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petition for review

What Everyone Should Know About Preparing a Petition for Review

by Mark L. Christiansen, former CCAP Staff Attorney
with 2007 Rules of Court updates by CCAP staff

Watch the corresponding MCLE video for this article:

 

A petition for review must be filed within 40 days of the decision

Basic Rule:

The time for filing a petition for review is set forth in rule 8.500(e). This time is within 10 days of the decision of the Court of Appeal becoming final as to the latter court. (Rule 8.264(b).) You can submit the petition earlier than the 10 day period, but you absolutely cannot be even one second past the 10 day period. The time is computed on a day-for-day basis, no days are omitted. If the petition is submitted earlier than the ten day period, it will be marked as received when it arrives and will be filed on the first day after the decision becomes final as to the Court of Appeal. Use certified mail for petitions that are not hand delivered.

Exceptional Situations:

Generally, a decision becomes final as to the Court of Appeal 30 days after filing. This is set forth in rule 8.264(b)(1).

EXCEPTIONS:

1. denial of a petition for a writ within the original jurisdiction of the Court of Appeal or writ of supercedeas where no alternative writ or order to show cause is issued,
2. denial of an application for bail or to reduce bail pending appeal,
3. denial of a transfer to a Court of Appeal, or
4. dismissal of an appeal by request of the appellant or by stipulation of the parties are all immediately final. The Court of Appeal also can in writ cases, even after an alternative writ or order to show cause, under certain conditions specify a shorter period or immediate finality.

EXCEPTION TO EXCEPTION:

The denial of a petition for a writ of habeas corpus that is filed on the same day as the decision in a related appeal becomes final as to the Court of Appeal at the same time as the related appeal.

EXCEPTION TO ALL THE ABOVE:

If a rehearing or other modification takes place after the original opinion is filed AND if the result is a modification of the judgment of the Court of Appeal then the time starts running again from the date of filing of the modification. You will know when the judgment is modified because the order making the modification will say that it effects a change in the judgment. If the Court of Appeal changes its opinion but does not say the change effects a change in the judgment, then the time keeps right on going from the date the original decision was filed.

PRACTICE SUGGESTIONS:

1. Upon receipt of the Court of Appeal opinion or order, immediately calculate the relevant periods to rehearing and to review. Remember to check the number of days in the months calculated. Calender your petition's first and last day as though the filing period was nine days rather than ten. Mentally figure that the first day for filing is actually the last day or work out some other means which personally works for you, but remember if the petition is one second too late it is still too late and no relief for default will be forthcoming no matter how serious the case.
2. Remember that printing may break down, or be botched, or electricity may go out. Leave yourself some time leeway.
3. Remember the mail may or may not go through in time. Send the petition by certified mail, at the least and always. At present the Supreme Court accepts the certification date as the filing date, but do not count on this as a professional or safe way of handling the problem. Do not rely on regular first class mail postmarks, they do not count.

 

A petition for review must follow the rules as to form and service.

Basic Rules:

Become acquainted with rules 8.204, 8.212, 8.500, 8.504, and 8.40, in addition to the normal Court of Appeal rules. In general, the petition requirements are the same as for other briefs except that the heading is "In the Supreme Court of the State of California", service on the Court is an original and 13 copies, a copy must be shown to have been served on the Court of Appeal and the superior court clerks, the opinion is attached, the cover is white, the petition may not exceed 30 pages (excluding tables, the copy of the opinion, and proof of service), may not exceed 8,400 words, requires a word count certificate , and there are required content headings and material (discussed later). While other petitions may be incorporated in specified situations, there is no provision to incorporate by reference the materials filed in the Court of Appeal.

Note: The rules also permit an answer to an opposing petition to raise issues. However, if the answer is seeking review of some other issue than that in the opposing petition, a petition for review should also be filed.

PRACTICE SUGGESTIONS:

1. Note that the Attorney General must be served even if the district attorney is handling the case. (Rule 8.29(c).) Note that both the clerk of the Court of Appeal and the clerk of the superior court must always be served. Service generally will be the same as in the Court of Appeal other than the addition of the Court of Appeal clerk to the proof of service.
2. Note that an original and thirteen copies comes to fourteen total. You should also add one more copy along with a self-addressed, stamped envelope for your conformed copy to obtain the Supreme Court number and filing date.
3. Just because you have 30 pages and 8,400 words does not mean you have to take that many. DO NOT exceed 30 pages or 8,400 words and try for as few as possible consistent with your objectives. Remember to attach the opinion and any order denying rehearing, no tabs are needed.
4. The Word Count Certificate is required for petitions since January 1, 2003. (Rule 8.504(d)(1).) A maximum of 8,400 words for a petition and 4,200 for a reply, excluding covers, tables and the opinion. Place it after the Conclusion, but before the copy of the opinion. Most dataprocessing software can generate a word count for you. See a sample Certificate .

 

A petition for review should be written to serve its purpose

Basic Rule:

Rule 8.500 states the matter clearly, so far as the true "pure purpose" is concerned. There may be other purposes, as will be explained later. Rule 8.500 provides:

(b) [Grounds] Review by the Supreme Court of a decision of a Court of Appeal will be ordered:

1. where it appears necessary to secure uniformity of decision or the settlement of important questions of law;
2. where the Court of Appeal was without jurisdiction of the cause;
3. where, because of disqualification or other reason, the decision of the Court of Appeal lacks the concurrence of the required majority of qualified judges; or
4. where the Supreme Court chooses to transer a matter back to the Court of Appeal for further proceedings.

(c) [Limitations] As a matter of policy, on petition for review the Supreme Court normally will not consider:

1. any issue that could have been but was not timely raised in the briefs filed in the Court of Appeal;
2. any issue or any material fact that was omitted from or misstated in the opinion of the Court of Appeal, unless the omission or misstatement was called to the attention of the Court of Appeal in a petition for rehearing. All other issues and facts may be presented in the petition for review without the necessity of filing a petition for rehearing.

Normally, you will have to argue an "important question of law" (rule 8.500(b)(1)) and sometimes you will be lucky enough to have a conflict but rarely will you see a lack of jurisdiction or a lack of concurrence of at least two justices of the Court of Appeal as a ground for review.

EXCEPTIONS:

This criteria is flexible ("normally") as to the exceptions. Despite the apparently definite language of the first part, the Court has full control over the cases it takes, and this is regarded as a discretionary and unreviewable decision. However, as a practical matter, an attempt to evade the exceptions will doom the petition. The Court is one of review, and it wants to have a clearly developed set of facts and to be certain that the Court of Appeal (whose decision it is that is being reviewed) has been given a clear opportunity to decide the matter and has assisted in the definition process. Nonetheless, in highly exceptional cases, the Supreme Court may still wish to grant review and will deal with omitted or misstated facts.

What is "necessary" is highly subjective and depends on what the Court feels is necessary at the moment to meet is goals, including at times public interest or sometimes particular problems of agencies or court administration. The Court may limit the grant of review to particular issues. Under the current rules (and for some good reasons having to do with the constitutionality of deciding only part of the "cause") it is reviewing the Court of Appeal decision, not the trial court.

PRACTICE SUGGESTIONS:

1. This is the area on which the petition is likely to be granted or denied and probably deserves the most development and clearest expression.
2. Sometimes it is possible to get amicus support for the petition in the form of letters, preferably from institutional defense firms or academics, sent to the Court stating that it is important to their practice and operation or that of their courts that the issues, or some of the issues, be resolved by the Supreme Court, and why. These are generally referred to as "me too" letters, although they are obviously not headed in that fashion. While such letters do not necessarily mean the Court will grant review, they are informative and lend support and credibility to the extent that they inform the Court of true problems that the Court of Appeal is unlikely to be able to resolve in a manner that aids the overall purposes of the Supreme Court review process. However, such letters can also be a problem where the amicus may have a different interest (such as wanting depublication rather than review or placing emphasis on an issue which actually has little benefit to the client as the sole issue on which review should be granted).
3. Reviewing other sample petitions may be instructive. However, the basic idea is to convey immediately the essential importance in the individual case and especially to state the problem clearly and concisely. The three samples provided in the Sample Discussion of Need for Review article includes a portion of the discussion or argument in People v. Otto, a portion of the necessity for review on which review was apparently granted in People v. Olecik, and the entire necessity for review portion in People v. Humphrey. The Court's statement of the issue is included in the first and last of these. Olecik was eventually dismissed along with numerous other grant and hold cases.

 

The Challenge

Persuading the Reader your case is interesting and worthy

Approach #1. Logical Analysis of Predisposition.

In some instances, such as with People v. Olecik, the reason review may have been granted was because there were other cases with the same issue or pending legal changes, which demonstrated that the issue was of some immediacy and statewide importance. In others, uniformity of application of new law and general legal interest to a wide spectrum of the legal community and beyond, plus some personal interest, may appear to be the more likely reasons, as in People v. Humphrey. In still others, matters of agency information, policy, or inter-state alignment may play a major role, which probably accounts for the review in People v. Otto. In a sense, these are cases where the Court was perhaps predisposed to grant review and was looking for appropriate cases.

Previous Interest Shown - Issues Under Review Already

The appellate practitioner may take advantage of such predisposition by looking at cases where the Court has granted review. One good source to start with is a perusal of the cases granted review on the High Court Activity page, selecting either California Supreme Court or the United States Supreme Court link to view the cases and issues currently pending review. These articles are an up-to-date source and are usually updated weekly. Each case is given a short blurb regarding the general subject of the grant. It also lists what cases are "lead" cases, and which are resulting in "grant and hold" orders in other cases. They are organized together topically and then removed once the issue has been decided.

Previous Interest Shown - "Grant and Hold"

If there is a "lead" with numerous "grant and hold" cases, a fairly summary petition may get your case on the held list by simply noting that review was granted in the lead and the held cases with enough detail from your case to show succinctly that it falls within the category. See a sample "Grant & Hold" petition in either Word or WordPerfect.

Previous Interest Shown - Predictions of Future Interest

Another, more difficult, benefit is that by examining the areas of current interest to the Court you may discover that your case is one which complements others or fills in a gap, as for example where the Supreme Court granted review in several manslaughter cases and ultimately changed the law using two of them at the same time. (See, e.g., People v. Cox (2000) 23 Cal.4th 6651; People v. Rios (2000) 23 Cal.4th 4502; People v. Blakeley (2000) 23 Cal.4th 82; People v. Lasko (2000) 23 Cal.4th 101 [specific intent to kill not a necessary element of voluntary manslaughter and voluntary manslaughter is not reduced further by provocation or imperfect self-defense despite that fact]; see also People v. Lee (1999) 20 Cal.4th 47.) At times it is possible to recognize that later review may follow other changes, as for example People v. Birks (1998) 19 Cal.4th 108 [relating to lesser included offenses changes] being a harbinger of Cox, Rios, Blakeley, and Lasko. Examples of the reasons for review are stated in the footnotes.

On the other hand, there were no apparent precursors to People v. Marks, and the grant of review covered a plethora of issues beyond that on which it was ultimately decided. This may illustrate simply a challenge that the Court felt was an interesting area with the potential for other interesting issues which it ultimately backed off of when a consensus did not form, resulting in a fairly straightforward decision on one issue.

PRACTICE SUGGESTION:

1. The bottom line on all the analytical approaches is to look for current pending cases of the same issue and trends or relations to or complements of issues under review already. If you can spot something of this nature, you can place more emphasis in that area of your issues, and the reader may be more interested or may be made more cognizant that this case has something already considered to be of interest.
2. Read the article, "A Methodology for Determining when to Seek Review in the California Supreme Court in a Criminal Appeal." This article outlines how the analysis of trends can be done.

 

Approach #2. The trail blazer.

All the above is well-and-good, if it fits. The problem may be that your case has nothing to do with anything pending. This means you have to examine a broader perspective.

As the highest court in the state, the California Supreme Court, consisting of a Chief Justice and six associate justices, is primarily responsible for deciding cases that raise important issues of public concern and maintaining uniformity in state law. Your job is to convince four of them that the issue should be decided by them, not in any particular fashion. Notice that they do not have to be in agreement about the way they want to come out, only that the issue should be decided. Because the supreme court's primary function is to guide and harmonize the development of state law, that is one area to which all the justices should be looking.

Therefore, you want to speak to that area. Your issue may involve some matter where the Court of Appeal districts or divisions are deciding the same issue differently, or perhaps they think they are and it can be reconciled (to the advantage of your client). Perhaps there is some pressing problem with a new law or proposition which may be ambiguous and an obvious source of likely trouble and you can see a way to harmonize what appears to be a contradiction or otherwise save the day.

Sometimes it may be a matter of application, as for example in the late 1960's where every time the police happened to enter a building they would see "in plain view" what "appeared to be a green-leafy substance" or where they would almost invariably hear a toilet flushing necessitating a no-knock entry. The Court opinions said they changed the law, but they actually sent a message regarding applications. (E.g., People v. Di Santiago (1969) 71 Cal.2d 18; People v. Gastelo (1967) 67 Cal.2d 586.)

Yet another area is one where the law in California is out-of-step with federal law or the law of other states, or perhaps it has been severely criticized or defended in law review articles or by commentators. Being too far out of the mainstream poses problems of enforcement, particularly in this highly mobile age. Similarly, technology may create problems requiring harmonization with other states or interpretation to avoid conflict with federal law.

Some cases are simply going to involve events which are unique but likely to recur due to the way in which the Court of Appeal resolved the issue, particularly in published cases. These can be particularly tempting to the Court where they are of first impression nationally. Sometimes many litigants will be affected, and often amicus letters or briefs in support may be able to be arranged. Finally, some issues are just going to be so important or so interesting to large groups that the Court will have to grant review simply because the need or interest is so obvious and the pressure for resolution is so great, or even because it is clear that the issue must be resolved in order to resolve many other issues (for example, the "Truth In Evidence" amendment cases).

At times, there are cases where intermediate appellate court direction is needed, albeit it may be more to establish degree or scope in application.

PRACTICE SUGGESTION:

1. Look for Supreme Court opinions where the Court appears to be in some disarray or sharp disagreement and is fairly evenly divided on the question in the majority, concurring, and/or dissenting opinions.
2. Look for U.S. Supreme Court opinions suggesting that there may be problems with the way California views aspects of the law. Watch for Ninth Circuit opinions where it finds contrary to California law.

 

Persuading someone else that you presented the issue

Very often, particularly in very serious sentence cases, the case may not be within the technical reasons for granting review but you may need to petition anyway to exhaust the client's state remedies. To do so, you need to include the federal authorities bearing on the federal question you are attempting to exhaust. The number of "exhaustion" petitions is probably a significant portion of petitions for review.

The first problem is that you may not want to harm your "credibility" with the Supreme Court by petitioning in every case. There are different approaches to this which essentially signal that you know the issue is not one appropriate for a "policy" court but rather is a specific application problem. Different approaches have been tried. One was simply making a generalized "due process (U.S. Const., Amend. XIV)" claim in a footnote, which is probably insufficient. Another is to signal exactly what you are doing in the "Necessity for Review" section by saying something to the effect:

"Review by this Court is necessary because evidentiary and instructional errors deprived appellant of constitutional rights under the Sixth, Eighth, and Fourteenth Amendments, because a life term is cruel and unusual punishment, and because appellant must exhaust his potential state remedies before seeking federal habeas relief. (O'Sullivan v. Boerckel (1999) 526 U.S. 838 [119 S.Ct. 1728, 144 L.Ed.2d 1].)"

Of course, it is still necessary to spell out the issues and cite federal authority. The exhaustion aspects are covered in "A Methodology for Determining When to Seek Review in the California Supreme Court in a Criminal Appeal." However, while that may or may not solve the immediate problem, things become more complex when you have a "real" issue for review plus a series of issues on which you are exhausting remedies. Use of language such as that suggested above could result in that being all the Court sees. You may want to use a good deal of your 30 pages/8,400 words to set forth the "real" issue, and in any event you do not want to detract any more than necessary from that issue by such language or non-review issues.

One solution to the "mixed" issues problem is to use an "Other Issues Presented" portion of your Discussion or Argument section and to include a summary statement in your Issues Presented portion. In the "other issues" section you might simply state the issue in a very abbreviated fashion and then cite the federal authority, listing each separately but using no more than a brief subheading and a short paragraph. You may, and probably should, also want to make sure that the issue is in fact a possibly cognizable federal issue and, if not, and if you are sure it is not reasonable as a basis for review, then eliminate it.

The second problem is that you should not jump ship too fast in regard to whether the Supreme Court may be or not be interested. As noted earlier, one way to get review may be to show that California law needs to be harmonized or explained in light of other jurisdictions, particularly federal law. It is necessary to carefully evaluate your issues and approach so you do not throw away something in which the Court, unbeknownst to you, has an immediate interest.

The third problem is that you want to make sure that you are expressing the issue in terms which if your petition is denied (as is very likely) when the federal petition is filed by your client and the respondent looks at your petition to see if it exhausts the federal issue it actually covers the issue your client wants to raise. This takes some care in phrasing.

PRACTICE SUGGESTION:

1. Keep in mind the fact that your petition is very likely to be denied and that you may need to exhaust your client's state remedies for habeas purposes. While you may want to signal that issues are being exhausted, you may also want to avoid losing other issues which are viable candidates for review. The petition for review should be a very custom document in each case as it fits that case. It should never just be a pro forma recap of your briefing below, nor should it be a "cut and paste" regurgitation of the opening brief. While that method is easy, it is not "customized." A customized issue includes some careful redrafting with both state and federal analysis of the issue and the Court of Appeal's treatment of it.
   
   The alternative to filing a regurgitated brief is to file a new rule 8.508 -- so called "exhaustion petition." This abbreviated petition for review may be filed where the issues don't qualify for review under rule 8.500(b), but the petition is necessary to exhaust state remedies in order to preserve issues for federal habeas review. The following criteria must be met: 1) "Petition for Review to Exhaust State Remedies" must appear on the cover of the petition; 2) it need not comply with rule 8.504(b)(1) [questions presented] nor (b)(2) [explanation of how the case presents a ground for review under rule 8.500(b)]; 3) it must comply with the rest of rule 8.504, which covers form, a statement regarding a petition for rehearing, copy of the Court of Appeal opinion and/or order, title and designation of parties, length, and attachments and incorporation by reference; 4) it must contain a brief statement of the underlying proceedings, including the conviction and punishment, and the factual and legal bases of the claim; 5) it requires only an original and 8 copies and need not be served on the superior court clerk. (Rule 8.508(c).) Caveat: None of this changes how federal courts define what is adequately preserved and exhausted. At this time, the federal courts have not spoken on whether rule 8.508 petitions fully meet federal requirements.
   
   
2. Note, though, that you should not wait until the petition for review to raise your federal issues with federal authority. Matters not raised in the Court of Appeal may be waived as far as the Supreme Court is concerned, and therefore so far as the federal courts are concerned they may be procedurally defaulted. On the other hand, if you have raised them as federal issues, then there is no reason you cannot burnish the federal authority a bit more to be certain that it is clear you did present the federal issue.

 

Realizing your audience

Look at the internal operating procedures of the California Supreme Court. (Particularly part "IV. Conference Memoranda.") The decision to grant or deny review is made at the Wednesday weekly conference. It is made largely on the basis of staff memorandum. As the procedure states, typically there will be from 120 to 180 matters considered at the weekly conference. It should be clear that your 30 pages/8,400 words of carefully crafted work is not going to be read by the Court, at least not in most cases. You are writing for the Court staff. This means you should not assume that the staff member has expertise in the matter you are discussing and urging, nor should you assume the staff member will divine on his or her own the significance and importance of aspects of your issue. You need to make the issue clear and the context of its importance clear, you need to state it in easily understood terms, and you need to be aware that you may be dealing with someone whose background and expertise is in some other area. Do not be insulting, but do not make assumptions.

The staff member may also be aware that the Court is looking for particular issues. Therefore, you need to be sure that the issues are briefly (because of the workload), clearly stated at the start.

Remember the staff member is going to have to prepare a brief memorandum. If you provide something short that he or she can use, you have a better chance of it being incorporated, not to mention a certain warm spot in the staff member's heart. Similarly, hold down the outrage and do not get personal because it does no good and may not get translated unless it is really unusual. No one likes contention, least of all someone passing along another person's animosity.

The memorandum will theoretically summarize the relevant procedural or evidentiary facts, relevant rulings, and the issues. The merits of the issues and a recommendation are included. Of course, the detail and expression will depend on the case and staff member, and to some extent on how usable your petition is. Make it easy to summarize.

PRACTICE SUGGESTION:

1. Write the petition in clear, non-complex terms with an understandable context for an overworked staff member whom you want to help incorporate your deathless prose into the memorandum. You want to get the staff attorney to recommend that your case be one of those which get more than momentary mass consideration and burial.
2. Write for the Court as well since it may come to that for the final decision or may later be reviewed in deciding the case.
3. While the staff may be interposed, it is composed of bright persons who should not be insulted as to their intelligence, nor should a justice who does see something which catches her or his interest have to suffer a pedantic tone.
4. If you are highly frustrated and angry and perceive bias and twisting of the law to a result and cannot get into the professional mode, go ahead and let it flow, but do not file that draft. A certain amount of outrage, properly expressed in a very clearly proper case for it, may convey the importance of the Court of Appeal having grossly overstepped its bounds. But be sure it has. Always put such a petition aside for a day or two, then review the opinion again to be certain. Keep the objective you have in mind. Then review and edit the petition. If in doubt, have someone else read the petition before it is filed or discuss it with the assigned project buddy. Your reader is not usually interested in your feelings and has his or her own objectives. The reader's interests and objectives are what can effectively be addressed.

 

Beating the odds

There are usually a huge number of filings which the Court must act upon within sixty days or less. The Supreme Court's exercise of its discretion to grant or deny petitions for review consitutes a significant part of its workload. Since 1992, the average percentage granted is approximately 4%.

For the fiscal year 2001-2002, out of 3,093 petitions from criminal appeals, 136 were granted, 74 were granted and held, 24 were granted and transferred to the Court of Appeal, and the rest were either denied or pending. The percentage granted was 4%.

For the fiscal year 2000-2001, out of 3,384 petitions from criminal appeals, 83 were granted, 64 were granted and held, 38 were granted and transferred to the Court of Appeal, and the rest were either denied or pending. The percentage granted was 3%.

Having the Court of Appeal publish the opinion logically should increase the chances of getting review since a published opinion serves as authority in other cases, increasing its importance and visibility. When you write the petition, you should include that the opinion is certified for publication, and note any concurrence or dissent.

Although considerably dated, one former Supreme Court justice publically described his process of considering petitions as follows:

The workload has increased considerably, and many years have passed since the above was written in 1986 by Justice Grodin. Even so, it does provide a rare insight. The years have not brought much change to the process, as reflected in the current internal operating procedures (see Parts "III. [Weekly] Conferences" and "IV. Conference Memoranda").

Several things stand out. The initial "A" or "B" screening is done by someone other than the justices. A justice reads only a pre-screened set of our petitions. Matters which are "important" or "more controversial" may get a boost. Matters which require little discussion are those for which denial is "clearly indicated." Those slated for the "B" list are treated as a batch, and it is only if a justice requests further consideration that an item can escape the group dispatch. The others are individually treated. The total time on many may be only three or four minutes, which suggests that brevity remains the necessary key even for those on the A list.

A basic function of the discretionary petition and the fairly summary conference is to permit the Supreme Court to control its workload within some manageable framework. Put more bluntly, it is a way of avoiding being buried by the demands to be heard. This aspect is the negative side, but it also has its own negative constraints. The public would not react well to a perception that the law was being made by refusing to hear cases in a non-public secret way unless there was some balance in the types of cases, litigants, and issues, and the Court already suffers from considerable criticism regarding depublication as a way of deciding or burying issues. Public interest is therefore a matter which is likely to weigh heavily, as is the need for equity and fairness in terms of fostering the perception that the Court is indeed only concerned with keeping its workload appropriate and reasonably manageable.

In the same vein, the workload aspect should mean that a petition with a sharply developed issue is more likely to gain review than is one where the Court must do a great deal of work simply to define a narrowly stated issue. Record size is an interesting question, probably not worth pursuit, and from the representative standpoint we have as defense appellate counsel, it is one over which we have no control. What we can control is the emphasis in our petitions about terrifying complexity of the record or facts. This does not mean surrendering to oversimplified statements which leave the problem colorless. It does mean good organization, interesting presentation, convincing points on the need for review and not emphasizing the work invested getting there.

PRACTICE SUGGESTION:

1. Tone is important. Confidence, affirmative presentation, a full grasp of the matter that brings about a feeling the person reviewing the petition (who may be a justice in the first instance on overflow petitions) can trust the petition. A concise presentation that is easy to read and follow are all good things. Bad things are hysteria, angry criticism and personal attacks, and anything else that suggests you are just venting. The Court is taking valuable time and resources to review the petition. It has the right to expect its time is being treated with respect on a serious matter. A petition is not simply so that the author can demonstrate erudition and knowledge or express dissatisfaction with the result generally, and certainly not to achieve personal satisfaction at making a useless record of the perceived stupidity and bias leading to the opinion. Convince the Court you are serious about the merit of what the petition presents, and the petition will be harder to dismiss out of hand. (Incidentally, if you succeed in obtaining review, that will not go unnoticed by the Court of Appeal.)

 

The Means

The initial and possibly only part which will be read - TOC

Everyone reads the Table of Contents. Therefore, it is the most important section of the petition. It should be framed to get the issues out clearly at the first opportunity. It should be phrased to grab the reader's interest. It should be organized to present the bare-bones outline of the petitioner's position at a glance. It should entice the reader to move to the next sections, and it should leave an impression of solid thought and importance being likely to be present in what is to come.

 

Encouraging a reluctant reader to take a taste – Questions Presented

For example:

Sample A:

1. "Did the trial court err in defining the mental element of assault as whether the defendant willfully and unlawfully committed an act that by its nature would probably and directly result in the application of physical force on another person?" (People v. Williams, S076262)

Sample B:

1. "Whether Omission to Object to Improper Venue at the Preliminary Hearing Constitutes a Waiver of the Issue on Appeal Where the Issue Is Litigated at Trial?
2. " Whether The Trial Court Committed Reversible Error in Refusing to Instruct the Jury, Upon Request, That in Order to Convict it Must Find Proper Venue?" (People v. Simon, S077855)

Both of the above are statements of the issues from briefs in cases where review was granted. Compare the two of them for clarity and readability. They are both good, but one is easier to read and less visually distracting from the issue itself. Neither exceeded a few seconds per issue to read. Both supplied the truly essential background information.

 

Telling the reader quickly why to read further - Need for Review

The Necessity for Review section and some examples have been discussed previously in other contexts. The objective is to provide a brief, clear, and convincing answer that the reader can give for recommending that review be granted. The other objective is to keep the reader reading.

In exhaustion cases, this may be as far as you need to go.

In some cases, the author may simply put in the applicable phrase from rule 8.500(b). (E.g., "This case presents an important question of law of statewide importance.") However, that had better be obvious from the Table of Contents and Issues Presented portions or the author should be confident that the reader will move on to the expanded explanation and not just scan that explanation. In some cases, it may be possible to be brief:

 

Consider the context - Statements

If you have not already brutally edited the statements of case and facts, and if you plan to include this information in your petition, this is the time to be merciless. Pare back to the basics necessary for an understanding of the case or such other purpose as you may have in mind. In federal exhaustion petitions, you may want to cut this to a paragraph or even a sentence, or if appropriate simply to refer to the statement in the attached opinion.

Remember that the reader has to be sufficiently motivated to get beyond this section. If there is some unusual or interesting pertinent matter, try to present it in a way which will keep the reader's interest going. In all cases where a statement is included, try to make it as interesting and clear and concise as possible. You want to provide something that the staff attorney can put into his or her memorandum and to make the attorney want to do so. If at all possible, it should move right along.

On the other hand, your case may be one with compelling procedural or event facts which form a story from which the issues presented naturally arise. The context may demonstrate the importance of review, or it may be necessary to grasp the issues. If you are lucky, the statements may relate a situation with an obvious miscarriage of justice. While the Supreme Court does not sit to correct case specific errors, the reader is human and may be moved in a close case to put the matter on the A rather than the B list.

PRACTICE SUGGESTION:

1. As a reality check, look at the way in which the Court of Appeal treated the facts. If you spark the interest of the reader and Court, it is not unlikely that they will look to the opinion to see how the court's opinion viewed the situation.
2. When reading Supreme Court opinions, particularly in the area of interest, take a moment to see how it dealt with the facts.
3. Consider your overall space and objective and ask whether the facts might more effectively be incorporated into the argument or an introductory part of the argument in which you will make the pitch to be heard.

 

Discussion proving the case for examination - Argument

If the reader gets this far, now is the time to set the hook firmly. The reader may have arrived straight from the Table of Contents, not stopping at "Issues Presented" or any "Summary of Relevant Facts" or even at the "Necessity for Review" portion. Your well-crafted heading will have informed the reader of your issue and hopefully of its importance in a summary fashion. You can very briefly summarize your previous summary of the summary of the facts needed for context, but get to the point of why this case should be one of the 4% of the cases where review will be granted.

At times it is difficult to restrain oneself, but remember the objective here is to get review, not win the case on the merits. If you get review, then you will file your brief on the merits. The Court of Appeal will have sent its record, and the reader can make reference to that if need be, although you cannot incorporate your lower court briefing. What you are trying to do is get onto the A list and demonstrate that the Court of Appeal decision (not that of the trial court) should be reviewed.

On the other hand, you can at this point expand somewhat on the issue and how it appears in your case, and why your earlier conclusion that the Court of Appeal opinion should be reviewed is not only viable but compelling. The reader who may not be well acquainted with the more arcane issues can at this point have some very brief education on the subject. The viability of your position and the merits may be one and the same in many respects, and in that case you may even argue the merits more than you would in other cases.

You may have a very well-known area of the law and not need to go into it broadly. If so, don't. Make sure your issue is clear, show how it was brought to the court being reviewed and how that court dealt with it, why the methodology or basis or whatever you want reviewed was wrong, and particularly why that is important to a policy making court. If other cases are going to be affected, say so, and if necessary explain. If there is some impact on the administration of the law or constitutional problem or conflict or whatever, say so and why that is a real and present reason why the court should take your case out of more than a thousand others.

But, remember, you want your argument read and preferably presented by the memorandum as something for the justices to discuss. It must be "short enough" but also it must have the basis to generate a discussion among the justices and a certain confidence that the issue they want to reach is there.

Also, if you want to be adventurous, a certain amount of leeway may be permitted. If in doubt, check with the project regarding your imaginative idea. Some examples might include citing law review articles or technical or professional journals in non-legal areas or citing major magazines or newspapers as illustrations of the problems or interest in the issue you want heard.

 

The obvious or a summary - Conclusion

There can be different styles for the Conclusion. Selection may depend on the individual case. Some may feel that an extremely brief summary is useful so that the reader who turns there first to see what is requested gets the benefit or so that the reader has the more complex reasons for granting review neatly summarized in a page, or two at the very most, for the memorandum. In other instances, the additional comment may be eliminated in favor of a simple request that review be granted

 

Word Count Certificate

As of January 1, 2003, the petition must contain a Word Count Certificate. (Rule 8.504(d)(1).) The Supreme Court clerk will look for it inserted after the Conclusion and before the copy of the appellate opinion. The word count maximum is 8,400 words; do not count covers, tables, proof of service, or the appellate opinion.

 

Problems to Avoid

State your case, not your anger

This has already been mentioned, but it is repeated here because it is one of the most difficult things to do after some particularly egregious action by the Court of Appeal. The cooling off period and use of a more removed reviewer are highly recommended.

 

Say why you should be heard, not a briefing of the merits (usually)

This is also a repetition, but it is useless to simply show that the Court of Appeal did not correctly decide the case if there is no reason compatible with the function of the Supreme Court. In view of the number of petitions vying for review and the small percentage which can be granted, this is no time to be retiring about the actual objective of a petition for review.

 

Think about your client's best interest, not your own glory

Do you really want review? Sometimes you may have a particularly interesting issue of first impression, but you have also already garnered your client relief. One example of such a case is People v. Hendrix (1997) 16 Cal.4th 508, where the Attorney General was successful in an unpublished decision upholding the Three Strikes sentencing of the appellant on the issue of whether the consecutive sentences were proper. The Attorney General, who has considerations which the individual appellant does not have, sought review because the Fifth District concluded consecutive sentencing was not mandatory as it also concluded the trial judge understood. The net result was that the Supreme Court concluded that the Three Strikes law was structured in a manner in which the trial court did have discretion, and it therefore remanded not only for the purpose of permitting the trial court to exercise discretion to strike (as the Fifth District had on a limited remand) but also for the purpose of exercising its discretion as to how the sentences should be run. While this may be well-and-good for an institutional party such as the Attorney General, the bottom line was that by petitioning, the favorable result achieved in the Court of Appeal was reversed and the application of the law being protested became the standard3.

WHEN NOT TO PETITION

A petition for review should not be filed in the following instances:

1. There are no federal issues and the Court of Appeal simply applies well-established unassailable law. A petition in this instance will get onto the B list with no reason to save it. This is the basic "non-review" case.
2. The non-review case where there are federal issues which will clearly be determined against the petitioner anyway based upon the state decisions and Anti-Terrorist act.
3. The case where there is a risk of losing a gain in the Court of Appeal balanced only by a very speculative chance of some minor further gain (e.g., reversing active counts in the Court of Appeal in an uncertain area but petitioning for three days of credit based upon a waiver issue).

Of course, the fact you may make bad law is not a good reason to abandon petitioning when it is in the client's interest with a reasonable possibility you might prevail.

In any case where there is a balanced risk that obtaining review might result in harm to the client, the client should be fully advised (if possible) and given the opportunity to make an informed election of whether to stop or petition.

In any case where a petition is not going to be filed, this should be known in most cases immediately after the opinion is reviewed, and the client should be sent the record and instructions on how to file a petition and the time limits. The client should also be advised of any risks of adverse consequences. The client ideally should be advised of his writ remedies, if any, as well.

These are not "rules" so much as "guidelines" since there may be other reasons for filing a petition. However, frivolous unreasoned petitions should be avoided.

 

LAST DITCH EFFORT ALTERNATIVES

There are some alternatives which can be considered. A request for depublication, a petition seeking grant-and-hold (see a sample in either Word or WordPerfect), a petition seeking a grant-and-retransfer (especially where the Court of Appeal gave no reasons for its decision or there is some controlling case the opinion ignored for the Supreme Court to transfer "in light of"). The grant-and-hold option presupposes the presence of a lead case already before the Supreme Court, and it also presupposes that the Court has not already reached what appears to be an adverse consensus. Depublication is likely to be granted where the case is not review material but leaving it published is likely to build an increasing body of likely error and other intermediate appellate court corrections are not likely or would be ineffective.

Caution should be exercised in trying to mix a request for review with some lesser alternative. Reasonable minds can differ. The Court is obviously aware of its options, but it may not consider them. On the other hand, to remind it of a way to dispose of the problem without actually granting a chance at relief is a shaky proposition and may show a lack of confidence in whether review is appropriate.

 

1 . "We granted review in this case to determine whether conviction of involuntary manslaughter based on "an unlawful act, not amounting to felony" (Pen. Code, 192, subd. (b)), i.e., a killing resulting from the commission of a misdemeanor offense committed with general criminal intent, requires a further showing that the predicate misdemeanor was dangerous under the circumstances of its commission. The Court of Appeal below read our recent decision in People v. Wells (1996) 12 Cal.4th 979 [50 Cal.Rptr.2d 699, 911 P.2d 1374] (Wells) as impliedly holding that in cases not involving criminal negligence, conviction of involuntary manslaughter by "an unlawful act, not amounting to felony" (sec. 192, subd. (b)) requires only that commission of the predicate misdemeanor offense with general criminal intent be shown. As will be explained, the Court of Appeal erred in approving the trial court's erroneous instruction on the nature of the elements of involuntary manslaughter."

 

2 . "[M]alice is not at issue upon a charge of voluntary manslaughter; indeed, a manslaughter charge concedes the absence of the murder element of malice. Hence, a conviction of voluntary manslaughter is supported by proof and findings, as here, that the homicide was unlawful and intentional. There is no additional need for the prosecution to establish that malice was lacking by reason of provocation or a belief in the need for self-defense. Malice is not at issue upon a charge of voluntary manslaughter; indeed, a manslaughter charge concedes the absence of the murder element of malice. Hence, a conviction of voluntary manslaughter is supported by proof and findings, as here, that the homicide was unlawful and intentional. There is no additional need for the prosecution to establish that malice was lacking by reason of provocation or a belief in the need for self-defense."

 

3 . The Hendrix case also contains another lesson. The Court of Appeal attorney for Mr. Hendrix had achieved a victory regarding getting the case remanded. He was then faced with a situation in which he could put that victory at risk by petitioning in regard to the conviction and by petitioning in regard to the refusal to remand for a determination of the consecutive or concurrent sentencing, the very issue on which the Attorney General petitioned. Since the chances of review were minimal on the merits of the convictions and there was a remand where in many respects the client would be able to make the same arguments as he might on consecutive terms, plus the difficulty of overturning the Court of Appeal determination that the trial court knew of its discretion, he took his benefits and did not petition. Due to health problems, he sought to be relieved when the Supreme Court granted review. Replacement counsel was appointed after the time to file a petition for review had run and after the time to file an answer had run. The Supreme Court foreclosed numerous issues that replacement counsel attempted to raise both as ancillary to the issue granted and as exhaustion/conviction issues because despite the unlimited order granting review there had been no timely petition or effort to raise these in the answer. While original appellate counsel was rightly concerned that responding to the Attorney General's petition might provide it the appearance of greater importance, generally speaking the very fact that the Attorney General would chose to petition already conveys that fact, and not petitioning could have resulted in a failure to exhaust. Assuming the issues were such that they would not have garnered a review on the appellant's petition, nothing would have been lost, and perhaps the additional problems might have caused a denial of review in the case.

 

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