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ArtMartin Helen

TABLE OF CONTENTS

required byCalifornia Rules of Court, rule

8.204(a)(1)(A)

TABLE OFCONTENTS

TABLE OF AUTHORITIES

required byCalifornia Rules of Court,

rule 8.204(a)(1)(A)

“separately listing cases, constitutions,court rules, and other authorities cited.”

STATEMENT OF APPEALABILITY

required byCalifornia Rules of Court,

rule 8.204(a)(2)(B)

Rule 8.204(a)(2)(B)______________________________________

An appellant’s opening brief must:State that the judgment appealed from is final,

or explain why the order appealed fromis appealable…

This appeal is from a final judgment following a trial and is authorized by Penal Code section 1237, subdivision (a).

This appeal is from an order made after judgment, affecting the substantial rights of the defendant, and is authorized by Penal Code section 1237, subdivision (b).

This appeal is from a final judgment following a guilty plea and is based on the sentence imposed, within the meaning of California Rules of Court, rule 8.304(b)(4)(B). It is authorized by Penal Code section 1237.

This appeal is from a final judgment following a guilty plea after denial of a Penal Code section 1538.5 motion, within the meaning of California Rules of Court, rule 8.304(b)(4)(A). It is authorized by Penal Code section 1538.5, subdivision (m).

This appeal is from a final judgment following a plea of guilty and issuance of a certificate of probable cause, as prescribed by California Rules of Court, rule 8.304(b)(1) & (2). It is authorized by Penal Code section 1237.5.

This appeal is from a final judgment in proceedings under Welfare and Institutions Code section [601 or 602] and is authorized by Welfare and Institutions Code section 800.

This appeal is from [an extension of] a commitment under the Mentally Disordered Offender law under Penal Code section 2960 et seq. and is authorized by Code of Civil Procedure section 904.1.

This appeal is from a final judgment in proceedings under Welfare and Institutions Code section [601 or 602] and is authorized by Welfare and Institutions Code section 800.This appeal is from [an extension of] a commitment under

the Mentally Disordered Offender law under Penal Code section 2960 et seq. and is authorized by Code of Civil Procedure section 904.1.

ADI MANUAL, Chap. 5,Briefing, § 5.8

The primacy effect, in psychology, is a cognitive bias that results from disproportionate salience of initial stimuli or observations. If, for example, a subject reads a sufficiently-long list of words, he or she is more likely to remember words read toward the beginning than words read in the middle.

First Impressions …

Marco Schmidt

First Impressions …AG Strategy

“Mistakes were made but this guy killed his grandmother.”

First Impressions …AG Classics

The reader needs to know what facts to collect and remember …

Sex crime case …

Sex crime case …No Introduction

Sex crime case …

What facts does the reader collect without an introduction?

Sex crime case …

John Smith

Rosa Garcia. Rosa

Ana Maya,

Maya.Smith

Unsavory Facts

Sex crime case …

John Smith

Rosa Garcia. Rosa

Ana Maya,

Maya.Smith

Unsavory Facts

Sex crime case …Sentencing Error

Sex crime case …

Smith’s Sixth Amendment right to a jury

Sentencing Error

Sex crime case …

Smith’s Sixth Amendment right to a jury

Great Introduction

Sex crime case …Thought Experiment

What would happen if … ?

Sex crime case …

Smith’

Great Introduction

Sex crime case …

Smith’

Great Introduction

Sex crime case …

Smith’

Great Introduction

Sex crime case …

Smith’

Great Introduction

Sex crime case …

What facts does the reader collect now?

Thought Experiment

Sex crime case …

John Smith

Thomas Smith.

Sex crime case …

John Smith

Thomas Smith.

Introduction

Two kinds of Introductions

– Purely informative

– Informative plus persuasive

Purely informative

Introduction

Appellant appeals his conviction for transportation for sale of a controlled substance under Health and Safety Code section 11379, subdivision (a). This court should reverse appellant’s conviction because the jury instructions removed an element of the offense from the jury’s consideration and confused the jury, and the court did not utilize Penal Code section 1161 to assure that the verdict represented the will of the jury.

Purely informative

Introduction

In this appeal, appellant argues that his conviction for felonious assault in Michigan did not qualify under California law as a strike prior, and therefore, the court erred in doubling the base term of his sentence from two to four years.

Additionally, all financial penalties should be stricken because the court did not make a determination that appellant had the ability to pay them. (People v. Dueñas (2019) 30 Cal.App.5th 1157.)

Informative PLUS persuasive

Develop the theme.

Draw attention to important facts.

Maintain credibility.

Key Facts

*Sheila O’Connor

Key Facts

*Jennifer Peabody

Key Facts

*Russell Babcock

Key Facts

*Russell Babcock

Key Facts

Key Facts: “Conviction, but”

Sympathetic Facts

Be Careful:Relevance to argument must be crystal clear

Sympathetic Facts

WILLIAM SORENSON

*Nancy Olsen

Sympathetic Facts

*Johanna Schiavoni

Controlling Law or Key Legal Point

Key Facts

Controlling Law or Key Legal Point

Key Quote

*John Staley

Key Quote

*Alex Kreit

Key Quote

Key Policy Point

*Sheila Quinlan

Key Policy Point

*Paul Katz

Complicated pre- and post-trial proceedings …

Multiple cases …

Multiple appeals …

Statement of the CaseRule 8.204(a)(2)(A):

An appellant’s opening brief must:

State the nature of the action,the relief sought in the trial court,

and the judgment or order appealed from.

Statement of the CaseIn a criminal case,

procedural overview ofcharges,

significant proceedings,judgment,

andnotice of appeal.

Statement of the CaseA first amended information filed on November 28, 2018,

charged appellant Matthew Smith in count one with carjacking(§ 215, subd. (a)); in count two with kidnapping to facilitate a carjacking (§ 209.5); in count three with assault with a forearm(§ 245, subd. (a)(2)); and in count four with unlawful use of personal identifying information (§ 530.5, subd. (a)). It was further alleged as to counts one and two that appellant personally used a firearm.(§ 12022.53, subd. (b).) (1CT pp. 155-156.)

Statement of the CaseA first amended information filed on November 28, 2018,

charged appellant Matthew Smith with four counts:- count one, carjacking (§ 215, subd. (a));- count two, kidnapping to facilitate a carjacking (§ 209.5);- count three, assault with a forearm (§ 245, subd. (a)(2)); and- count four, unlawful use of personal identifying information

(§ 530.5, subd. (a)). (1CT pp. 155-157.)As to counts one and two, the information alleged that appellant

personally used a firearm. (§ 12022.53, (subd. (b).) (1CT pp. 155-156.)

Charts and Diagrams: Chart of Charges

*Christopher Nalls

Three victims:

Charts and Diagrams: Sentencing Chart

1 The sentences that did not contribute to the total of 17 years, 4 months are shown in parentheses.

Total: 17 years, 4 months

Four casesbefore and after

Prop 47

*Sheila Quinlan

6 years, 4 monthsv.

5 years

Four casesbefore and after

Prop 47

*Sheila Quinlan

*Cynthia Jones

Five cases but only two separate prison terms:

*Cynthia Jones

Charts and Diagrams: Judges Use Them, Too

OPINION BY SMITH, J.

People v. Warren(2018) 24 Cal.App.5th 889

*J. Bruce Smith

OPINION BY SMITH, J.

People v. Warren(2018) 24 Cal.App.5th 889

*J. Bruce Smith

DISSENTING OPINION BY LIU, J.

DISSENTING OPINION BY J.

DISSENTING OPINION BY LIU, J.

People v. Buza(2018) 4 Cal.5th 658

*J. Goodwin Liu

Charts and Diagrams: Sentencing Range Charts

*San Diego District Attorney

Charts and Diagrams: Sentencing Range Charts

*San Diego District Attorney

Low = 29

Max = 40

Mid = 32

Citations to the Record:

Citations to the Record: Additional Transcripts

(Augmented Reporter’s Transcript dated 5/11/2019 (hereafter “ART/1”), vol. 1, p. 13.)

(1RT 6; see also Supplemental Clerk’s Transcript (hereafter “SCT”), vol. 2, p. 133.)

(1RT 6; 2ART/2 35; RFN 76.)

(2SCT 11; 1CT 5.)

Citation Key Footnote:

Citations to the Record: Two Separate Records

D070594:

D069988:

1RT 594 101

1RT 988 101

1CT 594 100

1CT 988 100

D070594:

D069988:

1RT594 101

1RT988 101

1CT594 100

1CT988 100

D070594:

D069988:

*Jared Coleman

1RT 101

*1RT 101

1CT 100

*1CT 100

D070594:

D069988:

*Jared Coleman

1RT 101

*1RT 101

1CT 100

*1CT 100

D070594:

D069988:

2 All references to the record prefaced by an asterisk (*) refer to the record of appellant’s associated appeal in Case No. D069988,,which appellant requested judicial notice of at the time of filing of this brief.

Statement of Factsrequired by

California Rules of Court, rule 8.204(a)(2)(C):

An appellant’s opening brief must:(C) Provide a summary of the significant facts limited to

matters in the record.

Statement of Facts“An appellant must fairly set forth all the significant facts, not just those beneficial to the appellant.” (In re S.C. (2006) 138 Cal. App. 4th 396, 402.)

Including the necessary bad facts does not mean “light most favorable to the verdict.”

“The facts offer a chance to tell a coherent story, to humanize the client, to set forth the basis for the legal arguments, and to build both counsel’s and the client’s credibility.” (ADI Manual §5:16.)

Statement of FactsSTATEMENT OF FACTS

Appellant pled not guilty by reason of insanity, triggering a

two-phase trial under Penal Code section 1026. (1CT 36, 180.)

Alcala did not deny being the shooter and the prosecutor did not

challenge the fact that Alcala suffered from paranoid

schizophrenia.

A. Guilt phase evidence.

Statement of FactsStatement of Facts

A. The shooting at the intersection of Bradford and Carriage

B. The shooting of Eric Guerrero

C. Law enforcement gang expert testimony

A. Evidence of a shootingB. Evidence of a confrontation prior to the shootingC. Events leading to appellant’s arrestD. Evidence of appellant’s prior uncharged criminal actsE. Evidence of communication with fellow gang membersF. Appellant’s post-arrest statement to investigatorsG. Appellant’s statement to his insurance company

A. The Government’s Case1. The 2006 and 2007 refinance transactions2. Transfers between the Millers and entities they controlled3. Properties on which the Millers were not on the chain of

title but reported gains and losses on Schedule D4. Identification of documents and signatures

B. Mr. Miller’s Defense1. The 2006 and 2007 refinance transactions2. Transfers between the Millers and entities they controlled3. Properties on which the Millers were not on the chain

of title but reported gains and losses on Schedule D

Charts and Diagrams: Timeline

To be clear, the sequence of events is as follows:

Charts and Diagrams: Timeline

To be clear, the sequence of events is as follows:

Charts and Diagrams: Key Exhibit

*Stephen Vasil

EXHIBIT 12

Police Officer’s handwritten drawing: X = Police officers

X = Appellant’s friends

X = Appellant and key witness

Charts and Diagrams: Judges Do It, Too

NINTH CIRCUIT OPINION

Low v. Trump University, LLC (9th Cir. 2018) 881 F.3d 1111

*J. Jacqueline Nguyen

Charts and Diagrams: Map

Charts and Diagrams: Chart of Transmitted Exhibits

*Christian Buckley

Charts and Diagrams: Chart of Transmitted Exhibits

*Christian Buckley

Attachments: CRC Rule 8.204(d)

Ten Pages!

Ten Pages► Exhibits► Materials in the appellate record► Citable materials that are not

readily accessible

Ideas and Examples

Ideas and Examples► Visual Aids

► Unfair six-pack► Still shot from surveillance camera or police video► Closing argument PowerPoint slide

Ideas and Examples► Visual Aids

► Unfair six-pack► Still shot from surveillance camera or police video► Closing argument PowerPoint slide

► Handy Reference for the Court► Complete: Transcript of police interrogation ► Collection: Relevant jury instructions► Collection: Relevant statutes

Pros & Cons:Transmission: High quality original

Justices must share one copy

Attachment: Potential quality issuesTrue-Filing: Black & white only

Each Justice has a personal copyAttachments can be bookmarked

Attachments: Key Exhibit

Lease:

Attachments: Key Documents Subject to Judicial Notice

Athena Shudde

Court’s Online Docket:

Attachments: Helpful Reference for Court

Exhibit List:Admitted / Not Admitted

Attachments: Helpful Reference for Court

Exhibit List:Admitted / Not Admitted

9 Pages

Introductions … Introduction to Statement of Facts

*Christian Buckley

Introdcutions … Introduction to Statement of Facts

*Christian Buckley

Introductions … Introduction to Statement of Facts

*Christian Buckley

Readability … Helpful Footnote

Order of Arguments

Chronological?

Strength?

Impact on the judgment?

HeadingsRequired by California Rules of Court,rule 8.204(a)(1)(B)

[applicable to criminal appeals under rule 8.360(a)]:

“Each brief must: …State each point under a separate heading or subheading

summarizing the point,and support each point by argument and,

if possible, by citation to authority[.]”

This image cannot currently be displayed.

HeadingsIdeally, argument headings identify the applicable legal principle,

tie that principle to facts, and compel a conclusion.

The trial court abused its discretion and violated appellant’s Fourteenth Amendment right to a fair trial by denying appellant’s mistrial motion, as one or more jurors stated during jury deliberations that a tattoo under appellant’s eye signified he had committed murder.

HeadingsOverly detailed headings are not reader-friendly.

Argument

In view of Senate Bill No. 620 (Chapter 682), which was approved by the Governor and filed with the Secretary of State on October 11, 2017, and which will become effective on the first of the year and prior to finality of appellant’s direct appeal, rehearing is appropriate in the interest of justice and in the interest of judicial economy because appellant will likely prevail on an appellate claim that remand is necessary for the trial court to exercise its discretion to strike the firearm enhancement (Pen. Code, §12022.5) for which he is serving a 10-year sentence.

HeadingsA heading should be detailed enough to be clear what the argument is.

Argument

Rehearing is appropriate to order remand for the trial court to exercise its discretion to strike the firearm enhancement.

HeadingsStrive to keep headings informative and as short as possible.

Argument

Since Senate Bill 620 will become effective before the finality of this appeal, rehearing should be granted and the case remanded for resentencing so the trial court can exercise its newly-created discretion to strike the firearm enhancement under Penal Code section 12022.5 attached to appellant’s sentence.

HeadingsSometimes complexity is unavoidable...

Under the facts of this case, the way the prosecutor charged the two shooters with a single count of attempted murder, and argued both were direct perpetrators and aiders and abettors of each other, required a sua sponte unanimity instruction; the failure to instruct on unanimity was prejudicial, requiring reversal of count 1.

Headings

Avoid hyperbole, adverbs, and adjectives.

The prosecutor’s flagrant misstatement of the law of transferred intent indisputably misled the jury...

Headings

Avoid hyperbole, adverbs, and adjectives.

The prosecutor’s flagrant misstatement of the law of transferred intent indisputably misled the jury...

Headings

Don’t order justices to do things.

This court must reverse count 1 because …

The conviction in count 1 must be reversed because …

The conviction in count 1 should be reversed because …

This court should reverse count 1 because …

Argument subheadings

The conviction should be reversed because the court erroneously admitted minimally relevant, highly prejudicial prior act evidence under Evidence Code section 1101, subdivision (b).

A. IntroductionB. Proceedings belowC. Standard of reviewD. The court erroneously admitted prior act evidence.E. The error was prejudicial.

All headings and most subheadingsshould be complete sentences.

Subheadings

Proceedings belowor

Procedural background

Over a defense objection, the court allowed the prosecutor to present prior bad act evidence.

Over a defense objection, the court allowed the prosecutor to present prior bad act evidence that appellant assaulted his grandparents on multiple occasions.

All headings and most subheadingsshould be complete sentences.

SubheadingsAll headings and most subheadings

should be complete sentences.

Standard of review

Standard of review: abuse of discretion

Standard of review: a trial court’s admission of prior bad act evidence is reviewed for abuse of discretion under the Evidence Code.

SubheadingsThe conviction should be reversed because the court erroneously admitted minimally relevant, highly prejudicial prior act evidence under Evidence Code section 1101, subdivision (b).

A. Introduction

B. Over a defense objection, the court allowed the prosecutor to presentprior bad act evidence.

C. A trial court’s admission of prior bad act evidence under Evidence Codesections 1101, subdivision (b), and 352 is reviewed for abuse of discretion.

D. By erroneously admitting prior bad act evidence that was substantially more prejudicial than probative, the court abused its discretion under the Evidence Code.

E. The erroneously admitted evidence that appellant assaulted his grandparents on multiple occasions prejudiced appellant’s case and undermined his Fourteenth Amendment right to a fair trial by turning the case into a trial of appellant's character, rather than the acts and mental states required for a murder conviction.

Argument subheadingsThe admission of Jones’s arsenal of loaded weapons and ammunition, none of which was connected to the charged offense, was prejudicial error requiring reversal of appellant's conviction.

A. The court over-ruled Jones’s relevance, improper character andEvidence Code section 352 objections to photographs and testimony about loaded weapons and ammunition found in Jones's cabin.

B. Evidence of Jones’s possession of weapons, ammunition and loaded magazines, not used in the charged offense, was irrelevant and inadmissible.

C. Any minimal relevance was substantially outweighed by the prejudicial effect of the photos.

D. Introduction of the weapon evidence prejudiced Jones, requiring reversalof his murder conviction.

Laura Schaefer

Argument subheadingsThe trial court erred by refusing defense counsel’s request to instruct that second-degree murder requires an act with a high probability of causing death.

A. The trial court rejected defense counsel’s pinpoint instruction clarifying the degreeof danger required for a second-degree murder conviction.

B. This court examines de novo whether the trial court erred by denying a legally correctand factually supported pinpoint instruction.

C. The “high probability” language proposed by defense counsel is still a valid andclear way to explain the degree of risk needed for an act to qualify for murder.

D. The requested instruction directly related to Smith’s defense that his driving while intoxicated did not have a high probability of causing death.

E. The “high probability” instruction would have aided the jury in assessing theimplied-malice standard.

F. The refusal to give the requested instruction was prejudicial because it hamperedSmith’s persuasive argument that his driving did not create a high probability of death.

Paul Katz

Charts and Diagrams: Element Comparison

Special-over-general element comparison test:

Charts and Diagrams: Element Comparison

Four ways VC 10851 can be violated:

*Reed Webb

Attachments: Out-of-State Authority

*Kendall Wasley

Attachments: Legislative History – Significant Excerpts

Attachments: Former version of statute

Attachments: Flowchart

Complicated Statute:

ApprendiIssue:

Attachments: Fair Market Value Calculation

*Randall Connor

Counsel had obtained all data necessary to prepare a basis for a reliable estimate of fair market value, but, she failed to prepare it.

*Randall Connor

When proper representation of a client requires a simple mathematical calculation, a lawyer must perform the calculation or risk a finding of incompetence.

*Randall Connor

When proper representation of a client requires a simple mathematical calculation, a lawyer must perform the calculation or risk a finding of incompetence.

*Randall Connor

The concept of present value, i.e., the time value of money,is just not that hard.

*Randall Connor

“The concept of present value, i.e., the time value of money,is just not that hard.”

-- People v. Pangan (2013) 213 Cal.App.4th 574, 583-584.

*Randall Connor

2011 Replacement Cost, Linear Depreciation

*Randall Connor

$1207.56 v.

$ 821.51

*Randall Connor

< $950.00

Coming Soon!

“Proposed Order”

DISPOSITION

The judgments are reversed insofar as Lopez's and Sandor's first degree premeditated murder convictions are concerned, and the matter is remanded with directions. The People may accept a reduction of the convictions to second degree murder or choose to retry them on the greater offense as direct aiders and abettors. If the People accept a reduction, the trial court shall enter judgments against Lara and Salazar for second degree murder and sentence them accordingly.

We direct the clerk to modify Lara's and Salazar's sentences to reflect terms of life with the possibility of parole for counts 3, 4 and 5, to amend the abstracts of judgments accordingly, and to forward copies of the amended abstracts of judgments to the Department of Corrections. In all other respects, the judgments are affirmed.

Complicated

DISPOSITION

The judgments are reversed insofar as Lopez's and Sandor's first degree premeditated murder convictions are concerned, and the matter is remanded with directions. The People may accept a reduction of the convictions to second degree murder or choose to retry them on the greater offense as direct aiders and abettors. If the People accept a reduction, the trial court shall enter judgments against Lara and Salazar for second degree murder and sentence them accordingly.

We direct the clerk to modify Lara's and Salazar's sentences to reflect terms of life with the possibility of parole for counts 3, 4 and 5, to amend the abstracts of judgments accordingly, and to forward copies of the amended abstracts of judgments to the Department of Corrections. In all other respects, the judgments are affirmed.

Complicated

*Ava Stralla

“Don’t Forget”

Samson’sSamson’s

Samson

Special Occasion“Final Pitch”

Key Facts

*John Edwards

Equity Due Process

Special Occasion“Final Pitch”

ArtMartin Helen

art martin helen irzaadi-sandiego.com/pdf_forms/mcle 12-03-2019 cacj appellate brief … ·...

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