Metropolitan News-Enterprise


Monday, August 9, 2004


Page 1


Fifth District Court of Appeal Adopts Rule Limiting Attorney Payment for Briefing Sentencing Issues


By DAVID WATSON, Staff Writer


The Fifth District Court of Appeal has issued an order limiting payment to appointed appellate lawyers for briefing issues raised by the U.S. Supreme Court’s decision June 24 in Blakely v. Washington, 124 S.Ct. 2531.

The order, issued Aug. 2, differs from orders issued by the Third District and at least one division of this district in that it apparently seeks to cut off potentially repetitive briefing of Blakely issues. The Third District and Second District actions merely granted automatic permission for supplemental briefing.

Neither Fifth District Justice Nickolas J. Dibiaso, who signed the order as acting presiding justice, nor Presiding Justice James A. Ardaiz could not be reached for comment Friday, but the court’s Standing Order No. 04-1 states that as of Aug. 3 the court “will no longer compensate appointed counsel for research or briefing” on the effect of Blakely, which ruled a Washington state sentencing scheme unconstitutional.

That scheme, which allowed judges to make factual findings resulting in longer sentences, is similar in some ways to California’s. The high court ruled such findings can only be made by juries.

Lawyers who want to preserve Blakely issues are directed by the order to “file a letter stating with precision” the issue or issues. The appeals court will then “deem such issue[s] raised, thereby preserving the appellant’s ability to seek review of the issue[s] in the California Supreme Court.”

Prosecutors need not respond to the letters, the order explains, adding that the appellate court “may request further briefing in any case and will reevaluate this order after the California Supreme Court rules” in two cases it has already accepted for review. Those cases are People v. Towne, S125677, and People v. Black, S126182.

Four of this district’s eight presiding justices said Friday they did not anticipate issuing orders similar to the Fifth District’s. The other four could not be reached for comment.

Presiding Justice Roger Boren of Div. Two, who is also the court’s administrative presiding justice, said he has issued an order allowing lawyers with pending cases who believe the cases involve Blakely issues to file supplemental briefs without first obtaining permission. A similar order was issued July 23 by Third District Presiding Justice Arthur G. Scotland.

Boren said he distributed his order to the district’s other presiding justices and believed “several” of them had followed his example, including Presiding Justice Vaino Spencer of Div. One.

Spencer was not available late Friday, but three other presiding justices said they had not yet issued any orders and were not sure any were necessary.

Presiding Justice Paul Turner of Div. Five said supplemental briefs filed in his division are usually accompanied by a letter requesting that their filing be permitted, adding that he rarely denies permission. Acting Presiding Justice Norman Epstein of Div. Four said that division has established a “practice” of permitting supplemental briefing in light of Blakely, but has not found a “formal order” necessary.

Epstein said his division has invited supplemental briefing in a number of cases involving imposition of an aggravated sentence, including cases in which appellate attorneys had already filed “Wende” briefs indicating they could not identify any substantial appellate issue.

Epstein said he understood the Fifth District’s desire to avoid “having each attorney reinvent the wheel,” but suggested that a “standard argument” will probably be developed by the lawyers who specialize in appointed criminal appeals and incorporated into a number of briefs. He also predicted that the state high court will “act with as much dispatch as the circumstances permit” in deciding Towne and Black.

Should that not occur, Epstein said, the California Judicial Council and its Criminal Law Advisory Committee might interpose suggestions for handling the case management issues involved.

Div. Seven Presiding Justice Dennis M. Perluss said his division has granted all the requests for supplemental briefing that have been made, but added that he was “not sure very many cases” currently in the pipeline are affected by the Blakely ruling.

If the Fifth District’s order means that court will not deal substantively with Blakely issues until Towne and Black are decided, Perluss said, that approach has some disadvantages.

“I understand the concern about not having unnecessary work done,” even apart from the issue of paying lawyers to do it, Perluss commented. But he pointed out that the numerous sentencing provisions which could be affected by Blakely present a “whole variety of different fact patterns.”

He added:

“It’s not apparent to me that a one-size-fits-all brief covers everything.”

Permitting various lawyers to develop various approaches may permit a “more nuanced approach to deciding the cases,” Perluss suggested.

He noted that his division heard arguments on Friday in a case involving Blakely issues, and does not have the luxury of waiting for the state Supreme Court to act before ruling.

“We have 90 days to decide that case,” he observed.

While Perluss conceded that the rulings in Towne and Black are likely to require yet more supplemental briefing in pending cases raising Blakely issues, he noted that the U.S. Supreme Court has also agreed to decide two cases addressing the impact of Blakely on the federal sentencing scheme.

It is difficult to predict how soon those rulings may come or how they will affect whatever action the state high court takes in the meantime, Perluss said.

“I don’t feel it would appropriate for us to say we are not going to decide the cases before us,” he added.


Copyright 2004, Metropolitan News Company