formal indictment, information, or arrest, 13.30 Informer Prohibition, use of writ for dismissal of action if prosecution faiis to locate informer, 7.44 Infractions. See Misdemeanors and Infractions Injunctions Proposition 66, temporary injunction against implementation of, 6.1 In Limine Motions Forfeiture of issue, failure to renew motion at trial resulting in, 4.28 67 Innocence, Claim of. See Federal Habeas Corpus In Propria Persona. See Pro Se Insanity Arguable issue on appeal, defendant's menial state as, 4.13 Certificate of probable cause, no requirement of obtaining to appeal conviction following insanity plea, 1.11 Commitment order in felony case, defendant's appeal of, 4.10 Execution of insane persons prohibited, 6.57 Instructions to Jury. See Jury Instructions Interpretation of Statutes and Case Law. See Construction and Interpretation Intoxication See also Controlled Substances Arguable issue on appeal, defendant's intoxication as, 4.13 Sentence to attend alcohol rehabilitation center within definition of custody, 14.3 Investigations Death penalty cases. See Death Penaity Federal habeas corpus petition, appointment of investigator after evidentiary hearing ordered for, 1749 Mandate, petition for writ to obtain funds for investigation, 727 Invited Error Party estopped from raising invited error on appeal, 4.29 Joinder Appellate counsel joining co-appellant's briof, 3.21 Arguable issue on appeal, prejudicial joinder of defendants or counts as, 4.11 Judges Bias Federal habeas corpus. See Federal Habeas Corpus Misconduct by judge as arguable issue on appeal, 4.19149 + Index dudges—cont. Challenging judge assigned to hear habeas corpus petition, 9.8, 10.5, 10.13 Competent judge, criminal defendant's right to, 19.52 Disqualification of judge. petition for writ of mandate or prohibition to review denial of motion for, 1.6, 77,724 Misconduct Generally, 4.19 Forfeiture of issue on appeal, failure to object to judicial misconduct resulting in, 4.28 Sua sponte. See Sua Sponte Judgments. Abstract of judgment adding consecutive torm not reflected in oral imposition of sentance, modification of abstract on appeal, 3.140 Appealable judgments. Seo Appealable Judgments and Orders Collateral atack on judgment, lack of ‘constitutional right to appointed counsel for, 2.1, 9.2 Default judgment. See Default and Default Judgments Final judgment Defined, 15 Termination of deferred entry of judgment constituting final judgment, 1.6 Transter, effect of denying petition for, 141 Modification of judgment prohibited if defendant remains in custody pending appoai, 2.17 Order arresting judgment, prosecution's appeal of, 1.23 Presumption of correctness, 4.24 Retroactive application of judicial decision, 4.38 Reversal of judgment. See Reversal of Judgment Stay of execution, See Stay of Execution of Judgment Verdicts. See Verdicts Judicial Notice Motion for court to take judicial notice of facts and events outside record on appeal, 4.35, 4.48f Jurisdiction Appeltate jurisdiction Appeal of right, 1.34-1.36 California Supreme Court, See California Supreme Court Courts of appeal. See Courts of Appeal Discretionary review, 138 ‘Superior court, appellate division of, 1.36 Arguable issue on appeal, lack of jurisdiction as, 4.6 Federal habeas corpus. See Federal Habeas Corpus Habeas corpus. See Habeas Corpus Modification of judgment if defendant remains in custady pending appeal, trial court's tack of jurisdiction to order, 2.17 New trial. See New Trial Prohibition, petition for writ to stop proceedings in excess of court's jurisdiction. See Prohibition, Writ of Trial court's retention of jurisdiction after appeal, 1.8, 1.40 United States Supreme Court's jurisdiction over federal questions, 1.41 Writ jurisdiction of Supreme Court, court of appeal, and superior court, 1.39, 72 Jury instructions Ambiguous instruction, effect of, 19.57 Death penatty case. See Death Penalty Federal habeas corpus. See Federal Habeas Corpus Forieiture of issue Erroneous instruction, effect of failing to object to, 4.27 Legally correct instruction, effect of failing to request clarification or amplification of, 4.28 Habeas corpus challenging jury instruction involving constitutional issues, 9.27 ozIndex + 150 Jury Instructions—cont. Lesser included offenses. See Lesser Included Offenses Presumptions in jury instructions, restrictions on use of, 13.57 Jury Trial Arguabie issue on appeal. See Arguable Issues on Appeal Discretion of court to identify jurors by number, 3.4 Double jeopardy. See Double Jeopardy Facts increasing mandatory minimum sentence, submission to jury, 18 Federal habeas corpus. See Federal Habeas Corpus {Identifying information regarding jurors, confidentiality of, 3.4, 9.19 Mandate, jury trial on issues raised in petition for writ of, 8.71 Prohibition, writ of Iesues raised in petition for writ of prohibition, jury tial on, 8.71 Unconstitutional composition of jury, use of wrt to challenge, 744 Selection of jury Capital appeal involving jury Selection issues, 6.2 Confidentiality rules protecting juror identities, effect on appoals of, 3.19 Death penalty case, selection of jury in, 6.59 Forfeiture of issue, failure to object jo irregularities resulting in, 4.28 Objection to use ot peremptory challenges, effect on subsequent petition for federal habeas corpus relief, 13.66 Peremptory challenge of prospective jurors, habeas petition regarding, 13.66 Voir dire transcript, availabilty for comparative analysis purposes to defendant of, 3.4, 3.8 67 Juvenile Court Proceedings See also Division of Juvenile dustice (DJ) ‘Certificate of probable cause, no requirement of obtaining for appellate review of juvenile court proceedings, 1.11 Habeas corpus petition challenging detention without bail in juvenile proceedings, 9.18 Notice of appeal, fling of, 2.10 Prohibition, use of writ to block juvenile court order certifying adult criminal proceedings against See also Statutes of Limitations; Time ‘Superior court rulings, laches period for seeking relief from, 736 Writ of mandate or prohibition, laches as defense against petitioner's claims, 7.14 Law and Fact, Questions of. See ‘Questions of Law and Fact Law of the Case Doctrine ‘Summary denial of writ petition, inapplicability of law of the case doctrine to, 8.24 Legal Ethics Adverse authorities, attorney's ethical obligation to cite in briefs, 3.38 Legal Research on Federal Habeas ‘Corpus Practica. Soe Federal Habeas Corpus Legal Resources ‘Changos in criminal law, resources for, 4.39 Lesser Included Offenses Jury instructions Death penalty cases, due process requiring lesser included offense instructions in, 13.57 Errors as basis for appeal, 4.17 Noncapital case, jury instructions on lesser included offense in, 13.57 Modification of conviction to esser degrae or to lasser included offense, insufficient evidence as basis for, 5.3051 + index Letters Client, attomey's letter to criminal appeals, 4.45f Court of appeal, attorney's letter regarding citation to new authority, 3.38 Limitations of Actions. See Statutes of Limitations Local Rules of Court. Seo Rules of Court Magistrate Defined, 72 Federal habeas corpus petition, assignment to magistrate. See Federal Habeas Corpus Mail Federal habeas corpus. See Mall Notice of felony appeal sent by mail from custodial institution, timeliness of, 2.7 Priority and express mail postmark tule, inapplicability to original proceedings, 10.9 United States Supreme Court bar, admission by mail, 12.7 Mandate, Writ of Generally, 71, 716 Action on petition Alternative writ or order to show cause, 8.64, 8.66f Denial of petition (see Denial of petition, below) Peremptory wit in first instance (see Peremptory wrt in first instance, below) Alternative writs. See Alternative Writs (Mandate or Prohibition) Appellate review of denial of writ Court of appeal, fling petition in California Supreme Court for raview of ardar by, 8.78 ‘Superior court order granting or denying writ, filing new petition seeking review of, 8.77 Ailomey fees for appointed counsel, filing writ petition for, 731 Cerificate of probable cause, petition for writ of mandate to review denial of request for, 1.12, 2.8, 729 Collateral matters, 7.31 Comparison of mandate and prohibition Concurrent use of mandate and prohibition, 75 Function of writs, differences in, 73 Speedy trial violations, use of either writ when challenging, 7.6, 718, 9.25 Contents of petition for writ. See Contents of Writs (Mandate or Prohibition) Dectaration of rights for other defendants in situations similar to named petitioner, 730 Denial of petition Appellate review (seo Appallato review of denial of writ, above) Direct appeal available, summary denial if, 8.62 Direct appeal not available, denial of petition if, 8.63 Nonappealability of denial of wrt, 16 Repelitive petition filed in same ‘court after summary denial of original petition, no requirement court consider, 8.62 ‘Summary denial, inapplicability of law of the case doctrine to, 8.24 Diligence in seeking relief, requirement ‘that petitioner exercise Generally, 714 Allagation of diligance in petition for writ of mandate. See Contents of Writs (Mandate or Prohibition) Dismissal, writ of mandate to review denial of motion for, 27 Evidence, suppression of (see Suppression of evidence, ruling ‘on motion for, below) Federal habeas corpus Bail, filing petition to review of denial of, 13.17 Delay in disposition of habeas petition, filing petition for writ of mandate in response to, 173 Procedural differancos between habeas corpus and mandamus, 98 Rehearing on appeal, 18.56 67Index * 1-52 Mandate, Writ of—cont. Felonies Prosecution's petition for writ for review of judgment in felony cases, 14 Reduction of felony to misdemeanor, writ of mandate to compel trial court fo accept, 727 Suppression of evidence, writ of mandate to review ruling on motion for, 719 Filing of writ petition Copies of petition required for fling, 858 Fee for filing writ petition, lack of, 83 Proper court for filing writ (see Proper court for filing wrt, determination of, below) Hearings Generally, 8.71 Fedreal habeas corpus, rehearing ‘on appeal, 18.56 In camara hearing to require trial court to review claims of attorney-client privilege and ‘work product, writ of mandate requiring trial court conduct, 731 inadequacy of appellate remedy as Prerequisite for writ Generally, 78 Allegations concerning inadequacy of remedy. See Contents of Writs (Mandate or Prohibition) Defendant's appellate remedy, factors In determining inadequacy of, 79 Prosecution's appellate remedies, inadequacy of, 7.10 Inmate using writ of mandamus to compel California Department of Corrections and Rehabilitation to process: grievance under department's ‘own regulations, 7.44 Misdemeanors and infractions Reduction of fotony to misdemeanor, writ of mandate to compel trial court to accept, 727 67 Misdemeanors and infractions — cont. Suppress evidence, unavailability of writ to review ruling on motion to, 720 Mislabeling of writ, effect on requested relief, 74 Opposing party's response (see Response to petition, below) Original jurisdiction of courts over petition for wait of mandate, 139, 72 Peremptory writ in first instance Generally, 8.65 Opposition to issuance of peremptory writ in first instance, 8.69 Oral argument, no right to, 8.73 Perfecting right of appeal, 729 Prerequisites to relief by writ of mandate Inadequacy of appellate remedy (see Inadequacy of appellate temedy as prerequisite for writ, above) Perfection or exhaustion of lower court remedies, 712 Standing to petition for writ reliet (see Standing to petition for writ relief, below) Timeliness of petition (see Timeliness of petition, below) Pretrial uses of writ of mandate Discovery, enforcement of right to, 73,247 Disqualification of judge, petition to review denial of motion for, 1.6, 77,724 Erroneous orders, issuance of writ of mandate to correct, 725 Miscellaneous pretrial issues, 727 Speedy trial rights, denial of, 76, 718, 9.25 ‘Suppression of evidence (see ‘Suppression of evidence, ruling ‘on motion for, below) Venue, change of, 726 Probation. See Probation Proceedings on petition Burden of proof on petitioner, 8.74 Hearings (see Hearings, above) Return, affect of respondent's failure to fle, 8.72Mandate, Writ of cont. Proceedings on petition—cont. Right to argument, 8.73 Standard for reviewing trial courts factual findings, 8.75 Statement of decision, party's request for, 8.76 Superior court, decision by, 8.76 Proper court for filing writ, determination of Generally, 8.5 California Supreme Court, original filing of weit in, 8.6 Prosecution, review sought by Felony case, prosecution's petition for writ of mandate for review of judgment in, 1.4 inadequacy of prosecution's appellate remedies, 7.10 Prosecutor's recusal, writ of mandate to review order granting or denying motion for, 727 Purpose of writ, 21, 716 Response to petition Preliminary opposition, 8.67 Reply to preliminary opposition, 870 Return (see Return, respondent filing, below) Review of adverse lower court ruling, respondent or real party in interest prohibited from seeking by way of response to writ petition, 8.68 Return, respondent filing Failure to file return, effect of, 8.72 Written return to alternative writ or onder to show cause, 8.68 Rules of court Opposition, compliance with rules of court for documents filed with, 8.69 Praliminary opposition, compliance with rules of court, 8.67 Return, compliance with rutes of court for documents accompanying, 8.68 Statutes and rules of court authorizing review by petition for writ of mandate, 77 Time limits set out in rules of court, petitioner complying with, 713 Sentencing and related postconviction problems, 728 Service of writ petition Method of service, 8.59 Proof of service, 8.60 Response to petition, service of, 867 Standing to petition for writ roliaf Generally, 711 Disqualification of judge, standing 10 petition for review of denial of motion for, 724 Stay of proceedings. See Stay of Proceedings Suppression of evidence, ruling on motion for Ganerally, 117, 27 Admissibility of evidence not involving unlawiul search and seizure, unavailability of mandate to challenge pretrial rulings on, 7.23 Felony cases, availability of mandate in, 7.19 Misdemeanor cases, unavailability of mandate in, 720 Time limitations for pratrial relief, 722 Timeliness of petition Court of appeal decision, time limit for filing petition for review of, 878 Diligence in seeking relief (see Diligence in seeking retief, requirement that petitioner exercise, above) Extension of time for requesting or opposing statement of decision, 876 Laches as defense against Petitioners claims, 714 Mootness of claim, effect of, 7.15 ‘Opposition to issuance of peremptory wit in first instance, time limit for filing, 8.69 Reply to preliminary opposition, time limit for filing, 8.70 Retum, time for filing, 8.68 Statutory and rule of court time limits, requirement petitioner comply with applicable, 713 67Mandate, Writ of—cont. Timeliness of petition—cont ‘Suppression of evidence, time limitations affecting petition for writ of mandate to review order on motion for, 722 Transcripts. See Transcripts Venue. See Venue Verification of petition for writ. See Verification Marsden Transcript. See Transcripts Medical Records Public right of access to court records, medical privacy concerns outweighing, 8.47 Medication Federal habeas corpus relief, forced medication of defendant during trial as grounds for, 13.56 Memorandum in Support or Opposition Coram nobis petition, memorandum accompanying, 11.23 Dismissal of appeal, memorandum supporting motion for, 5.21 Federal habeas corpus petition. See Federal Habeas Corpus Mandate or prohibition, memorandum ‘supporting petition for writ of. See Contents of Writs {Mandate or Prohibition) Record on appeal, motion to augment, 3.8, 347F Mental lliness Arguable issue on trial, defendant's ‘mental condition as, 4.13 Death penalty for intellectually disabied defendants unconstitutional under Eighth Amendment, 6.57, 13.40 Federal habeas corpus petition, prisoner's mental iliness as grounds for toliing statute of limitations to file, 15.5 Mandate, petition for writ challenging denial of mental health services for defendant, 731 Minors Child sex abuse witness testifying outside defendants presence, 1331 Execution of minors prohibited, 6.57, 13.40 en7 Index ° 1-54 Notice of right to appeal, minor's entitlement to, 13 Miranda Constitutional requirements for confession, 13.29, Misconduct Arguable issue on appeal. See Arguable Issues on Appeal Federal habeas corpus relief, misconduct as grounds for. See Federal Habeas Corpus Judges. See Judges Prosecutorial misconduct. See Prosecution Misdemeanors and Infractions Appealable judgments. See Appealable Judgments and Orders Appointment of counsel. See Appointment of Counsel Bail, defendant's right to Generally, 2.14 Habeas petition challenging reasonableness of bail pending appeal from misdemeanor conviction, 9.17 Briefs, See Briefs Certificate of probable cause, no requirement of obtaining to appeal misdemeanor or infraction, 1.11 ‘Coram nobis, appeal from denial in misdemeanor case, 11.29 Court of last resort for defendant, 1.41 Electronic recording of oral proceedings in misdemeanor and Infraction cases, 3.16 Federal habeas corpus, exhausting state remedies in misdemeanor cases, 14.31 Indigents. See Indigent Defendants Mandate. See Mandate, Writ of Notice of appeal. See Notloe of Appeal Record on appeal. See Record on Appeal Reporter's transcript, petition for writ of mandate to obtain, 7.29 Right to counsel in misdemeanor cases, 2.1, 2.24Misdemeanors and Infractions —cont. Settled statement on appeal from misdemeanor or infraction, relief from default caused by failure to comply with rules concerning, 3.18 ‘Suppression of evidence, defendant's right to appeal pretrial denial of motion for, 1.17 Timing rules and requirements for filing misdemeanor and infraction appeals, 2.9, 3.43, 8.32 Misrapresentations. See Fraud and Misrepresentation Mistake Remititur, mistake in fact as grounds for recall of, 5:37 Modifications. See Amendments and Modifications Moot Issues, Generally, 9.6 Dismissal of appeal, mootness as grounds for, 5.19 Federal habeas corpus. See Federal Habeas Corpus Habeas corpus, effect of meotness of custody on petition for, 9.6 Mandate or prohibition, effect of mootness of issue on petiion for writ of, 715 Postconviction bail issues, mootness of, 8.15 Motions Affidavits and declarations in support of motion. See Affidavits and Declarations Appealable orders. Sea Appealable Judgments and Orders Appointment of counsel on appeal, motion for, 2.36f Bail, motion for. See Bail and O.R. Release Certificates: Dismissal of appeal, certificate of clerk of superior court attached to motion for, 5.22 Rehabilitation, prosecution's appeal of order denying motion to vacate granting of certificate of, 124 ‘Complaint, prosecution's appeal of order denying motion to reinstate, 1.28 Coram nobis. See Coram Nobis or Vobis Death penalty, automatic motion to modify verdict, 6.64 Dismissal of action, motion for. See Dismissal of Action Dismissal of appeal, motion for, 5.21 Federal habeas corpus. See Federat Habeas Corpus Forfeiture of issue, failure to renew motion at trial resulting in, 4.28 Guilty plea wrongfully induced, liberal ‘construction of motion to withdraw, 11.5 In forma pauperis proceedings. See In Forma Pauperis Proceedings Judicial notice of facts and events ‘outside record on appeal, motion for court to take, 4.35, 4.48f Mandate. See Mandate, Writ of Memorandum in support or opposition. See Memorandum in Support or Opposition New trial motion granted, continuing jurisdiction of trial court over discovery matters, 140 Prohibition. See Prohibition, Writ of Prosecution, motion by. See Prosecution Record on appeal. See Record an Appeal Reinstatement of complaint, order denying prosecution's motion for, 1.28 Ruling on motion, appeal of trial court's failure to make, 4.28 Sealed records, motion to unseal, 8.51 Stay order, motion to extend, 8.61 Stike. See Strike, Motion to ‘Suppression of evidence, motion for. ‘See Search and Selzure Vacating judgment, motion for. See Vacating and Setting Aside New Trial Appeals Felony conviction, appellate review of order denying new trial on appeal from final judgment, 1.6 en7Index + 456 New Trial—cont. Appeals—cont. Prosecution’s appeal of order ranting new trial in felony case, 122 Double jeopardy. See Double Jeopardy Ground that serves as basis for new trial, defendant must raise, 122 Imposition of more severe sentence attor retrial, exceptions to rule prohibiting, 2.28 Jurisdiction Discovery matters, continuing jurisdiction of trial court over, 4.40 Prosacution’s appeal of order granting new trial, effect on trial's court jurisdiction over new trial, 1.22 Prerequisite for new trial, newly discovered evidence, 5.27 Record of judgment or order granting new trial, preparation of, 3.2 Reversal of judgment based on trial errors deemed as order for new trial, 5.24 Nolo Gontendere Plea. See Guilty or Nolo Contendere Plea Not Guilty Plea in Felony Case, Appeal After. See Appealable Judgments and Orders. Notice and Notification Califomia Supreme Court. See California Supreme Court Coram nobis petition, notice of motion for, 11.24 Electronic filing of documents, court sending notice of filing, 8.58 Federal habeas corpus. Soo Federal Habeas Corpus Habeas corpus, petitioner fling notice and request for ruling, 10.13, Interim reliet granted prior to ruling on stay of execution request, notification requirements for, 2.15 Judicial notice of facts and events ‘outside record on appeal, mation for court to take, 4.35, 4.48f 67 Multiple attorneys joining brief, designating one attorney to receive notices and communications from court, 8.7 Oral argument. See Oral Argument Notice of Appes Coram nobis, notice of appeal from order denying, 11.29 Counsel fing notice of appeal, duty to represent petitioner on appeal, 18.18 Federal habeas corpus. See Federal Habeas Corpus Felony appeal, trial counsel's duty to file notice of Form, 2.31f Guilty or no contest pea, filing appeal after, 2.8 Posttrial appeal, duty to file, 2.7 Late notice of appeal, prohibition against filing, 2.7, 2.9 Liberal construction of notice of appeal, 1.6, 2.7, 2.9 Misdemeanor appeal, notice of Filing notice of appeal in misdemeanor case, 2.9 Form, 2.32f Right to appeal, notice of, 13 Nonappealable prejudgment order, ‘tect of filing notice of appeal from, 16 Premature notice of appeal defined, 27 Right to natice of appeal, 1.3 Time. See Time Trial counser's duty to file notice of appeal Generally, 2.6 Indigent defendants, trial counsel's duties for representing, 2.11 Juvenile appeals, 2.10 Objections ‘Contemporaneous objection rule, 4.26 Federal habeas corpus petition, objections to United States magistrate’s findings of fact and jaw, 16.13B, 172 Forfeiture of objaction, failure to object to errors at trial resulting in, 4.26-4.28187 > Index Objections—cont. Hearsay objection, effect an right to ‘appeat admission of evidence in violation of right to confront witnesses, 4.28 Mandate or prohibition, allaging ‘exhaustion of remedies in petition for writ of. See Contents of Writs (Mandate or Prohibition) Prohibition, writ requesting or objecting to preliminary hearing by defendant, 740 Waiver of objection Excusing failure to object, 4.33 Imperfect objection, arguing adequacy to preserve issue on appeal, 4.33 Ineffective assistance of counsel claim on appeal, trial counsel's waiver of error as basis for, 4.34 Sentencing errors, failure to object resulting in waiver of, 1.8 Opening Brief. See Briefs Opinions California Supreme Court, opinion by Generally, 5.50 ‘Superseded opinion, action by California Supreme Court resulting in, 5.12 Court of appeal Issues raised in brief, requirement ‘that opinion address, 5.8 ‘Statement of reasons, Califomia ‘constitutional requirement for appellata courts to issue written opinion containing, 5.8 Tentative opinion, issuance of, 5.1 Unbriefed issues, opinion based on, 5.9 Death penalty case, time limit for filing ‘opinion after completion of briefing in, 6.39 Publication of opinion Depublication of opinion, 5.14-5.15 Procedures for publication of ‘opinion, 5.14 Request for publication of opinion, procedures for and stratagias undertying, 5.15 Standards for publication, 5.13 Unpublished opinions Generally, 5.10 Brief, citing unpublished opinion in, 3.40 Citation of unpublished opinions, restrictions on, 5.11 Oral Argument Alternative writ, right to ora! argument before issuance of, 8.73 Appellate court division of superior court, rules for oral argument in, 57A California Supreme Court, oral argument in, 5.49 Court of appeal, oral argument in Advantages of presenting oral argument, 5.4 Guidelines for oral presentation, 56 Judicial conferencing, 5.1 Notice to counsel of date for ora! argument, 5.2 Procedures for oral argument, 5.2 Submission of case for decision, 57 Telephonic and video oral arguments, 5.5, 18.40 Tentative opinions, issuance of, 5.1 Trial exhibit, attorney's use of during oral argument, 5.3 Waiver of oral argument, 5.1. 5.4 Death penalty case, oral argument in. See Death Penalty Faderal habeas corpus. See Federal Habeas Corpus Mandate, no right to oral argument in proceeding for writ of, 8.73 Notice Date set for oral argument, notice to counsel of, 5.2 Telephone, notice of intent to argue by, 55 Trial exhibits, notice of intent to use, 53 Prohibition, no right to oral argument in proceeding for writ of, 8.73 United States Supreme Court. See United States Supreme Court Orders Appealable orders. See Appealable Judgments and Orders 67Index © 1-58 Orders—cont. California Supreme Court, order granting or denying petition for review by, 5.48-5.47 Commitment ordars. See Commitment Orders Contempt orders. See Contempt Depublication of opinion, order for, 5.15 Discovery orders. See Discovery Extension of time for order for review ‘of court of appeal decision, 1.37, 5.46 Federal habeas corpus. See Federal Habeas Corpus Habeas corpus. See Habeas Corpus In forma pauperis proceedings. Ses In Forma Pauperis Proceedings Juveniles. See Juvenile Court Proceedings Mandate. See Mandate, Writ of New trial, order for. See New Tr Petition for review by California Supreme Court, order vacating submission of case, 5.50 Presumption of correctness, 4.21 Probation. See Probation Prohibition. See Prohibition, Writ of Recall of remitttur, courts discretion to order, 5.37, Record on appeal. See Record on Appeal Reinstatement of complaint, order denying prosecution's motion for, 1.28 Writ, review of order by. See Writs Order to Show Cause (OSC) Federal habeas corpus Dismissal of petition as altemative to answer, Attorney Generat filing motion for, 17.6. Response to habeas petition, order to show cause requiring state to file, 125 Habeas corpus, order to show cause as alternative to issuance of writ of. See Habeas Corpus O.R, Release. See Ball and OR. Release Pardon Federal habeas corpus appeal, oral argument in, 18.40 en7 Habeas corpus proceeding to determine reasonableness of conditions attached to pardon, 9.20 Parole Custody, parole within definition of, 14.3 Death penalty Jury instruction that defendant ineligible for parole, 6.60 Modification of sentence to life imprisonment without possibility of parole, prosecution's appeal of court order, 1.25 Habeas corpus proceeding Denial of parole, habeas corpus proceedings challenging, 9.14, 93t Revocation of parole, habeas corpus challenging, 9.22, 9.31 ‘Sex offender on parole, applicability of habeas to, 9.5 Revocation of parole Habeas corpus challenging, 9.22, 931 Order revoking parole, appealability of, 17 Penalties See also Fines Brief, sanctions for tailing to file on time, 3.21, 18.33 Death penalty. See Death Penalty Federal habeas corpus. See Federal Habeas Corpus Improper calculation of penalty assessments, requirements for appealing, 1.8 Record on appeal. See Record on Appeal Peremptory Writs Mandate. See Mandate, Writ of Prohibition. See Prohibition, Writ of Physical Restraints, Use of. See Federal Habeas Corpus Plea Bargain Coram nobis, use of writ to withdraw guilty plea after promise of probation broken, 11.51-59 + Index Plea Bargain—conr. Fedaral habeas corpus relief Construction of state plea agreements by federal courts in accordance with state contract law, 15.42 Violation of plea bargain as grounds for, 15.47 Immigration, prosecutors required to consider avoidance of adverse consequences in plea negotiations, 9.5 Inadequate representation by counsel, defendant in plea case proving, 19.83 Ineffective assistance of counsel, federal court ordering prosecutor to reoffer plea agreement, 1724 Waiver of right to appeal as part of plaa bargain, requirement defendant obtain certificate of probable cause to appeal denial of motion regarding search and seizure, 114 Pleadings Answers. See Answers ‘Complaint, prosecutioris appeal of order denying motion to rainstate, 1.28 Complaints. See Complaints Coram nobis. See Coram Nobis or Vobis Demurrer to indictment, accusation, or information, prosecution's appealable order sustaining, 121 Prohibition, use of writ to challenge unconstitutionally vague pleadings, 7.44 Redacting of Social Security numbers. and financial accounting numbers in all pleadings and papers filed with courts, Rulas ‘of Court requiring, 8.17 Points and Authorities, Memorandum ‘of. See Memorandum in ‘Support or Opposition Prejudice See also Bias Arguable issue on appeal, prejudicial joinder of defendants or counts as, 4.14 Burden of appellant to prove, 3.21 Death penalty cases. See Death Penalty Error, prejudice resulting in. See Error Federal habeas corpus. See Federal Habeas Corpus Mandate, petition for writ to protect against prejudicial pretrial publicity, 727 Record on appeal, no presumption of prejudice from absence of materials from, 3.10 Restraints on criminal defendant ‘causing actual prejudice in jury trial, 19.55 Preliminary Hearing Constitutional right to preliminary hearing, lack of, 15.44 Forfeiture of issue, failure to renew motion in trial court resulting in, 4.28 Prohibition, writ of. See Prohibition, Writ of Prerogative Writs. See Extraordinary Writs Presumptions and inferences Coram nobis. See Coram Nobis or Vobis Federal habeas corpus. See Federal Habeas Corpus Habeas corpus petition, presumption of timeliness affecting, 6.23, 9.14 Ineffective assistance of counsel, presumption of competence in claims involving, 9.38 dudgment or order by trial court, presumption of correctness, 42 Jury instructions, restrictions on use of presumptions in, 13.57 Record on appeal, no presumption of prejudice from absence of materials from, 3.10 Retroactive application of new laws, presumption affecting, 4.38 o7Index + 1-60 Presumptions and Inferences—cont. Vindictive prosecution, presumption attecting, 13.45 Principles of Appellate Review Generally, 4.21 Forfeiture of error, failure to object at trial resulting in, 4.26-4.28 Prior Convictions, Enhancement of ‘Sentence U: Coram nobis, prohibition against using ‘to challenge validity of prior conviction, 11.8 Federal habeas corpus petition challenging use of prior conviction in subsequent proceeding, 13.60, 14.6 Habeas corpus, restrictions on using to challenge sentence ‘enhanced by untawful prior conviction, 9.5, 9.29 Retrial of prior-conviction ‘enhancements in noncapital cases, effect of double jeopardy clause on, 5.27 Prisons and Prisoners Confidential telephone communications with prisoners, counsels right to, 2.30 Gredit for time served Error in calculating credits, appealability of, 1.7 Habeas corpus challenging denial of, 3.21, 9.29 Improper calculation of Presentence custody credits, prerequisites for appeal, 1.7-18, 2.25 Prosecution’s appeal of order granting credit for time served resulting in reduction of defendant's sentence, 124-125 Trial court's retention of jurisdiction to correct error in credit for time served, 140 Dismissal of appeal, escape of defendant from custody as grounds for, 5.17 Federal habeas corpus. See Federal Habeas Corpus Habeas corpus. See Habeas Corpus List of prisons in California, 13.5 6A7 Mandamus, inmate using writ to compel California Department of Corrections and Rehabilitation to process grievance under department's own regulations, 7.44 Parole. See Parole Probation. See Probation Sentencing. See Sentences and Sentencing Special housing unit defined, 13.9 Privacy Public right of acoess to court records, medical privacy concerns cutweighing, 8.47 Social Security numbers and financial account numbers, Rules of Court requiring attorneys to redact in all pleadings and papers filed with courts, 8.17 Privilege Attomey-cliont privilege. See Attorney-Client Privilege Fifth Amendment privilege against selt-incrimination, violations of, 4.7, 13.29 Probable Cause Certificate of probable cause Application for certificate of probable cause, 2.33f Coram nobis, no requirement of cortificate of probable cause in appealing denial of potition for, 1130 Declaration in support of certificate of probable cause, 2.34f Dismissing appeal for lack of time certificate of probable cause, A Exceptions to certificate of probable cause requirement, 2.8 Form, cartificate of probable cause, 2.35f Guilty or no contest plea, triat counsel's duty to help defendant obtained certificate of probable cause from sentencing judge, 2.8 Guilty piea by defendant, certificate of probable cause as prerequisite for challenging errors, 1.11-1.12161 + Index Probable Cause—cont. Certificate of probable cause—cont. Issues appealabla without certificate of probable cause, 114 Issues requiring certificate or probable cause, 1.13 Mandate, petition for writ to review denial of request for certificate of probable cause, 1.12, 2.8, 729 Strict enforcement of probable cause requirements, 2.8 Vacate conviction, certificate of probable cause not required to appeal trial court's deniaf of motion to, 2.8 Waiver of certificate requirement, 411412 Waiver of right to appeal as part of plea bargain, requirement defendant obtain certificate of probable cause 1o appeal denial of motion regarding search and seizure, 1.14 Habeas corpus to determine probable cause, 1.90, 9.24 Misdemeanor or infraction, no requirement of obtaining certificate of probable cause to appeal, 1.14 Waiver of probable cause certificate (08 Certificate of probable cause, above) Warrantless search and seizure, probable cause for, 4.8 Probation Custody, parole within definition of, 14.3 Habeas corpus challenging invalid orders affecting probation, 9.30 Mandate or prohibition, writ of Grant of probation, petition to review, 7.7 Prosecution using writ of mandate for probation challenge, 129A, 1.32, 7.28 Termination of probation, 728 Not guilty plea, appeal of orcier granting or denying probation after, 1.9 Prohibition, writ of (see Mandate or prohibition, writ of, above) Prosecution's appeal of order declaring wobbler as misdemeanor after probation granted, 1.24 Revocation Generally, 1.9 Certificate of probable cause requirements, applicability to probation revocations following admission of violation, 1.11, 2.8 Coram nobis to withdraw guilty plea based on plea bargain including probation if probation ravoked, 15 Due process, applicability to findings of violation of probation, 13.59 Notice of right to appeal revocation, 13 State prison versus county jait, defendant serving previously imposed sentence after revocation of probation, 1.9 Statutory provisions governing modification or revocation of probation, 4.9 Transmittal of probation report to reviewing court, 8.48 Trial court's retention of jurisdiction to revoke probation pending appeal, 140 Waiver of claim of error on appeal, defendants failure to challenge probation related costs and fees resulting in, 1.8 Process and Papers, Service of. See Service of Process and Papers Prohibition, Writ of Generally, 71, 732-733 Action on petition Alternative writ or order to show cause, 8.64, 8.66f Denial of petition (see Denial of petition, below) Peremptory writin first instance (see Peremptory writ in first instance, below) Alternative writs. See Alternative Writs (Mandate or Prohibition) 6/7Prohibition, Writ of —cont. Appellate review of denial of writ Court of appeal, filing petition in California Supreme Court for review of order by, 8.78 Superior court order granting or denying writ, fing new petition seeking review of, 8.77 Comparison of mandate and prohibition Concurrent use of mandate and prohibition, 7.5. Function of writs, differences in, 73 Speedy trial violations, use of either writ when challenging, 76, 7.18, 9.25 Constitutional iaw Statute, use of writ to challenge constitutionality of, 9.23 Terminate prosecution for violation of unconstitutional statute or ordinance, use of writ to, 743 Contents of petition for writ. See Contents of Writs (Mandate or Prohibition) Denial of petition Appellate review (see Appellate taview of denial of writ, above) Direct appeal available, summary denial if, 8.62 Direct appeal not available, denial of petition if, 8.63 Nonappealability of denial of writ, 16 Repetitive petition filed in same court after summary denial of original petition, no requirement court consider, 8.62 ‘Summary denial, inapplicability of law of the case doctrine to, 8.24 Ditigence in seoking ralief, requiroment that petitioner exercise Generally, 714 Allegation of diligence in petition for writ of prohibition, See Contents of Writs (Mandate or Prohibition) Discovery, See Discovery Dismissal Brady material, dismissal of action if prosecutor fails to disclose, 744 67 Index + 14-62 Dismissal—cont. Denial of motion to dismiss, writ of prohibition to review, 27 Information or indictment, motion to dismiss (see Setting aside information or indictment, use of writ to prevent further proceedings after denial of mation, below) Informer, dismissal of action if prosecution fails to locate, 744 Disqualification of judge, petition for writ to review denial of motion for, 16, 27, 724 Double jeopardy, use of writ of prohibition to prevent, 7.41 Filing of writ petition Copies of petition required for filing, 8.58 Fee for filing writ petition, lack of, 83 Proof of service, 8.60 Proper court for filing writ (see Proper court for filing writ, determination of, below) Future act, writ of prohibition restraining commission of, 733 Grand jury, use of writ to challenge unconstitutional composition of, 74a Habeas corpus and prohibition, procedural differences between, 98 Inadequacy of appellate remedy as prerequisite for writ Generally, 78 Allegations concerning inadequacy of tomedy. See Contents of Writs (Mandate or Prohibition) Defendant's appellate remedy, factors in determining Inadequacy of, 79 Prosecution’s appellate romadies, inadequacy of, 7.10 Information or indictment Setting aside information or indictment (see Setting aside information or indictment, use of writ fo prevent further proceedings after denial of motion, below)1-63 © Index Prohibition, Writ of—cont. Information or indictment—cont. Sufficiency of information or indictment, petition for writ challenging ruling on, 9.24 Jury trial. See Jury Trial Mislabeling of writ, effect on requested relief, 74 ‘Opposing party's response to petition (see Response to pettion, below) Original jurisdiction of courts over petition for writ of prohibition, 1.39, 72 Peremptory writ in first instance Generally, 8.65 Opposition to issuance of Peremptory writ in first instance, 8.69 Oral argument, no right to, 8.73 Proliminary hearings Improper setting or continuance of preliminary hearing, 27 Nonstatutory motion to dismiss information or indictment for errors commited during preliminary hearing not appearing on face of transcript, time limit for bringing, 738 Request or objection to preliminary hearing by defendant, 740 Pre-preliminary hearing issues, use of Prohibition to decide, 740 Prerequisites to relief by writ of prohibition Inadequacy of appellate remedy (see inadequacy of appellate remedy as prerequisite for wrt, above) Perfection or exhaustion of lower court remedies, 712 ‘Standing to petition for writ relief, 7M Timeliness of petition (see. Timaliness of petition, befow) Proceedings on petition Burden of proof on patitioner, 8.74 Hearing, 8.71 Return, effect of respondent's failure to file, 8.72 Right to argument, 8.73 Proceedings on petition—cont. Standard for reviewing trial court's factual findings, 8.75 ‘Statement of decision, party's request for, 8.76 Superior court, decision by, 8.76 Proper court for fling writ, determination of Generally, 8.5 California Supreme Court, original filing of wait in, 8.6 Prosecution Dismissal of action if prosecution fails to locate informer, 744 Election between appeal from dismissal and new prosecution, forcing prosecution to make, 744 Inadequacy of prosecution's appellate remedies, 710 ‘Multiple prosecutions for same act, use of writ to prevent, 742 Probation. See Probation Unconstitutional statute or ordinance, use of writ to terminate prosecution for violation of, 743 Purpose of writ, 71, 732-733 Response to petition Praliminary opposition, 8.67 Reply to preliminary opposition, 8.70 Return (see Return, respondent filing, batow) Review of advarse lower court ruling, respondent or real party in intarest prohibited from seeking by way of response to writ petition, 8.68 Return, respondent filing Failure to file return, effect of, 8.72 Written return to alternative writ or order to show cause, 8.68 Rules of court Opposition, compliance with rules of court for documents filed with, 8.69 Preliminary apposition, compliance with rules of court, 8.67 Return, compliance with rules of court for documents: accompanying, 8.68 6A7Prohibition, Writ of—cont. Rules of court—oont. Statutes and rules of court authorizing review by petition for writ of prohibition, 27 Time limits set out in rules of court, petitioner complying with, 713, Service of writ petition Method of service. 8.59 Proof of service, 8.60 Response to petition, service of, 8.67 Setting aside information or indictment, use of writ to prevent further proceedings after denial of motion Generally. 734 Determining when motion made for purposes of Pen C §1510, 737 Election between appeal from dismissal and new prosecution, forcing prosecution to make, 744 Megal commitment or denial of substantial right, inapplicability of time limitations for motion concerning, 736 Nonstatutory motion to dismiss for errors committed during proliminary hearing not appearing on face of transcript, time limit for bringing, 738 Pretrial relief, time limitations for, 736 Pretrial review of order denying motion to set aside information, 1.6 Reinstatement of dismissed matters, prosecution's motion for, 739 Statutes authorizing use of writ, 733 Stay of lower court proceedings. See Stay of Proceedings Timeliness of petition Court of appeal decision, time limit ‘or filing petition for review of, 8.78 Diligence in seeking ralief (see igence in seeking relief, requirement that petitioner exercise, above) 6/7 Index ¢ 1-64 Timeliness of petition—cont. Extension of time for requesting or opposing statement of decision, 876 Laches as defense against petitioner's claims, 714 Mootness of claim, effect of, 715 ‘Opposition to issuance of peremptory writ in first instance, time limit for filing, 8.69 Reply to preliminary opposition, time limit for filing, 8.70 Return, time for filing, 8.68 Setting aside information or indictment, time limits affecting patition for (see Setting aside information or indictment, use of writ fo prevent further proceedings after denial of motion, above) Statutory and rule of court time lirsits, requirement petitioner comply with applicable, 7.13 Verification of petition for writ, See Verification Proof. See Burden of Proof Pro Per Representation. Seo Self-Representation Proposition 68 ‘Temporary injunction against implementation of, 6.1 Pro Se See also Self-Representation Construction of pro se petitions Liberal construction of, 13.14 Subsequent federal habeas corpus Paiition filed before adjudication of first petition construed as motion fo amend first petition, 15.9 Federal habeas corpus. See Federal Habeas Corpus Habeas corpus, pro se petition by incarcerated person, 10.2, 10.9, 10.334 Petition for writ of certiorari, fess rigorous compliance allowed for pro se petitioners, 12.27 Resources for, 12.2165» Index Prosecution ‘Appeal of judgment or order by prosecution. See Appealable Judgments and Orders Brady violations Components of Brady violation, 13.42 Habeas corpus to review prosecution's suppression of evidence resulting in denial of fair trial, 9.27 Writ of prohibition used to compal dismissal if prosecutor fails to disclose Brady material, 7.44 Discovery improper, writ of prohibition to block court order allowing, 744 Discretion of prosecutor to choose not to proceed to trial after court's, evidentiary ruling, 127 Federal habeas corpus relief, prosecutorial actions as grounds for. See Federal Habeas Corpus Habeas corpus Material evidence, habeas corpus challenging prosecutors failure to disclose, 9.35 ‘Order granting habeas corpus, prosecution's appeal from, 1.30, 10.30 Mandate. See Mandate, Writ of Misconduct by prosecutor Arguable issue on appeal, prosecutorial misconduct as, 4.18 Due process violation, prosecutorial misconduct as, 4.36 Material evidence, habeas corpus challenging prosecutors failure to disclose, 9.35 ‘Waiver of prosecutorial misconduct, defendant’ failure to object resulting in, 428 Prohibition. See Prohibition, Writ of Reinstatement, prosecution's motion for. See Reinstatement ‘Three Strikes Reform Act, prosecution's appeal of order moaifying defendant's sentence under, 1.24 Psychotherapists Federal habeas corpus petition challenging violation of defendant's right to effective psychiatric assistance, 13.49 Publication of Opinion. See Opinions Public Defenders Death penalty, appointment of State Public Defender to represent defendant sentenced to. See Death Penalty Referral of defendant to State Public Defender or another lawyer for advice concerning competency of trial counsel's representation, 25 Publicity ‘Arguable issue on appeal, pretrial pubjicity as, 4.14 Federal habeas corpus reliaf, pretrial Publicity as grounds for, 18.50 Mandate, petition for writ to protect against prejudicial pretrial publicity, 727 ‘Questionnaires, See Charts, Checklists, Questionnaires, and Tables ‘Questions of Law and Fact Federal habeas corpus, standard of review for questions of law. See Federal Habeas Corpus Petition for review, satisfaction of ‘exhaustion requirements as question of federal iaw, 5.44 Prosecution and defense, questions of law in felony cases appealable by, 14 Prosecution's race-neutral reasons for ‘excluding members of jury as question of fact, 13.66 Standard of review. See Standard of Review Record on Appeal ‘Augmentation of record Application for inclusion of ‘additional items in record, 3.2 California Supreme Court ar courts ‘of appeal, augmentation of record filed with, 3.8 Motion to augment record, 3.47f 67Record on Appeal—cont. ‘Augmentation of record—cont Superior Court's appellate division, ‘augmentation of record filed with, 3.20 Burden of proof Death penalty case, defendant's burden in demonstrating inadequacy of record of appeal in, 6.2, Meaningful appellate review, defendant's burden to show record on appest inadequate to permit, 3.10 California Supreme Court or courts of appeal Generally, 3.1 Agreed statement of parties, submitting appeal on, 3.14 ‘Augmentation of record, 3.8 ‘Complete record, attorney obtaining, 3.6-3.13 Confidential proceedings, sealed records relating to, 3.4 Correction of record (see Correction of recard, below) Miscellaneous court orders, contents of clerk's transcript on appeal from, 3.3 New trial, record of judgment or order granting, 3.2 Normal record, obtaining items omitted from, 3.7, 3.46f Normal record on appeal, 3.2-3.5 Preparation, certification, and filing of record on appeal, 3.5 Certification of record Death penalty case, counsel's duty to ensure certification of record for completeness and accuracy, 6.2, 6.26 Reporters transcript in misdemeanor or infraction case, certification of, 3.18 Transcript, certification of, 3.5 Correction of record Generally, 3.144 Death penalty cases. See Death Penalty Fares letter, correcting obvious errors on record with, 3.148, 321 67 Index * +66 Correction of recoré—cont. Jurisdiction to correct clerical error, trial courts retention of, 1.40 ‘Transcript, effect of correcting record on, 3.144 Courts of appeal (see California ‘Supreme Court or courts of appeal, above) Death penalty cases. See Death Penalty Declarations Augmentation of record, declaration in support of motion for, 3.8 Death penalty case, trial counsel's declaration regarding completeness of record, 6.27 Exhibits Generally, 3.2 Augmentation of record to include exhibits, 3.8 Bringing exhibits to attention of reviewing court, 3.9 Misdemeanor or infraction cases, inclusion of exhibits in record on appeal, 3.15 Transmission of exhibits to reviewing court, 5.52f Extension of time for preparing record Generally, 35 Death penalty case, extension of time for requesting additions or corrections to record, 6.28 Federal habeas corpus. See Federal Habeas Corpus Habeas corpus used in conjunction with appeal outside appellate record. See Habeas Corpus Hearings Death penalty case, hearing on request for additional materials or corrections to record, 6.27 Settlement of record in criminal ase, hearing on, 3.11 Misdemeanors or infractions Certification of statoment on appeal in misdemeanor or infraction case, 3.18 Exhibits, inclusion in record on appeal, 3.151-67 © Index Record on Appeal—cont. Misdemeanors or infractions—cont. Indigent misdemeanor defendant's entitlement to record in appellate court equivalent to verbatim transcript, 3.16 Modification of record (see Correction of record, above) Notice Judicial notice of facts and events outside racord on appeal, motion for court to take, 4.35, 4.48f Oral proceedings, notice regarding record of, 3.52f Portion of proceedings not recorded or transcribed, trial clerk notifying appellant about, 316 Penalties (see Sanctions, below) Preliminary steps betore obtaining record, 4.1 Presumption of prejudice from absence of materials from appellate record, lack of, 3.10 Review of record by appellate counsel, 42 Sanctions Election to proceed with or without record of oral proceedings, sanctions for failing to make, 316 Failure to secure record, sanctions for, 347 Settling record on appeal to California ‘Supreme Court or courts of appeal Generally, 3.10 Appeal rights it setling effort unsuccesstul, 3.1 Application to settle racord, 3.13, 348f Preliminary steps in setting record, 3.12 Rules of court for settling record in criminal case, 3.14 Superior Court, appeals to appellate division of Augmantation of record, 3.20 Content of record, 3.15-3.18 ‘Superior Court, appeals to appellate division of—cont. Indigent misdemaanor defendant's entitlement to record in appellate court equivalent to verbatim transcript, 3.16 Notice regarding record af oral proceedings, 3.52/ Order concerning appellant's, proposed statement on appeal, 3.54f Preparation and transmission of record on appeal, 3.19 Proposed statement on appeal, 3.18, 3.50f, 3.63f Reporter's transcript, 3.16 Settled statement, contents of what appeal heard on, 3.17 Statement on appeal, certification of, 3.18 Verbatim record of oral proceedings, judge's order for, 316 Trial court’ retention of jurisdiction over procedures for preparing record, 1.40 Records and Reports ‘Appeal, record on. See Record on Appeal Federal habeas corpus relief, failure to provide adequate record for State appellate review, 13.61 Misdemeanor and infraction cases, electronic recording of oral proceedings in, 3.16 Pleadings in tial or appellate court, facts not appearing of record, t.A9f Probation report, transmittal to reviewing court, 8.48 Public right of access to court records, medical privacy concerns outweighing, 8.47 Sealing of records. See Sealing of Records Status reports in death penalty cases, counsel filing with California ‘Supreme Court, 6.43 ‘Transcripts. See Transcripts ‘Trial court file, appellate attorney's review of, 4.3 CireReduction In Degree of Offense Lesser degree of offense or lesser included offense, modification of conviction to, 5.30 Rehabilitation Certificate revocation, prosecution's appeal of order denying motion to vacate grant of, 1.24 Controlled substance addiction, appealability of commitment of defendant to California Rehabilitation Centar (CRC) for, 1.10 Custody, sentence fo attend alcohol rehabilitation center within definition of, 14.3 Rehearings Answer Federal habeas corpus, restrictions on answer to rehearing petition, 18.53 Petition for rehearing, answer to, 5.39 Appellate division of superior court, petition for rehearing filed with, 5.40 California Supreme Court and court of appeal Petition for rehearing in, 5.39 Strategies for pursuing rehearing in death penalty case, necessity of consulting expariencad legal ‘counsel regarding, 6.40 Death penalty case, extension of time to fila rehearing patition, 6.40 Every issue raised in brief, petition for fehearing based on court of appeal opinion's failure to address, 5.8 Federal habeas corpus petition, rehearing on appeal. See Federal Habeas Corpus Form, petition for rehearing, 5.53f Time limit for fling petition for, 5.39— 5.40 United States Supreme Court, petition for rehearing to, 12.45 Reinstatement Complaint, prosacution's appeal of order denying motion to reinstate, 1.28 Dismissed matters, prosecution's appeal of denial of motion for reinstatement of, 7.39 Remand Directions, remand of case to trial court with, 5.31 Federal habeas corpus petition, remand to state court, 17.24 Remittitur California Supreme Court and courts of appeal procedures Gonerally, 5.34 Issuance of remiftitur, 5.35, 8.78 Recall of remititur by reviewing court, grounds for, 5.37 ‘Transmission of remititur, 5.96 Ineffective assistance of counsel, raising claim in motion to recall remittitur, 2.25 Superior court's appellate division, issuance or recall of remittitur by, 5.38 Reply Brief. Sec Briefs Reporters. See Court Reporters Feports. See Records and Reports Res Judicata Federal habeas corpus petition, res judicata effect of district court's decision on, 1725 Habeas corpus petition, inapplicability of doctrine ot res judicata to denial of, 9.7 Summary denial of writ petition without written opinion, no res judicata effect of, 8.62 Restitution Standing to appeal restitution order, restrictions on, 1.24 Victim restitution, appealability of Postjudgment order denying, 1.7 Resiraints, Use of. See Federal Habeas Corpus Retroactive Application of Laws See also Ex Post Facto Generally, 4.38 Federal habeas corpus Equal protection, retroactive application of court ruling as violation of, 13.66 Ex post facto clause of US. Constitution, effect of, 13.651-69 + Index Retroactive Application of Laws—cort Federal habeas corpus—cont. New rules of constitutional criminat procadura, exceptions to nonretroactivity rule, 15.40 Habeas corpus to obtain benefit of retroactive effect of changes in law, 9.28-9.29 Return of Property Mandate, petition for writ to return defendant's property, 731 Return to Petition. See Habeas Corpus Reversal of Judgment Error, reversal of judgment based on Bail on appeal or release on own reconnaissance, motion after reversal of judgment, 5.26 ‘Changes in law as ground for reversible error, 4.37-4.39 Doubie jeopardy considerations, effect on sentencing after retrial, 5.25 Foderal constitutional law, errors of, 431 New trial, reversal deemed as order for, 5.24 Per se reversible error, 4.30 Prejudicial error as grounds for reversal of judgment, 4.21 Reasonable possibility standard in reviewing effect of state law error, 4.32 Specific instructions, reversal with, 5.24 State law, errors of, 4.92, 4.36 Structural error requiring reversal, 4.30 Insufficient evidence as grounds for reversal Discharge of defendant, 5.29 Discharge of defendant after reversal of judgment based on insufficiency of evidence, 5.30 Double jeopardy cause, retrial barred by, 5.27 Summary reversal, 5.32 Revocation of Parole. See Parole Revocation of Probation. See Probation Right To Appeal Notice of right to appeal, 1.3 Purposes of appeal, 12 Source of right to appeal, 1.1 Right to Counsel See also Appointment of Coun- sol; Effective Assistance of Counsel Advising client of rights and perfecting appeal, trial counsel's duty in Convicted client, duty to advise, 2.5, Motion for appointment of appellate counsel, trial lawyer's duty to prepare and submit, 2.36 Constitutional right to counsel Appointment of counsel. See Appointment of Counsel Arguable issue on appeal, violation of Sixth Amendment right to counsel as, 4.10 Collateral attack on judgment, lack ‘of constitutional right to appointed counsel, 9.2 Effective assistance of counsel on appeal, defendants right to, 2.2 Coram nobis, right to counsel on ‘appeal of order denying petition for, 11.31 Foderal habeas corpus petition ‘chatlonging denial of right to counsel. See Federal Habeas Corpus Habeas corpus. See Habeas Corpus Indigent defendants. See Indigent Defandants Mandate, petition for writ to rectify violations of right to counsel, 727 Misdemeanor case, right to counsel in, 2.1,2.24 Motion for appointment of counsel on appeal, 2.36f Representation of defendant in appellate court by trial counsel, disadvantages of Adequacy of trial counsel's representation, trial counsel's conflict of interest in evaluating for purposes of appeal, 2.4 Different skills required of trial and appellate lawyers, 2.3 Specific attorney, denial of appointment of, 227 6/7Rules of Court Briefs, California Rules of Court fequiring citation of authority in, 338 Electronic fling Allltypes of cases, superior court allowing electronic fling and servica of documants in, 8.44 Appeliato courts, rules of court governing electronic filing in, 341A, 8.58 Fax, Rules of Court authorizing service by, 8.58 Federal habeas corpus. See Federal Habeas Corpus. Formatting of e-fled documents, local rules of court regarding, 858 Parties checking local rules of court for e-filing requiraments, B.58-8.59 State habeas corpus proceedings, local appellate court rules providing for submission of electronic copies of petition, 10.9 Federal habeas corpus petitions Appiicability of rules of court, 13.4 Electronic case filing rules, effect of, 18.31, 18.35 Form requirements, rules of court of federal district courts in California specifying, 16.1 Related cases, local rules regarding, 16.134 ‘Temporary designation of judge, local rules of each district providing for, 17:1 Habeas corpus procedures Generally, 9.7 Electronic copies of habeas petition, local appeliate court rules provision for submission of, 10.9 Mandate. See Mandate, Writ of Prohibition. See Prohibition, Writ of Record in criminal case, rules of court for settling, 3.11 ‘Sealing or unsealing of trial court records, procedures under rules of court for, 8.48 Sanctions. See Ponaltles Cire Index * 1-70 Scientific Tests DNA testing, petition for writ of mandate or prohibition to review grant or denial of defendant's motion for, 27 Forensic analyst testifying to results of scientific tests performed by other analysts, confrontation clause issues involving, 13.31 Sealing of Records Mandate or prohibition, sealing or unseating records in reviewing court. See Contents of Writs (Mandate or Prohibition) Mandate, petition for writ ordering sealing of record of arrest, 7.31 Public filings in reviewing court, prohibition against disclosing material in sealed record, 8.50 Racord on appeal, inclusion of sealed records in, 3.4 Reviewing court, sealing or unseating trial records in, 8.47 Rules of court for sealing or unsealing trial court records, 8.48 Stipulation of parties to seal records prohibited, 8.50 Transmitting sealed records to reviewing court, 8.48. Search and Seizure Arguable issue on appeal, search and seizure in violation of Fourth Amendment as, 4.8 Probable cause for warrantless search and seizure, 4.8 ‘Suppression of evidence Brady violations. See Prosecution Mandate, writ of. See Mandate, Writ of Misdemeanor or infraction case, defendants right to appeal Pretrial denial of motion to suppress evidence, 1.17 Prosecution’s appeal of pretrial order dismissing case based on, 126. Selection of Jury. See Jury Trial Self-incrimination, Privilege Against Filth Amendment privilege against salf-incrimination, violations of, 47,1329Self-Representation See also Pro Se Advisory counsel, no right to, 13.35 Appeal, no right to seif-representation on. 2.1, 6.16, 13.35 Competency of defendant to stand trial, effect on right to represent Self at trial, 13.35 Electronic filing or service of documents by setf-reprasented parties, prohibition against fequiring, 8.58, 10.9-10.10 Federal habeas corpus, violation of right to self-representation as grounds for, 13.35, Sentences and Sentencing Arguable issue on appeal, sentencing error as, 4.20 Compassionate release, appealability of denial of application to recall ‘sentence under, 1.7 Conditional sentence defined, 19 Correction of sentence Errors in sentencing (see Errors in sentencing, below) Unlawful sentence, prosecution appealing imposition of, 1.29 Death penalty, See Death Penalty Double jeopardy considerations, effect on sentencing after retrial, 5.25, 5.27 Enhancement of sentence Arguable issue on appeal, error affecting enhancement of sentence as, 4.20 Prior convictions. See Prior Convictions, Enhancement of Sentence Using Prosecution’ appeal of order striking sentence enhancement, 1.25 Retrial of prior convietion ‘enhancements in noncapital cases, effect of double jeopardy clause on, 5.27 Errors in sentencing Appeatabilty of, 1.18, 4.20 Department of Corrections’ request for correction of unauthorized sentence by trial court, 2.5 Modification of judgment to correct sentencing error, 5.30 Errors in sentencing—cont. Reviewing court's correction of sentencing errors in defendant's favor, 2.28 Unauthorized sentence, correction in absence of objection, 4.33, Waiver of, 18 Federal habeas corpus relief. See Federal Habeas Corpus Forfeiture of sentencing errors, 4.26-4.28 Habeas corpus Invalid, excessive, or unauthorized sentences, 9.29 Pardon or commutation of sentence, determining reasonableness of conditions attached to, 9.20 Mandate, petition for writ to determine representations or promises of sentencing made to defendant, 728 Mandatory minimum sentence, submission to jury of facts increasing, 1.8 Not guilty plea, appealability of sentence imposed after, 1.8 Probable cause certification, effect of sentence length on need to obtain, 2.8 Retroactive application of sentencing decisions benefiting defendant, 4.38 Speedy sentencing hearing, no Sixth ‘Amendment right to, 13.30 ‘Trial court's retention of jurisdiction after appeal fled, rights to and limitations on, 1.40 Unauthorized sentences Correction of sentence in absence of objection, 4.33, Nonexistent crime, conviction for, 2.28 Retrial after original sentence declared illegal or unauthorized, fisk of more severe punishment on convietion, 5.25 Retrial, imposition of more severe sentence if original sentence unauthorized, 2.28 Service of Process and Papers Briets. See BriefsService of Process and Papers—cont. California Supreme Court, service of patition for review by. Sea California Supreme Court Gertificate of interested entities or persons, serving and filing of, 8.41, 8.68 Certiorari, service of petition for writ of, 12.21, 12.24f Coram nobis, service of petition for. ‘See Coram Nobis or Vobis Death penalty cases, attorney's ‘service of documents on client, 6.44 Dismissal of appeal, service of motion for, 5.21 Electronic means, service by. See Electronic Filing Fax, Rules of Court authorizing service by, 8.58 Federal habeas corpus. See Federal Habeas Corpus Habeas corpus petition, service requirements, 10.11 Mandate, service of patition for writ of. ‘See Mandate, Writ of ‘Oral argument in court of appeal, service of notice of intent to use ‘rial oxhibits during, 5.3 Prohibition, service of petition for writ of. See Prohibition, Writ of Record on appeal, service of application to settle, 3.13 Setting Aside. Ses Vacating and Setting Aside Sex Offenders. Child sex abuse witness testifying outside defendant's prasence, 13.31 Custody, sex offender registration not qualifying as, 9.5 Registration as sex offender not constituting being in custody, 9.3, 14.7 Service of brists, alternatives to personal dalivary for prisoner accused of sex crimes, 3.41 ‘Sexually Violent Predators Act ‘Commitment order for sexually violent Predator, appealability of, 1.10 Prosecution's appeal of orders in proceedings under, 1.24 67 Index Signatures Brief, attorney's signature on, 3.39 Electronic fling of documents, party's deemed signature as result of, BAIA Notice of felony appeal, required signatures for, 2.7 Sixth Amendment. See Constitutional Law Social Security Redacting of Social Security numbers in all pleadings and papers filed with courts, Rutes of Court requiring, 8.17 ‘Speedy Trial Appeal Arguable issue on appeal, lack of speedy trial as, 4.6 Inadequate remedy for violation of ‘Sixth Amendment right to speedy trial, appeal as, 7.9 Federal habeas corpus, denial of speedy trial as grounds for writ, 13.30 Formal indictment, information, or arrest, Sixth Amendment right to speady trial commencing on, 13.50 Habeas corpus to review denial of right to speedy trial, 9.25, 9.27 Mandate or prohibition as remedy for ial of right to speedy trial, 718, 9.25 ‘Standard of Review Discretionary rulings by trial court, standard for reviewing, 4.25 Evidence, standard of review for errors in admission or exclusion of, 416 Findings of fact by trial court. See Findings of Fact and Conclusions of Law Questions of law and fact De novo review of questions of law by appellate court, 4.23 Mixed questions of law and fact, determining standard of review for, 4.24 State law error, reasonable possibility standard for reviewing, 4.32473 © Index Standing Mandate, standing to petition for writ of See Mandate, Writ of Prohibition, standing to petition for writ of, 711 Restitution order, restrictions on standing to appeal, 1.24 ‘Statement of Decision ‘Mandate or prohibition, extension of time for requesting or opposing statement of decision, 8.76 State Public Defender. See Public Defenders Statutes of Limitations See also Laches; Time Expiration of statute as grounds for appeal, 4.6 Federal habeas corpus petition, statute of limitations for filing. See Federal Habeas Corpus Forfeiture of issue, failure to raise statute of limitations resulting in, 4.28 Sua sponte, court raising defense of statute of limitations, 15.1 Tolling of statute Antiterrorism and Effective Death Penalty Act, application to fle second or successive federal habeas corpus petition in Ninth Circuit tolling running of statute of limitations under, 15.9 Federal habeas corpus petition, prisoner's mental iliness as ‘grounds for toling statute of limitations to file, 15.5 Stay of Execution of Judgment Generally, 2.15 Application for stay of execution of judgment pending appeal, 2.38f, 4.47f Bail and stay of execution of judgment, application for, 2.38f Certificate of stay of execution of judgment, court clerk issuing, 217 Criteria for granting stay, 2.16 Death penalty. See Death Penalty Effect of stay, 2.17 Extension of stay order, motion or application for, 8.64 Federal habeas corpus, stay of judgment pending appeal. See Federal Habeas Corpus. Stay of Proceedings Federal habeas corpus. See Federal Habeas Corpus Mandate or prohibition, writ of Allegation concerning request for stay, 8.16f Alternative writ of prohibition, stay of trial court proceedings by use of 792, 8.4 Application for stay, 8.15 Determination of writ petition, stay ponding, 8.4, 8.61 Supersedeas, request for stay of lower court pracaedings through weit of, 8.4 Stipulations Remittitur, parties’ stipulation to immediate issuance of, 5.35 Sealing of records, parties inability to stipulate to, 8.50 Strike, Motion to Brief, grounds for striking, 3.96 Unverified petition subject to motion to strike, 8.40 ‘Sua Sponte Dismissal of petition sua sponte, courts authority regarding, 17.4 Jury instructions, court's sua sponte duty regarding, 4.17 ‘Statute of limitations, court raising defense sua sponte, 15.1 Summary Judgment Federal habeas corpus case, party filing for summary judgmant in, 17H Superior Court Appellate division of superior court Generally, 136 Briefs. See Briefs Finality of decision, 5.38 Habeas corpus, requirement for filing petition in superior court, 10.8 Mandate, filing writ of. See Mandate, Writ of Orat arguments, rules for, 5.74 Prohibition, filing writ of. See Prohibition, Writ of 6n7Index ¢ 1-74 Superior Court—cort. Appellate division of superior ‘court—cont. Record on appeal. See Record on Appeal Rehearing, filing petition for, 5.40 Remitttur, recall or issuance by appellate division, 5.38 ‘Stay in misdemeanor and infraction appeals, ability to grant, 2.15 Writ jurisdiction of court, 139, 72 Habeas corpus. See Habeas Corpus. Laches period for seeking relief from ‘superior court rulings, 738 Transter of proceedings. See Transfer of Proceedings Supersedeas, Writ of Stay of lower court proceedings, request for, 8.4 ‘Supplemental Briefs. Seo Briefs Suppression of Evidence. See Search and Seizure ‘Supreme Court California. See California Supreme Court United States. See United States Supreme Court Tables. See Charts, Checklists, Questionnaires, and Tables Tape Recordings. See Video or Audio Recordings Telephones: Oral argument in court of appeal by telephone, 5.5, 18.40 Prisoners, counsef’s right to confidential telephone communications with, 2.30 Termination of Appeal Duties of appellate counsel, 5.51 Three Strikes Denial of petition for resentencing under Three Strikes Reform Act, appealability of, 1.7 Prosecution’s appeal of order modifying defendant's sentence under Three Strikes Reform Act, 124 Sentencing errors in detendant’s favor, reviewing court's correction of, 228 67 Time See also Laches; Statutes of Limitations Answer to petition for rehearing, timely filing of, 5.39 Appointment of counsel for indigent’s appeal, time limit for tial court clerk to forward request for, 2.14 Briefs. See Briefs California Supreme Court Briet on merits, time limit for fling, 5.48 Date of finality of decision, 5.33, Extension of. See Extension of Time Opinion of court, time limit for fling, 5.50 Oral argument before court, time imit on, 5.49 Petition, answer, or reply, time for filing, 137, 5.43-5.45 Certificate of probable cause for appealing judgment after guilty oF no contendere plea, time limit for requesting, 2.8 Certiorari, time limit for fiting wrt of See Certlorarl, Writ of Court of appeal, date of finality of decision, 5.33 Death penalty cases. See Death Penalty Depublication of opinion, time limit for requesting, 5.15 Diligence. See Diligence Electronic service of orders by court, effact on time limits for seeking relief, 8.32 Extension of. See Extension of Time Federal habeas corpus. See Federal Habeas Corpus Habeas corpus Death penalty cases, importance of ‘meeting timetiness standards, 6.23 Denial of habeas corpus petition by court of appeal, time limit for petitioning California Supreme Court for review, 13.3 Filing habeas petition, time limits for, 9.36175 © Index Time—cont. Habeas corpus~-cont, Granting or denying petition or holding evidentiary hearing, time limit for, 10.23 Presumption of timeliness of petition, 6.23, 9.14 Reply to informal response, time limit for fing, 10.15 Ruling on habeas petition, time limit for, 10.13 Joint appendix, time limit for filing, 12.42 Mandate. See Mandate, Writ of Misdemeanor and infraction appeals, timing rules regarding service and fling of, 3.43 Notice of appeal Federal habeas corpus, time limit for fling notice of appeal. See Federal Habeas Corpus Felony appeal, time limit for filing, 2.7, 8.32 Infractions, 8.32 Juvenile court, time limit for fling appeal from, 2.10 Misdemeanor appeal, time limit for filing, 2.9, 8.32 ‘Oral argument in court of appeal, time limits on, 5.2 Prohibition, See Prohibition, Writ of Rehearing, time limit for filing petition for, 5.39-5.40 Remittitur, time limits for bringing criminal appellant to trial after issuance of, 5.35 ‘Withdrawal as counsel, time limit for filing motion after filing notice of appeal, 18.18 Tolling of Statutes of Limitations. See ‘Statutes of Limitations Transcripts Federal habeas corpus Appeal, ordering transcript for, 18.25, In forma pauperis proceedings, petitioner's right to receive documents without cost, 16.11 ‘Order to show cause requiring respondent to file copies of all state court transcripts, 175 Free copy of transcript, defendant's entitlement to, 3.1 Mandate, writ of Contents of writ. See Contents of Writs (Mandate or Prohibition) Misdemeanor or infraction case, petition for writ of mandate to obtain reporter's transcript in, 729 Prior trial, petition for writ of mandate to obtain transcript of, 727 ‘Marsden transcript Augmentation request, California Rules of Court governing procedures for, 3.8 Sealed transcript of Marsden hearing, 3.4 Nonstatutory motion to dismiss for errors committed during preliminary hearing not appearing on face of transcript, ime limit for bringing, 738 Record on appeal. See Record on Appeal Reportar’s transcripts. See Caurt Reporters ‘Transfer of Proceedings California Supreme Court transferring mattor back to court of appeal Further proceedings, transfer with instructions conceming, 1.37 Supplemental briefs, parties’ right to file, 5.7 Superior court ‘Appellate division of superior court, ‘court of appeal ordering case transferred to itself from, 1.2, 1.38 Certification of transfer of case to court of appeal, 1.36 Traverse Federal habeas corpus. See Federal Habeas Corpus Habeas corpus, petitioner's answer to respondent's return, 9.8, 10.22 Trial Habeas corpus challenging denial of right to public tial, 9.27 Jury trial. See Jury Tri ‘Ongoing duties of trial counsel, 6.20 6ATTrial—cont. Remititur, time limits for bringing criminal appellant to trial after issuance of, 5.35 Setting of trial, petition for writ of mandate or prohibition to compel, 7.7 Spoody trial. See Speedy Trial Triat Court File Appellate attorney's review of, 4.3 United States Magistrate. See Magistrate United States Supreme Court ‘Admission to United States Supreme Court bar Admission pro hac vice, 12.8 Prerequisite to appear before Court, admission to bar as, 12.6 ‘Qualifications and procedure, 12.7 Certiorari, writ of. See Certiorari, Writ of Denial of review by California Supreme Court, filing appeal to United State Supreme Court after, 8.78 Determining when review should be sought, 12.4 In forma pauperis proceedings. See In Forma Pauperls Proceedings Joint appendix, filing requirements, 12.42 Jurisdiction over federal questions, 1.41 Oral arguments: Generally, 12.44 Apps for smart devices featuring recent Supreme Court oral arguments and opinion announcements, 12.2 Resources for attorneys and pro se petitioners, 12.2 Stays of lower court judgments Examples, 12.11 Motion for stay of exacution, 12.12f Procedure, 12.10 Requirements for stay, 12.9 Summary affirmance by U.S. Supreme Court, limited precedential value of, 13.23 ‘Summary of ways case can reach ‘Supreme Court, 12.3 Writing brief, 12.43 6/7 Index * 1-76 Vacating and Setting Aside Cottificate of probable cause in appealing danial of motion to set aside judgment, 2.8, 11.30 ‘Coram nobis, motion fo vacate judgment treated as proceeding for writ of, 11.4 Ineffective assistance of counset, inability of lawful resident alien facing deportation to vacate plea on basis of, 9.5 Information or indictment, setting aside. See Information or Indictment Petition for review by California ‘Supreme Court, order vacating submission of case, 5.50 Venue Arguable issue on appeal, lack of venue as, 4.6 Coram nobis, venue for fing petition for writ, 11.9 Federal habeas corpus, venue for filing petition, 13.5, 16.7 Habeas corpus patition, venue for, 10.7 Mandate, writ of Allegation concerning venue in petition for writ, 8.23f ‘Change of venue, petition for writ challenging trial court's denial of motion for, 726 Prohibition, allegation concerning venue in petition for writ of, 8.23f Verdicts Federal habeas corpus patition challenging sufficiency of evidence supporting verdict, 13.58 Modification of verdict Death penalty. See Death Penalty Prosecution's appeal of order modifying verdict, 1.25 Verification Amendment of, 8.40 ‘Coram nobis petition, verification of, 1422f Defendant's limited exemption from verification, 8.68 Federal habeas corpus petitions, verification of, 16.41-77 + index Verification—cont. Habeas corpus petitions, verification of, 10.34 Mandate or prohibition Criminal defendant, exercising caution before verifying facts that might incriminate, 8.68 Petition for writ, verification of, 8.40f Return to wrt, verification of, 8.68 Video Conference Oral argument in court of appeal by video conferencing, 5.5 Video or Audio Recordings Misdemeanor and infraction cases, electronic recording of oral proceedings in, 3.16 ‘Transcript of tape recording, maintaining as exhibit, 3.9 Waiver Attornsy-client privilege in action involving ineffective assistance of counsel, waivar of, 9.38 Death penalty, defendant prohibited from waiving automatic appeal, 63 E-filing service, waiver of fee for registering with, 8.58 Error, waiver of. See Error Federal habeas corpus. See Federal Habeas Corpus Felony case, requirements for valid waiver of right to appeal, 1.15. Forfeiture distinguished, 4.26 Guilty plea. See Guilty or Nolo Contendere Plea Modification hearing, waiver results from defendants failure to ‘object to court’s ruling at automatic, 6.64 Objections, waiver of. See Objections Oral argument in court of appeal, waiver of, 5.1, 5.4 Probable cause cattiication, waivor of. See Probable Cause Probation related costs and fees, defendant’ failure to challenge resutting in waiver of claim of error on appeal, 1.8 Websites California Appellate Defense Counsel (CADC), website for, 4.37 California Appellate Project (CAP), website of, 6.19 California courts, website for, 5.10 California Habeas Corpus Resource Center, website of, 6.19 Comell Law School's Legal information Institute's website, 12.2 FindLaw's Supreme Court Center's ‘wobsite, 12.2 Judicial branctis website, 6.15 h Circuit's website, 18.1 Oyez Project's website, 12.2 ‘Supreme Court Historical Society's website, 12.2 ‘Supreme Court Institute Moot Court Program, 12.44 United States Supreme Court website, 12.2, 12.7, 1216-12.18 Withdrawal of Counsel. See Attomeys Withdrawal ot Guilty Pies. See Gullty or Nolo Contendere Plea Witnesses Arguable issue on appeal, problems involving eyewitness identification procedures as, 4.9 Double jeopardy attaching with calling of first witness in non-jury trial, 13.28 Expert witnesses. Soe Experts and Expert Witnesses Federal habeas corpus. See Federal Habeas Corpus Forfeiture of issue, effect of failing to object to witness's testimony on grounds of testimonial incompetence resulting In, 4.28 Sixth Amendment. right to confront witnesses under. See Constitutional Law Wobblers Defined, 8.5 Prosecution’s appeal of order declaring wobbler as misdemeanor after probation granted, 124-125 Work Product in camera hearing to review claims of ‘work product, writ of mandate requiring trial court to conduct, 731 Writs Certiorari. See Certlorarl, Writ of 67Writs— cont. Coram nobis or vobis. See Coram Nobis or Vobis Extraordinary writs. See Extraordinary Writs, Habeas corpus. See Habeas Corpus ony Index + 1-78 Mandate. See Mandate, Writ of Prohibition. See Prohibition, Writ of Respondent in writ proceeding, lower court named as, 8.22 ‘Supersedeas, filing writ for stay of lower court proceedings, 8.4Make sure you are using the latest update For your convenience, the following list identifies the most recent publication date of each CEB update (as of June 2017). Product Publication Update Title Number Date Advising California Common [nterest Communities, 2d Edition RE-30533 12/16 Advising Califomia Employers and Employees BU-33682, SALT Advising California Nonprofit Corporations, 3d Edition BU-33948 6/17 Advising California Partnerships, 3d Edition BU-32889 2A7 Appeals and Writs in Criminal Cases, 2d Edition CR-33661 6/17 Business Buy-Sell Agreements BU-31498, 6/17 Business Succession Planning: Stratcgics for California Estate Planners and Business Attorneys FS-34036 8/6 California Administrative Hearing Practice, 2d Edition CP-32672 10/16 California Administrative Mandamus, 3d Edition CP-32895 S/T California Attorney Fee Awards, 3d Edition cP-34017 37 California Attorney’s Guide to Damages, 2d Edition cP. 4 12/16 California Automobile Insurance Law Guide, 2d Edition TO-30203 11/16Publication ““ Product Update Title Number Date California Basic Practice Handbook MI-34274 116 California Business Litigation BU-33574 16 California Child Custody Litigation and Practice FA-31882 ai? 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