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ARTICLES DCA ORDERS PENDING ISSUES POST-BLAKELY DECISIONS BRIEFING SAMPLES

 

Briefing & Samples

Research Advisory: CCAP has not made any attempt to edit these materials after their initial draft, and so cannot guarantee the information is complete, accurate, or up-to-date. Cases may be depublished, amended or overruled, and issues may become unviable. You should conduct your own independent research on all issues addressed in the samples. We do hope you will find the materials helpful in issue spotting and/or simplifying a draft of a new argument.

Nguyen Issue: CCAP Sample Petition for Writ of Certiorari

Drafted: 08/26/09

This sample is a post- Nguyen (2009) 46 Cal.4th 1007, petition for certiorari to the U.S. Supreme Court asking the court to take up the issue of whether prior juvenile wardship findings for which there was no right to a jury trial can constitutionally be used as “prior convictions” under Apprendi. The sample petition was drafted by CCAP staff attorney Michelle May.

Counsel utilizing the sample briefing will need to begin it with their own case-specific facts before continuing to the legal analysis.

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For procedural steps in filing a cert petition, see the "How do I file a certiorari petition" page.

Discretionary Sex Offender Registration: Opening Brief Sample

Drafted: 3/26/08

This sample brief argues that the 2006 amendments to the sex offender registration law (Jessica's Law) are punative, and since the provisions increase the penalty for the underlying offense, any facts necessary to impose registration must be found by a jury beyond a reasonable doubt. The brief was drafted by CCAP panel attorney Allison Ting for People v. Mosley (2008) 168 Cal.App.4th 512, rev. granted 3/18/08 (S169411/G038379).

An Apprendi issue is applicable only discretionary registration cases where there must be a finding the offense was committed "as a result of sexual compulsion or for purposes of sexual gratification." In mandatory registration cases, the mere conviction of a sex offense listed in section 290 creates a registration requirement, and no additional fact finding is needed.

Counsel would need to include the case-specific facts to build and complete this argument.

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Penal Code section 654: Opening Brief Sample

Drafted: 10/28/08

This sample brief is a pre-Oregon v. Ice argument which stresses the similarity between part of the Oregon consecutive-sentencing statute at issue in Ice and Penal Code section 654. The sample brief was drafted by CCAP staff attorney Bill Arzbaecher for a hypothetical case.

Because the sample was drafted before the decision in Ice, counsel would need to omit the discussion of the similarities between the Oregon statute and the California statute, and update and modify all discussion of Oregon v. Ice.

Counsel would also need to include their case specific facts to build and complete this argument.

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Mandatory Consecutive Sentencing: Sample Petition for Review

Drafted: 7/21/08

This sample petition for review asks the Calfornia Supreme Court to grant review on, inter alia, the issue of mandatory consecutive sentencing under Penal Code section 667.6, subdivision (d). The sample petition for review was drafted by CCAP staff attorney Brad Bristow for a staff case.

The pertinent part of the sample is part C. Part B discusses discretionary consecutive sentencing, and that argument is now foreclosed under Oregon v. Ice (2009) 555 U.S. 160 [129 S.Ct. 711; 172 L.Ed.2d 517]. The concurring opinion in this case, written by Justice Sims, agreed that Apprendi/Blakely/Cunningham applies to imposition of full term consecutive sentencing under section 667.6, subdivision (d), but found the error harmless. (See People v. Deo [June 13, 2008, C047126].

The sample can be adapted for use in an opening brief. In addition to modifying the sample to discuss case-specific facts before continuing to the legal analysis, counsel should be sure to discuss why the decision in Oregon v. Ice, which deals with discretionary consecutive sentencing, does not foreclose the argument being made here.

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Black II and Sandoval: CCAP Sample Petition for Writ of Certiorari

Drafted: 11/30/07

This posting includes a generic sample petition for certiorari to the U.S. Supreme Court under Cunningham, for cases where review was dismissed or denied after Black II and Sandoval. The petition covers three common issues: (1) a “single factor” (no error) issue under Black II; (2) an issue of whether there is a “recidivism exception” to Apprendi (with two subissues), also under Black II; and (3) a harmless error issue under Sandoval. The petition was drafted by CCAP staff attorneys Michelle May and Bill Arzbaecher.

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The sample petition is intended to be as generic as possible and was written for a hypothetical case. However, because of the variety of issues that might arise post-Black II/Sandoval, it was impossible to foresee all possibilities, so three of the more common issues were chosen for this sample petition. Counsel should not necessarily assume that any or all of these sample issues will apply as written to their particular case, and should check carefully to make those determinations and any necessary modifications.

In addition, while an effort was made to cover some of the more common procedural postures, it was impossible to predict all possible procedural postures. Again, counsel should check carefully to make sure that either the samples encompass the procedural posture of their particular case, or that they make all needed modifications.

 

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